Coder v. D.C. Department of Employment Services ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-AA-0190
JEANNE CODER, PETITIONER,
v.
DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
MEDSTAR WASHINGTON HOSPITAL CENTER, et al., INTERVENORS.
On Petition for Review of an
Order of the Compensation Review Board
of the District of Columbia Department of Employment Services
(CRB-6-21)
(Submitted October 29, 2021 Decided November 3, 2022)
David J. Kapson filed a brief for Petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General at the time the statement was filed, Caroline S. Van Zile,
Principal Deputy Solicitor General at the time the statement was filed, and Ashwin
P. Phatak, Deputy Solicitor General, filed a statement in lieu of brief for Respondent.
Sheryl A. Tirocchi filed a brief for Intervenors.
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Before BLACKBURNE-RIGSBY, Chief Judge, RUIZ and THOMPSON, ∗ Senior
Judges.
RUIZ, Senior Judge: Petitioner Jeanne Coder injured her lower back during
the course of her employment as a clinical nurse at MedStar Washington Hospital
Center. She brought a claim for workers’ compensation benefits under the District
of Columbia Workers’ Compensation Act. See D.C. Code § 32-1501 et seq. The
Administrative Law Judge (“ALJ”) denied her claim, and the Compensation Review
Board (“CRB”) affirmed that denial, each concluding that Petitioner failed to prove,
by a preponderance of the evidence, that her symptoms were “medically causally
related” to her lower back injury. Ms. Coder now appeals the decision of the CRB.
We affirm.
I. Facts
On April 10, 2018, Jeanne Coder, a shock-trauma nurse at MedStar
Washington Hospital Center, suffered an injury to her back while performing a
lateral transfer. She felt pain and a popping sensation in her back that radiated to
her right leg. Because of the pain, Ms. Coder was subsequently treated by Dr.
Malady Santhosh Kodgi, a pain management specialist. Dr. Kodgi found that Ms.
∗
Judge Thompson was an Associate Judge of the court at the time of
submission. She began her service as a Senior Judge on February 18, 2022.
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Coder had painful, limited range of motion in her lumbar spine which radiated into
her lower extremity. Dr. Kodgi diagnosed Ms. Coder with low back pain with
radiculopathy, which was attributed to degenerative disk disease, and possible nerve
root irritation caused by a Tarlov’s cyst. Dr. Kodgi prescribed injections,
medications, and physical therapy, which gave Ms. Coder enough relief to return to
work on June 25, 2018. Due to a brief flare-up in pain, Ms. Coder was out of work
from July 27, 2018, to August 5, 2018. Dr. Kodgi examined Ms. Coder again on
October 18, 2018, and again diagnosed her with lumbar radiculopathy.
On March 4, 2019, Ms. Coder went back to Dr. Kodgi with complaints of
pain. Dr. Kodgi prescribed injections, but her symptoms worsened after the second
round of injections. On April 29, 2019, Dr. Kodgi referred Ms. Coder to a
neurologist, Dr. Robert Laureno. On June 13, 2019, Dr. Laureno examined Ms.
Coder and noted that she had hip pain on external rotation, even though Ms. Coder
complained of lower back pain radiating down her right leg. Dr. Laureno prescribed
a right hip MRI, which revealed effusion and minimal joint narrowing. On July 17,
2019, Ms. Coder visited Dr. Ahmareen Baten because she was still having lower
back pain that was radiating down her right leg. On October 18, 2019, Dr. Baten
diagnosed Ms. Coder as suffering from S1 radiculopathy and hip joint inflammation.
Dr. Baten referred Ms. Coder for twelve consultations with a physical medicine and
4
rehabilitation provider, and for physical therapy for her right leg pain. On April 28,
2020, Dr. Baten referred Ms. Coder back to Dr. Kodgi for pain management, and to
make an appointment with physical medicine and rehabilitation, and physical
therapy.
On November 6, 2019, Ms. Coder was examined by Dr. Evan Henry Argintar
for the purpose of a consultation. Dr. Argintar’s report included Ms. Coder’s history
of the low back injury at work. Dr. Argintar found that Ms. Coder’s hip examination
was normal, but she had paralumbar tenderness. Dr. Argintar diagnosed Ms. Coder
with “lumbar spine osteoarthritis [and] mild clinical trochanteric bursitis.” Dr.
Argintar referred Ms. Coder back to Dr. Kodgi for treatment of her lower back and
prescribed physical therapy.
None of these physicians opined as to any relationship between Ms. Coder’s
April 2018 work-related injury and her symptoms.
On August 8, 2019, Ms. Coder was examined by Dr. Donald Hope, on behalf
of the employer for the purposes of an independent medical evaluation (“IME”). Dr.
Hope found that Ms. Coder had minimal limitation in her lumbar range of motion,
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with pain at the extremes. She had “tenderness over the lumbosacral junction
bilaterally, worse on the right,” and she had some “pain with provocative movement
of the hips with external rotation on the right.” After a detailed review of Ms.
