Jacqueline DENT, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Providence Hospital; Sedgwick Claims Management Services, Inc., Intervenors.
No. 14-AA-527
District of Columbia Court of Appeals.
Argued March 26, 2015, Decided May 4, 2017
Amended May 25, 2017*
158 A.3d 886
*This amended opinion reflects a correction in the subheader on p. 905 and a minor clarification in fn. 14.
Stacy L. Anderson, Senior Assistant Attorney General, with whom Irvin B. Nathan, Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.
Sarah M. Burton for intervenors.
Before Blackburne-Rigsby**, Chief Judge, McLeese, Associate Judge, and Ruiz, Senior Judge.
Ruiz, Senior Judge:
This petition for review challenges the denial of Jacqueline Dent‘s claim for workers’ compensation. Petitioner argues, inter alia, that the D.C. Department of Employment Services Compensation Review Board (CRB) erred in allowing the Administrative Law Judge (ALJ) to consider the absence of wage loss in deciding that she was not permanently partially disabled, and, therefore, denying her claim to a schedule award. Squarely addressing the question for the first time under the current version of the District of Columbia Workers’ Compensation Act, we hold that the CRB reasonably concluded that wage loss (or the absence thereof) may be taken into account, along with other factors, in considering whether a claimant is entitled to a schedule award for permanent partial disability under the District of Columbia Workers’ Compensation Act,
I. The Administrative Proceedings
A. Hearing by the Department of Employment Services, Office of Hearings & Adjudications
Petitioner testified that on May 8, 2001, she injured her right shoulder at work at Providence Hospital, intervenor in this case, when she fell off her chair and hit the desk. The employer‘s health staff at Providence Hospital gave petitioner pain medication and referred her to physical therapy. Ultimately, the health staff suggested that petitioner follow up with an orthopedic surgeon. Petitioner was tested, diagnosed, and treated by three orthopedic surgeons: Dr. Edward Rankin, Dr. Steven Hughes, and Dr. Easton Manderson.
During cross-examination, petitioner described other injuries that she suffered while employed at Providence Hospital. In 1999, she injured her back; in 2010, she injured her lower back and left shoulder. After the 2010 injury, she continued to see Dr. Manderson for treatment of her lower back pain but did not complain to him about ongoing pain in her right shoulder.2
In addition to her testimony, petitioner submitted medical documentation in the form of reports by Dr. Hughes, Dr. Rankin, and Dr. Joel Fechter, and an MRI of her right shoulder. Dr. Hughes conducted an independent medical evaluation on July 5, 2001, and, based on petitioner‘s report that she had no prior injuries to her shoulder, opined that petitioner‘s neck and right shoulder symptoms were “causally related to the accident of [May 8, 2001],” subject to “subsequent medical records.” Dr. Hughes then began treating petitioner and in a progress note dated August 8, 2001, recommended physical therapy for bursitis-tendinitis of the right shoulder and predicted that petitioner should be able to return to unrestricted duties within four to six weeks. On November 19, 2001, Dr. Rankin conducted a physical examination of petitioner, who complained of continuing pain in her neck that radiated down her right arm. After examining petitioner and reviewing an MRI of her right shoulder, Dr. Rankin diagnosed petitioner with “mild tendinosis of the distal supraspinatus as well [as] a small incomplete tear on the inferior surface. The MR[I] of the cervical spine showed some bulging at C5-6.” He prescribed physical therapy and Vioxx 50(mg) and placed no restrictions on her work activity. Ten years after the work incident, Dr. Fechter took petitioner‘s medical history, reviewed x-rays, and conducted a physical examination of petitioner on February 11, 2011. He concluded that she had a twenty-three percent impairment of her upper right extremity: ten percent impairment under the American Medical Association (AMA) guidelines, four percent impairment attributable to
Providence Hospital submitted records of the independent medical examinations of petitioner conducted by Dr. Hughes and Dr. Marc Danziger, and medical records from Dr. Manderson, the treating physician. Dr. Danziger conducted an independent medical evaluation of petitioner on June 14, 2011, and did not describe any lingering issues from petitioner‘s 2001 right shoulder injury. Dr. Hughes conducted an independent medical evaluation of petitioner on December 8, 2011, and a re-evaluation on July 25, 2012; both times he concluded that petitioner “would qualify for a permanent impairment to the right upper extremity of 5% with no apportionment based on available records and history.”3 Dr. Manderson conducted a series of evaluations from April 30, 2010, to March 25, 2011, and treated petitioner primarily for lower back pain, which resulted from a different workplace injury. In his reports, Dr. Manderson did not mention petitioner‘s right shoulder injury.
