Nery S. ROCHA-GUZMÁN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Haris Design & Construction Company, et al., Intervenors.
No. 14-AA-612
District of Columbia Court of Appeals.
Submitted May 7, 2015 Decided September 28, 2017
* There is a discrepancy in the parties’ filings with respect to the spelling of the intervening party‘s name. This opinion refers to the intervenor as Haris Design & Construction Company.
Eugene A. Adams, Interim Attorney General for the District of Columbia at the time the statement was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, Office of the Solicitor General, filed a statement in lieu of brief for respondent.
Mary G. Weidner was on the brief for intervenors.
Before Glickman and Easterly, Associate Judges, and Ruiz, Senior Judge.
Ruiz, Senior Judge:
This petition for review arises from Nery Rocha-Guzmán‘s claim for worker‘s compensation benefits due to permanent total disability resulting from an injury sustained while working for his former employer, Haris Design & Construction Co. (“Haris Design“). Petitioner seeks review of an order of the District of Columbia Department of Employment Services (“DOES“) Compensation Review Board (“CRB“) which affirmed a compensation order issued by DOES Administrative Hearings Division Administrative Law Judge (“ALJ“) Linda F. Jory denying petitioner‘s claim. We hold that the CRB erred in affirming the ALJ‘s compensation order, and thus remand the case for further proceedings consistent with this opinion.
I.
Petitioner worked as a foreman on construction and renovation projects for Haris Design. His primary duties were to convey the English-speaking superintendent‘s work assignments to the Spanish-speaking construction crew and to monitor the crew‘s work.
On August 9, 2010, when the crew was short two workers, petitioner filled in for one of the workers. While petitioner was standing on a roof, it gave way, and petitioner‘s legs went through the roof, causing him injuries. Petitioner initially sought worker‘s compensation benefits for temporary total disability, which the parties stipulated arose out of his employment with Haris Design, and the employer paid two lump-sum payments. After receiving treatment for his injuries, petitioner returned to work in November or December of 2010. However, in February 2011, petitioner‘s employment with Haris Design was terminated on the basis of a review of the employer‘s personnel records which revealed insufficient documentation that petitioner, who came to this country from Bolivia, was authorized to work in the United States. Two years later, petitioner sought permanent total disability benefits as of April 2013, claiming that his medical condition had worsened in the intervening period and he was no longer capable of performing any work duties.
Following an evidentiary hearing, the ALJ concluded that petitioner had not established that he was permanently and totally disabled as a result of a work-related injury—that is, that his work injury prevented him from returning to his pre-injury job. In reaching this conclusion, the ALJ found petitioner‘s testimony about his injury and disability to be “blatantly incredible” based, in part, on petitioner‘s request for an interpreter during the hearing. The ALJ also noted that petitioner had returned to his pre-injury job as a foreman, and was working in that position at the time of his termination in 2011. Further, the ALJ credited the testimony of the president of Haris Design that, with proper documentation, petitioner would have still been in Haris Design‘s employ in
Petitioner filed an administrative appeal with the CRB, challenging the ALJ‘s analysis and lack of substantial evidence to support the ALJ‘s findings. The CRB affirmed, concluding that the ALJ‘s Compensation Order properly applied the burden-shifting framework set out in Logan v. District of Columbia Dep‘t of Emp‘t Servs., 805 A.2d 237 (D.C. 2002), and that substantial evidence supported the ALJ‘s determination that petitioner was not a credible witness, and thus had failed to demonstrate that he was totally and permanently disabled. Petitioner filed this petition for review of the CRB‘s decision pursuant to
II.
On petition for review of a case involving worker‘s compensation, we review the decision of the CRB. See Jones v. District of Columbia Dep‘t of Emp‘t Servs., 41 A.3d 1219, 1221 (D.C. 2012). We will set aside the CRB‘s decision if it is “[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
III.
