FERREN, Senior Judge:
In this workers compensation case, the employer-petitioner appeals a Decision and Order of the Compensation Review Board (CRB) granting benefits for total temporary disability to an employee injured on the job. The case concerns an employee on light duty work restrictions who unsuccessfully claimed compensation after his employer went out of business, but who was awarded compensation-the issue on appeal here-after being fired by his next employer. For the reasons set forth below we affirm.
I. Factual Summary
This case concerns a 2015 injury suffered by the employee-intervenor, Michael Green, while he was working as a sprinkler fitter for the petitioner, Metropolitan Fire Protection Services (Metro Fire). Before Greens employment at Metro Fire, he had suffered a workplace injury in Maryland on December 7, 2005, when he fell off a roof. After the 2005 injury, Green underwent three neck surgeries and was found to be capable of working only at a medium physical demand level. Greens claimed compensation for this injury was resolved by the Maryland Workers Compensation Commission on December 12, 2013, after shepherding a $100,000 settlement.
Over a year later, on March 6, 2015, more than nine years after his 2005 injury, Green was working for Metro Fire with light duty restrictions when he slipped and fell, injuring his back, neck, and elbow. After receiving treatment, Green was cleared for return to his usual duties at Metro Fire, which continued to accommodate his light duty restrictions. When Metro Fire closed upon the owners retirement in early April 2015, Green began collecting unemployment benefits. After leaving Metro Fire he was still able to work with light restrictions, but he remained unemployed while searching for another union job. On May 18, 2015, Green began working for SS & C, again within his work restrictions. On June 27, 2015, SS & C terminated Greens employment. He was out of work until October 19, 2015, when he was employed by National Fire Protection.
On March 4, 2015, two days before his injury at Metro Fire, Green had seen Dr. Carey-Walter Closson, a pain management specialist at Concentra Medical Center, who had addressed Greens chronic back pain following the 2005 Maryland accident. Dr. Closson diagnosed Greens low back condition and prescribed physical therapy and a surgical consult, among other medical options. After his March 6 injury, Green continued to work with light duty restrictions under the care of Concentra until August 6, 2015, when Dr. Benjamin Stein, an orthopedist with Concentra, recommended a Functional Capacity Evaluation, as well as an evaluation by either a neurosurgeon or an orthopedic specialist, because Green was experiencing persistent left sided radiculopathy. Dr. Stein also prescribed light duty restrictions, precluding Green from lifting over 20 pounds, pushing or pulling objects more than 30 pounds, [or] standing for more than one hour at a time.
On October 2, 2015, Green began seeing Dr. Joel Fechter, an orthopedic surgeon, complaining of pain in his neck, left arm, back, and legs. Dr. Fechter reviewed Concentras records, noting Greens 2005 injury and his three subsequent surgeries. He also noted that Greens residual complaints from his 2005 accident had worsened since his March 6, 2015 accident. Dr. Fechter then diagnosed Green as having cervical and lumbosacral spine strain injuries secondary to his fall at work on March 6, 2015. Dr. Fechter gave [Green] a light duty work release with no lifting over 10 pounds. He also recommended a neurosurgical consultation with a Dr. Ammerman.
Four days later on October 6, 2015, at Metro Fires request for an independent medical evaluation (IME), Green was examined by an orthopedic surgeon, Dr. Stuart Gordon, who examined Green and his extensive medical records. In substantial disagreement with Dr. Fechter, Dr. Gordon concluded that Green had suffered cervical and lumbar strains on March 6, 2015; [Greens] present complaints and medical treatment were unrelated to his work accident; and, [Green] could resume working within his pre-existing restrictions of bending, kneeling and a 30 pound lifting restriction. Dr. Gordon further opined that Green did not need any further medical treatment related to his [Metro Fire] work injury and that any further treatment would be related to [Greens] pre-existing trauma and degenerative disease dating back, apparently, to the 2005 injury.
Thereafter, in a letter of February 18, 2016, to Greens counsel, Dr. Fechter confirmed his diagnosis that Green suffered from cervical and lumbosacral spine strain injuries. Although Dr. Fechter acknowledged that Greens cervical spine symptoms had essentially resolved, he opined that Greens March 6, 2015, accident at Metro Fire had caused the injuries and aggravated the pre-existing degenerative changes [from 2005] as well as the pre-existent condition in the neck. He continued Green on light duty status with a ten pound lifting restriction.
