Clark Construction Group, Inc. v. District of Columbia Department of Employment Services and John Chavis

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-AA-464
CLARK CONSTRUCTION GROUP, INC., ET AL., PETITIONERS,
v.
DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
JOHN CHAVIS, INTERVENOR.
Petition for Review of a Decision of the Compensation Review Board of the
District of Columbia Department of Employment Services
(CRB-15-14)
(Submitted February 12, 2015 Decided August 20, 2015)
Sarah M. Burton was on the brief for petitioners.
Irvin B. Nathan, Attorney General for the District of Columbia at the time
the statement was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy
Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General,
were on the statement in lieu of brief for respondent.
Michael J. Kitzman was on the brief for intervenor.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and REID,
Senior Judge.
Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.
2
Dissenting opinion by Associate Judge FISHER at page 14.
BLACKBURNE-RIGSBY, Associate Judge: This case asks us to decide whether
an employer has the right to request a change of an injured employee‟s attending
physician under the District of Columbia‟s Workers‟ Compensation Act
(“Workers‟ Compensation Act” or “Act”), see D.C. Code §§ 32-1501 to -1545
(2012 Repl.). In this case, petitioners Clark Construction Group, Inc. (“Clark
Construction”) and Zurich American Insurance Co. (“Zurich”), the employer and
insurance carrier, respectively, requested authorization from the Office of
Workers‟ Compensation (“OWC”) to change employee-intervenor John Chavis‟
attending physician via an informal conference. OWC initially granted petitioners‟
request, but the Compensation Review Board (“CRB”) vacated the OWC‟s order,
concluding that employers do not have the right to seek a change of an employee‟s
treating physician under the Act. Petitioners now seek review of the CRB‟s legal
conclusion. We conclude that the CRB‟s interpretation of the Act was not
unreasonable. Therefore, we must affirm the CRB‟s conclusion that employers do
not have the right to request a change of an employee‟s attending physician.
3
I. Factual Background
On June 22, 2012, John Chavis sustained injuries during the course of his
employment as a construction worker with Clark Construction. He sought medical
treatment for pain to his neck, shoulder, and lower back, and for headaches.
Chavis also received psychiatric care from Dr. Faheem Moghal, who diagnosed
Chavis with major depression and provided treatment. Chavis was later
reevaluated by Dr. Brian Schulman at the behest of petitioners.1 Dr. Schulman
diagnosed Chavis with depressive disorder and “possibly” bipolar disorder, and
believed that his work injury contributed to his mental health problems. He also
concluded that Chavis‟ continued “[m]yofascial pain and depression clearly are
linked together, i.e., the worse his depression, the greater his anger, the more it []
manifest[s] as physical pain.” Ultimately, Dr. Schulman believed that Chavis
required continued treatment, and recommended additional treatment focused on
anger control and new prescription drugs because he deemed Chavis‟ current
medication regime ineffective.
1
Dr. Schulman evaluated Chavis on January 23, 2013, and again on
August 6, 2013.
4
Petitioners thereafter sought an informal conference with OWC seeking
authorization to change Chavis‟ treatment with Dr. Moghal, which Chavis
opposed.2 On November 15, 2013, the parties and an OWC claims examiner held
an informal conference to discuss petitioners‟ request.3 Exactly what happened at
this informal conference is unknown to us as it appears there is no written record of
the proceeding.4 Based on OWC‟s subsequent order, however, it seems that the
claims examiner at least reviewed Chavis‟ medical records, which included a
statement from Dr. Moghal that Chavis was under his psychiatric care for “major
depression” and reports from the doctors treating his physical injury, along with
Dr. Schulman‟s reports critiquing Chavis‟ present psychiatric care. On January 15,
2014, the claims examiner, in a two-page final order, granted petitioners‟ request
for authorization to change Chavis‟ physician.5 Specifically, with regard to
2
There is no indication as to whom petitioners sought to transfer Chavis‟
psychiatric care to once OWC granted their request for authorization to change
Chavis‟ physician.
3
See 7 DCMR § 219.1 (“Informal procedures may be utilized by the Office
to resolve in a manner acceptable to all interested parties any matter in dispute
regarding a claim.”).
