The District of Columbia Department of Employment Services denied workers’ compensation benefits to Jamil Muhammad, holding that his psychological injury did not arise out of and in the course of his employment. Because the Compensation Review Board’s decision and the underlying compensation order were based on an error of law, we reverse and remand for further proceedings.
I. Factual Background
On March 1, 2002, Jamil Muhammad was working as an electrician’s helper for Eastern Electric, Inc., in the District of Columbia. While attempting to lift several heavy cables, Mr. Muhammad hurt his lower back, requiring orthopedic treatment. Eastern Electric agreed that this initial physical injury was compensable, and Mr. Muhammad received temporary total disability benefits stemming from the injury.
Three years later, Eastern Electric enrolled Mr. Muhammad in vocational rehabilitation to assist him in finding employment consistent with his skills and physical disability. In the past, Mr. Muhammad had held only physically demanding jobs, but his injury now limited him to performing sedentary work. He had few transferable skills; tested poorly in reading, spelling, and arithmetic; and lacked a high school diploma. Petitioner was “a reluctant and, at times, an oppositional partiei-
In April 2006, following nearly a year of unsuccessful vocational counseling, rehabilitation efforts were terminated. Shortly thereafter, Mr. Muhammad’s treating physician recommended that he begin seeing a psychiatrist. Mr. Muhammad met with Dr. Kenneth Smothers for a psychiatric evaluation in September of that year. After three consultations, Dr. Smothers diagnosed Mr. Muhammad with a mental illness caused by his 2002 workplace injury.
Eastern Electric and its insurer sought an independent medical examination and arranged for Mr. Muhammad to be examined by Dr. Brian Schulman. Following a comprehensive psychiatric evaluation in October 2006, Dr. Schulman also diagnosed Mr. Muhammad with a mental illness, variously described as a Depressive Disorder Not Otherwise Specified (“NOS”), an Adjustment Disorder, and a Personality Disorder NOS. Dr. Schulman recommended “psychiatric treatment,” possibly including “antipsychotic medication,” “to prevent a further deterioration of Mr. Muhammad’s behavior.” “The cause of this disorder,” he determined, “is [Mr. Muhammad’s] limited coping response to the challenges imposed by vocational rehabilitation.” In a sworn deposition taken in December 2006, Dr. Schulman testified that, due to his mental illness, Mr. Muhammad “absolutely should not” proceed with “vocational rehabilitation.”
Following a remand by the Compensation Review Board (“Board”), Dr. Schul-man was asked to reconsider his opinion in light of the McCamey standard.
After receiving evaluations from both psychiatrists, Mr. Muhammad petitioned for permanent total disability benefits. The Administrative Law Judge (“ALJ”) reviewed Mr. Muhammad’s psychiatric reports and “credited] the findings of Dr. Shulman [sic] with significant weight.” The ALJ concluded that Mr. Muhammad suffered from a depression disorder and an adjustment disorder and that, as “Dr. Shulman unequivocally testified[,] ... claimant’s behavioral or mood disorder ‘was most dramatically amplified by vocational rehabilitation efforts.’ ” Nevertheless, the ALJ denied Mr. Muhammad’s claim in a Compensation Order dated November 30, 2007, after concluding that his “psychiatric injury is not medically causally related to the March 1, 2002 [back] injury.” After remanding twice, the Board ultimately upheld the ALJ’s order denying compensation. Mr. Muhammad filed a petition for review.