B. ALJ Compensation Order4
Petitioner argued that she was entitled to a twenty-three percent rating for permanent partial disability to her right shoulder and right arm based on Dr. Fechter‘s assessment. The employer urged the ALJ to accept the opinion of Dr. Hughes, who found that petitioner has a 5% permanent partial disability in the upper right extremity. After considering the medical assessments and factors enumerated in
I find that [petitioner] was not a credible witness. I find that [petitioner] has reached maximum medical improvement from her May 8, 2001 work injury to her right shoulder. [Petitioner] has a 5 per cent permanent partial physical impairment of her right upper extremity. I find [petitioner] has no permanent partial disability of the right upper extremity based upon factors of pain, weakness, atrophy, loss of endurance and loss of function. I further find no reliable credible evidence [that petitioner‘s] May 8, 2001 work injury has altered her capacity to meet personal, social, or occupational demands. I find [petitioner] has no permanent partial disability of the upper right extremity.
AHD No. 12-381, Compensation Order at 3 (July 23, 2013) (emphasis added) [hereinafter AHD Order]. The ALJ noted that “[d]isability 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.” Id. at 8. In conclusion, the ALJ rejected the claim
due to the remoteness of her claim, the lack of evidence to support her testimony of ongoing symptoms related to the injury, lack of medical evidence to support testimony that she is currently receiving ongoing treatment related to the injury[,] the fact that there have been intervening injuries and treatment, and the fact that, with the exception of time off due to other injuries, [petitioner] has been able to and has continued to work.
C. CRB Decision and Order
On appeal, the CRB considered four issues: whether the ALJ erred in considering whether there had been an actual wage loss when assessing petitioner‘s claim; whether the ALJ erred in considering the lack of ongoing medical treatment; whether the Compensation Order denying petitioner‘s claim was supported by substantial evidence; and whether the ALJ improperly accorded the treating physician preference to Dr. Hughes‘s opinion.
The CRB concluded that the ALJ‘s determination that petitioner sustained no economic loss resulting from her injury was supported by substantial evidence and affirmed the Compensation Order denying any schedule award for permanent partial disability. The CRB noted that the ALJ found that petitioner has a physical impairment of 5% to her right upper arm, consistent with Dr. Hughes‘s medical assessment, but that considering the 10-year history of uninterrupted full-time employment since the injury, there was “no evidence that the impairment is likely to have any economic or industrial impact.” The CRB rejected petitioner‘s argument that Smith v. District of Columbia Dep‘t of Emp‘t Servs., 548 A.2d 95 (D.C. 1988), mandated a schedule award for permanent partial disability without regard to whether petitioner had suffered a wage loss. The CRB read the statement in Smith that “impaired earning capacity need not be proved to receive schedule benefits” as referring to the method by which benefits for permanent disability are calculated pursuant to a schedule award. The CRB explained that Smith discussed “the theoretical underpinnings of schedule awards and how once such an award is made, what actually happens in the future is irrelevant to whether a claimant has been over or undercompensated by the award that was made, because it is ‘conclusively presumed’ that the statutory schedule represents the industrial effect of the injury.” The CRB noted that ”Smith does not say that a claimant‘s actual wage loss experience prior to receiving an award under the schedule is irrelevant to the making of the prediction regarding future wage loss.” The CRB then cited (Carolyn) Jones v. District of Columbia Dep‘t of Emp‘t Servs., 41 A.3d 1219 (D.C. 2012), for the proposition that the ALJ can consider the “existence and amount of a specific, identifiable loss of wages” in schedule award cases. The CRB concluded that “to the extent that such wage loss correlates with or is indicative of loss of wage-earning capacity or economic impairment, actual wage loss history (its presence or absence) may be considered as a factor by an ALJ in making a prediction about the future impact a schedule injury will cause.” The CRB affirmed the ALJ‘s decision that petitioner had no compensable permanent partial disability, finding it was supported by substantial evidence and correct legal analysis. This petition for judicial review of the agency decision followed.
