Santos v. District of Columbia Department of Employment Services
536 A.2d 1085
D.C.
1988
Check Treatment

*1 ruled the full court in a future case. (D.C. Ryan, v. 285 A.2d

M.A.P. SANTOS, Petitioner,

Ana D. OF DEPART

DISTRICT COLUMBIA

MENT OF EMPLOYMENT

SERVICES, Respondent, Hotel,

Washington Hilton Intervenor.

No. 86-1177.

District Appeals. of Columbia Court of

Argued Sept. 1987.

Decided Jan. Kowalski, petitioner.

Michael R. D.C., Miller, Washington, Jeffrey R. intervenor. NEWMAN, FERREN, and

Before BELSON, Judges. Associate NEWMAN, Judge: Associate appeals from an order of Ana D. Santos Employment Services Department of (hereinafter Department”) “DOES” or “the compensation bene- awarding her workers’ May 7 to June period from fits for the total tem- entitlement to 1984. She claims expense bene- porary incurred time she from the fits con- that she She contended time partially disabled at the to be tinued hearing. Finding er- of the administrative ruling, we reverse Department’s in the ror *2 proceed- its order and for further remand Dissatisfied with the treatment afforded ings. Linehan, her Santos consulted Dr.

Michael W. chief of neurosurgery at Washington Hospital Center. In his first 28, examination Santos on June employed Ana Santos was on the kitchen 1984, Dr. Dennis found that there was (the staff of Washington Hilton Hotel trapezius tenderness of the palpitation to “employer”) years for over ten from 1974 bilaterally, muscles and that the normal until injury May 1984. On that exaggerated lordotic curve1 was due to her date, slipped spilled a substance overweight diagnosed He condition.2 a low the kitchen floor fell on her and back. She grade back, injury to the mechanical and was taken emergency room at in phy- recommended that she be instructed George Washington University Hospital, At siotherapeutic back exercises. where she was treated for an sprain ankle time, temporarily he her to be considered and cervical strain. totally disabled, subjective Santos was subsequently referred complaints, as evidence derived as well Joseph Linehan, D. examination, compat- from her which was orthopedic specialist, who first examined instability ible with back. May her on 1984. At that time Santos At her to Dr. Dennis’ return visit office was complaining of pain headaches and September, complained still Santos the cervical area. Dr. diagnosed Linehan pain in shoulders. Dr. her back and Den- Santos as suffering from acute cervical change nis’ revealed no examination strain, prescribed and treatment with anti- previous his Despite conditions. recom- inflammatory drugs and muscle relaxers. mendations, had received no phy- Santos Although Santos still complaining siotherapeutic treatment since first vis- follow-up headaches at visit on arranged it.3 He for her to therefore re- Dr. Linehan released her return to work time, ceive such At that he treatment. felt on June with restrictions. Her temporarily totally that she was still dis- compensation workers’ disability payments abled. were terminated on that date. began improve condition as a attempted Santos return to work on result of At an physiotherapy. office June but could work a full day due visit on Dr. Dennis December found pain. back a follow-up After visit on that Santos responding to treatment. June noted Linehan that Santos was His Santos felt noted that considera- complaining throughout now pain bly better she could area and had asked re- of her back. opined shoulders and He turn to work some performing that her form of symptoms lasted entirely had too long, light duty. and He therefore released her really that she did not want to work, January return to work on able to do so. He stated in report, given restrictions nothing “There that she work try more can requiring for her.” her to her back follow-up frequently After another bend visit on long periods noted or stand in a Linehan that Santos had static time, subjective required and that not be her neck to lift and shoulders weights thirty pounds. and numbness in her of over hand. concavity physiotherapists. 1. The deposition lordotic curve is the in the cur- He testified at spine vature of the lumbar cervical as purpose he understood the of her first visit to be viewed from the side. Dorland’s assessment, point and did not at that Iiaustrathd (26th Dictionary ed. treating physician. Mkdicai. consider himself policy, performing his ment, such an assess- feet, injury, At the time of her Santos was 5 place in his re- the recommendations weighed pounds. inches tall and port agency concerned. refer them to request- 3. At the first on June unless consultation Dr. Den- would not initiate treatment nis prescribed physiotherapy had not referring himself party. ed Santos, any nor had he referred her to meantime, beyond June exam- Santos was disabled Santos