II. Administrative Proceedings
In an application for formal hearing filed on December 30, 2015, Green claimed workers compensation attributable to his March 6, 2015, injury. During the proceeding before the ALJ, Green claimed temporary total disability from April 10, 2015, to May 18, 2015 (the end of his employment by Metro Fire to the date of employment by SS & C), and from June 27, 2015, to October 19, 2015 (the end of Greens employment by SS & C to the date he began working for his next employer. Green also claimed compensation for out-of-pocket expenses, interest on accrued benefits, and authorization for a neurosurgical consultation with Dr. Ammerman.
After a formal hearing, the ALJ issued its Compensation Order on August 26, 2016, concluding that: (1) Green had met his burden to show that his disability was medically causally related to [the] March 6, 2015 work accident; (2) Green had failed to prove that he was temporarily and totally disabled from April 10, 2015, through May 17, 2015, as he had been laid off upon Metro Fires closing; thus, the period of unemployment was economic in nature, not a result of his disability; (3) Green had proved that he was temporarily and totally disabled from June 27, 2015 through October 19, 2015 as a result of his March 6, 2016 accident, and thus was entitled to receive workers compensation benefits for that period; (4) Green was entitled to a neurological consultation with Dr. Ammerman, as recommended by Dr. Fechter; (5) he was further entitled to mileage reimbursement for related doctor and physical therapy appointments; and (6) Metro Fire was entitled to a credit for unemployment benefits received by [Green] from June 27, 2015 through October 19, 2015.
Green did not cross-appeal from the denial of benefits for the period from April 10, 2015, through May 17, 2015. In a Decision and Order of December 27, 2016, the CRB affirmed the ALJs Compensation Order.
III. Issues on Appeal
Metro Fire argues that the CRB erred in affirming:
1. The ALJs exclusion of evidence regarding Greens December 2005 injury that resulted in a documented permanent partial impairment and subsequent lump sum settlement with the Maryland Workers Compensation Commission;
2. The ALJs finding that Greens low back condition [was] medically causally related to the subject accident (his work-related incident of March 6, 2015) while working for Metro Fire;
3. The ALJs authorization of medical treatment requiring Metro Fire and its insurer to present a Utilization Review to challenge the reasonableness and necessity of the recommended neurological examination; and
4. The ALJs award of temporary total disability benefits to Green for the period of June 27, 2015 through October 19, 2015, when Green should have been found out of work because of economic factors rather than disability.
IV. Standard of Review
This courts review is limited to the decision of the CRB, not that of the ALJ. Although we review questions of law de novo , this court will overturn a CRBs final order only if it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. We will not disturb the agencys decision if it flows rationally from the facts which are supported by substantial evidence in the record.
V. Analysis
A. Maryland Workers Compensation Claim Evidence
Metro Fire challenges the ALJs decision to exclude from the record several exhibits its counsel proffered showing Greens compensation for his 2005 workplace injury: a settlement for $100,000 before the Maryland Compensation Commission in 2013. Counsel stresses the importance of determining whether Greens current condition is related to the work accident in this case or instead to his prior injuries and prior conditions. Thus, counsel sought admission of Greens Maryland claim documents, two physicians reports (without objection), the hearing transcript, the functional capacity evaluation showing the prior restrictions on Greens work activity, and the settlement (including disability findings).
Greens counsel objected that the exhibits would be prejudicial and not relevant, stressing that Marylands functional capacity evaluation showed that the work restrictions imposed for the 2005 injury were less restrictive-merely a medium physical demand level-compared with the period hes currently claiming disability for. In reply, counsel for Metro Fire observed that Greens counsel appeared to acknowledge that the Maryland evidence actually supported Greens position that since 2005 his condition ha[d] worsened.
Counsel for Metro Fire then emphasized the importance of having all the evidence to consider what his prior condition was, especially because the Maryland evidence establish[ed] a permanent disability that Mr. Green had even prior to this accident.