4
See 7 DCMR § 219.14 (“No stenographic record shall be made of any
informal procedure and no witnesses shall be called.”).
5
If the parties cannot resolve their dispute at the close of the informal
conference, the claims examiner “shall evaluate all the available information and
prepare a Memorandum of Informal Conference containing recommendations.”
(continued…)
5
Chavis‟ psychiatric care, the order, in a somewhat perfunctory fashion, concluded
that, because Dr. Schulman indicated that Chavis required additional psychiatric
care and was not at “maximum medical improvement,” it was “reasonable,
necessary[,] and in the best interest of [Chavis]” for petitioners‟ request to be
granted.
Chavis appealed on two bases: (1) the order failed to specify how granting
the change of physician request is consistent with the employee‟s best interest, and
(2) the order is also inconsistent with the Act and associated regulations. On
appeal, the CRB reversed the OWC‟s order solely on the basis of Chavis‟ second
argument, concluding that the plain language of the Act and corresponding
regulation6 only authorizes the employee to request a change of treating physicians
if unsatisfied, and does not mention any employer rights in this regard. The CRB
(…continued)
7 DCMR § 219.18. Thereafter, “[t]he parties shall have fourteen (14) working
days after receipt of the Memorandum of Informal Conference within which to
signify in writing whether they agree or disagree with the terms of the
memorandum.” Id. at § 219.20. After thirty-four working days, the Memorandum
of Informal Conference becomes final, and “the Office shall issue a Final Order
. . . .” Id. at § 219.22.
6
See D.C. Code § 32-1507 (b)(3) (2012 Repl.) (“The employee shall have
the right to choose an attending physician to provide medical care under this
chapter.”); 7 DCMR § 212.13 (“If the employee is not satisfied with medical care,
a request for change may be made to [OWC] . . . [which] may order a change
where it is found to be in the best interests of the employee.”).
6
declined to interpret the Act as allowing an employer the right to seek a change of
an employee‟s treating physician. This petition for review followed.
II. Discussion
On review, petitioners argue that the CRB‟s legal conclusion was erroneous
because neither the plain language of the Act nor the legislative history of the Act
precludes employers from seeking a change of an employee‟s treating physician
before the OWC. Petitioners essentially contend that the Mayor, or her designee
(in this case OWC), has the authority to order a change of treating physician
whenever it is in the employee‟s best interests, regardless of which party brings the
request.
“Our standard of review of agency decisions in workers‟ compensation cases
is governed by the [District of Columbia‟s] Administrative Procedures Act.”7
Thus, we will affirm the CRB‟s decision “unless it is arbitrary, capricious, or
7
Fluellyn v. District of Columbia Dep’t of Emp’t Servs., 54 A.3d 1156,
1159 (D.C. 2012) (citation and internal quotation marks omitted).
7
otherwise an abuse of discretion and not in accordance with the law.”8 The CRB‟s
interpretation of an administrative statute, however, is reviewed de novo, although,
in recognition of agency expertise, “we accord great weight to any reasonable
construction of a statute by the agency charged with its administration.”9
Accordingly, “we must sustain the [CRB‟s] interpretation even if a petitioner
advances another reasonable interpretation . . . .”10
In interpreting a statute, “our „first step‟ is to determine whether the statute‟s
language is clear and unambiguous.”11 This is because “[t]he primary and general
rule of statutory construction is that the intent of the lawmaker is to be found in the
language that he [or she] has used.”12 Thus, “[w]hen the plain meaning of the
statutory language is unambiguous,” ordinarily, “judicial inquiry need go no
8
Wash. Metro. Area Transit Auth. v. District of Columbia Dep’t of Emp’t
Servs., 992 A.2d 1276, 1280 (D.C. 2010) (citation omitted).
9
Fluellyn, supra note 7, 54 A.3d at 1160 (citation and internal quotation
marks omitted).
10
Smith v. District of Columbia Dep’t of Emp’t Servs., 548 A.2d 95, 97
(D.C. 1988).
11
Providence Hosp. v. District of Columbia Dep’t of Emp’t Servs., 855
A.2d 1108, 1112 (D.C. 2004).
