DISTRICT OF COLUMBIA PUBLIC SCHOOLS v. DISTRICT OF COLUMBIA and COLICCHIO PROCTOR, INTERVENOR.

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-AA-630
DISTRICT OF COLUMBIA PUBLIC SCHOOLS, PETITIONER,
v.
DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
COLICCHIO PROCTOR, INTERVENOR.
On Petition for Review from an Order
of the Compensation Review Board
(CRB-194-12)
(Argued May 20, 2014 Decided July 31, 2014)
Stacy L. Anderson, Senior Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. Alikhan, Deputy Solicitor General, were on the brief for
petitioner.
Irvin B. Nathan, Attorney General for the District of Columbia, Eugene
Dams, Principal Deputy Attorney General, Tonya Sapp, General Counsel, and
Rhesha Lewis-Plummer, Assistant Attorney General, filed a statement in lieu of
brief for respondent.
Harold L. Levi, with whom Steven M. Zelinger, was on the brief, for
intervenor.
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Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING,
Senior Judge.
KING, Senior Judge: District of Columbia Public Schools (“DCPS”) seeks
review of an order of the Compensation Review Board (“the Board”) which upheld
a common law treating physician preference in public-sector workers‟
compensation cases. DCPS contends that the Board erred as a matter of law in
holding that the repeal of a statutory treating physician preference revived the
common law rule, where the legislature‟s intent was to abolish the preference in
public sector cases. We agree, and accordingly we reverse the Board‟s order and
remand the case.
FACTUAL BACKGROUND
On September 26, 1994, claimant Colicchio Proctor (“claimant”) injured her
right knee after a slip and fall while working as an employee of DCPS. On
October 31, 1994, she filed for disability compensation under the District of
Columbia Comprehensive Merit Personnel Act (“CMPA”), D.C. Code §§ 1-623.01
et seq. (2012 Repl.), and began receiving temporary total disability workers‟
compensation benefits which commenced on the date of her injury.
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Claimant sought medical treatment for her knee injury from Dr. John
Delahay, who has continued to treat her since her fall. Dr. Delahay performed
arthroscopic surgery, and after completing physical therapy, claimant returned to
work in May 1995. She left thirteen months later, however, due to a recurrence of
her knee injury, at which time her disability benefits were reinstated. In September
1998, adjustments were made to claimant‟s temporary disability payments to
reflect that claimant had secured a part-time sedentary job. She was terminated
from this employment sometime before November 1999.
Claimant suffered another fall on November 7, 2003, and Dr. Delahay
observed in his reports that the injury resulting to her right knee from this fall was
exacerbated by her original work-related injury. In August 2006, Dr. Delahay
opined that claimant had sustained a “traumatic chondromalacia” and that she was
“relatively asymptomatic on her right side until the fall 12 years ago and since that
time has had ongoing and somewhat progressive problems with the right knee.” In
September 2006, Dr. Delahay further stated that, “I do believe a fall such as the
one sustained by [claimant] can accentuate underlying disease and indeed
accelerate its course,” and that some of her current arthritis was attributable to the
original fall. X-rays taken in December 2011 revealed that claimant had end-stage
4
osteoarthritis in both knees, and Dr. Delahay opined that the X-ray showed that her
right knee was worse than her left.
On December 13, 2011, claimant saw Dr. Louis Levitt for an additional
medical evaluation at DCPS‟s request. After reviewing claimant‟s medical records
and conducting a physical examination, Dr. Levitt concluded that claimant had a
degenerative injury that was symmetrical in both knees and attributable to age and
chronic obesity. Dr. Levitt further opined that claimant‟s current knee arthritis was
not causally related to the original work-related injury and had not been
accelerated or enhanced by that injury.
On February 16, 2012, more than seventeen years after the date of the
original injury, the Office of Risk Management notified claimant that it would stop
paying her disability benefits on March 16, 2012. Claimant appealed the decision
to DOES‟s Office of Hearings and Adjudication, and an evidentiary hearing was
held on October 4, 2012. The administrative law judge (“ALJ”) applied a common
law rule giving preference to the treating physician‟s testimony (Dr. Delahay) over
the testimony of other physicians, and reinstated claimant‟s temporary total
disability benefits in a compensation order dated November 21, 2012.
5
DCPS appealed to the Board, which rejected DCPS‟s argument that the ALJ
erred in applying the treating physician preference and affirmed the compensation
order. The Board denied DCPS‟s motion for reconsideration, and DCPS filed a
timely petition for review to this court.
