Bentt v. District of Columbia Department of Employment Services

KRAMER, Associate Judge,

dissenting.

The majority opinion is problematic in several ways: it (1) disregards our conclusion in Georgetown Univ. v. District of Columbia Dep’t of Employment Servs., 830 A.2d 865 (D.C.2003) (“Bentt I ”); (2) improperly concludes that Bentt suffered only a “personal” injury; and (3) fails to give the appropriate deference to the agency’s decision. The Board’s decision that Bentt’s injury arose out of and in the course of employment is in accordance with law and supported by substantial evidence in the record. It should therefore be affirmed.

In Bentt I, supra, we noted that

[t]he record offers strong support for the hospital’s position that Dr. Bentt’s supervisor, Dr. Buzzanell, administered the injections to her in order to lessen her discomfort at work and to enable her to be pain free, both as she performed her work and otherwise, and that the administration of the injections arose out of Dr. Bentt’s employment and in the course of her work.

830 A.2d at 871. We added that

In this case, the offer of Dr. Buzzanell to give Dr. Bentt the injections arose directly from Dr. Bentt’s limping and obvious discomfort as she performed her work. We are reluctant, however, to rule conclusively that the injections and the resulting aggravation or complication of Dr. Bentt’s original ankle injury arose out of and in the course of her employment.... Although the existing record could itself sewe as an adequate basis for that conclusion, we think it is the better course to return the case to the agency so that a hearing examiner may address the causal significance of the injections — something he did not do originally — and make appropriate findings of fact and conclusions of law.

Id. at 872 (emphasis added).

The conclusion of the majority, that Bentt’s injury was personal to her and did not arise out of and in the course of her employment, is markedly inconsistent with Bentt I, which is binding on us. While Bentt I did not dictate the conclusion that Bentt’s injury arose out of and in the *1237course of employment, it recognized that the record at that time suggested that conclusion. It did not so rule conclusively because the court did not have before it the complete depositions of Dr. Buzzanell and Bentt, but its language clearly indicated that unless some new and unexpected evidence emerged on remand, the Workers’ Compensation Act covered Bentt’s injections and resulting injury. No such evidence emerged. After the ALJ and the Board addressed the causal significance of the injections and made appropriate findings of fact and conclusions of law, as we ordered them to do, both the ALJ and the Board concluded that Bentt’s injury did arise out of and in the course of employment. To now hold that the Board was erroneous in reaching this conclusion sends a confusing and contradictory message.

“This court’s review of decisions of administrative agencies is limited to determining whether the order is in accordance with law and supported by substantial evidence in the record.” Bentt I, supra, 830 A.2d at 869-70 (citations and internal quotation marks omitted). In workers’ compensation cases, we review the Board’s decision rather than the ALJ’s decision. Georgetown Univ. Hosp. v. District of Columbia Dep’t of Employment Servs., 916 A.2d 149, 151 (D.C.2007). “In doing so, however, we cannot ignore the compensation order which is the subject of the Board’s review.” Id. The majority errs in basing its decision in part on the ALJ’s first Compensation Order on Remand, issued February 18, 2005, which was reversed by the Board on May 6, 2005. The decision that we are reviewing is the January 24, 2008 Board decision, which affirmed the ALJ’s second Compensation Order on Remand, issued on November 21, 2007. We are not reviewing the ALJ’s first Compensation Order on Remand or the May 6, 2005 Board decision. The only question before this court is whether the Board’s January 24, 2008 decision is in accordance with law and supported by substantial evidence in the record. The findings of fact underlying the Board’s opinion are binding on us unless they are not supported by substantial evidence. And there is no showing that this is not the case here.

We recently clarified that the positional-risk standard is applied only “[i]n cases where an employee’s injury arises neither out of a risk directly associated with employment nor out of a risk personal to the employee....” Georgetown Univ. v. District of Columbia Dep’t of Employment Servs., 971 A.2d 909, 916 (D.C.2009) (“Ford”). At the time it rendered the decision below, the Board did not have the benefit of Ford, so it understandably did not use the exact language used in that case. Nonetheless, the Board determined that application of the positional-risk standard was appropriate, and we must affirm that decision so long as it is in accordance with the law.

The majority concludes that Bentt’s injuries arose out of circumstances personal to her, but this conclusion is erroneous. In Dr. Buzzanell’s deposition, he testified that “[wjhen [Bentt] was having problems with acute tendinitis, we saw her having difficulty walking on rounds.” (emphasis added). He also testified that “when she was limping on rounds and volunteering information about how this was bothering her ... I said in passing one could get a pain relief infiltration block of the tendon, and I volunteered my services.”