After this colloquy, the ALJ sustained Greens objections to admission of some, but not all, of the exhibits pertaining to the Maryland claim. In ruling for Green, the ALJ excluded the Maryland settlement documents (including disability findings) as either prejudicial or not particularly relevant. On the other hand, ruling for Metro Fire, the ALJ allowed in evidence the notice of Greens Maryland claim, the entire transcript of the Maryland hearing (found relevant for Greens testimony concerning his complaints at the time), and the proffered functional capacity evaluation of the 2005 injury.
The CRB perceived no basis for disturb[ing] the ALJs exclusion of the evidence pertaining to ... the settlement of [Greens] prior claim in Maryland, mindful of the ALJs obligation (as the CRB put it) not to exercise its broad discretion in an arbitrary or capricious fashion. This court has observed that the administrative factfinder has discretion to exclude evidence, among other reasons, if it is irrelevant or its probative value is substantially outweighed by the danger of unfair prejudice -reasons expressed by the ALJ, and confirmed by the CRB, as to the discretion exercised over admission of Metro Fires proffered Maryland exhibits.
We find no basis for upsetting the CRBs affirmance of the agencys discretionary call here. Metro Fire achieved not only admission of the Maryland claim and the entire hearing testimony from that proceeding, but also admission of the functional capacity evaluation. All that Metro Fire was precluded from introducing, it would appear, was: (1) medical analysis of the 2005 injury, much of which was reflected in the records reviewed by the doctors whose evidence was taken in this case; and (2) the financial aspects of the Maryland settlement, not obviously relevant here. In sum, we perceive no abuse of discretion in the CRBs affirmance of the ALJs judgment that partial, not total, admissibility of the Maryland evidence was appropriate for this proceeding.
B. Causation Finding
Metro Fire next argues that the CRB erred in affirming the ALJs finding that Greens condition was medically causally related to his accident on March 6, 2015. There is a statutory presumption that a workers compensation claim comes within the provisions of [the Workers Compensation Act]. In order to benefit from this presumption, however, the complainant must show: (1) a death or disability; and (2) a work-related event, activity, or requirement which has the potential of resulting in or contributing to the death or disability. Once the complainant has produced some evidence of a disability and work-related event, the employer must provide, to the contrary, substantial evidence that the disability did not arise out of and in the course of the employment. When the employer has produced substantial evidence, the statutory presumption drops out of the case entirely and the burden reverts to the injured worker to show the required causal connection by a preponderance of the evidence.
Here, the ALJ found that Green had met his burden to show the required causal connection. In doing so the ALJ first found that Green had successfully invoked the statutory presumption by presenting some evidence of the required work-related event and potential contribution to the claimed disability. In fact, the ALJ noted that Metro Fire itself conceded that Green had invoked the presumption, meaning Metro Fire conceded that Green had produced sufficient evidence to satisfy the presumption of compensability with regard to his accident.
The burden then shifted to Metro Fire, which rebutted Greens showing by referencing the IME physician, Dr. Gordon, who opined in his written report that Green was capable of performing his pre-injury work with a 30 pound lifting restriction, not the 10-pound lifting restriction imposed by Dr. Fechter. Based on the unambiguous opinion of Dr. Gordon, the ALJ found that Metro Fire had rebutted the statutory presumption of compensability.
The ALJ then weighed the evidence without benefit of the presumption, leaving the burden on Green to show by a preponderance of the evidence[ ] that his current low back condition [was] causally related to his March 6, 2015 work accident. In evaluating the parties respective showings, the ALJ gave more weight to the well documented and well substantiated records of Greens treating physician, Dr. Fechter, who had provided Green with continuing care, compared with the single examination and records review by Dr. Gordon. Quoting case law, the ALJ observed that attending physicians are ordinarily preferred as witnesses rather than those doctors who have been retained to examine injured workers solely for purposes of litigation. In sum, the ALJ premised its ultimate finding of medical causality on the overall quality and weight of the evidence submitted by each party.
Citing our Lincoln Hockey decision, however, Metro Fire stresses that opinions of the treating physician are not absolute, noting that the employer must have the opportunity to present evidence to suggest, among other things, that the treating physician is unaware of the employees medical history or otherwise lacks the factual basis for its opinion. While that is true, we also said in Lincoln Hockey that a hearing examiner may not reject the testimony of a treating physician without explicitly addressing that testimony and explaining why it is being rejected."