ANALYSIS
I. Statutory Background
In our 2004 opinion Kralick v. District of Columbia Dep’t of Emp’t Servs.,
842 A.2d 705 (D.C. 2004), we held that treating physician preference applies to
disability benefits cases brought by public employees under the CMPA. The
preference, which hails from private-sector workers‟ compensation cases, provides
that “the medical opinion of a treating physician is generally entitled to greater
weight than the opinions of doctors who have been retained to examine a claimant
solely for the purpose of litigation.” Id. at 711. “Although a Hearing Officer
remains free to reject the testimony of a treating physician, he cannot do so
„without explicitly addressing that testimony and explaining why it is being
rejected.‟” Id. (quoting Lincoln Hockey, LLC v. District of Columbia Dep’t of
Emp’t Servs., 831 A.2d 913, 919 (D.C. 2003)); see also Olson v. District of
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Columbia Dep’t of Emp’t Servs., 736 A.2d 1032, 1041 (D.C. 1999) (“[A] hearing
examiner may discount a treating physician‟s opinion if the examiner sets forth
specific and legitimate reasons for doing so.”).
Following Kralick, the Council of the District of Columbia codified in
December 2004 a treating physician preference for public sector cases brought
under the CMPA. The Disability Compensation Effective Administrative
Amendment Act of 2004, D.C. Law 15-290, amended the CMPA to provide that:
“In all medical opinions used under this section, the diagnosis or medical opinion
of the employee‟s treating physician shall be accorded great weight over other
opinions, absent compelling reasons to the contrary.” D.C. Code § 1-623.23 (a-
2)(4) (2005). All parties to this appeal essentially agree that the amendment
accorded greater deference to a treating physician‟s testimony than was provided
by Kralick. In particular, the amendment required that the treating physician‟s
testimony be given “great weight” instead of “greater weight,” and the hearing
examiner could discount the testimony only for “compelling reasons” instead of
“specific and legitimate” ones.
Subsequently, in 2010, the Council repealed the amendment by striking
altogether the above sentence which codified the preference. D.C. Council, Report
7
on Bill 18-731, the Fiscal Year 2011 Budget Support Act of 2010, Attachment C,
at 19-20 (May 26, 2010). The Council did not substitute any other language for
this provision.
II. Principles of Statutory Construction
“The initial step in statutory interpretation is to „first look at the language of
the statute by itself to see if the language is plain and admits of no more than one
meaning‟ while construing the words in their „ordinary sense and with the meaning
commonly attributed to them.‟” Dobyns v. United States, 30 A.3d 155, 159 (D.C.
2011) (quoting Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751,
753 (D.C. 1983) (en banc)). “Although the „plain meaning‟ rule is certainly the
first step in statutory interpretation, it is not always the last or the most illuminating
step.” Peoples Drug Stores, 470 A.2d at 754. “[E]ven where the words of a
statute have a „superficial clarity,‟ a review of the legislative history or an in-depth
consideration of alternative constructions that could be ascribed to statutory
language may reveal ambiguities that the court must resolve.” Id. (citations
omitted). In such situations, “[t]he court may appropriately look beyond plain
meaning.” Dobyns, 30 A.3d at 159.
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Furthermore, legislative intent may indicate whether the repeal of a statutory
provision has the effect of reviving or supplanting common law. Typically, “[i]n
the case of the repeal of a statute . . . even though declaratory of the statute that is
repealed, the repeal revives the common law as it was before the statute.” 2B
Sutherland Statutory Construction § 50:1 (7th ed. 2008); accord Velez v. Tuma,
821 N.W.2d 432, 436-37 (Mich. 2012) (repeal of statutory provision codifying
common law did not abrogate common law rule); State v. Buck, 275 N.W.2d 194,
197 (Iowa 1979) (“It is well settled that: „. . . The legislature is presumed to know
the common law before the statute was enacted, and so the repeal of a statute, even
though declaratory of it, revives the common law as it was before the statute.‟”
(quoting 2A Sutherland § 50:01 (4th ed.))); Wood v. Woods, 184 Cal. Rptr. 471,
477 (Cal. Ct. App. 1982) (same); Makin v. Mack, 336 A.2d 230, 234 (Del. Ch.
1975) (same). This principle governs, however, only “[a]bsent an indication that a
legislature intends a statute to supplant common law.” 2B Sutherland § 50:1;
accord White v. State, 717 S.W.2d 784, 787 (Ark. 1986) (common law repealed
where it was legislature‟s “apparent” intent to do so when repealing statutory
provision fashioned in part on common law).
