DISTRICT OF COLUMBIA COURT OF APPEALS
No. 16-AA-0846 06/21/2018 ADONIS HOLLAND, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
ONCORE CONSTRUCTION COMPANY ET AL., INTERVENORS.
On Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-25-16)
(Submitted June 22, 2017 Decided May 11, 2018)
David M. Snyder was on the brief for petitioner.
Jose L. Snyder was on the brief for intervenors.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the statement was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the statement was filed, were on the statement in lieu of brief.
Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and WASHINGTON, Senior Judge.±
Guaranty Fund Management Services was the other intervenor. The decision in the case was originally issued as an unpublished Memorandum Opinion and Judgment. It is now being published upon the court’s grant of the Petitioner’s motion to publish. 2
BLACKBURNE-RIGSBY, Chief Judge: Petitioner Adonis Holland seeks review
of a Compensation Review Board (“CRB”) Decision and Order affirming the
Administrative Law Judge’s (“ALJ”) denial of Petitioner’s continued prescription
for oxycodone based on the finding that the medication was not “reasonable and
necessary.” See Reynolds v. District of Columbia Dep’t of Emp’t Servs., 86 A.3d
1157, 1160-61 (D.C. 2014); see also D.C. Code § 32-1507 (2012 Repl.). Petitioner
argues that substantial evidence did not support the CRB’s finding because the
ALJ failed to adequately consider Petitioner’s testimony. We reverse and remand.
I.
On September 8, 1999, Petitioner fell twenty-five feet from a ladder,
sustaining back and leg injuries while employed by Oncore Construction Company
(“Employer”). From September 20, 1999 to late 2011, Petitioner received medical
treatment from Dr. Hampton Jackson, an orthopedic doctor, who opined that
(. . . continued) ± Senior Judge Reid was originally assigned to this case. She retired prior to issuance of the Memorandum Opinion and Judgment. Following her retirement on December 12, 2017, Senior Judge Washington was assigned to take her place. 3
Petitioner suffered from lumbar strain, chemical radiculitis,1 and lumbar disc
syndrome. Dr. Jackson treated the Petitioner with various modalities; he
prescribed home exercise, pain medications, physical therapy, Intravenous Neural
Enhancement Therapy, trigger point injections, and a lumbar brace. None of these
treatments gave the Petitioner extended satisfactory pain abatement. Between
September 9, 2002 and July 25, 2011, Petitioner also saw Dr. Robert E. Collins
several times to undergo an Independent Medical Evaluation (“IME”). In an April
12, 2006 report, Dr. Collins diagnosed Petitioner with lumbar strain with chronic
low back pain and a herniated disc, and opined that Petitioner should continue
taking pain medications and not undergo surgery. In a November 30, 2007 report,
Dr. Collins opined that Petitioner had reached maximum improvement, that he
could perform sedentary to light duty work, and that he had no objection to
Petitioner’s pain medication at the time, Flexeril. In a May 16, 2008 report, Dr.
Collins noted that Petitioner continued to have chronic low back pain, that the pain
medication Petitioner was using was appropriate, and that no further treatment was
indicated.
1 Chemical radiculitis is an inflammatory condition affecting the spinal nerve root causing dissemination of disk fluid along the nerve sheath. 4
On January 5, 2011, Dr. Jackson examined Petitioner and opined that he
could no longer participate in work activity, and that Petitioner’s condition had
worsened over the years. Dr. Jackson prescribed Petitioner oxycodone in 2011
instead of the Endocet he had previously prescribed, and also administered
intermittent lumbar epidural steroid injections.2
In a July 25, 2011 IME report, Dr. Collins opined that Petitioner continued
to suffer from chronic lumbar strain with a herniated disk and some intermittent
radiculopathy, which was confirmed by electromyography and nerve conduction
tests. Dr. Collins also opined that Petitioner had a limited response to the epidural
injections he had previously received from Dr. Jackson, and that Petitioner should
be weaned off the pain medication dosage he was taking for his back pain.
2 Petitioner filed a claim for workers’ compensation benefits covering reimbursement for medical treatment and out-of-pocket mileage expenses incurred for transportation to and from medical appointments from June 26, 2000 through April 19, 2011. For this hearing, Petitioner underwent a Peer/Medical Record Review conducted by Dr. Robert Holladay, a Board Certified Orthopedic Surgeon, on January 14, 2013. ALJ Karen R. Calmeise issued a Compensation Order on October 21, 2013 finding Petitioner’s claim to be compensable under the D.C. Workers’ Compensation Act. In the Order, she cited to the Peer Review, which stated that oxycodone was recommended “if it improves function” and “if it was provided by one practitioner.” ALJ Calmeise then concluded that “Oxycodone was appropriate because the medication was prescribed by Dr. Jackson, the primary treating physician and [Petitioner] testified that the Oxycodone helped relieve his pain symptoms better than the previously prescribed Endocet.” 5
In September 2012, after Dr. Jackson passed away, Petitioner continued
receiving treatment, approximately once per month, from Dr. Richard Ashby, a
family practitioner who had been on a list of doctors provided by Dr. Jackson’s
office.
Petitioner subsequently filed a claim for compensation pursuant to D.C.
Code § 32-1520 (a) (2012 Repl.) seeking reimbursement for his visits with Dr.
Ashby and oxycodone medication from February 7, 2013 through December 1,
2015. The Employer challenged the necessity and reasonableness of this
medication and requested a Utilization Review (“UR”) report.3 Dr. Mark
Friedman compiled the UR report based on a review of Dr. Ashby’s records but
did not interview or examine Petitioner.