12
Sullivan v. District of Columbia, 829 A.2d 221, 224 (D.C. 2003) (quoting
Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983)
(en banc)).
8
further.”13 We will only look “beyond the ordinary meaning of the words of a
statute [, such as the legislative history,] . . . where there are persuasive reasons for
doing so.”14 Further, “[w]e also recognize that workers‟ compensation statutes are
to be liberally construed for the benefit of the employee,”15 and that, accordingly,
“[a]mbiguous provisions are to be construed with reference to the statute‟s
manifest purpose.”16 Keeping these principles in mind, we turn to the statutory
issue at hand.
In support of their position, petitioners cite primarily to D.C. Code § 32-
1507 (b)(4), which states:
The Mayor [i.e., OWC, as her designee,] shall supervise
the medical care rendered to injured employees, shall
require periodic reports as to the medical care being
rendered to injured employees, shall have the authority to
determine the necessity, character, and sufficiency of any
medical aid furnished or to be furnished, and may order a
change of physician or hospital when in his [or her]
judgment such change is necessary or desirable.
13
District of Columbia v. Cato Inst., 829 A.2d 237, 240 (D.C. 2003)
(citations and internal quotation marks omitted).
14
Sullivan, supra note 12, 829 A.2d at 224 (citations and internal quotation
marks omitted).
15
Hively v. District of Columbia Dep’t of Emp’t Servs., 681 A.2d 1158,
1163 (D.C. 1996) (emphasis added).
16
Id. (citations and internal quotation marks omitted).
9
(Emphasis added). Petitioners interpret this provision, especially the emphasized
clause, as allowing the Mayor, through her designee OWC, to “unilaterally order a
change in physician.”
Though we tend to agree with petitioners that, based on this statutory
provision, the Mayor or OWC through her supervisory powers under the Act
technically has the authority to “unilaterally” order a change in an employee‟s
attending physician, nothing in this statutory passage explicitly grants petitioners,
as the employer and the insurer, the right to request a change of the employee‟s
physician before the OWC. Petitioners cite no statutory authority that grants
employers the right to seek a change of an employee‟s attending physician. It
appears that petitioners‟ argument that employers have the right to spur OWC into
ordering a change of physician hinges on 7 DCMR § 219, which authorizes the
employer or the employee to request an informal hearing before the OWC to
“resolve in a manner acceptable to all interested parties any matter in dispute
regarding a claim,” id. § 219.1, such as was done in this case.
As the CRB concluded, subsection (b)(4) cannot be read in a vacuum, but
must take into account the statute “as a whole so as to avoid [a] construction that
10
would result in an obvious injustice.”17 The CRB determined that the related
provisions of the Workers‟ Compensation Act undercut petitioners‟ interpretation.
First, the preceding subsection, § 32-1507 (b)(3), makes clear that it is the
employee who “shall have the right to choose an attending physician to provide
medical care under this chapter.”18 The statute reserves no equivalent right for the
employer to choose the employee‟s physician.19 Second, regulatory sections
7 DCMR §§ 212.12 and 212.13, state that once a physician has been selected, the
employee may request a change of physician, which must be authorized by either
the insurer, or the agency, which may grant the change “where it is found to be in
the best interest of the employee.”20 7 DCMR § 212.13. Nothing within the Act
17
District of Columbia v. Place, 892 A.2d 1108, 1113 (D.C. 2006) (citation
and internal quotation marks omitted).
18
The employee‟s right to choose his or her physician is restated in
7 DCMR § 212.2.
19
Only when, “due to the nature of the injury, the employee is unable to
select a physician and the nature of the injury requires immediate treatment and
care,” is the employer allowed to select a physician for the employee. D.C. Code
§ 32-1507 (b)(3). Further, 7 DCMR § 212.3 makes clear that “a physician selected
by the employer shall not be considered to have been selected by the employee.”
(emphasis added).
20
See 7 DCMR § 212.12 (“Once a medical care provider is selected to
provide treatment under the Act, an injured employee shall not change to another
medical care provider or hospital without authorization of the insurer or the Office,
except in an emergency.”); Id. at § 212.13 (“If the employee is not satisfied with
(continued…)
11
expressly gives employers the right to request a change of an employee‟s attending
physician. In contrast, the Act specifically lays out the employee‟s right to choose
an attending physician, and the right to seek a change in physician if unsatisfied
with the medical care provided.
