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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-AA-667
09/13/2018
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, PETITIONER,
V.
DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
KIMBERLY TOMLIN, INTERVENOR.
On Petition for Review of an Order of the
District of Columbia Department of Employment Services
(CRB-27-17)
(Argued June 6, 2018 Decided September 13, 2018)
Irina M. Majumdar, Assistant Attorney General, for appellee. Karl A. Racine,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time
the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was
filed, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for
petitioner.
Tonya A. Robinson, General Counsel for the District of Columbia Department of
Employment Services, filed a statement in lieu of brief in support of the respondent.
Krista N. DeSmyter, with whom Kevin H. Stillman was on the brief, for intervenor.
Before THOMPSON and MCLEESE, Associate Judges, and FARRELL, Senior Judge.
THOMPSON, Associate Judge: Petitioner District of Columbia Public Schools
(“DCPS”) seeks review of a Compensation Review Board (the “CRB” or the “Board”)
decision affirming a February 17, 2017, compensation order (the “Compensation Order”)
2
that reinstated intervenor Kimberly Tomlin’s temporary total disability (TTD) wage loss
benefits and medical benefits related to a concussion Ms. Tomlin sustained in 2008.
DCPS argues that the CRB erred in holding that DCPS’s submission of medical evidence
showing that Ms. Tomlin’s concussion had resolved years before the hearing did not
satisfy DCPS’s initial burden of production because that evidence was not “current.” For
the reasons stated herein, we remand for clarification and reconsideration in light of this
opinion.
I.
The record discloses that on September 4, 2008, Ms. Tomlin fell and struck her
head on a concrete floor while working for DCPS as a dedicated aide for a student with
special needs. That same month, Ms. Tomlin came under the care of neurologist Dr.
Michael E. Batipps. Dr. Batipps diagnosed Ms. Tomlin with, inter alia, post-traumatic
cervical, right shoulder, thoracic, lumbosacral, hip, and knee strain as well as a “head
injury with mild concussion due to [fall at work]” and “[p]ost concussion syndrome.”
The Office of Risk Management (ORM) accepted Ms. Tomlin’s claim for TTD and
medical benefits based on a “concussion with strains and bruising of the cervical/lumbar
spine” and related injuries.
On December 29, 2008, at Dr. Batipps’s request, Ms. Tomlin underwent an MRI
scan on her brain, which returned normal results. Five months later, Dr. Batipps saw Ms.
3
Tomlin again, noted the results of her brain scan, and reported that she “no longer has
dizziness and other postconcussion symptoms.” Dr. Batipps opined in his May 6, 2009,
report of that visit that “[t]he symptoms of postconcussion syndrome . . . have now
resolved.” Dr. Batipps observed that Ms. Tomlin “continue[d] to have frequent
headaches,” but opined that the headaches “stemmed from occipital cervical pains” and
were “a direct result of the [cervical injury and] cervical strain and disc herniation
triggering posterior headaches and occipital tenderness.” Although Dr. Batipps
concluded in May 2009 that Ms. Tomlin had recovered from her concussion, he opined in
a number of reports issued in 2010 that she continued to be totally disabled due to
cervical, lumbosacral, and right shoulder pain.
On May 6, 2014, Ms. Tomlin reported to Dr. Louis Levitt for an independent
medical examination. Dr. Levitt concluded that Ms. Tomlin was at “maximum medical
improvement” and that she was malingering, as there was “no evidence of [any] objective
measure of pathology that would warrant care.” Based on Dr. Levitt’s opinion, ORM
terminated Ms. Tomlin’s TTD and medical benefits, effective August 7, 2014.