Petitioner makes two arguments for reversal, both of which were also presented to the CRB: first, that the ALJ improperly applied the Logan burden-shifting framework for analyzing evidence of total disability claims, and second, that the ALJ committed legal error in the consideration of evidence to determine that petitioner was not a credible witness. We disagree on the first point, but agree on the second
A. Logan Burden-Shifting Framework
Logan adopted a three-step burden-shifting analysis for worker‘s compensation claims of total disability, whereby: (i) “a claimant establishes a prima facie case of total disability,” (ii) “the employer [then] must present sufficient evidence of suitable job availability to overcome a finding of total disability,” and finally, (iii) the claimant “refute[s] the employer‘s presentation ... either by challenging the legitimacy of the employer‘s evidence of available employment or by demonstrating diligence, but a lack of success, in obtaining other employment.” Logan, 805 A.2d at 243 (adopting burden-shifting approach for adjudication of claims under the federal Longshoreman‘s Act set out, inter alia, in Crum v. Gen. Adjustment Bureau, 738 F.2d 474, 479 (D.C. Cir. 1984)). We have described the claimant‘s initial burden of making a prima facie case as requiring a showing of “an inability to return to his usual employment,” or “an inability to perform his or her usual job.” Id. at 242 (quoting Crum, 738 F.2d at 479). To make a prima facie case, the plaintiff‘s burden is to prove total disability by a preponderance of the evidence, See Wash. Metro. Area Transit Auth. v. District of Columbia Dep‘t of Emp‘t Servs., 992 A.2d 1276, 1282 (D.C. 2010) (“WMATA II“); Golding-Alleyne v. District of Columbia Dep‘t of Emp‘t Servs., 980 A.2d 1209, 1215-16 (D.C. 2009).2
Petitioner contends that the ALJ and the CRB did not follow the Logan framework by “skip[ping] step one, establishing a prima facie case of disability, and proceed[ing] instead to a hybrid of steps two and three.” According to petitioner, he established a prima facie case for disability through the reports of his doctors and vocational counselor, and the ALJ improperly considered evidence presented by the employer (employer‘s testimony that petitioner was able to resume his usual duties when he returned to work in late 2010, and could have remained in Haris Design‘s employ but for his undocumented work status) in determining that he had failed to do so.
We disagree with petitioner‘s contention that proper application of the Logan burden-shifting framework precludes the ALJ‘s consideration of the employer‘s evidence in determining whether a claimant‘s initial burden to present a prima facie case of total disability preventing return to prior employment has been satisfied. That the ALJ may consider the employer‘s evidence in making this determination is implicit in the claimant‘s burden, in “step one” of the Logan analysis, to prove disability by a preponderance of the evidence, which requires a weighing of all the evidence presented.3 Logan‘s burden-shifting framework does not dictate the order in which evidence may be presented or admitted during a hearing or procedurally constrain the ALJ‘s consideration of evidence. As long as the ALJ considers evidence relevant to each step, and applies the shifting burdens of proof to the subject of each step, the order in which evidence is presented, admitted, and/or reviewed does not necessarily matter.
Accordingly, in considering whether a claimant has made a prima facie case of permanent total disability under “step one,” i.e., inability to return to his usual employment or perform his usual job duties due to a work-related injury, the ALJ may consider relevant evidence presented by the employer, such as that the claimant had, in fact, returned to his former job and performed the same functions. Such evidence would not pertain to Logan‘s “step two” inquiry—whether the employer has met its burden to show there are other suitable jobs available that might change the claimed disability from total to partial—but instead, would directly negate claimant‘s evidence relevant to “step one.” We, therefore, conclude that the CRB did not err in its determination that in this case the ALJ could properly consider the employer‘s evidence that petitioner returned to work after the work accident in determining whether he met his burden of presenting a prima facie case under the first step of the Logan burden-shifting framework.
B. Credibility Determination
The ALJ‘s determination that petitioner was not a credible witness was a significant factor in the ALJ‘s and CRB‘s decision that petitioner did not meet his burden of establishing that he was totally disabled. Credibility determinations are within the discretion of the ALJ, and typically are “entitled to great weight” due to the ALJ‘s unique ability to hear and observe witnesses first hand. WMATA I, 683 A.2d at 477. Petitioner argues that notwithstanding this deference, the ALJ‘s determination in this case that he was not credible cannot be sustained because it rested, at least in part, on an impermissible consideration: petitioner‘s request for and use of an interpreter during the hearing. We agree.
Persons with limited English proficiency are legally entitled to an interpreter in administrative proceedings.4 Thus, we would not countenance an ALJ‘s decision to discredit a witness of limited English proficiency on the basis that the witness requested an interpreter or testified with the assistance of an interpreter. This is so even if the witness had some acknowledged or observable understanding of English.5 We, therefore, scrutinize carefully the ALJ‘s comments about petitioner‘s English proficiency and request for an interpreter in this case.