In any event, Metro Fire had a full opportunity to argue the merits of Dr. Gordons opinion over that of Dr. Fechter. In the ALJs discretionary judgment, however, Metro Fires presentation did not undermine the primacy of Dr. Fechters opinion that Green was not capable of returning to his pre-injury, albeit, light duty, job after his accident of March 6, 2015, during the periods for which benefits are claimed. The ALJ found more credible than Dr. Gordons opinion (1) Greens own testimony that he had not been experiencing constant pain before the 2015 accident, coupled with (2) Dr. Fechters opinion that Greens 2015 injury had worsened his preexisting condition-an opinion informed by Dr. Clossons report of March 4, 2015 (two days before the accident at issue here) and by Greens own candor in honestly telling Dr. Fechter about his chronic back pain before the March 6 accident. Altogether the ALJ emphasized Dr. Fechters consistent opinion that Green had a 10 pound lifting restriction; the doctors acknowledgment of Greens earlier 2005 accident and three previous neck surgeries; and his persuasive opinion that Greens March 6, 2015 accident resulted in a worsening of [Greens] low back condition. We do not gainsay the ALJs deference to Dr. Fechter. The proper judge of credibility is the hearing examiner[,] and an appellate court cannot substitute its judgment as to credibility for that of the hearing examiner.
In sum, the ALJ made the following clear finding, confirmed by the CRB, on this contested material issue of fact: Based on substantial evidence of record, Green satisfied his burden of producing by a preponderance of the evidence that his current low back problems [were] causally related to the March 6, 2015 work injury. After reviewing the testimonies of both Dr. Gordon and Dr. Fechter, we perceive no basis for overturning the CRBs ruling.
C. Utilization Review
In connection with its finding that Greens disability was medically causally related to the March 6, 2015 work injury, the ALJ found that Green was entitled to a neurological consultation with Dr. Ammerman, as recommended by his treating physician, Dr. Fechter. Metro Fire appears to believe that, in evaluating medical causation, the ALJ faulted the employer for failing to proffer a utilization review that would have helped determine the relevance of a neurological consultation and thus, ultimately, causation. Metro Fire, however, did not present that argument to the CRB, and [i]n the absence of exceptional circumstances, we will not entertain a claim that was not raised before the agency. No exceptional circumstance exists here.
Utilization reviews are commonly conducted when there is a dispute about the necessity of proposed medical treatment. In this case, however, no medical professional disputed the necessity of a neurosurgical consultation; all three physicians-Drs. Stein, Fechter, and Gordon-agreed that a neurological consultation was recommended (or in Dr. Gordons case, reasonable). Thus, it appears that a utilization review to evaluate the need for such consultation would likely have been superfluous.
In any event, Metro Fire is wrong when arguing in its brief that the ALJ required the Employer and Insurer ... to present a Utilization Review to contest the medical causal relationship of the neurosurgical consultation. The ALJs comment that Metro Fire had not proffered a utilization review meant only that the employer had elected not to exercise that option, not that the employer had an obligation to do so to contest causation. And given the testimony of the IME physician, Dr. Gordon, as well as the treating physicians, Drs. Stein and Fechter, it appears that Metro Fires failure to order a utilization review may have been a judicious decision not to incur the expense.
D. Award of Temporary Total Disability Benefits
When, as in this case, a complainant establishes a causal connection between a workplace accident and the complainants injury, the complainant next must establish the nature and extent of the disability. According to our Logan decision, in order to prove temporary total disability, the claimant must show (1) an inability to return to his [or her] usual employment. Once the claimant has done so, (2) the burden shifts to the employer to establish suitable alternate employment opportunities available to claimant considering his age, education and work experience -meaning available in the community. Finally, (3) [i]f the employer meets that evidentiary burden, the claimant may refute the employers presentation ... either by challenging the legitimacy of the employers evidence of available employment or by demonstrating diligence, but a lack of success, in obtaining other employment.
The CRB concluded that Green had not satisfied Logans first step, and thus he was not entitled to workers compensation for the period between April 10, 2015 (when Metro Fire closed down), and May 17, 2015 (when SS & C hired Green). More specifically, said the CRB, Green had not established entitlement to temporary total disability benefits because Metro Fire, until it closed, had continued to accommodate all of his restrictions, enabling him, after his injury, to perform his usual duties (in Logans words, his usual employment). Greens loss of employment, therefore, was strictly economic in nature, not at all due to his medical condition. Green does not contest this ruling.