In the doctor, single by a released occasion third date when Dr. Linehan had ined on a Gunther, However, F. Chairman of the Stephen her for unrestricted work. Surgery at the Orthopaedic tem- had not established found that Santos This exami- Washington Hospital Center. disability beyond October porary total 29,1984, place on October had taken nation following reason: for the *3 Dr. request employer. of the Gun- at the validity opinion of Dr. Dennis’s of The indi- objective find no evidence ther could continuing disability dependent perform her cating that Santos could relating candid in whether claimant was by deposition job. usual He later testified him. Dr. her Gunther’s during Santos the examination that while concerning incon- the marked great pain, in and needed claimed to be claimant’s behavior sistencies between help interpreter4 to move about of her office, his office and outside examing examing get and on the ta- room credible, ser- raises find both reliable ble; examination, he observed after the credibility as to claimant’s questions ious walking unaided to from his office window appointment with Dr. at least as of her her, brought open the the car which had on Dr. Based Gunther’s Gunther. door, get seat un- into the front car continuing find claimant’s mony, I do not aided. and, since Dr. Den- complaints credible being released for restricted work After opinion on claimant’s com- nis’s is based Santos, by January Dr. Dennis on reports find his after plaints, do not according hearing testimony, to her (claimant’s appointment not offered a with Gunther) with Dr. reliable. restrictions. At consistent with work Department Employment Santos v. of employer’s attorney, a labor request of Services, 84-428, Recom H & AS No. survey performed by a rehabil- market (DOES, Compensation mended Order at consultant, in were listed a itation 9, 1985). Aug. potential job openings number of consistent rejected the rec Director of DOES with abilities and work restrictions. The Examiner, According testimony, to her called of the Santos ommendation list, employers supported by on this as well as other sub finding that it was not through job listings which she had found The Director reiterated evidence. stantial efforts, jobs her own but to avail. Linehan’s conclusion on June English required fluency more available objective exhibited no Santos had, incompatible with than she or were disability, and his statement continued of union physical work restrictions. Her there was 19 medical his June employment ei- could find her no suitable do for her. nothing more he could ther. opinions of medical Director dismissed the stating treating physician, temporary total Santos filed a claim for reports did simply that “his medical expense medical ben- disability benefits and could adequate rationale which present injury. After a efits from the date of her conclusion that Claimant support the Hearing Ex- hearing April 4, 1984.” Santos v. beyond June disabled temporary Santos entitled to aminer found Services, H Employment Department compensation and medical total 84-428, Or Compensation Final AS No. & through Octo- benefits from June He, 24, 1986). (DOES, July there der at 5 The Examiner credited ber fore, entitled that Santos was ordered injury took that Santos’ Dennis’ conclusion be benefits disability nor medical neither long heal because unusually time to petitioned 1984. Santos yond exaggeration of obesity and her excessive Compensation Or Final our review Dennis’ upon Based the lordotic curve. der. found that opinions, the Examiner English. very speaks little Santos, El Salvador States from came to the United who II pounds “200 of stone” suffering while from back strain. He testified that his persuaded areWe the Di temporari- conclusion that Santos had been ruling rector’s was not in accordance with ly totally disabled from the time of her law. See D.C. Code early January 1985 was based 1-1510(a)(3)(A)(1981). The Director was § subjective complaints, accompa- restricted to substantial evidence review of by nied evidence revealed examination Examiner’s Recommended Or which was consistent mechanical in- is, der. That he was bound the Examin formation, stability, improper or muscle findings er’s fact those the back. was his her back supported by substantial evidence in the injury, super- had caused record, considered ás a whole. 