The determination that petitioner was not credible was an inference based on
First, a person‘s ability to carry out functions at certain jobs or in commonplace interactions using English does not necessarily mean that the person is equipped to navigate the complex, stressful, and often unfamiliar terrain of a legal proceeding with important consequences and the potential for waiver of legal rights. See American Bar Association Standards for Language Access in Courts 1 (2012) (“[A] high level of English proficiency is required for meaningful participation in court proceedings due to the use of legal terms, the structured nature of court proceedings, and the stress normally associated with a legal proceeding when important interests are at stake.“); id. at 11 (defining “Limited English Proficient Person” as “someone who speaks a language other than English as his or her primary language and has a limited ability to read, write, speak or understand English“); id. at 7 (defining “court” as including administrative tribunals). There is no evidence concerning the nature or complexity of the instructions petitioner was asked to convey to the construction crew or the English proficiency level required to do so and how it compared to a legal proceeding. Before the ALJ could draw an inference adverse to petitioner‘s credibility based on the nature of his work, the ALJ had to ascertain the truth of the premise (that petitioner‘s work required comparable English proficiency) for the inference that petitioner was dissembling when he asked for an interpreter at the hearing. There is reason to doubt the premise on this record, based on evidence the ALJ appears to have overlooked. For example, the ALJ did not consider petitioner‘s testimony about the laborious process he undertook to be able to translate the work instructions each day.7 Nor did the ALJ take note that most of the medical reports indicate that an interpreter was present during the office visits—occasions when it was important that nuances in language be well understood and communicated. Similarly, the vocational assessment report notes that although petitioner “speaks and comprehends basic English ... he was more comfortable responding in Spanish, and some concepts were more easily understood by [him] in Spanish.” The ALJ also did not consider that petitioner may have been able to respond to questions in English during the hearing because of the language assistance he was receiving from the interpreter.
C. Remand
As the case is being remanded for further consideration, we make several observations about problematic aspects of the reasoning in the underlying compensation order that are likely to arise upon further consideration.
1. The Relevant Time-Frame
Petitioner‘s claim was for total permanent disability from April 2013. He contends that his brief return to work more than two years earlier, in late 2010, was largely irrelevant to determining whether he currently suffers from permanent total disability. Yet the ALJ appears to have been focused on that earlier period, possibly because that is when petitioner had returned to work before he was terminated.8 For example, in considering the medical evidence presented, the ALJ relied primarily on two outdated medical reports and to have dismissed (or overlooked) numerous other medical reports and a vocational assessment that were closer in time to the claimed onset of permanent total disability.
In her factual findings, the ALJ listed a series of medical reports, highlighting the December 13, 2010, report by Dr. Ross S. Myerson, an independent medical examin-
2. Substantial Evidence
We discern a similar failure to consider all the evidence relevant to what the ALJ labeled as “inconsistencies” in petitioner‘s description of the fall that led to his injuries and in his complaints of pain to his doctors. The ALJ noted that during the hearing, petitioner testified that he fell “towards the left side and hurt the left side of his face” and later testified that he felt “heat” in his right knee and hip. The ALJ indicated that when treated by Dr. Mayer in September 2010, petitioner said he struck the right side of his head, which led to headaches, and complained of pain radiating down his right side, after he had told Dr. Phillips two weeks earlier that he had pain in his neck and lower back as well as pain radiating down his left leg. Even if there was some discrepancy between petitioner‘s testimony at the hearing and his report to Dr. Mayer three years earlier as to which side of the face was hit as petitioner fell through the roof at the construction site, it cannot be viewed in isolation. The record shows that petitioner was referred for a neurological consultation by his orthopedic doctors. Dr. Vandana Sharma, a neurologist, treated petitioner from September 2010 to April 2012. Dr. Sharma ordered a brain MRI in 2011, and diagnosed petitioner with post-concussion syndrome with persistent headaches, dizziness, blurred vision and difficulty concentrating; post-traumatic cervical, thoracic and lumbar sacral strain syndrome; and pain and paresthesia of the lower extremities. In his report dated September 4, 2013, Dr. Phillips attributed petitioner‘s pain in the left upper extremity and the right hip to the 2010 work injury. On this record, reports of pain in different parts of the body are not necessarily inconsistent or implausible as the sequelae of an injury that had neurological implications. Further fact finding, grounded on medical evidence, is required before testimony can be discredited as “inconsistent.”
* * *
The decision on review is hereby reversed and the case is remanded for further proceedings consistent with this opinion.
So ordered.