II.
We review the CRB‘s Decision and Order which affirmed the ALJ‘s Compensation Order—we do not directly review the ALJ‘s determination on appeal. See (Carolyn) Jones, 41 A.3d at 1221. Judicial review of an administrative decision is limited to determining whether the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See id. “We will not affirm an administrative determination that ‘reflects a misconception of the relevant law or a faulty application of the law.‘” Washington Metro. Area Transit Auth. v. District of Columbia Dep‘t of Emp‘t Servs., 992 A.2d 1276, 1280 (D.C. 2010) (quoting Georgetown Univ. v. District of Columbia Dep‘t of Emp‘t Servs., 971 A.2d 909, 915 (D.C. 2009)). “However, ‘we acknowledge [the CRB‘s] expertise and ... responsibility for administering the Workers’ Compensation Act,’ and thus ‘we ordinarily must defer to [its] reasonable interpretations of ambiguous provisions in that legislation.‘” Asylum Co. v. District of Columbia Dep‘t of Emp‘t Servs., 10 A.3d 619, 625 (D.C. 2010) (alteration in original) (quoting Howard Univ. Hosp. v. District of Columbia Dep‘t of Emp‘t Servs., 960 A.2d 603, 606 (D.C. 2008)).
A. Schedule Awards for Permanent Partial Disability and Evidence of Wage Loss
The principal legal issue presented in this petition for review is whether wage loss (or the absence thereof) may properly be taken into consideration in deciding whether a claimant is entitled to a schedule award for a permanent partial disability based on loss of use.
Some states permit the introduction of such evidence in determining whether to compensate for loss of use of a scheduled member depending on the conceptual basis states employ for compensating disability under workers’ compensation statutes: industrial use or physical use. In industrial use jurisdictions a worker‘s wages may be considered as a means of measuring an individual claimant‘s post-injury ability to engage in work. 7 Lex K. Larson, Larson‘s Workers’ Compensation Law § 86.04[5] at 86-20, 24 (Matthew Bender, Rev. Ed. 2014).5 In physical use jurisdictions, loss of use, as “derivative from and equated to the concept of [physical] loss, ... should be judged in purely functional terms, with no reference to the impact on the claimant‘s ability to perform his particular work.” Id. at 86-22.6 Larson criticizes the purely physical approach in determining loss of use for worker‘s compensation:
The trouble with these cases is that they assume that “loss of use” can be mechanically measured in relation to use by some theoretical claimant. They assume, in other words, that the concept of “loss of use” of the hand has some fixed uniform content as to all human beings, regardless of age, sex, skill, or anything else. But the very word “use” immediately raises the question: use for what? For assembling electronic equipment? For delivering a karate chop? For threading a needle? For holding a pen-
cil? For lifting a bale of cotton? These are all “uses,” after all.
Id. at 86-23.