7 D.C.M.R. imposed upon preexisting (1986); Department 230.9 Gunty v. Although instability her back. Services, (D.C. Employment 524 A.2d 1192 overlay5 organic, a functional that was not 1987); Dell Employ *4 definitely “she basis physical has a Services, (D.C.1985). ment 102 A.2d presumed complaints_” He The term “substantial evidence” has been fied that he did not believe was a the by defined courts as “more than a mere malingerer. scintilla. means such relevant evidence as a might accept reasonable mind as ade Dr. had also had occasion to com- Dennis quate support a conclusion.” Consol pare x-rays taken cervical of Santos Dr. NLRB, idated Edison Co. v. 305 U.S. 18, 1984, shortly Linehan after (1938), 59 S.Ct. 83 L.Ed. 126 accident, those taken later quoted Washington Post Co. v. District In the later Unemployment Compensation Board, degenera- x-rays, found he had evidence (D.C.1977). A.2d The Director proba- changes thought tive he which to accept findings bound sup factual to, bly though completely related ported evidence, by substantial “even injury. by, caused the trauma of her may contrary have reached a [he] Den Director’s statement that “[Dr. result independent based review of present reports did ade nis’] Dell, the supra, record.” 499 A.2d at 108. quate support rationale which could the factual finding Examiner’s conclusion that Claimant was disabled be disability Santos’ beyond extended yond wrong. plainly June 1984” is San was supported substantial Department tos v. Servic Employment evidence record. Dr. Dennis’ medi- es, 84-428, supra, Final Com H & AS No. 28, report cal of June noted that his Granted, Award, pensation at 5. evidence palpita- examination revealed tenderness to support also existed which would a conclu trapezius tion of the bilaterally, muscles beyond sion that Santos was not disabled and exaggeration of the lordotic curve. He June 4. it the Di But was not within noted, possible that she has a resid- “[I]t authority rector’s to review de novo grade ual low concerning this issue.. factual back.” made the same at the Dell, 499 A.2d supra, at 105-07. Den September follow-up In visit. his reports testimony provided nis’ sub visit, of Santos’ November office evidentiary support stantial for the Exam diagnosed “resolving syn- strain disability finding iner’s that Santos’ extend drome.” beyond ed June 4. The Director’s decision gave ignore deposition testimony Dennis evidence was reversible er recovery period pro- ror. We therefore remand the been Id. at 109. condition, longed by overweight which case to the for a determination date, on which aggravation was a source of chronic after June back, carrying temporary total dis- similar effect to around Santos’ entitlement overlay” cause See Dorland’s "Functional refers to element of can be found. Illustrated organic supra 1 at 531. disturbance function for which note Dictionary, Medical finding of dis may deemed to have of termination ability benefits be Examinees depended ended. neither on the demeanor ability Linehan, Dennis, Gunther, or whose of Drs. do not direct the Director We by deposition prior taken Examiner’s simply reinstate hearing, nor on Santos’ demeanor as a order, however, compensation be proposed solely on the inci witness. It was based aspect find one of that order to cause we by Dr. Gunther. We there reported dent found legally defective. The Examiner less than the traditional deference on October fore owe that Santos’ ended day In finding of her visit to Gunther. in this case. to the Examiner’s finding entirely This factual view, testimony upon our deposition testimony upon Dr. Gunther’s no more than a scintil Examiner relied was enter a unaided that he had seen Santos car evidence, support insubstantial to la of too having unable to purportedly after finding disability had termi that Santos’ examining room without move about 1-1510(a)(3)(E); 7 Code nated. See D.C. companion. The Examiner help of a (1986).6 230.9 D.C.M.R. § lost her claim to credibil found that Santos Hearing Examiner did We note that the date, ensuing com ity on that so that termination not base his decision plaints the latter’s con on the medical date of benefits clusions, them, were based Dennis. versus that of Dr. Dr. Gunther were unreliable. eval- express no view of how we would We recognize “general rule that on We *5 ruling had it made. We uate such factfinding credibility questions, the of aspect of the case that merely hold on this great hearing officers is entitled to by Dr. scanty observation recounted the 1, A.2d 12 weight.” Dwyer, In re 399 entering the car of Ms. Santos Gunther (D.C.1979). The for such defer rationale the is too slim a reed to bear unaided hearing is in the ence is that the examiner weight Hearing Examiner as- which the of best to the demeanor observe for termination signed proper it. The date DAVIS, K. ADMINIS witnesses. See 3 on be determined based 17.16, of benefits must TREATIES at 330 TRATIVE LAW § however, (2d case, proper the evidence. ed. In this agreement with the view held appeal em- We are in 6. Santos also contends on that her ployer's liability expenses jurisdictions she majority for medical which have ad of the injury beyond issue, may incurred due to her extended the benefits the that medical dressed work, returning capable to date she was of disability bene the income continue even after 4, 1984, as the whether that date was June supra, at 10-776-77 fits cease. See A. Larson, found, 29, 1984, as the Director Hearing or October (“when is medical benefits the issue whether found, some later date. Examiner or stop[, i]t income benefits can continue after employee is no We note that the fact that an can.’’) they cited n. generally 23; & cases held that disability longer eligible un- to receive benefits Hollis, Shipping 460 Co. v. see also Strachan (1981) der D.C.Code ily preclude does not necessar- § 36-308 1108, (5th Cir.1972) (constructing the 1116 F.2d receiving her from reimbursement Compen Longshoremen’s Workers’ and Harbor expenses § of under D.C.Code 36-307. medical 1982) Act, (original etseq. 