We conclude that the CRB‟s interpretation of D.C. Code § 32-1507 (b)(4),
based on the plain meaning of the statute, is reasonable, and we need not go
further.21 Accordingly, on this record, we agree with the CRB that, under the Act,
the employer may not seek a change of an employee‟s physician before the OWC.
We also conclude that OWC, as the Mayor‟s designee, “may order a change of
physician or hospital when in [its] judgment such change is necessary or
desirable.” D.C. Code § 32-1507 (b)(4).22
(…continued)
medical care, a request for change may be made to the Office. The Office may
order [] a change where it is found to be in the best interest of the employee.”).
21
See, e.g., Sullivan, supra note 12, 829 A.2d at 224 (stating that the intent
of the legislature is found in the words expressly used in the statute); Maita
Distrib., Inc. v. DBI Beverage, Inc., 667 F. Supp. 2d 1140, 1147 (N.D. Cal. 2009)
(“[A] court . . . may not rewrite the statute to conform to an assumed intention
which does not appear[] from its language.” (citation and internal quotation marks
omitted)).
22
In agreeing with the CRB‟s interpretation of the Act, we are mindful that
different states have taken different approaches as to how an employee‟s physician
is to be selected or changed. “Under most statutes the employee may choose his or
(continued…)
12
Our holding today does not, as our dissenting colleague contends, act as a
“gag” on the employer, nor does it prevent the OWC from considering “the best
information available,” including any information that the employer may submit
regarding the care that the employee is receiving. Post at 14-15. The issue of
whether an employer can submit to the OWC neutral medical information
regarding the employee‟s progress may come before us in a future case, but it is a
(…continued)
her physician with the authorization of the administrative authority. Under some
[state statutes] the employer designates the physician. Under other[] [state
statutory schemes] the employee is allowed to select his or her physician from a
panel authorized by the Board or by the employer.” 8 LEX K. LARSON, LARSON‟S
WORKERS‟ COMPENSATION § 94.02 [1], at 94-11 (Mathew Bender, Rev. Ed. 2015).
Thus, while some states allow the employer to seek a change of an employee‟s
physician, those states have statutory language expressly granting the employer
such a right. See generally CAL. LAB. CODE § 4603 (West 1975) (“If the employer
desires a change of physicians or chiropractor, he may petition the administrative
director who, upon a showing of good cause by the employer, may order the
employer to provide a panel of five physicians, or if requested by the employee,
four physicians and one chiropractor competent to treat the particular case, from
which the employee must select one.” (emphasis added)); KY. REV. STAT. ANN.
§ 342.020 (7) (West 2010) (“Upon motion of the employer . . . .” (emphasis
added)); N.Y. WORKERS‟ COMP. LAW § 13-a (3) (McKinney 2011) (“The employer
shall have the right to transfer the care of an injured employee from the attending
physician . . . .” (emphasis added)). Accordingly, the Council for the District of
Columbia is free to grant employers the right to seek a change of an employee‟s
attending physician if it so chooses, but such a right is not implicit under workers‟
compensation law, and we will not confer onto employers such a right absent
explicit authority. Further, our holding is in accord with the doctrine of expressio
unius est exclusio alterius. “[A] statute that mandates a thing to be done in a given
manner, or by certain persons or entities, normally implies that it shall not be done
in any other manner, or by other persons or entities.” McCray v. McGee, 504 A.2d
1128, 1130 (D.C. 1986) (citations and internal quotation marks omitted).
13
wholly separate inquiry from what happened here. Clark Construction was not
merely submitting “neutral” medical information to the OWC regarding Chavis‟
medical care. Rather, Clark Construction‟s purpose was to explicitly seek a
change in Chavis‟ attending physician, even though no provision of the Act
explicitly grants the employer such a right. Given the plain language of the
Workers‟ Compensation Act, it is not evident that the Council for the District of
Columbia intended for employers to routinely file petitions to change an
employee‟s treating physician, simply because the employer does not agree with
the treating physician‟s diagnosis or treating plan, such as was done in this case.
