Porter v. District of Columbia Department of Employment Services ( 1986 )

PER CURIAM:

Petitioner Porter appeals from the District of Columbia Office of Workers’ Compensation’s denial of her claim for additional benefits. There are two issues presented by claimant on appeal: (1) whether the agency’s decision was supported by substantial evidence; and (2) whether the procedures followed by the agency complied with the District of Columbia Administrative Procedures Act and the District of Columbia Workers’ Compensation Act. Because we find substantial evidence in the record to support the agency’s decision and also conclude that the agency’s procedures complied with statutory requirements, we find petitioner’s contentions without merit. We affirm.

I. Substantial Evidence Exists to Support Agency’s Decision

Under D.C. Code § l-1509(e) (1981) an administrative agency must make findings of fact and conclusions of law which are based on “substantial evidence.” Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hockaday v. D.C. Department of Employment Services, 443 A.2d 8, 12 (D.C.1982) (citations omitted).

Petitioner was employed as a special diet cook at the Washington Hospital Center when, on October 9, 1983, she slipped and fell at work, hitting her head, neck, shoulder, back and hip. The employer paid compensation benefits for temporary total disability beginning October 10, 1983, but terminated claimant’s benefits on May 12, 1984, on the ground that claimant unreasonably refused to undergo an independent medical examination.¹

Employer Washington Hospital Center contends petitioner failed to show up for three appointments scheduled for her with Dr. Jenkins, the physician who was to render an independent medical opinion. At the hearing petitioner stated that she did not know why she was being asked to see Dr. Jenkins, and did not go to see him because she was already seeing a third doctor, Dr. Toerge. The reasonableness or unreasonableness of claimant’s inaction was not addressed at the hearing because the Department of Employment Services (DOES) hearing examiner found petitioner was no longer disabled in May, 1984.

The hearing examiner thus determined that the employer’s termination of voluntary payment of compensation benefits on May 12, 1984 was justified. There was substantial evidence to support this determination. Specifically, the examiner relied on the report of petitioner’s treating doctor, Dr. Cooney, dated April 18, 1984 stating there were no objective findings to which claimant’s persistent complaints of pain and weakness in her right arm could be attributed. The doctor also noted there were inconsistent findings when testing for sensation and motor function, and that the results of a myelogram were normal. Dr. Cooney further stated that he saw no reason why claimant should not be able to think about returning to work.

Petitioner argues that Dr. Cooney’s latter statement cannot be interpreted as indicating that she was released to return to work. We agree that the statement, standing alone, is somewhat ambiguous. However, read in context, we cannot find the examiner’s determination to be unreasonable.² This court’s function in review is not to weigh the testimony and substitute itself for the trier-of-fact who received the conflicting evidence and determined the weight to be accorded such evidence. Communication Workers v. District of Columbia Commission on Human Rights, 367 A.2d 149, 152 (D.C.1976). The examiner had the claimant and the medical reports before her. She found Dr. Coo-ney’s opinion to be consistent with a later report of Dr. Jenkins’ (November 1, 1984) which concluded that there was no organic basis for petitioner’s complaints and that claimant could return to work without restrictions.³ Based on all the evidence in the record, the examiner determined that Dr. Cooney’s statement should be understood to indicate claimant was at that time able to return to work.⁴ The Director of DOES found the examiner’s determination to be reasonable and so do we.

II. Department of Employment Services Procedures Complied With Statutory Requirements

Petitioner makes a number of arguments alleging procedural defects in the agency’s handling of the case. The argument that the Director of DOES had no right to issue the final compensation order because he was not present at the hearing is frivolous. See Dell v. Department of Employment Services, 499 A.2d 102 (D.C.1985). The Director was in fact obligated to review the record here and to affirm the hearing examiner’s decision if supported by substantial evidence.⁵

Petitioner further claims that, in taking Dr. Jenkins’ report into consideration, the hearing examiner improperly considered evidence extrinsic to the record. Under D.C.Code § 36-320(c) (1981), “no additional information may be submitted by the claimant or other interested parties after the date of hearing, except under unusual circumstances as determined by the Mayor.” In the instant case, the record was explicitly left open for the results of the independent medical examination. The hearing examiner set the due date for the medical report as November 1, twenty days from the hearing date, stating “the record will close on that day.” Because claimant requested that the record remain open for submission of an affidavit containing objections to certain statements in the doctor’s report, the record was not officially closed until December 31, 1984. The consideration of the medical report by the hearing examiner as part of the total record was proper.⁶

Petitioner also notes the hearing examiner failed to comment on petitioner’s credibility. Petitioner concludes that the examiner must have credited petitioner’s testimony, and argues that this negates the existence of substantial evidence. But the hearing examiner’s failure to make a special finding concerning petitioner’s credibility does not constitute error. See Bankers Local Union No. 118 v. District of Columbia Board of Zoning Adjustment, 437 A.2d 176, 178-79 (D.C.1981). Moreover, in crediting Dr. Cooney’s report, the hearing examiner implicitly rejected petitioner’s testimony.

Because we find petitioner’s contentions of insubstantial evidence and procedural defects in the agency proceedings unpersuasive, we

Affirm.

1 . D.C.Code § 36-320(f) (1981) provides:

An injured employee claiming or entitled to compensation shall submit to such physical examination by a medical officer of the District of Columbia or by a duly qualified physician or panel of physicians designated or approved by the Mayor as the Mayor may require. The place or places shall be reasonably convenient for the employee. Proceedings shall be suspended and no compensation be payable to any period during which the employee may refuse to submit to examination.

2 . Specifically, in his Supplementary Neurosurgical Report dated April 18, 1984 Dr. Cooney stated: "There are no real objective findings to attribute the patient’s persistent symptoms. Please note the previously normal myelogram and the inconsistent findings on today’s examination. I have advised her to increase her activities, possibly continue physical therapy, but I see no reason why she should not be able to begin thinking about returning to work.” (R. 115).

3 . The reports of a third physician, Dr. Toerge, were not credited by the hearing examiner because results of the petitioner’s myelogram, thermogram, nerve conduction study and EMG contradicted his diagnosis of radiculopathy or nerve root injury.

4 . Petitioner particularly objects to the hearing examiner’s reliance on Dr. Cooney’s statement regarding "objective tests” because such test results were not in evidence as part of the report. But there was no need for the objective tests to actually be in evidence. The examiner could rely on the treating doctor’s statement with regard to the test results.

5 . Petitioner also contends the Director denied claims that were not ruled upon by the hearing examiner (namely, for medical expenses and interest). But the hearing examiner found that petitioner was no longer temporarily totally disabled as of May 12, 1984. The Director properly interpreted the examiner’s proposed order as also denying claimant's request for interest on unpaid compensation and medical expenses incurred after that date.

6 . Petitioner claims that the hearing examiner erred by not ruling on petitioner’s objection to the introduction of Dr. Jenkins’ report and admitting it into evidence despite the fact it was untimely (the report was due November 1, 1985 and not received until November 2, 1985). But it is apparent that by receiving into evidence Dr. Jenkins’ report, as well as petitioner’s affidavit taking exception to portions of the report, the hearing examiner overruled petitioner’s objection as to the untimeliness of that report. It was within the hearing examiner’s discretion to admit this evidence as timely. Given that petitioner cannot allege any prejudice from the one day delay in submission of the report, it is clear that the hearing examiner did not abuse her discretion in admitting it into evidence.