This CRB denial of benefits after Green left, Metro Fire serves as background for its award of benefits for the period from his termination of employment by SS & C to the time he found work at National Fire (June 27 to October 19, 2015). Metro Fire contests Greens eligibility during this period because the record, it says, conclusively demonstrates (as the CRB found for the earlier period) that Green was let go not for disability but for economic reasons, this time for taking an unauthorized vacation.
The ALJ concluded, to the contrary-by selecting from ostensibly conflicting testimony-that Green had been unable to return to his usual employment because of his claimed disability. Green had testified at the hearing before the ALJ that his employment ended because of [his] having to do the physical therapy and the doctors appointment[;] they felt I was missing too much time on the job, and they needed me there. Almost immediately thereafter, however, when asked when he got released by SS & C, Green replied that it was the 27th[;] ... he came to me, because I was getting ready to go on my vacation, and said, Well, you know, if you have to take this week off, I might have to let you go. The ALJ premised his finding of disability on Greens first reason, equating his medical appointments with sufficient evidence of continuing temporary total disability related to the March 6, 2015 accident. The CRB deferred to that finding, albeit dubitante , stating that one or more of this panels [three] member[s] may have found otherwise (presumably based on the second, vacation reason Green offered for losing his job).
In any event, we have a CRB-confirmed finding of the ALJ that Green lost his job at SS & C because of this disability, and we can see no basis for setting that finding aside. Moreover, given a sustainable finding that Green satisfied Logans first step, we note that neither the ALJ nor the CRB made a finding as to whether Metro Fire had addressed Logan step two, namely whether Metro Fire had satisfied the employers burden to show that there were suitable alternate employment opportunities available to [Green] when he left SS & C that would have vitiated the compensation claim.
The CRB simply affirmed the ALJs decision that Greens wage loss, in contrast with the first claim period, was due to Claimants disability without reaching Logans burden-shifting opportunity ignored by Metro Fire.
The agencys failure to address the possibility of alternate employment, however, must be assigned to the employer, for in opposing benefits for the second claim period, Metro Fire limited its contention before the CRB to insisting-contrary to the ALJs finding-that SS & C had terminated Greens employment for economic reasons, not disability. At the hearing, Metro Fire did not proffer the existence of alternate employment opportunities to rebut Greens claim in the event that the ALJ would interpret Greens testimony, as it did, to reflect termination based on disability.
Logans shifting burdens were evident to the parties and both tribunals from Greens cross-appeal to the CRB (not renewed on appeal to this court). The ALJ commented, as to the first claim period, that Metro Fire did not present any evidence under Logan ... establishing the availability of other jobs which Mr. Green could perform. Nor did Metro Fire present such evidence with respect to the second claim period. We are, therefore, left with the finding that SS & C terminated Greens employment because of his disability, not economic reasons. As a result, we are not in a position to overrule the CRBs compensation award for June 27, 2015, through October 19, 2015.
For the foregoing reasons, we affirm the CRBs Decision and Order.
So ordered.
The District of Columbia Department of Employment Services, which houses the CRB, is named as the respondent but declined to file a brief, preferring to submit[ ] based on the [CRBs] order dated December 27, 2016. Our factual summary is derived from the ALJs Compensation Order.
Green was not aware of the exact name of this company.
Green initially testified that SS & C had terminated his employment because he was missing too much work for physical therapy and doctors appointments; however, Green also testified that his supervisor had told him that, if he took a weeks vacation, SS & C might have to let [him] go. The ALJ found that Green had lost the job at SS & C because of the doctors appointments, and the CRB accepted that finding.
According to the ALJs Compensation Order, Dr. Closson diagnosed Greens condition as lumbar degenerative disease at LA-5, L5-S1; cervical post-laminectomy pain syndrome post C4-C7 ACDF; cervical and lumbar radiculitis ; lumbar facet and SI joint arthropathy ; and myofascial pain.
During Greens employment by National Fire Protection, he worked 48 hours a week subject to the work restrictions Dr. Fechter had prescribed.
Brown-Carson v. District of Columbia Dept of Empt Servs. , 159 A.3d 303, 306 (D.C. 2017).
