85 A.3d 1272
D.C.2014Background
- In Sept. 2005 Sylvia Gorham, a Marriott housekeeping attendant, injured her back at work; she underwent lumbar surgery in 2007 and remained off work except for a brief return attempt in July 2009.
- Gorham was prescribed Vicodin and Flexeril; she testified she sometimes took them more frequently than prescribed and that Vicodin caused drowsiness and difficulty concentrating.
- Marriott offered sedentary/light-duty work in July 2009; Gorham worked July 15–17 but left each day reporting pain, drowsiness, or needing medical attention.
- Marriott suspended wage-loss benefits, claiming Gorham voluntarily limited her income by over‑medicating; Gorham sought restoration of temporary total disability (TTD) benefits.
- An ALJ initially found the offered job suitable but concluded Gorham was unemployable due to narcotic effects and remained TTD; the Board remanded to apply the preponderance standard.
- On remand the ALJ again found Gorham not employable because of pain and medication side effects; the Board affirmed and this court affirmed the Board, holding substantial evidence supported the outcome.
Issues
| Issue | Plaintiff's Argument (Marriott) | Defendant's Argument (Gorham) | Held |
|---|---|---|---|
| Whether Gorham’s over‑use of prescribed medication that prevented work constituted a voluntary limitation of income | Gorham voluntarily limited income by self‑medicating beyond prescriptions; therefore Marriott could suspend benefits | Gorham’s pain and medication side effects (even when taken as prescribed) prevented her from performing the offered work; she did not voluntarily limit income | Affirmed: substantial evidence supports the finding that Gorham did not voluntarily limit income and remained TTD |
| Whether the ALJ improperly relied on personal observations at the hearing without medical proof | ALJ erred by relying on her own observations and on non‑specific evidence rather than medical proof that medication taken as prescribed would preclude work | ALJ permissibly considered Gorham’s testimony, demeanor, and treating physician’s note as part of the evidentiary mix | Affirmed: ALJ may consider hearing observations along with testimony and medical evidence; not sole basis but permissible here |
| Whether medical evidence was lacking to support inability to work | Marriott: no medical evidence showed medication taken as prescribed would prevent performance of the light‑duty job | Gorham: treating physician’s note (no work) and Dr. Yu’s testimony about pain perception and limitations supply medical support | Affirmed: Dr. Yu’s note and testimony, plus claimant testimony and ALJ observations, constitute substantial evidence |
| Standard of proof applied on remand | Marriott argued initial ALJ applied wrong standard previously | Board remanded to apply preponderance; ALJ applied preponderance on remand | Affirmed: ALJ applied correct preponderance standard on remand |
Key Cases Cited
- Washington Metro. Area Transit Auth. v. District of Columbia Dep’t of Emp’t Servs., 992 A.2d 1276 (D.C. 2010) (standard of review and deference to Board/ALJ findings)
- Georgetown Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs., 916 A.2d 149 (D.C. 2007) (scope of appellate review of Board vis‑à‑vis ALJ findings)
- Marriott Int’l v. District of Columbia Dep’t of Emp’t Servs., 834 A.2d 882 (D.C. 2003) (Board bound by ALJ factual findings when supported by substantial evidence)
- Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs., 830 A.2d 865 (D.C. 2003) (deference to ALJ credibility determinations)
- Lincoln Hockey, LLC v. District of Columbia Dep’t of Emp’t Servs., 831 A.2d 913 (D.C. 2003) (analogy to Social Security rule on ALJ consideration of hearing observations)