The CRB‘s decision in this case implicitly recognized that the District of Columbia is an industrial use jurisdiction when it allowed the ALJ‘s consideration of evidence of post-injury wages as a factor in determining petitioner‘s permanent partial disability resulting from claimed partial loss of use. The government defends the CRB‘s decision, arguing that it is a reasonable interpretation of the District of Columbia Workers’ Compensation Act that is not precluded by this court‘s decision in Smith, and is supported by other decisions of this court, including (Carolyn) Jones. After examining the language, history, and purpose of the relevant portions of the statute, and our jurisprudence interpreting and applying the statute, we agree with the CRB that the District of Columbia Workers’ Compensation Act is grounded on principles of industrial use and economic impairment, and defer to the CRB‘s reasonable determination that consideration of wages is relevant to the industrial use of a scheduled member and may be taken into account as a factor in determining the extent of a worker‘s loss of use in making a permanent partial disability schedule award under
1. Overview of District of Columbia Workers’ Compensation Act
It is useful to place the issue presented in this appeal in the context of the overall statutory scheme. The District of Columbia Workers’ Compensation Act provides benefits for temporary and permanent disability that results from workplace injuries.
Once a work injury has stabilized and the worker has reached maximum medical improvement, the worker may be entitled to benefits for permanent disability. Calculation of permanent disability benefits depends on whether the worker is eligible for one of two types of awards: schedule or non-schedule.
The D.C. WCA‘s schedule award provision is based on both the U.S. Longshoremen‘s and Harbor Workers’ Compensation Act (“LHWCA“) and the Maryland Workers’ Compensation Act, so we review the history and interpretation of the schedule award section of these acts in interpreting the D.C. WCA. See 2B Sutherland, Statutes and Statutory Construction § 52:2 (Norman J. Singer & J.D. Shambie Singer eds., 7th ed. 2015) (“When a state legislature adopts a statute which is identical or similar to one in another state or country, courts of the adopting state usually adopt the original jurisdiction‘s construction.“).
The LHWCA, enacted by Congress in 1927, was made applicable to workers in the private sector of the District of Columbia when Congress enacted legislation specific to the District of Columbia that incorporated the LHWCA provisions, the Workmen‘s Compensation Act of 1928,
In 1980, the Council of the District of Columbia enacted the Workers’ Compensation Act of 1979, D.C. Law 3-77, 27 D.C. Reg. 2503 (1980) (codified at
The D.C. WCA largely adopted provisions of the LHWCA, including the provision for schedule awards for permanent partial disability that the Supreme Court generally observed did not include consideration of loss of wages or wage-earning capacity. See supra note 8 and accompanying text. There is no indication in the PS/CA Committee Report, however, that the Council was aware of that interpretation of the comparable LHWCA provision.10 The D.C. WCA‘s definition of “dis-
This method for calculating permanent partial loss and loss of use for schedule awards continued until 1998, when the D.C. WCA was amended to require an ALJ to consider the “American Medical Association Guidelines along with 5 other factors to evaluate permanent injuries.” Workers’ Compensation Amendment Act of 1998, D.C. Act 12-571 at 1, 3 (Dec. 23, 1998). The amendment followed Maryland‘s five-factor approach to determining permanent partial disability. See
The 1998 amendment to the WCA, which adopts consideration of the Mary-
2. The CRB‘s Decisions
Ordinarily, to determine whether we should defer to the CRB‘s decision in this case, we would simply review the decision that has been appealed and examine whether it reasonably applies the law and is supported by substantial evidence. (Carolyn) Jones, 41 A.3d at 1221. However, petitioner directs our attention to, and urges us to follow instead, an earlier decision by the CRB—Corrigan v. Georgetown Univ., CRB No. 06-094, 2007 D.C. Wrk. Comp. LEXIS 364 (Sept. 14, 2007) (en banc), which we discuss more fully infra—that came to the opposite conclusion of the CRB‘s decision in this case. Before we can determine whether the CRB‘s decision in this case merits deference, therefore, we must examine petitioner‘s reliance on Corrigan.