Coder’s medical records, Dr. Hope opined that Ms. Coder had suffered from a
lumbar strain as a result of the workplace injury on April 10, 2018, but that there
was no structural evidence of nerve root compression on any of her imaging studies
or examinations. He concluded that the lumbar strain had been completely resolved.
Dr. Hope stated that Ms. Coder’s subjective claims of lower extremity pain,
numbness, tingling, or weakness could not be attributable to the work-related injury.
Ms. Coder filed a claim for workers’ compensation benefits and sought
authorization for a physical medicine physician consultation, physical therapy for
her back, and injections as recommended by Dr. Kodgi and Dr. Baten. A formal
evidentiary hearing was held on September 21, 2020, before ALJ Donna J.
Henderson. Ms. Coder testified on her behalf and the ALJ found her testimony to
be credible based upon her demeanor and behavior during direct and
cross-examination. However, the ALJ concluded that Ms. Coder failed to prove, by
a preponderance of the evidence, that her current low back and right leg symptoms
were medically causally related to the low back injury she sustained at work on April
10, 2018. Ms. Coder appealed that decision on November 24, 2020 to the CRB.
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On appeal, the CRB vacated and remanded the Compensation Order for the
ALJ to reconsider the medical evidence as well as Ms. Coder’s testimony to
determine whether the record evidence as a whole would support a reasonable
inference of medical causation pursuant to Straughn v. District of Columbia
Department of Employment Services, 176 A.3d 125 (D.C. 2017) and Haire v. Fort
Meyer Construction Corp., CRB No. 15-161 (R), 2017 WL 4003176 (Aug. 18,
2017). On remand, the ALJ again found that Ms. Coder failed to prove, by a
preponderance of the evidence, that the symptoms she had were medically causally
related to her work-related injury. The ALJ noted that, while Ms. Coder presented
credible testimony of her symptoms, none of her treating physicians identified the
work-related injury as the cause. The ALJ also relied on Dr. Baten’s suspicion that
the cyst and inflammation in her hip could be the cause of some of Ms. Coder’s
symptoms. Thus, the ALJ denied Ms. Coder’s workers’ compensation request for
medical treatment.
Ms. Coder once again appealed the decision of the ALJ on January 25, 2021.
The CRB affirmed, concluding that the ALJ followed the remand instructions to
reconsider the medical evidence as well as Ms. Coder’s testimony to determine if a
reasonable inference of medical causation could be found. The CRB found “from a
7
review of the medical evidence that the evidentiary record does not contain any other
evidence to consider and which would bolster [Ms. Coder’s] testimony.”
II. Analysis
“The Workers’ Compensation Act affords claimants a presumption that an
injury is causally connected to their work, and therefore compensable, whenever
they present ‘some evidence’ of ‘a work-related event, activity, or requirement
which has the potential of resulting in or contributing to the death or disability.’”
Ramos v. D.C. Dep’t of Emp. Servs., 227 A.3d 1108, 1110 (D.C. 2020) (first quoting
Ferreira v. D.C. Dep’t of Emp. Servs., 531 A.2d 651, 655 (D.C. 1987); and then
citing D.C. Code § 32-1521(1)). “Once triggered,” the employer may rebut “this
presumed causal connection only by presenting ‘substantial evidence’ ‘specific and
comprehensive enough to sever the potential connection between a particular injury
and a job-related event.’” Ramos, 227 A.3d at 1110 (quoting Ferreira, 531 A.2d at
655). If the employer does so, the “burden then reverts to the claimant to prove by
a preponderance of the evidence, without the aid of the presumption, that a
work-related injury caused or contributed to [the] disability.” Washington Post v.
D.C. Dep’t of Emp. Servs., 852 A.2d 909, 911 (D.C. 2004).
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We review a decision of the CRB to determine “whether the decision [was]
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’” Reyes v. D.C. Dep’t of Emp. Servs., 48 A.3d 159, 164 (D.C. 2012) (quoting
Asylum Co. v. D.C. Dep’t of Emp Servs., 10 A.3d 619, 624 (D.C. 2010)). “Although
our review in a workers’ compensation case is of the decision of the CRB, not that
of the ALJ, we cannot ignore the compensation order which is the subject of the
CRB’s review.” Placido v. D.C. Dep’t of Emp. Servs., 92 A.3d 323, 326 (D.C. 2014)
(quoting Reyes, 48 A.3d at 164). “Our principal function in reviewing
administrative action is to assure that the agency has given full and reasoned
consideration to all material facts and issues.” Catlett v. D.C. Dep’t of Emp. Servs.,
257 A.3d 543, 548 (D.C. 2021) (quoting Straughn, 176 A.3d at 127).
“We will affirm the CRB’s decision if ‘(1) the agency made findings of fact
on each contested material factual issue, (2) substantial evidence supports each
finding, and (3) the agency’s conclusions of law flow rationally from its findings of
fact.’” Reyes, 48 A.3d at 164 (quoting D.C. Dep’t of Mental Health v. D.C. Dep’t
of Emp. Servs., 15 A.3d 692, 696 (D.C. 2011)). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Catlett, 257 A.3d at 548 (quoting Reyes, 48 A.3d at 164). “If the
factual findings are not supported by substantial evidence, we will not defer to
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them[.]” Id. (alteration in original) (quoting Reyes, 48 A.3d at 164).