Clark Constr. Grp., LLC v. District of Columbia Dept of Empt Servs. , 163 A.3d 768, 773 (D.C. 2017) (quoting Reyes v. District of Columbia Dept of Empt Servs. , 48 A.3d 159, 164 (D.C. 2012) ).
Jones v. District of Columbia Dept of Empt Servs. , 41 A.3d 1219, 1221 (D.C. 2012) (quoting Washington Metro Area Transit Auth. v. District of Columbia Dept of Empt Servs. , 683 A.2d 470, 472 (D.C. 1996) ).
See Washington Hosp. Ctr. v. District of Columbia Dept of Empt Servs. , 983 A.2d 961, 965 (D.C. 2009) (noting that admission of evidence is in the discretion of the [ALJ] and comparing the ALJs broad discretion in the admission or exclusion of expert testimony to that of a trial judge).
Dillon v. District of Columbia Dept of Empt Servs. , 912 A.2d 556, 561 (D.C. 2006) (internal citations omitted).
D.C. Code § 32-1521(1) (2012 Repl.); Ferreira v. District of Columbia Dept of Empt Servs. , 531 A.2d 651, 655 (D.C. 1987).
Ferreira , 531 A.2d at 655 (emphasis omitted).
Storey v. District of Columbia Dept of Empt Servs. , 162 A.3d 793, 802 (D.C. 2017) (internal quotation marks omitted).
Id. (internal quotation marks and emphasis omitted).
Id. at 803 (quoting Ramey v. District of Columbia Dept of Empt Servs. , 997 A.2d 694, 699-700 (D.C. 2010).
See Ferreira , 531 A.2d at 655.
In making this concession, Metro Fire apparently was acknowledging that Dr. Fechters findings, including his recommended 10-pound lifting restriction, comprised some evidence-medical evidence-sufficient to invoke the presumption of compensability, even though the IME physician, Dr. Gordon, had opined that the March 6, 2015, accident did not medically cause his current disability, and that a 30-pound lifting restriction was sufficient to treat Greens pre-existing 2005 injury.
In evaluating the opinion of Dr. Gordon to rebut the statutory presumption, see supra note 17, the ALJ was relying on substantial [medical] evidence of non-causation. Storey , 162 A.3d at 797. Thus, neither in determining applicability of the presumption of compensability nor in assessing the sufficiency of the employers rebuttal did the ALJ rely on credibility determinations. See id. (An ALJ may not use credibility determinations to decide whether the claimant is entitled to the statutory presumption of compensability or whether the employer has rebutted the presumption with the required substantial evidence of non-causation. Only when the employer rebut[s] the presumption and the burden returns to the claimant is the ALJ entitled to make credibility determinations.).
See Stewart v. District of Columbia Dept of Empt Servs. , 606 A.2d 1350, 1353 (D.C. 1992) ([I]n assessing the weight of competing medical testimony in worker compensation cases, attending physicians are ordinarily preferred as witnesses to those doctors who have been retained to examine the claimant solely for purposes of litigation.)
Lincoln Hockey, LLC v. District of Columbia Dept of Empt Servs. , 831 A.2d 913, 920 (D.C. 2003) (treating physician admittedly did not know [claimants] full history of head trauma, prior headaches and related symptoms, nor that [claimant] engaged in a variety of leisure sports activities following the injury.).
Id.
Id. at 919.
Id. at 918.
The ALJ must make a finding of fact on each material contested issue of fact. Battle v. District of Columbia Dept of Empt Servs. , 176 A.3d 129, 133 (D.C. 2018).
Metro Fires other arguments warrant passing reference. (1) We cannot agree with its contention that Dr. Fechters opinions are not supported by the objective medical evidence-a contention supported only by the employers view, rejected above, that Dr. Gordons evidence must be viewed as superior-coupled with an argument (we find unpersuasive) that evidence from the Maryland proceeding should tip the balance in Metro Fires favor. (2) Nor can we agree that the evidence from the written reports of Dr. Closson and Dr. Stein manifestly undermine Dr. Fechters submitted opinion. The record shows that Green saw Dr. Closson only once after the March accident, and Metro Fires brief on appeal appears to accept Greens testimony that he did not tell Dr. Closson about his accident. Furthermore, although Dr. Stein initially imposed a work restriction limiting Green to lifting 30 pounds, Dr. Fechter later modified that downward to a 10-pound restriction. While Dr. Steins 30-pound judgment was similar early on to that of Dr. Gordon, Dr. Steins determination provides no sound basis for rejecting the ALJs discretionary call in favor of Dr. Fechters overall assessment described above, including his judgment calling for a 10-pound limitation.