In Corrigan, the CRB, sitting en banc, squarely addressed the issue before us today: whether wage loss should be considered when evaluating the extent of loss of use in determining permanent partial disability for a schedule award. The CRB cited several opinions by this court and the agency and noted that, unlike the Maryland statute, the D.C. WCA does not employ the phrase “industrial use.” Id. at *30; see, e.g.,
In 2012, five years after the CRB decided Corrigan, a CRB panel decided Al-Robaie v. Fort Myer Constr. Co., CRB No. 10-014, 2012 WL 2929367, 2012 D.C. Wrk. Comp. LEXIS 250 (June 6, 2012). In Al-Robaie, the CRB vacated the ALJ‘s decision that the claimant was not entitled to a schedule award because she had not reached maximum medical improvement where the unanimous medical opinion was to the contrary. Id. at *1, 2012 D.C. Wrk. Comp. LEXIS 250, at *3-*6. In remanding the case, the CRB cited this court‘s decisions in Smith and (Carolyn) Jones as supporting the proposition that the ALJ should “reconsider the Claimant‘s request for permanent partial disability benefits without any consideration of wage loss except to the extent that such wage loss correlates with or is indicative of loss of wage earning capacity or economic impairment.” Id. at *2-3, 2012 D.C. Wrk. Comp. LEXIS 250, at *5-*6 & n.7.
In the case that is before us for review, the CRB panel affirmed the ALJ‘s Compensation Order, stating, as it had in Al-Robaie, that “wage loss [can be considered] to the extent that such wage loss correlates with or is indicative of loss of wage earning capacity or economic impairment.” Dent v. Providence Hosp., CRB No. 13-101, 2014 WL 2619936, at *3-4, 2014 D.C. Wrk. Comp. LEXIS 234, at *11-12 (May 7, 2014) (emphasis omitted) (quoting Al-Robaie, 2012 WL 2929367 at *3, 2012 D.C. Wrk. Comp. LEXIS 250 at *6). The CRB cited this court‘s opinion in (Carolyn) Jones and two subsequent CRB opinions, including Al-Robaie, for the proposition that “the absolute prohibition upon consideration of the existence and amount of a specific, identifiable loss of wages in a particular case is no longer the law in this jurisdiction .... ”14 Id. As set out supra, the CRB explained that this court‘s opinion in Smith does not preclude and (Carolyn) Jones, 41 A.3d at 1224-26, 1226 n.7, supports the conclusion that there is no such prohibition.
The CRB‘s decision in this case, taken together with its decision in Al-Robaie, indicates a recognition by the CRB that
3. The CRB‘s Decision in This Case Is Reasonable
In this case, as in Al-Robaie, the CRB allowed the ALJ to consider evidence of the claimant‘s actual wage history in making a schedule award, to “the extent to which such wage loss correlates with or is indicative of loss of wage earning capacity or economic impairment.” We conclude that the CRB‘s decision is based on a reasonable interpretation of an ambiguous provision in the D.C. WCA and thus merits our deference. There are several reasons why we so conclude. We begin with the plain language of the text, which is the first step in interpreting a statute. See Eaglin v. District of Columbia, 123 A.3d 953, 955 (D.C. 2015). The specific provision at issue in this case provides that “[c]ompensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.”
Second, the 1998 amendment of the D.C. WCA provided further direction in how to “determin[e] disability” in making schedule awards for permanent partial disability by listing five factors—pain, weakness, atrophy, loss of endurance, and loss of function—in addition to physical impairment.
Third, the CRB‘s decision to permit consideration of evidence of actual wage loss as a factor in determining a claimant‘s permanent disability percentage for a schedule award is consonant with two of the D.C. WCA‘s objectives: “replacement of wages lost by disabled worker[s]” and “restoration of earning capacity and return to productive employment.” PS/CA Committee Report at 6-7. We have repeatedly commented that this economic orientation is reflected in the D.C. WCA‘s definition of disability, which establishes a link between mental or physical incapacity because of injury and a resulting wage loss.
ALJs have discretion in determining disability percentage ratings and disability awards because, as used in the Act, “disability” is an economic and legal concept which should not be confounded with a medical condition, and ... in this case the ALJ erred by following decisions of the Director of DOES that require ALJs to choose a disability percentage rating provided either by the claimant‘s or the employer‘s medical examiner.