Ms. Tomlin appealed the termination, and on November 25, 2014, an evidentiary
hearing took place before a Department of Employment Services (DOES) Administrative
Law Judge (ALJ). After the hearing, the ALJ determined that he lacked subject-matter
jurisdiction over the claim. The CRB reversed that ruling and remanded the matter to the
ALJ “to determine if [Ms. Tomlin] remains unable to return to work due to the injuries to
4
her cervical and lumbar spine and the concussion she sustained on September 4, 2008,
consistent with the prevailing case law in Mahoney v. [District of Columbia] Public
Schools, CRB No. 14-067 (November 12, 2014).”1 The remand hearing was held on
November 8, 2016.2
On February 17, 2017, the ALJ issued the Compensation Order, denying
Ms. Tomlin’s claim for reinstatement of TTD and medical benefits related to her lumbar
1
In Mahoney, the CRB articulated a burden-shifting standard to be applied
in cases where a beneficiary challenges the modification or termination of his or
her disability benefits:
The employer first has the burden of producing current
and probative evidence that [the] claimant’s condition
has sufficiently changed to warrant a modification or
termination of benefits. If the employer fails to present
this evidence[,] then the claim fails[,] and the injured
worker’s benefits continue unmodified or terminated.
If the employer meets its initial burden, then the
cla[i]mant has the burden of producing reliable and
relevant evidence that conditions have not changed to
warrant a modification or termination of benefits. If this
burden is met, then the evidence is weighed to determine
whether [the] employer met its burden of proving by a
preponderance of the evidence that [the] claimant’s
benefits should be modified or terminated.
Mahoney, CRB No. 14-067, at 7. This court has acknowledged that “the Mahoney
framework is a proper interpretation of” the worker’s compensation statutory
scheme. See Ross v. District of Columbia Dep’t of Emp’t Servs., 125 A.3d 698,
701–03 (D.C. 2015).
2
DCPS has filed a motion to supplement the record with a transcript of this
hearing. That motion is hereby granted.
5
and cervical condition, but granting her request for reinstatement of benefits based on her
concussion. As to Ms. Tomlin’s claimed lumbar and cervical condition, the ALJ
accepted the opinion of Dr. Levitt that Ms. Tomlin was feigning illness, and that she had
no “active musculoskeletal process that requires care,” no “disc herniation to the cervical
or lumbar spine” or “disuse changes or neurologic deficits to [her] upper or lower
extremities,” and was “capable of returning to work.” As to Ms. Tomlin’s claim based on
her 2008 concussion, the ALJ noted that “Dr. Levitt made no causal relationship finding
regarding the condition of concussion” and reasoned that DCPS “ha[d] not met its
burden” under Mahoney of producing evidence showing a sufficient change in Ms.
Tomlin’s “condition of concussion” to warrant the termination of benefits.
Consequently, the ALJ determined that DCPS “improperly terminated benefits for [Ms.
Tomlin’s] accepted condition of concussion.”
DCPS appealed the Compensation Order to the CRB, arguing that the ALJ’s
determination that DCPS failed to meet its burden of production under Mahoney was
“error[,] as the ALJ ignored medical evidence which shows [Ms. Tomlin’s] concussion
had resolved less than one year after her workplace incident.” In resolving the appeal,
the CRB wrote as follows:
As Mahoney states, it is the [e]mployer’s burden to first
produce reliable, probative and current evidence of a change
prior to the date benefits were modified or terminated. None
of the evidence presented by [DCPS] regarding the
concussion meets this standard. Notably, [DCPS’s] evidence
relating to [Ms. Tomlin’s] concussion, the medical opinions
6
of Dr. Richard Restak [from June 2009] and Dr. Daniel Glor
[from May 2009,] were over 5 years old at the time of the
Formal Hearing. Thus, it cannot be said that the medical
evidence pointed out by [DCPS] was current.
The CRB also observed that “Dr. Levitt does not appear to mention concussions at all,”
which was “in contrast to his detailed examinations and conclusions regarding
[Ms. Tomlin’s] cervical and lumbar condition.” The CRB found from its review that “at
no time did [Dr. Levitt] render an opinion regarding [Ms. Tomlin’s] concussion
symptoms.” For these reasons, the CRB upheld the ALJ’s determination that DCPS had
not carried its burden of production and affirmed the Compensation Order.