33 U.S.C. 901 § sation separate right to benefits is 509, (1927)), cert. 1424 at ch. 44 Stat. version denied, right 2 A. from the to income benefits. distinct 114, 887, L.Ed.2d S.Ct. 34 409 U.S. 93 Compensation Workmen’s Larson, The Law of (1972); Illin Comm’n Glover v. Industrial 144 (1987). 61.11(b), Work- at 10-773 Under our § ers’ subject 794, 365, 361, ois, Ill.App.3d 92 Ill.Dec. 140 Act, Compensation medical benefits are (1985); Mitchell v. 608 485 N.E.2d disability as are to the same limitations Inc., La., 319 So.2d Enterprises K-Mart benefits, be furnished the income but are to Lines, (La.App.1975); Depue Barsh Truck 827 period "for such as the nature the (Okla.1972); v. Work Deremer 83 493 P.2d may require.” process recovery the or Bd., Appeals 61 Pa. Compensation men's (1981). We find no indica- D.C.Code 36-307 (1981); A.2d 929 433 legislative Commw. language of the Act nor its tion history Anderson, Utah 2d Copper Corp. v. 30 limit intended to Kennecott that the D.C. Council (1973). But see employer’s liability services and 219 for medical P.2d Inc., during Machine, supplies period of time F.2d Campbell Nardella v. injured employee income Cir.1975). receives (9th compensation. proceed- grees, Reversed and remanded she said on the left but ings opinion. consistent with this degrees. side at 60 That constitutes a “subjectively positive straight leg raising BELSON, Judge, concurring: Associate According Gunther, test.” join opinion, I the court’s and write [sjometimes you bring leg when up separately to make few additional obser- you get up further can’t it and it’s obvi- vations about the of Dr. Gunther causing pain, ous that it’s a lot of some- Hearing and the Examiner did you very times it’s not obvious and are base, based, and could have that relying patient says. on what the mony. suspi- I it's going say was to somewhat opinion explains, As the court’s the Hear- go degrees you cious can ing Examiner found that Santos lost her although says it hurts at patient credibility October point. some finding that deposition on Dr. Gunther’s Also, stat- Gunther made a written testimony about the manner which Ms. ing “[rjange that motion in her neck unaided, Santos was able enter a car unim- obviously painful and was which Dr. Gunther observed from a dis- peded talked, made it while we but once I tance, as professed contrasted with Santos’ examining clear it did not that was inability to move without assistance in his very turn it well limited and claimed examining agree room. Gun- by pain degrees way.” to 45 rotation each long ther’s distance observation insuf- Again, credibility. this reflects Santos’ weight Hearing ficient bear the Ex- totality Gunther’s observa- assigned aminer it. affecting credibility tions as of Oc- was, however, There much more in Dr. tober credited testimony concerning Gunther’s the events Examiner, my sufficient view that the Ex- support finding that her used, not, aminer could did have but longer As a reliable as of date. conclude Ms. Santos was not credible. ground finding dis- claimant’s reported that Ms. Santos was *6 ability had as of terminated quite uncooperative during the examina- 1984, conceptually separate this is from Dr. tion, specifically that she would move As opinion Gunther’s medical itself. any although muscles for him “obviously notes, court’s at Hear- ante they functioning.” based this ing Examiner did his decision re- not base opinion on the doing fact she claimed garding the termination date of benefits on anything terribly, most hurt back opinion. Hear- Gunther’s medical upon all muscles seemed weak ing yet weighed Examiner has Yet, testing. tested her reflexes opinion against contrary opinion of Dr. hammer, with a rubber she demonstrated court, Dennis. It not for this rather but legs. normal reflexes in both arms and Examiner, weigh for the reason, For this was not “felt she surrounding aspects both these acknowledges weak.” Dr. Gunther that he of Santos’ claim and make the “necessarily” was not any able to make appropriate. fact he deems respect determination with to her com- plaints upon testing those reflexes. upon

But the fact acted weak (she

testing muscle any would not move

him), even he concluded was in weak,

fact not Santos’ credibili- bears

ty.

Similarly, Dr. Gunther conducted a leg

straight raising straight test. He could

raise legs each Ms. Santos’ 90 de-