Fourth, the CRB‘s determination to permit consideration of the actual impact on wages in determining the extent of “proportionate” loss or loss of use in a case of permanent partial disability provides a useful tool for ALJs tasked with exercising discretion based on the understanding that “‘disability’ is an economic and legal concept.” Negussie, 915 A.2d at 398-99. There is an important distinction between determining the extent of disability by taking account of pre- and post-injury wages as a factor to be considered by the ALJ in applying this economic concept and calculating the amount of disability compensation using the formula prescribed in the statute after the extent of disability has been found. The former is a finding of fact by the ALJ of the percentage loss of industrial use of the scheduled member (0-100%) based on a weighing of the facts relevant to the individual claimant, whereas the latter is a straightforward mathematical calculation that uses the ALJ‘s finding of percentage loss of use as part of a statutory formula (% loss of use X 2/3 average weekly wage X number of weeks fixed in the statute for the schedule member). It is the latter method of calculating the amount of compensation as provided in the statute that we have said is not subject to alteration or dependent on actual wage loss because it reflects a conclusive legislative determination of the likely eventual loss of wage-earning capacity in case of loss or loss of use of the parts of the body specified in the schedule. See DeShazo, 638 A.2d at 1156 (noting that “scheduled benefit will be an appropriate, if arbitrary, compensation to offset wage losses that eventually can be anticipated“); Smith, 548 A.2d at 101 (quoting Larson for proposi-
None of the foregoing should be read to imply that evidence of wage loss is either necessary or sufficient to justify a schedule award for permanent partial disability, however. We do not read the CRB‘s decision as conferring any special weight to evidence of wage loss, or the absence thereof. Such evidence is merely one factor that may be considered by the ALJ and the CRB in making a schedule award for permanent partial disability to compensate for loss of wage-earning capacity. As the D.C. WCA permits consideration of the AMA guidelines as well as the five Maryland factors in making that predictive judgment,
The ALJ‘s ability to come to a considered judgment of the extent of permanent partial disability is particularly important in the context of a schedule award. Because a schedule award is a one-time payment meant to compensate for the loss of future wage-earning capacity resulting from a work injury, it necessarily involves an element of “prediction.” See (Carolyn) Jones, 41 A.3d at 1224. Determining the extent of disability thus requires a highly fact-bound inquiry that takes into account the particulars of the individual claimant, such as employment skills, experience, age, education, and reasonable prospects; evidence of post-injury wages, compared with pre-injury wages, may be more or less probative of loss of future wage-earning capacity depending on the facts of the case. It is for the ALJ to consider and weigh the relevant evidence presented in a given case. See id. (“[R]ecognizing that in making a legal determination of disability, the ALJ comes to a conclusion based on a complex of factors, taking into account physical impairment and potential for wage loss, and the application of judgment based on logic, experience and even ‘prediction.‘“); Larson, Wage Loss Principle at 524 n. 94 (“‘The loss of earning capacity’ concept leaves room for adjustment in both pre- and post-injury earnings, to arrive at an accurate representation of true impact attributable to the injury. For example, allowances may be made for economic increases in wage levels, for changes in the claimant‘s age, training, or hours, for distortion of wage by employer sympathy, or for the impermanence of particular post-injury earnings.“).
In this case, for example, the ALJ had the benefit of a long course—ten years of continued full-time employment after the injury, without any sign of letting up or wage loss—to draw upon as one factor in determining that the 5% physical im-
In light of the foregoing analysis, we conclude that the CRB‘s Decision and Order affirming the ALJ‘s Compensation Order was based on a reasonable interpretation of the D.C. WCA.
B. Evidence of Continuing Medical Care
Petitioner argues that the CRB erred in affirming the ALJ‘s consideration of the character and regularity of the medical care petitioner received for her shoulder injury when assessing her disability. The government contends first that petitioner‘s argument is precluded by the invited error doctrine; in the alternative, it argues that the CRB properly affirmed the ALJ‘s use of those factors. Since the CRB did not rely on the invited error doctrine, this court cannot do so on appeal. See Bowles v. District of Columbia Dep‘t of Emp‘t Servs., 121 A.3d 1264, 1269 (D.C. 2015) (“An administrative order can only be sustained on the ground relied on by the agency.“) (internal quotation marks omitted). Addressing the merits, we conclude that the CRB properly found that the ALJ could consider those factors.