Ms. Tomlin has not sought review of the CRB’s decision upholding the
termination of benefits based on injuries to her spine and extremities. DCPS petitioned
for review of the decision upholding the reinstatement of benefits relating to the
concussion. DCPS asserts that the CRB’s interpretation of the word “current” as used in
Mahoney was “contrary not only to common sense but also to” the statutory definition of
a “change of condition.” DCPS further contends that “Dr. Batipps’s [May] 2009 medical
report[] that the concussion and concussion syndrome had resolved at that
time” “remained ‘current’ [evidence] because it spoke to the state of affairs from 2009
forward, including at the time of the hearing in 2014.”
7
II.
“We review a decision of the CRB to determine whether the decision was
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Straughn v. District of Columbia Dep’t of Emp’t Servs., 176 A.3d 125, 127 (D.C. 2017)
(internal quotation marks omitted). “[W]e review the decision of the Board,” but in
doing so, “we cannot ignore the compensation order which is the subject of the Board’s
review.” WMATA v. District of Columbia Dep’t of Emp’t Servs., 926 A.2d 140, 147
(D.C. 2007). Although general principles of administrative law require us to “accord
deference to [the CRB’s] reasonable interpretation of its own precedents,” see Glob.
Crossing Telecomms., Inc. v. FCC, 259 F.3d 740, 746 (D.C. Cir. 2001), our review of the
agency’s legal conclusions is de novo. Jones v. District of Columbia Dep’t of Emp’t
Servs., 158 A.3d 906, 909 (D.C. 2017).
III.
Under the public sector workers’ compensation scheme, the government may
modify or terminate an award of compensation if the government “has reason to believe a
change of condition has occurred.” D.C. Code § 1-623.24 (d)(1) (2012 Repl.). A change
of condition exists if, for example, “[t]he disability for which compensation was paid has
ceased or lessened.” Id. § 1-623.24 (d)(4)(A).
8
We agree with DCPS that Dr. Batipps’s May 2009 opinion that Ms. Tomlin’s
concussion and concussion syndrome had resolved as of that time was evidence that the
concussion-related disability for which compensation was paid had ceased or lessened by
the time DCPS terminated Ms. Tomlin’s worker’s compensation benefits in 2014. In
addition, although Ms. Tomlin’s counsel asserted in her opening statement at the
November 2014 hearing that Ms. Tomlin “still suffers from the headaches and
concentration problems from the concussion” and that Ms. Tomlin continued to take the
medication Gabapentin “because of the ongoing post-concussive type of syndrome or
symptoms,” no evidence of current concussion symptoms was presented during either
hearing. Ms. Tomlin did not testify about difficulty concentrating, and while she testified
that she still experienced headaches in the back of her head, she explained that she had
been told by her doctors that her headaches were coming from “a pinched nerve” in her
neck. She also explained that Dr. Batipps had prescribed Gabapentin to help with the
nerve damage and headaches related to “whatever is going on in the back of [her] spine.”
Thus, her understanding of the source of her claimed symptoms was as Dr. Batipps
described in 2009: that the headaches were “a direct result of cervical strain and disc
herniation.” She did not claim that the headaches were a continuing concussive
symptom.
In sum, while substantial evidence supports the CRB’s conclusion that Dr. Levitt
did not address whether Ms. Tomlin’s concussive symptoms had resolved, there is ample
9
other record support for DCPS’s position that Ms. Tomlin had a change of condition not
only with respect to her spinal and extremities conditions, as the ALJ found, but also as to
her concussive condition. Indeed, we agree with DCPS that Ms. Tomlin “submitted no
evidence of any kind” to “show that she remained disabled as a result of her 2008
concussion” and no evidence showing that her concussion had not, in fact, ceased or
lessened.3
We also agree with DCPS that it is unreasonable and contrary to this court’s case
law to construe the term “current” as used in Mahoney to require DOES to ignore a
medical opinion that a condition has resolved solely because the opinion is years old by
the time of a hearing on whether there has been a change in condition. While there is
some overlap between the concepts of “currentness” and “recentness,” the two concepts
3
Quite the contrary, a DCPS filing in the record indicates that Ms. Tomlin
proffered as one of her exhibits (Claimant’s Exhibit 7) an April 15, 2016, medical
report by Dr. Ronjeet Reddy, who stated that Ms. Tomlin was “[n]egative for
headaches, numbness/tingling, paresthesias, weakness, confusion, dizziness,
fainting, memory loss, seizures, speech disorder, tremor or vertigo.” (It appears,
however, that Dr. Reddy’s report, admission of which the ALJ took under
advisement, was never actually admitted into evidence.) We also note that Ms.