II. Standard of Review
“This court reviews [Department of Employment Services] decisions to determine whether they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Bentt v. District of Columbia Dep’t of Employment Servs.,
III. The Changing Legal Landscape
The Workers’ Compensation Act provides benefits to compensate for wages lost as a result of “accidental injury or death arising out of and in the course of employment.” See D.C.Code § 32-1501(12) (2001). Therefore, a valid claim based on lost wages must include three basic elements: (1) an accidental injury, (2) an actual workplace condition that could have caused the injury, and (3) a causal link between the injury and the workplace. Where the injury is psychological, we review the claim as either a
Over the five years in which Mr. Muhammad has attempted to resolve his case through the workers’ compensation system, the legal landscape for claims of psychological injury has changed dramatically. When Mr. Muhammad originally filed his claim, this jurisdiction applied an “objective standard” requiring “the claimant [to] show[ ] that the actual working conditions could have caused similar emotional injury in a person who was not significantly predisposed to such injury.” Dailey v. 3M Co., H & AS No. 85-259, 1988 D.C. Wrk. Comp. LEXIS 1, at *8 (D.C. Dep’t of Employment Servs. May 19, 1988); see also Porter v. District of Columbia Dep’t of Employment Servs.,
In 2008, we also decided Nixon v. District of Columbia Dep’t of Employment Servs., which discussed whether an injury sustained as a result of vocational rehabilitation may be considered as “arising] both ‘out of and in the course of employment.’ ”
On remand in Nixon, the ALJ determined that where the “[e]mployer was under a statutory duty to provide vocational rehabilitation and the] [claimant was under a similar duty to participate,” the resulting injury may be compensable as a
IV. The Board’s Legal Analysis
A. The Board’s Decision
In his first compensation order, dated November 2007, the ALJ in Mr. Muhammad’s case applied the so-called Dailey objective test and denied benefits, determining that petitioner’s “psychological symptoms” were “unrelated to the original work injury” because they were not “typical to that of the average, emotionally non-predisposed individual.” Because our 2008 decision in McCamey overruled this portion of Dailey, the Board remanded to the ALJ for reconsideration. But when the ALJ issued a revised order, he again denied benefits, reasoning that Mr. Muhammad’s psychological illness did not “stem[ ] from the March 1, 2002 injury” as “the record contains no evidence of a diagnosis related to mood disorder or depression prior to his referral for vocational rehabilitation in the latter part of 2005.”
On subsequent review, the Board again remanded the case, this time to consider petitioner’s “reaction to the employer-initiated vocational rehabilitation” in light of the intervening decisions of Ramey,
In Jones, we held that in a mental-mental claim an ALJ must make two determinations: (1) verifying the factual reality of the stressor (is the stressor real and not fabricated) and if so, (2) determining if the stressor caused the claimed psychological injury or did the psychological injury result from a strictly personal reaction by the claimant. See also Georgetown University v. DOES, [971 A.2d 909 (D.C.2009) ].
(Emphasis added.)
The ALJ attempted to apply this test, focusing on “factors inherent to [Mr. Muhammad’s] personal dispositions.” On its third review of Mr. Muhammad’s case, the Board upheld the legal conclusions of the ALJ, determining that he had appropriately “analyzed the evidence in light of the two-part test enunciated in Ramey [,] in McCamey [,] and in Jones [,] requiring] an ALJ ... [to] determine if the stressor caused the claimed psychological injury or if the psychological injury resulted from a strictly personal reaction.” Muhammad v. Eastern Electric, CRB No. 09-132,
B. The “Strictly Personal Reaction” Test Was Error
Contrary to the Board’s assertion, its-“strictly personal reaction” formulation of the governing test is not supported by Ramey, McCamey, or Jones. Rather, these cases stand for the opposite proposition — “that employers must accept employees as they find them.” McCamey,
The controlling standard, first enunciated in MeCamey and then adopted in Ra-mey and Jones, is that the Workers’ Compensation Act neither requires, nor permits, use of an objective test under which “an employee seeking compensation for psychological injuries [must] show that an average person not predisposed to such injury would have suffered a similar injury.” McCamey,