Ms. Coder argues that the CRB erred because it imposed a requirement that
she prove her case with medical evidence that her disability is causally related to the
work injury. We disagree. In this case, Ms. Coder credibly testified about the work-
place injury and her subsequent symptoms, which, as the ALJ found, raised the
presumption that her injury was compensable. The ALJ also found, however, that
the employer rebutted the presumption with the medical evaluation done by Dr.
Hope. 1 The next step was for the ALJ to consider whether Ms. Coder had sustained
her claim by a preponderance of the evidence, without the benefit of the
presumption. In its remand order, the CRB instructed the ALJ to do so by
1
Ms. Coder argues that the ALJ’s determination that the presumption was
rebutted is not supported by substantial evidence because Dr. Hope’s opinion, on
which the ALJ relied to rebut the presumption, is logically inconsistent with her
testimony, which the ALJ found to be credible. This argument was not addressed in
the ALJ’s or CRB’s opinions and it does not appear to have been made in the appeal
of the ALJ’s Compensation Order that resulted in the remand. We do not read
Dr. Hope’s report as contradicting the ALJ’s assessment of Ms. Coder’s credibility.
Ms. Coder testified about the pain she felt. Dr. Hope did not say she was malingering
and his report notes some pain while examining her although not as much as her
subjective claims. Dr. Hope opined as to whether her reported symptoms were
attributable to the work injury and concluded they were not, based on his
examination and the finding of a lumbar MRI done four days after the work injury
which was “completely normal with regard to any disc injury or evidence of nerve
root compression.” Thus, he concluded, “any current diagnoses or claims of residual
pains or disability are unrelated to the subject incident. She has no current medical
conditions attributable to the subject incident. In fact, she has no objective findings
attributable to the subject incident.”
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considering not only the medical evidence but also Ms. Coder’s testimony to
determine if it would permit a reasonable inference of medical causation.
Specifically, the CRB noted that “[a]n award for disability benefits may be entered
in the absence of supporting medical evidence if an ALJ finds a claimant is credible
and there is other evidence in the record that would permit the reasonable inference
of disability.” Haire, 2017 WL 4003176, at *8 (emphasis added).
We agree with the CRB that the ALJ followed the remand instructions. The
ALJ acknowledged that Ms. Coder testified credibly about her symptoms but noted
that none of Ms. Coder’s three treating physicians identified the work-related injury
as the cause of her low back pain and right leg radiculopathy. The ALJ was
persuaded by the opinion of Dr. Hope, the IME, that the lumbar strain caused by the
work injury had resolved and her current symptoms were unrelated to that injury,
relying on an MRI done shortly after the work injury. The ALJ did not dismiss
Ms. Coder’s complaints of pain but pointed out that Ms. Coder had “several medical
conditions which may be the source of her low back and right leg pain” and noted
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that Dr. Baten had suspicion that some of Ms. Coder’s symptoms were caused by a
cyst and inflammation in the hip. 2
We emphasize that as the CRB has stated, an award may be made without
supporting medical evidence in certain “limited circumstances.” Haire,
2017 WL 4003176, at *4. That medical evidence may not always be required does
not mean, however, that where there is medical evidence that points away from a
finding of causation, as here, it may be ignored. 3 Moreover, while “other evidence”
to support a claimant’s testimony need not be medical in nature, it must be sufficient
— when considered together with the claimant’s credible testimony and the evidence
as a whole — to support a reasonable inference of causation. This is not such a case.
2
The ALJ’s order mentions that “[t]he hip condition results in symptoms in
similar, if not the same, areas.” It notes that Ms. Coder “also alleges that she injured
her hip, but no benefits are sought for that condition.”
3
As the CRB quoted in Haire,
[t]he increasing tendency, then, to accept awards
unsupported by medical testimony should not be allowed
to obscure the basic necessity of establishing medical
causation by expert testimony in all but the simple and
routine cases — and even in these cases such evidence is
highly desirable and is part of any well-prepared
presentation.
2017 WL 4003176, at *4 n.1 (quoting 7 LEX K. LARSON, LARSON’S WORKERS’
COMPENSATION LAW § 128.05(9) (Matthew Bender ed., rev. ed. 2007)).
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Ms. Coder has not pointed to any other evidence in the record that would permit the
reasonable inference of medical causation. The objective evidence in this case, the
lumbar CT scan and MRI, revealed mild degenerative changes with minimal loss of
disk height, without stenosis, at L5-S1 — which was consistent with Dr. Hope’s
opinion. While the ALJ found Ms. Coder’s testimony to be credible, her testimony
describing her symptoms alone is not sufficient, without some other evidence, to
prove by a preponderance of the evidence that those symptoms are medically
causally related to her work injury. Dr. Hope’s opinion, which the ALJ found
persuasive, was grounded in the MRI and uncontradicted by Ms. Coder’s treating
physicians, and supports the determination that the work injury was not the cause of
Ms. Coder’s pain.
The decision of the CRB is
Affirmed.