Helen White v. District of Columbia Department of Employment Services ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-AA-695
HELEN WHITE, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.
Petition for Review of an Order of the District of
Columbia Department of Employment Services
Compensation Review Board
(CRB-165-13)
(Submitted April 21, 2015 Decided July 23, 2015)
Krista N. DeSmyter was on the brief for petitioner.
Eugene A. Adams, Interim Attorney General for the District of Columbia at
the time the brief was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan,
Deputy Solicitor General, and Richard S. Love, Senior Assistant Attorney General,
filed a statement in lieu of brief for respondent.
Kathryn H.S. Pett, Sarah O. Rollman, and Donna J. Henderson were on the
brief for intervenor.
Before BECKWITH and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.
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MCLEESE, Associate Judge: Petitioner Helen White seeks review of an
order denying her workers’ compensation benefits. The Compensation Review
Board (CRB) concluded that Ms. White was not entitled to compensation for
proposed medical treatments, because Ms. White could not show that the proposed
treatments were reasonable and necessary. We affirm in part and reverse in part.
I.
The following facts are undisputed in this court. Ms. White worked as a bus
operator for the Washington Metropolitan Area Transit Authority (WMATA) for
twenty years. She injured her neck and lower back in a work-related accident in
2006. She has not returned to work since August 2006. Dr. Eric G. Dawson
treated her with intramuscular injections, muscle relaxants, pain medication, anti-
inflammatory medication, sleep medication, and physical therapy.
In 2008, the parties agreed that WMATA would be liable for all reasonable
and necessary medical expenses that were causally related to the accident. In
2012, WMATA denied approval for additional treatment by Dr. Dawson. At
WMATA’s request, Dr. Louis Levitt performed an independent medical
examination (IME) of Ms. White in early 2013. Dr. Levitt determined that Ms.
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White did not need further medical treatment. A utilization review was then
conducted to determine if further treatment by Dr. Dawson was reasonable and
medically necessary. See D.C. Code § 32-1501 (18A) (2012 Repl.) (“‘Utilization
review’ means the evaluation of the necessity, character, and sufficiency of both
the level and [the] quality of medically related services provided an injured
employee . . . .”). The reviewer determined that further treatment was not
reasonable and necessary.
Ms. White contested that determination, seeking an award ordering
WMATA to pay for the treatments proposed by Dr. Dawson. After an evidentiary
hearing, an ALJ denied Ms. White’s claim. Focusing on Dr. Dawson’s
recommendation that Ms. White continue to receive intramuscular injections, the
ALJ found that such injections were not reasonable and necessary. The ALJ did
not make a finding as to whether the other recommended treatments -- muscle
relaxants, pain medication, anti-inflammatory medication, sleep medication, and
physical therapy -- were reasonable and necessary. The ALJ did find -- without
explanation -- that continued office visits with Dr. Dawson would not be
reasonable and necessary. The CRB affirmed without explicitly addressing
recommended medical treatments other than injections and continued office visits.
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II.
Ms. White argues that there was substantial evidence that all of the
proposed medical treatments were reasonable and necessary. “Our limited role in
reviewing the decision of the CRB permits us to reverse only if we conclude that
the decision was arbitrary, capricious, or otherwise an abuse of discretion and not
in accordance with the law.” Washington Hosp. Ctr. v. District of Columbia Dep’t
of Emp’t Servs., 983 A.2d 961, 965 (D.C. 2009) (internal quotation marks omitted).
“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.”
Georgetown Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs., 916 A.2d
149, 151 (D.C. 2007) (internal quotation marks omitted). We will affirm an
agency’s factual determinations if the determinations are supported by substantial
evidence in the record. Washington Times v. District of Columbia Dep’t of Emp’t
Servs., 724 A.2d 1212, 1216 (D.C. 1999).
A.
There was substantial evidence to support a finding that the proposed
injections were not reasonable and necessary. Although Dr. Dawson’s report
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explained why Dr. Dawson thought such injections were medically appropriate,
Dr. Levitt’s report concluded that there was “no clinical basis whatsoever” for the
proposed injections. Ms. White argues that the ALJ could only consider the
utilization-review report and Dr. Dawson’s report. We concluded otherwise,
however, in Placido v. District of Columbia Dep’t of Emp’t Servs., 92 A.3d 323,
327 (D.C. 2014) (“[W]e defer to the CRB’s conclusion that an ALJ may consider
an IME physician’s opinion when determining the reasonableness and necessity of
medical services.”).
B.
Ms. White also argues that the utilization-review report rested on the
conclusion that Ms. White in fact was no longer suffering a work-related injury,
which is contrary to the requirement that utilization review must “accept[] as a
given the diagnosis of injury.” 7 DCMR § 232.2 (2015). The CRB acknowledged
that the language in the utilization-review report was ambiguous, but reasonably
concluded that the report in any event concluded that further injections were not
reasonable and necessary because injections had already been tried for a lengthy
period and had failed. We see no basis for reversal on this point.
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III.
Finally, Ms. White challenges the CRB’s ruling with respect to the
reasonableness and necessity of treatments other than injections. WMATA
defends the CRB’s ruling solely on the ground that Ms. White did not properly
raise before the agency a claim involving such additional treatments. We disagree.
First, Ms. White’s application for a formal hearing stated that Ms. White was
seeking authorization not only for injections but also for “follow up care and
medication.” Second, when the ALJ asked at the evidentiary hearing if Ms. White
sought payment specifically for the injections, Ms. White’s attorney responded,
“[t]hat’s correct,” but stated further that “[t]he treatment has also consisted of
treatment for the cervical spine as well and recommendations for continued anti-
inflammatory care with medication and then also follow-up orthopedic care.” In
seeking review of the ALJ’s order, Ms. White made clear that she was seeking
reimbursement not only for injections but also for other proposed treatments,
including physical therapy, pain medication, muscle relaxants, and sleep
medication. We view these consistent references to the other proposed treatments
as sufficient to preserve the issue before the agency. WMATA does not argue that
the ALJ or the CRB actually decided on the merits whether the other proposed
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treatments were reasonable and necessary, and it is not apparent to us that the
agency resolved that issue on the merits. Under the circumstances, we must
remand the matter for further consideration of that issue. See, e.g., Butler-
Truesdale v. AIMCO Props., LLC, 945 A.2d 1170, 1171 (D.C. 2008) (“When an
agency has failed to consider and resolve each contested issue of material fact, we
have remanded the case back to the agency for further proceedings.”).
The CRB's decision is affirmed in part and reversed in part, and the matter is
remanded to the CRB to direct the ALJ to determine whether the additional
proposed treatments were reasonable and necessary.
So ordered.