Where Bentt’s supervisor offered her injections after he saw her limping on the job and gave her the injections at their workplace during her work hours, it does not follow that the injury resulted solely from a risk personal to Bentt. At a mini*1238mum, these facts support a finding that Bentt’s injury arose out of a risk neither directly associated with her employment nor personal to her. Some evidence suggesting that an injury may have been personal in its origin is not sufficient to support that a later workplace injury was in fact merely personal. See Clark v. District of Columbia Dep’t of Employment Servs., 743 A.2d 722, 729-30 (D.C.2000) (although there was a strong inference that Clark’s assailant had some sort of prior knowledge about and animus toward her, “this evidence was not ‘specific and comprehensive’ enough to remove doubts and rebut the presumption of coverage, for the precise reason that the motive behind the assault remains unknown and speculative”). Thus the Board’s decision to apply the positional-risk standard was in accordance with law and supported by substantial evidence.

I must take issue with the majority opinion’s position that in reviewing the ALJ’s first compensation order on remand the Board impermissibly substituted its judgment for that of the ALJ. The Board disagreed with the ALJ’s conclusion of law that Bentt’s injury did not arise out of and in the course of her employment. The ALJ found as facts that Bentt returned to work two days after injuring her foot at a banquet, that she continued to experience pain throughout the workday, that her colleagues noticed her limping and in pain, and that her supervisor, Dr. Buzzanell, noticed this and offered to treat her. The ALJ noted that Bentt was required by her job to walk rounds for approximately two hours a day, and that her limping prompted Buzzanell to offer her the nerve block.

Under the positional-risk standard, “[a]n injury arises out of the employment if it would not have occurred but for the fact that conditions and obligations of the employment placed claimant in a position where he was injured.” Grayson v. District of Columbia Dep’t of Employment Servs., 516 A.2d 909, 911 (D.C.1986) (quoting 1 LaRSOn, The Law of Workmen’s Compensation § 6.50 (1984)). The positional-risk standard “obviates any requirement of employer fault or of a causal relationship between the nature of the employment and the risk of injury. Nor need the employee be engaged at the time of the injury in activity of benefit to the employer.” Clark, supra, 743 A.2d at 727 (citations omitted). As the ALJ found, and the Board affirmed, “the offer of Dr. Buzzanell to give Claimant the injections arose directly from her limping and obvious discomfort as she performed her work.” Accordingly, Bentt’s injury would not have occurred but for the fact that conditions and obligations of employment placed her in a position where she received the injection that injured her. Thus, her injury arose out of her employment.1

Bentt testified that the injections occurred at her work place during her work *1239day. Although Bentt was not required to receive the injections as a condition of her employment, she was repeatedly offered the injections by her supervisor after he noticed that she was limping on the job. Had the injections effectively eliminated Bentt’s pain, they would have enabled her to perform her job more efficiently and comfortably, since she would not have been limping or in pain. Dr. Buzzanell’s unchallenged testimony that he offered the injections because the claimant was having difficulty making her rounds, i.e., doing her job, contradicts the majority’s statement that the Board engaged in unsupported speculation in concluding that the injections were given with the goal of helping Bentt perform her job. On these facts, the Board’s decision that Bentt’s injuries arose “in the course of employment” was supported by substantial evidence and in accordance with the law. Given Bentt I and the deference that we are required to give agency decisions, the Board’s decision that Bentt’s injury arose out of and in the course of employment should be affirmed.

. The injections Bentt received were more closely related to her employment duties than the injuries suffered by the plaintiff in Clark, supra, 743 A.2d 722, who was assaulted and shot in the parking lot of her employer. The facts there were that Janet Clark, a dialysis technician, was working when she received a call from a co-worker who told her that a man in the office parking lot was asking for "the lady that drives the red car,” which the co-worker knew to belong to Clark. Id. at 725. Although Clark did not recognize the man or the name he gave, she walked into the parking lot to speak with him, and was subsequently assaulted. Id. There was no indication that the assault was in any way related to Clark’s employment. Nonetheless, this court held that "the claimant’s injury arose out of [her] employment, because the terms and conditions of [her] employment placed the claimant in the position wherein [she] was assaulted by the assailant and sustained the injuries from which [she] suffered.” Id. at 730 (citation omitted).

Here, the injections that caused injury were administered because Bentt's supervisor ob*1239served that — as he testified — he "saw her having difficulty walking on rounds,” i.e., doing her job.