That would be contrary to the remedial, employee-centered nature of the Act.23
III. Conclusion
Accordingly, we affirm the CRB‟s decision reversing the OWC‟s order
authorizing petitioners, the employer and insurance carrier, to change an
23
Our dissenting colleague also sua sponte introduces due process
concerns. Post at 16. However, we are not convinced that there is a due process
issue here. We have previously held that employees themselves do not have a due
process right to a hearing for change of physician requests. See Renard v. District
of Columbia Dep’t of Emp’t Servs., 731 A.2d 413, 415 n.2 (D.C. 1999). Further,
whether due process concerns arise in cases like this is not clear cut, given that
different states have taken different approaches as to who can make a change of
physician request. Supra note 22.
14
employee‟s attending physician. We conclude that the CRB‟s interpretation of the
District of Columbia Workers‟ Compensation Act is reasonable. Therefore,
petitioners, as the employer and insurer, were not authorized under the Act to
petition OWC for authorization to change Chavis‟ attending physician.
So ordered.
FISHER, Associate Judge, dissenting: Under the governing statute, the
Mayor has “the authority to determine the necessity, character, and sufficiency of
any medical aid furnished or to be furnished, and may order a change of physician
or hospital when in [her] judgment such change is necessary or desirable.”
D.C. Code § 32-1507 (b)(4) (2012 Repl.). Such an important decision should be
well-considered, drawing upon the best information available. Yet, the
Compensation Review Board held “that any request to switch physicians must
come from Claimant,” in effect prohibiting the employer from furnishing
information which would be useful and might even be compelling. This is an
unreasonable interpretation of the statute, to which we should not defer. I would
reverse and remand for further proceedings.
15
I agree that the current regulations do not expressly permit an employer to
seek a change of physicians. But neither do they prohibit such a request. Why
should we gag the employer, and why should the Mayor be precluded from
considering information the employer submits? Neither logic nor the statutory
scheme justifies such a result.
Allowing the employer to be heard is fully consistent with the humanitarian
purposes of the workers‟ compensation statutes, which “are to be liberally
construed for the benefit of the employee.” Hively v. District of Columbia Dep’t of
Emp’t Servs., 681 A.2d 1158, 1163 (D.C. 1996). The question the Mayor must
consider (through her designee, the OWC) is whether a change of physicians “is
necessary or desirable,” D.C. Code § 32-1507 (b)(4) (2012 Repl.), that is, whether
it will benefit the employee. Even when the injured employee makes the request, a
change in medical care will not be ordered unless “it is found to be in the best
interest of the employee.” 7 DCMR § 212.13.
The CRB stated that “[t]o allow employers to force Claimants to switch to a
different treating physician is not something the act and regulations contemplate.”
But this comment misconceives the situation. The employer is not forcing the
claimant to do anything. It merely seeks to provide pertinent information to assist
16
the Mayor in fulfilling her duty to “supervise the medical care rendered to injured
employees.” D.C. Code § 32-1507 (b)(4) (2012 Repl.). And the employer should
be heard because it has a decided economic interest in helping the injured
employee to recover. Indeed, denying the employer a voice might raise significant
due process issues.
Even Mr. Chavis recognizes that the employer or insurance carrier has a
right to be heard on the question of appropriate medical care. He acknowledges in
his brief that the statute “provide[s] for a tool, utilization review, that could be used
to ensure that the treatment being provided was the treatment required for a
claimant.” Utilization review, designed to determine “the necessity, character, or
sufficiency of medical care or service to an employee,” clearly may be initiated by
the employer. D.C. Code § 32-1507 (b)(6)(B) (2012 Repl.). See also 7 DCMR
§ 232.3 (“The employee, employer or the Office may initiate the review . . . .”).
Perhaps there is a reason why the employer may initiate utilization review but
should be precluded from using an informal conference to suggest that the
employee needs different medical care, but neither the CRB nor the parties have
explained why this should be so.
17
In sum, the OWC properly considered the information submitted by the
employer. However, the CRB did not address whether the order authorizing a
change in physicians was justified. I would reverse and remand for the CRB to
consider that question.