Bowser v. D.C. Dep't of Emp't Servs. (2024)

On April 28, 2010, petitioner was working as a pile driver for intervenor Clark Construction Group (the "Employer") when he was thrown backward in a boat, injuring his head, neck, and back. Petitioner sought medical treatment and thereafter filed a claim for workers' compensation benefits. On May 26, 2011, a hearing was held on his claim. Petitioner's evidence at the hearing included reports from his treating physicians. The Employer submitted reports by independent medical examiner ("IME") Dr. Louis London, a neurologist, and IME Dr. Gary Levitt, an orthopedist. Dr. London opined that petitioner's injuries had "resolved without residual," that petitioner had "no continuing injury causally related to anything that occurred on [April 28, 2010]," and that he "require[d] no further medical care" and could "return to his normal and usual employment as a [p]ile [d]river without restriction." Similarly, Dr. Levitt opined that petitioner had "reached maximum medical improvement" and had "the ability to return to work immediately" without limitation or modification of his work activity.

In a June 24, 2011, Compensation Order (the "Initial CO"), which was upheld on appeal to the CRB, DOES ALJ Heather Leslie awarded petitioner TTD benefits, finding that petitioner's "back and lower extremity complaints [had] resolved" but that his "neck, left shoulder, left upper extremity and head condition [were] causally related to the injury of April 28, 2010" and continued to render him disabled. After the Initial CO was issued, the Employer caused additional examinations to be performed by IMEs London and Levitt. After re-examining petitioner on December 5, 2011, and June 25, 2012, and reviewing new records from petitioner's treating physicians, Dr. London again found that petitioner had "no condition related to anything that occurred on [April 28, 2010]," had "reached maximum medical improvement long ago," and could return to his normal employment without restriction. Dr. Levitt examined petitioner again on November 1, 2011, and May 29, 2012. On the basis of those examinations, he stated that it was "beyond [his] comprehension ... as to why [petitioner] still require[d] care," that petitioner's treatment by his treating physicians had been "driven purely on the basis of subjective complaints by the [petitioner] and a willingness for his doctors to treat him without clear evidence of any objective measure of pathology" or "structural injury," and that petitioner could return to work immediately without modification of work activity.

After receiving the additional IME reports, the Employer filed an application for a hearing, seeking to modify the Initial CO. On January 18, 2013, DOES ALJ Karen Calmeise held an evidentiary hearing. On December 13, 2013, ALJ Calmeise issued the MO, terminating petitioner's TTD benefits and medical benefits upon finding that petitioner had reached maximum medical improvement and that the injuries to his head, neck, and back had resolved. In an August 14, 2014, Decision and Order, the CRB upheld the MO.

This petition for review followed. Petitioner argues that the Employer made no affirmative factual showing of a change in his condition and thus there was no basis for a modification hearing to be held. Petitioner also argues that the Employer failed to prove that his condition had changed so as to warrant a modification of benefits, because the Employer's medical evidence—new reports by IMEs Levitt and London—were "nearly identical" to their opinions that were rejected by ALJ Leslie in the Initial CO. Petitioner further contends that ALJ Calmeise "improperly applied the burden of proof" to him, by "effectively requiring him to prove that his condition had not changed." Finally, petitioner argues that both the ALJ and the CRB failed to apply the presumption of compensability in addressing his claims for medical benefits.

Under D.C.Code § 32–1524 (2012 Repl.), a provision of the District of Columbia Worker's Compensation Act (the "Act"), upon application by a party, DOES may "order a review of a compensation case ... where there is reason to believe that a change of conditions has occurred which raises issues concerning: (1) [t]he fact or the degree of disability or the amount of compensation payable pursuant thereto[.]" D.C.Code § 32–1524(a). A party may apply for a § 32–1524 review "[a]t any time prior to 1 year after the date of the last payment of compensation or at any time prior to 1 year after the rejection of a claim[.]" Id. (emphasis added).1 The review "shall be limited solely to new evidence which directly addresses the alleged change of conditions." D.C.Code § 32–1524(b).

This court has approved DOES's interpretation that when an applicant requests a § 32–1524 review, the agency must conduct a "preliminary examination of evidence intended to be submitted at an evidentiary hearing" and then—if that examination reveals "evidence which could establish, if credited, changed conditions" (the "threshold test")—conduct an evidentiary hearing on the issue of whether there has been a change in conditions. Snipes v. District of Columbia Dep't of Emp't Servs., 542 A.2d 832, 834 n. 4, 835 (D.C.1988) ; see also Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs. ("WMATA "), 703 A.2d 1225, 1228–29 (D.C.1997) (describing the "two-step procedure": "(1) a determination that there is reason to believe that a change in the claimant's condition has occurred," which "requires an affirmative factual showing that a change of conditions has occurred," and "(2) an evidentiary hearing if that test is met"); id. at 1230 (describing the "modest threshold burden of producing minimal evidence"—"something short of full proof"—"to support the ‘reason to believe standard’ "). We have said that it is error for DOES to "fail[ ] to make the requisite threshold determination," a circ*mstance that entitles the non-moving party to prevail. Id. at 1226, 1231.

In cases involving modification orders, "[o]ur scope of review ... requires us to decide whether the agency made the threshold determination under the statute and whether its determination is supported by substantial evidence in the record." Id. at 1228. More generally, this court will affirm a ruling of the CRB unless the ruling is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Georgetown Univ. v. District of Columbia Dep't of Emp't Servs., 971 A.2d 909, 915 (D.C.2009) (internal quotation marks omitted). Our review of the CRB's legal rulings is de novo. Fluellyn v. District of Columbia Dep't of Emp't Servs., 54 A.3d 1156, 1160 (D.C.2012) (internal quotation marks omitted). "Although our review in a workers' compensation case is of the decision of the CRB, not that of the ALJ, we cannot ignore the compensation order which is the subject of the CRB's review." Reyes v. District of Columbia Dep't of Emp't Servs., 48 A.3d 159, 164 (D.C.2012) (internal quotation marks and alterations omitted).

Petitioner argues that the Employer failed to make the required threshold showing of a reason to believe a change had occurred in his condition, that the Employer thus was not entitled to a hearing ("[N]o evidentiary hearing on modification should have taken place[.]"), and that the CRB erred in failing to so recognize. For the reasons that follow, we disagree.

To begin with, the relevant test is whether there was "a change of conditions," D.C.Code § 32–1524(a), not necessarily a change in petitioner's medical condition. An employer can make a threshold showing of a reason to believe there has been a change in conditions by proffering evidence of a change in "non-medical circ*mstances," such as a "change in ... wage-earning capacity." WMATA, 703 A.2d at 1229 ; In re Fiumara, AHD No. 09–467B, OWC No. 587392, 2015 WL 609772, at *3 (D.C. Dep't Emp't Servs. Jan. 15, 2015) (recognizing that an employer may seek a modification of a claimant's award based on the claimant's failure to cooperate with vocational rehabilitation). Here, in its hearing request...