Tomlin’s counsel, in response to the ALJ’s questions at the November 8, 2016,
hearing, “[W]hat’s wrong with [Ms. Tomlin]? What can I find that keeps her from
working specifically?”, answered only that “the injury to her neck has not
resolved”; that she “suffers from spinal stenosis of the cervical spine” and from
stenosis, radiculopathy, and disc degeneration of the lumbar spine; and that she has
osteoarthritis of the knee.
10
are not one and the same. 4 Compare Current with Recent, Merriam Webster’s Collegiate
Dictionary (11th ed. 2003) (defining “current” as “presently elapsing,” “occurring in or
existing at the present time,” or “most recent,” among other things; and “recent” as
“having lately come into existence,” or “of or relating to a time not long past.”). Indeed,
there are many circumstances that are “current” inasmuch as they pertain to the present
time, but are not at all “recent” (e.g., Washington, D.C. is the current capital of the
United States, as it has been since 1790).
Although “a patient’s condition may change over the years,” Changkit v. District
of Columbia Dep’t of Emp’t Servs., 994 A.2d 380, 388 (D.C. 2010), a medical report that
can reasonably be read to pertain to a claimant’s condition as it exists at the time of a
hearing (and thus is “current” in that sense), that has not obviously been superseded by a
later report, and that the employer relies on to meet its burden of production in a
proceeding governed by Mahoney, should not be disregarded solely because of its date.5
4
See Comm’r of Internal Revenue v. Keller, 59 F.2d 499, 501
(7th Cir. 1932) (“The word ‘current,’ when used as an adjective, has many and
diverse meanings . . . .”).
5
Thus, we agree with DCPS that “[e]vidence that an injury resolved long
before the hearing is [at least on its face] evidence that the injury remains resolved
at the time of the hearing.” We also note that nothing in the public sector workers’
compensation statute requires the government to act to terminate benefits within a
time certain or at the earliest possible time after receiving notice of a reason to
believe that a “disability for which compensation was paid has ceased or lessened.”
D.C. Code § 1-623.24 (d)(4)(A).
11
Our case law does not permit an interpretation that evidence must be recently obtained to
be deemed material and probative. As we explained in Changkit:
If the ALJ intended . . . to suggest that the views of the two
initial treating physicians were so stale as to be irrelevant and
unworthy of any consideration . . . then that suggestion is
surely unreasonable. At the very least, in this kind of case,
“the past is prologue,” and it sheds much needed light upon
the contested present. It is difficult to understand how a
physician (or a trier of fact) could determine whether the
patient’s condition has improved sufficiently to warrant
termination of benefits without a thorough examination and
understanding of the nature of the patient’s injuries and of his
or her condition at the time they were incurred or soon
thereafter.
994 A.2d at 388–89.6
The foregoing does not, however, lead us to conclude that an outright reversal of
the CRB’s decision is warranted. The reason pertains to which exhibits DCPS was
entitled to rely on to meet its burden of production under Mahoney.
The record shows that DCPS did not offer Dr. Batipps’s May 2009 reevaluation
(opining that Ms. Tomlin’s postconcussion syndrome symptoms had resolved) into
6
We also note that, during the November 2014 hearing, Ms. Tomlin’s
counsel argued forcefully that Dr. Batipps’s May 2009 report was “very necessary”
to admit. Counsel did so in response to the ALJ’s remark that “the neurologic
report of Dr. Batipps goes all the way back to May 2009. Why would I need that if
[Ms. Tomlin was] terminated in 2014?”