It is a maxim of statutory construction that “[r]epeals by implication are not
favored.” United States Parole Comm’n v. Noble, 693 A.2d 1084, 1108 (D.C.
9
1997) (citation omitted). Accordingly, “no statute is to be construed as altering the
rules of the common law, farther than its words plainly import.” Holiday v. United
States, 683 A.2d 61, 98 (D.C. 1996) (internal quotation marks omitted); see, e.g.,
Velez, 821 N.W.2d at 436-37 (“[T]he Legislature should speak in no uncertain
terms when it exercises its authority to modify the common law.”); Northern
Indiana Pub. Serv. Co. v. Citizens Action Coal. of Indiana, Inc., 548 N.E.2d 153,
159 (Ind. 1989) (“It is well settled that the legislature does not intend by a statute
to make any change in the common law beyond what it declares either in express
terms or by unmistakable implication.” (internal quotation marks omitted)).
Nevertheless, courts may “supply words to a statute . . . where necessary to give
effect to a legislative intent clearly indicated by the statute‟s context or other
parts.” 2B Sutherland § 47:38.
III. Council’s Intent in Repealing Treating Physician Preference
At oral argument, counsel for DCPS agreed that when considering only the
specific language of the 2010 repeal, in the absence of any provision relating to
supplanting the common law, the effect of the repeal would be to revive the
Kralick common law rule. Notwithstanding, DCPS argued – and we agree – that a
review of the legislative history reveals ambiguities which compel us to look
10
beyond the plain meaning of the statute. The legislative history manifests a clear
and unmistakable intent on the part of the Council to accord equal weight to the
testimonies of both treating and non-treating physicians in public-sector cases
brought under the CMPA.
The most significant indication of the Council‟s intent lies in the language of
the bill as originally introduced. Initially, the Council had considered replacing the
amendment codifying the preference with an equal weight provision. Report on
Bill 18-731, Attachment A, at 37. That provision would have modified the
amendment to read: “In all medical opinions used under this section, the diagnosis
or medical opinion of the employee‟s treating physician and the opinion of other
physicians who would have examined the employee shall be given equal weight.”
Id. A report by the Council‟s Committee on Government Operations reveals that
the Council decided against enacting this equal weight provision because it was
concerned that the provision could be misinterpreted to preclude credibility
determinations:
Adding a provision that requires all evidence to be
afforded equal weight, as proposed, could be interpreted
to prevent a judicial or quasi-judicial body from
assigning different values of credibility to difference
pieces of evidence. Thus, the Committee recommends
amending this provision to simply delete the current
“great weight” provision.
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D.C. Council, Report and Recommendation of the Committee on Government
Operations and the Environment on the Fiscal Year 2011 Budget For Agencies
Under Its Purview, at 144 (May 13, 2010) (emphasis omitted). This concern
notwithstanding, the Committee never suggested that the purpose of the 2010
repeal should be altered. The Committee recognized that the clear purpose of the
repeal was to “allow all medical evidence to be treated equally in resolving
medical disputes,” in contrast with “[c]urrent law [which] requires evidence from
the patient‟s treating physician to be afforded great weight.” Id. Thus, the
legislative history demonstrates that the Council‟s intention in repealing the 2004
amendment was to eliminate the treating physician preference.
Claimant asserts that the Board has construed the 2010 statute as reviving
the Kralick common law rule, and considerable deference should be given to the
Board‟s construction. While the Board‟s “interpretation of . . . the statute which it
administers is generally entitled to great deference from this court,” it “is not
binding upon this court if it conflicts with the plain meaning of the statute or its
legislative history.” McCamey v. District of Columbia Dep’t of Emp’t Servs., 947
A.2d 1191, 1196 (D.C. 2008) (en banc) (internal alterations and quotation marks
omitted). “The judiciary is the final authority on issues of statutory construction.”
Id. (internal alteration and quotation marks omitted). Because the Board‟s
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construction of the 2010 repeal contradicts the Council‟s unmistakable intent to
eliminate the treating physician preference, we hold that the Board‟s interpretation
is erroneous as a matter of law.
For these reasons, the 2010 repeal eliminated the treating physician
preference in public-sector cases brought under the CMPA. We therefore reverse
the Board‟s order and remand for additional proceedings consistent with this
opinion.
So ordered.