Utilization review means the evaluation of the necessity, character, and sufficiency of both the level and quality of medically related services provided an injured employee based upon medically related standards. D.C. Code § 32-1501(18A) (2012 Repl.).
Straughn v. District of Columbia Dept of Empt Servs. , 176 A.3d 125, 127 (D.C. 2017) (citations omitted).
Childrens Natl Med. Ctr. v. District of Columbia Dept of Empt Servs. , 992 A.2d 403, 409-10 (D.C. 2010).
Utilization reviews may be requested by an employer, the employee, or the Mayor. Id. at 409.
See Clark Constr. Grp., LLC , 163 A.3d at 776 (the claimant bears the burden of showing that his [or her] disability is temporary and total.).
Logan v. District of Columbia Dept of Empt Servs. , 805 A.2d 237, 242 (D.C. 2002) (internal quotation marks omitted).
Id.
Id. at 243.
Id. at 243.
Id. at 242.
The ALJ reached the same result through more convoluted reasoning, purporting to apply Logan . According to the ALJ, Dr. Fechters 10 pound lifting restriction, which was more severe than any restriction prior to the March 6, 2015 accident, meant that Green was incapable of returning to his pre-injury duties. Accordingly, said the ALJ, Green had taken Logans first step and the burden shifted to Metro Fire, which then rebutted Greens showing by referencing Dr. Gordons opinion that Green was capable of performing his pre-injury job. The burden then shifted back to Green, who reestablished, through the testimony of his treating physician, Dr. Fechter, that he was not capable of returning to his pre-injury, ... light duty job after his accident of March 6, 2015, during the periods for which benefits are claimed. Nonetheless, the ALJ rejected the benefits Green claimed for April 10, 2015, to May 17, 2015, because his wage loss for this period was economic in nature, and thus not related to [his] disability.
Actually, while relying on burden-shifting between Drs. Gordon and Fechter, the ALJ, like the CRB, resolved only Logans first step; the second step-the availability of alternate employment-begins only after a first-step finding that termination was attributable to the claimants disabled medical condition. In finding Logans first step dispositive for the same reason that the ALJ gave after navigating through three steps, the CRB concluded that the ALJs analysis was harmless error.
See text accompanying supra note 34 (ALJ finds loss of employment for this period was economic in nature).
Logan , 805 A.2d at 244.
We are in no position to second-guess the CRBs deference here based (in its words) on the ALJs opportunity to observe the nature and character of a witnesss demeanor, citing Dell v. Department of Empt Servs. , 499 A.2d 102, 106 (D.C. 1985) (a hearing examiners decision [is] entitled to greater consideration if the examiner, as in this case, has heard live testimony and observed the demeanor of the witnesses.) and Georgetown Univ. v. District of Columbia Dept of Empt Servs. , 830 A.2d 865, 870 (D.C. 2003) ([c]redibility determinations of a hearing examiner are accorded special deference by this Court.) (citations omitted).
Disability is not merely a medical condition; it is an economic concept, meaning a loss of wage-earning capacity attributable to a medical condition. See D.C. Code § 32-1501(8) ( Disability means physical or mental incapacity because of injury which results in the loss of wages.); Upchurch v. District of Columbia Dept of Empt Servs. , 783 A.2d 623, 627 (D.C. 2001) (Disability is an economic and not a medical concept, and any injury that does not result in loss of wage-earning capacity cannot be the foundation for a finding of disability.). Greens post-injury work at Metro Fire and SS & C may have provided evidence sufficient to prove that he was physically capable of continuing with light-duty work after he left those employments. However, at least with respect to the second claim period, the ALJ (confirmed by the CRB) concluded that Greens ongoing number of doctors appointments, reflecting a disabling medical condition, was substantial enough to preclude meaningful employment (satisfying Logans first step), absent rebuttal by Metro Fire proffering realistic employment alternatives.
Logan , 805 A.2d at 242.