12
evidence in connection with the initial hearing in November 2014, and DCPS also did not
assert that its November 2014 hearing exhibits included any exhibits submitted by Ms.
Tomlin. DCPS offered, and the ALJ admitted, medical reports from only Drs. Levitt,
Collins, Restak, and Glor. In addition, during the 2014 hearing, DCPS did not argue that
Dr. Batipps’s opinion evinced a change of Ms. Tomlin’s concussion condition.
In connection with the November 8, 2016, hearing, DCPS did list the
“Neurological reevaluation by Dr. Batipps from May, 2009” among its proffered exhibits.
However, the ALJ took under advisement whether to admit Dr. Batipps’s May 2009
“reevaluation” into evidence, and we see no indication in the record that the reevaluation
was ever admitted as an employer’s exhibit. It appears, though (as DCPS pointed out in
its appeal to the CRB), that Dr. Batipps’s May 2009 reevaluation was admitted as one of
Ms. Tomlin’s exhibits — specifically, as Claimant’s Exhibit 2. One question we face,
therefore, is whether DCPS could meet its burden of production with respect to a change
in Ms. Tomlin’s concussion condition by reliance on a medical report included among
claimant Tomlin’s exhibits, when the ALJ (apparently) declined to admit the report as an
employer exhibit. We are not aware of either this court or the CRB having previously
addressed the issue.7 But we suspect that the ALJ and the CRB assumed or tacitly
7
But cf. Hutton v. Fidelity Nat’l Title Co., 152 Cal. Rptr. 3d 584, 593 n.10
(Cal. Ct. App. 2013) (“[I]n determining whether the defendant’s burden of
production was met, the court may consider evidence supplied by the plaintiff’s
opposition that filled a gap in the defendant’s showing”).
13
applied a policy that an employer must meet its Mahoney burden of production with its
own admitted exhibits (notwithstanding the fact that the ALJ typically receives all the
evidence before analyzing whether the burden of production has been met). We have this
suspicion because (1) neither the Compensation Order nor the CRB’s decision mentions
Dr. Batipps’s May 2009 opinion regarding the resolution of Ms. Tomlin’s concussive
symptoms,8 and (2) the CRB decision mentions the reports by Drs. Restak and Glor,
which were submitted into evidence by DCPS, in its discussion of reports that were not
“current.”9
We conclude that a remand is necessary for the CRB and the ALJ to (1) clarify
their reasoning with respect to the non-discussion of Dr. Batipps’s May 2009
reevaluation; and, if it is determined that no procedural basis exists for disregarding Dr.
Batipps’s May 2009 reevaluation, to (2) reconsider in light of this opinion whether DCPS
met its burden of production as to a change in Ms. Tomlin’s concussion condition and
whether Ms. Tomlin was entitled to reinstatement of her wage loss and medical benefits.
8
This is despite DCPS’s repeated argument to the CRB that “Dr. Batipps
definitively concluded after reviewing the results of [Ms. Tomlin’s] brain MRI that
her concussion and postconcussion syndrome had ‘now resolved.’”
9
Parenthetically, it is not clear to us why the CRB mentioned Drs. Restak
and Glor in its discussion of whether there was current medical evidence regarding
Ms. Tomlin’s concussion condition. Dr. Glor’s reports do not mention the
concussion at all. Dr. Restak’s June 24, 2009, report “note[s] from [Ms. Tomlin’s]
neurologist’s report of 05/06/2009 that it was his impression that the symptoms of
post-concussion syndrome had totally resolved,” but Dr. Restak himself did not
opine about the concussion condition.
14
If either party is aggrieved by the CRB’s decision(s) on remand, the aggrieved party may
seek further review by this court.
So ordered.