C. Neither the ALJ nor the Board Gave Proper Consideration to Nixon
In its second remand order, the Board instructed that “in the event that the ALJ decides that the Petitioner’s psychological problems were not caused by work-accident but by his reaction to the employer-initiated vocational rehabilitation, the ALJ should consider this claim in accordance with Nixon.” Both of these prerequisites seem to be satisfied. The ALJ wrote that “it cannot be concluded claimant’s alleged mood disorder and depression stemmed from the work incident of March 1, 2002,” and he had already accepted the testimony of Dr. Schulman “that claimant’s behavioral or mood disorder ‘was most dramatically amplified by vocational rehabilitation efforts.’ ” Nevertheless, after describing the facts of Nixon, the ALJ concluded that “[claimant’s alleged psychological injuries ... were not the direct and natural consequences of employer-instituted vocational rehabilitation activities.” (Emphasis added.) Immediately after announcing this conclusion, the ALJ then stated the cursory reasoning explaining it: “the injury in Nixon, [
Because the ALJ did not meaningfully address the question identified in Nixon, and failed to articulate a basis for distinguishing between physical injuries and mental injuries in this context, we need not defer to his finding. On subsequent review the Board did not acknowledge these defects in the ALJ’s reasoning. Rather, rejecting petitioner’s argument that the ALJ had failed “to apply the rationale in Nixon,” the Board stated that “[t]he ALJ’s conclusion that Petitioner’s psychological problems stem from his own reaction to vocational rehabilitation rather than from participation in a required activity is supported by substantial evidence.” We have already explained why this focus on petitioner’s “own reaction” was error.
V. Two Modes of Analysis
The Board analyzed Mr. Muhammad’s case under the principles articulated in Ramey for mental-mental claims. However, the principles of MeCamey may be equally applicable. Both parties agree that Mr. Muhammad initially suffered a compensable physical injury arising out of
A. Ramey Analysis
1. Actual Injury and Workplace Conditions
Mr. Muhammad has met his burden under Ramey of showing an actual psychological injury. Both Mr. Muhammad’s doctor and the employer’s doctor agreed that he developed a genuine mental illness.
Next, “[t]he ALJ ... must make findings that the workplace conditions or events existed or occurred, and must make findings on credibility.” Ramey,
In creating its two-part test,
This confusion was evident when the ALJ attempted to apply the test. Mr. Muhammad claimed that the real stressor causing his mental injury was “employer-instituted vocational rehabilitation activities,” which had proved to be particularly frustrating and stressful. But in his compensation order, the ALJ wrote that “the record discloses no specific stressors that caused claimant’s mood depression; rather it was his own reaction to the protocols of job placement that cumulatively produced the alleged depression];.]” Perhaps by this sentence the ALJ meant to deny the factual reality of the alleged workplace stres-sor.
2. Causation
When the Board referred to the claimant’s “strictly personal reaction,” perhaps it was attempting to describe the fundamental requirement that the injury arise out of — be causally linked to — a claimant’s employment. This inference is supported by the Board’s reliance on Jones. There, the Board quoted Professor Larson, who noted that there are some injuries so thoroughly disconnected from the workplace that they cannot be said to “aris[e] out of or in the course of employment.” See 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 4.02 (2011) (Some risks have “origins of harm so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment.”).
However, in McCamey we rejected any test that would shift the focus “from an objective examination of the workplace environment to one that examine[s] both the environment and the employee’s particular susceptibilities.” McCamey,
The ALJ made no finding of fact that Mr. Muhammad’s psychological injury was unrelated to the workplace. Indeed, he credited the findings of Dr. Schulman, who opined that Mr. Muhammad suffered a mental illness “as a consequence to his participation in vocational rehabilitation,” which Mr. Muhammad was required to attend as a result of the March 2002 injury.