Petitioner‘s argument is twofold: that continuing medical care is not required to prove the existence of a permanent partial disability because the underlying injury is permanent, and that the ALJ‘s reliance on the absence of medical records of continuing treatment was therefore erroneous. Petitioner is correct that such evidence is not required because an impairment must reach “maximum medical improvement” prior to an award for permanent disability, meaning that no further treatment will improve the underlying injury. See Logan v. District of Columbia Dep‘t of Emp‘t Servs., 805 A.2d 237, 241 (D.C. 2002) (citing, inter alia, 4 ARTHUR LARSON, LARSON‘S WORKERS’ COMPENSATION LAW § 80.04, at 80-13 (Matthew Bender ed. 2002) (“Permanent means lasting the rest of claimant‘s life. A condition that, according to available medical opinion, will not improve during the claimant‘s lifetime is deemed to be a permanent one.“)). That the evidence is not required, however, does not mean that it is irrelevant, as the nature and regularity of continuing medical care after the injury has stabilized may be useful information in assessing the statutory factors of pain, weakness, atrophy, loss of endurance, and loss of function that contribute to the calculation of the extent of disability caused by a permanent injury. Evidence of continuing medical care is routinely presented to support (or deny) the existence of a disabling condition. If the character or regularity of medical care were not admissible, claimants could no longer rely on medical records to corroborate that they have continued to experience pain, weakness, atrophy, loss of endurance, or loss of function even after their injury reached maximum medical improvement. This court has noted that a “dearth of evidence of medical analysis and treatment” is significant when assessing whether a claimant is entitled to a schedule award. Golding-Alleyne v. District of Columbia Dep‘t of Emp‘t Servs., 980 A.2d 1209, 1217 (D.C. 2009).
The CRB commented in this case, “How frequently a claimant seeks medical care,
C. Review for Substantial Evidence
Petitioner contends that because the CRB did not properly articulate the substantial evidence standard of review, it therefore erred as a matter of law in concluding that the ALJ‘s credibility determinations were supported by substantial evidence, without conducting an independent substantial evidence analysis. Petitioner focuses on the following statement in the CRB‘s Order: “Given the deference accorded to the fact finder on credibility issues, we will not substitute our judgment for that of the ALJ. And, lest one forget, the ability to assess appearance and demeanor are still important reasons for according much deference to the person who heard the evidence, even if they are not the only reasons to do so.” (emphasis added).
As a matter of law, the CRB does have the authority to make a judgment on the legal sufficiency of the ALJ‘s credibility determination, even under the deferential substantial evidence standard of review. See Georgetown Univ., 985 A.2d 431, 433 n.2 (D.C. 2009) (“[T]he ALJ of course retains the fact-finder‘s prerogative to weigh the two doctors’ opinions and assess their credibility, subject again to review for substantial evidence.“). An absolute prohibition on the CRB‘s review of the basis for the ALJ‘s judgment on credibility issues would be at odds with the requirement that there be substantial evidence supporting the ALJ‘s order. Even if the CRB may, as a matter of law, reject a credibility determination as insufficiently substantiated, this is not such a case, as the ALJ‘s findings were well supported. The ALJ‘s determination that “Claimant was not a credible witness” was not based solely on an unreviewable assessment of demeanor, but also, as the CRB noted, on the consideration that petitioner‘s testimony “did not hang together.” The ALJ pointed to specific factors that lent substantial evidentiary support to this determination: “the remoteness of [petitioner‘s] claim, the lack of evidence to support her testimony of ongoing symptoms related to the injury, [and the] lack of medical evidence to support testimony that she is currently receiving ongoing treatment related to the injury .... ” AHD Order at 3, 9.
For the foregoing reasons, the CRB Decision and Order affirming the ALJ‘s Compensation Order is
Affirmed.