B. McCamey Analysis
Although Ramey provides a valid framework for analyzing this case, the Board also could have treated Mr. Muhammad’s situation as a physical-mental case. A primary difference between physical-mental claims and mental-mental claims is that “[i]n the context of physical-mental disabilities, the physical accident is the unexpected occurrence supplying the necessary (and objective) workplace connection.” McCamey,
The dispute focuses on whether there is an unbroken “chain of causation” connecting Mr. Muhammad’s initial, physical injury to his subsequent mental injury. See Nixon,
In Mr. Muhammad’s case, the ALJ wrote that “it cannot be concluded claimant’s alleged mood disorder and depression stemmed from the work incident of March 1, 2002.” But as discussed above, Nixon, if adopted, would provide this causal link. “It has long been recognized in this jurisdiction that where the initial or primary injury has been shown to have ar[isen] out of and in the course of the employment that every natural consequence which flows from the injury also arises out of the employment.” Nixon,
VI. Conclusion
The Board erred in prescribing a “strictly personal reaction” test and by failing to correct the ALJ’s dismissive attitude toward Nixon. For these reasons, and because the Board has yet to decide the question presented in Nixon, we reverse and remand for further proceedings not inconsistent with this decision.
So ordered.
Notes
. According to Dr. Smothers, "Mr. Muhammad’s depression and associated symptoms [were] causally and temporally related to his workplace injury and resulting and now chronic pains. Over the past four years, his pain has worsened and feeling of hopelessness has increased. It is well known that chronic pain adversely affects mood and a pathological mood can cause and exacerbate pain.”
. McCamey v. District of Columbia Dep’t of Employment Servs.,
. Dr. Schulman explained that "there is no credible medical evidence creating a nexus between Mr. Muhammad’s physical injury, sustained on March 1, 2002, and the mental and behavioral disturbance manifest during and following his interactions with the vocational consultants in the latter part of 2005, almost three and a half years after the subject event. Prior to his referral to vocational rehabilitation, there is no reference in the submitted records of any treating or evaluating physician diagnosing Mr. Muhammad with a mental disorder or related mental impairment to the subject event.”
. In physical-mental cases, the claimant alleges that a physical workplace injury caused a mental injury. See McCamey,
. In mental-mental cases, the claimant alleges that an emotionally-traumatic workplace event or stressor caused a mental injury. See Ramey,
. The Board also cited our decision in Ramey and its own decision in Jones as bases for its "strictly personal reaction” test. But both Ramey and Jones rejected the Dailey objective standard. See Ramey,
. There is no evidence in the record before us (certainly no substantial evidence) that petitioner was malingering, or that he suffered from something less than a clinically-diagnosable mental condition. Nor is there any evidence that his injury was the "result of [his] own misconduct or intentions.” Nixon,
. Requiring "that in a mental-mental claim an AU must make two determinations: (1) verifying the factual reality of the stressor (is the stressor real and not fabricated) and if so, (2) determining if the stressor caused the claimed psychological injury or did the psychological injury result from a strictly personal reaction by the claimant. See also Georgetown University v. DOES, [
. The Board also noted that "the ALJ remains free to determine whether, from an objective standpoint, the conditions causing his alleged psychological injuries were the result of 'persecution' or 'punishment' from the vocational rehabilitation activities, or were the result of Petitioner's subjective perception that the vocational rehabilitation activities amount to 'persecution' or 'punishment.' " This rather opaque directive seems to differentiate between stressors that exist in reality and those that are only imagined.
. The Board interpreted this statement to mean that "the real stressor is Petitioner’s personal and combative reactions to vocational rehabilitation.” Muhammad,
. Examples of these risks might include "d[ying] a natural death” or meeting one’s "mortal personal enemy,” which, although they may happen to occur at the workplace, "cannot be said to have had any causal relation” to the work. 1 Arthur Larson & Lex K. Larson, Larson’s Workers' Compensation Law § 4.02 (2011).
. Dr. Schulman also testified that, in his medical opinion, Mr. Muhammad "did not develop a mental disorder as a consequence of the physical injury he sustained on March 1, 2002.” However, given our precedent, we do not treat this statement concerning legal causation as determinative. As discussed below, Nixon could provide the causal link between the physical injury and the subsequent psychological injury caused by vocational rehabilitation.