The UR report4 noted that Dr. Ashby’s records did not contain “a
comprehensive evaluation with regard to the nature and sources of [Petitioner’s]
3 A UR report evaluates the “necessity, character, and sufficiency of both the level and quality of medically related services provided an injured employee based upon medically related standards.” D.C. Code § 32-1501 (18A) (2012 Repl.). 4 In drafting the UR report, Dr. Friedman relied on Dr. Ashby’s notes from September 5, 2012 to October 9, 2014, yet stated that the UR report addressed the (continued . . .) 6
back pain, review of his prior records, imaging studies or EMG’s
[electromyography], or referral for appropriate diagnosis and management of his
reported chronic pain symptoms.” The UR report also noted that Dr. Ashby’s
records referred to psychiatric symptoms of depression and anxiety, but that there
was “no reasoning or documentation of the potential role of psychiatric symptoms
contributing to [Petitioner’s] chronic pain symptoms” and that there was no referral
for a mental health assessment.
The UR report further noted that opioid use “should be monitored closely,
and restricted to patients not highly vulnerable to drug dependence, abuse, or
addiction.” The UR report stated that “[t]he absence of a contract for controlled
substances for nearly two years following the initiation of chronic narcotic therapy,
along with monitoring of urine for potential abuse, is again substandard care and
not compliant with guidelines for chronic pain management.” 5 The UR report
(. . . continued) question of whether Dr. Ashby’s treatment from August 3, 2012 to the present date of March 19, 2015 was necessary and appropriate. 5 The UR report incorrectly stated that Petitioner was not undergoing drug tests. Dr. Ashby’s records demonstrate that urine tests were conducted on a regular basis, beginning at the very latest, on December 5, 2012, and that there was a protocol in place to safeguard against substance abuse prior to signing a controlled substances contract. 7
concluded that the care rendered by Dr. Ashby to the Petitioner from September
2012 through October 2014 did not meet appropriate guidelines for management of
chronic pain syndrome and that the use of narcotic pain medication was “not
considered [a] medically appropriate treatment for chronic lumbar pain of this
nature.”6
At a hearing on December 1, 2015, ALJ Mark W. Bertram questioned the
Petitioner about his treatment with Dr. Ashby. The Petitioner testified that when
he began treatment with Dr. Ashby, Dr. Ashby performed a physical examination
and reviewed Petitioner’s prior medical records.7 Dr. Ashby proposed options to
Petitioner, such as alternative treatments and weaning off the oxycodone;
Petitioner testified, however, that he had previously tried physical therapy,
cortisone shots, and epidurals under Dr. Jackson’s supervision, but that none of
these options offered him relief. Petitioner further testified that he declined
6 The UR report also stated that “[l]ong term opiates (narcotics) are recommended as a first-line treatment for chronic non-malignant pain[,]” which appears to be missing the word “not,” given that this conclusion as written contravenes the text that follows. 7 Dr. Ashby referenced “psychiatric symptoms of anxiety and depression” but did not document how these symptoms contributed to Petitioner’s pain and did not suggest treatment for these issues. The UR report states that psychological causes need to be considered when prescribing opioids such as oxycodone. 8
psychiatric counseling and back surgery.8 Petitioner testified that Dr. Ashby
refilled his prescription for oxycodone, and that Dr. Ashby conducted random
urine testing and had Petitioner sign a controlled substances consent form in 2014
to ensure compliance with his treatment.9 Petitioner indicated that he needed the
oxycodone to participate in everyday activities and would suffer extreme pain if he
did not take it. Petitioner testified that he took his medication precisely as
prescribed and that missing more than an hour would leave him in extreme pain.
Dr. Ashby also recommended that Petitioner should “stay active” and “lose
weight.” Petitioner testified that he walked as much as he could in an attempt to
keep his weight under control, but that he often stayed in bed because the pain
without oxycodone was unbearable.
8 Petitioner explained that he found spiritual guidance of greater benefit than counseling. He stated that he declined surgery because of the medical expenses he would incur, and because of concerns about the possibility that his condition would not improve with surgery. The ALJ stated that it was “admirable that [Petitioner] weighed the pros and cons of surgery, cause surgery’s [sic] not for everybody.” 9 Dr. Ashby’s act of prescribing the oxycodone reflects his belief that the oxycodone was reasonable and necessary. See Reynolds, supra, 86 A.3d at 1162 (stating that “it is logical to conclude that a doctor’s continued prescription of medication, especially narcotics, is an implicit statement that the doctor believes it is reasonable and necessary for treating the patient”). 9
At the end of the hearing, ALJ Bertram stated that he found the Petitioner to
be “very credible” and stated his belief that the petitioner testified truthfully. ALJ
Bertram, after finding Petitioner to be lucid, also stated that, “by viewing
[Petitioner], I don’t think there’s a problem with the opioid part, so I don’t want
there to be one.”
On January 27, 2016, ALJ Bertram issued a Compensation Order concluding
that Petitioner’s continued use of oxycodone was not reasonable or necessary. ALJ
Bertram explained that his decision was based on the entire record being
“considered and weighed” and stated that “[t]he recommendations and conclusions
of the UR are accepted.” The Compensation Order concluded that, while Dr.
Ashby consistently diagnosed Petitioner with lumbar disc disorder, the medical
records did not elaborate on the back condition or the specific cause of pain.
Further, while Petitioner testified that he took oxycodone as prescribed, his
treatment records did not reflect any additional treatment orders or
recommendations from Dr. Ashby, other than staying active and losing weight.
Moreover, ALJ Bertram found that the UR report warned that prescribing opioids
on a regular basis is considered a “substandard approach” to pain management
because narcotics are addictive and may result in undesirable side effects. 10
Petitioner appealed the Compensation Order to the CRB, which, on August
2, 2016, issued an order affirming the Compensation Order, stating that the ALJ
made its determination based on a consideration of all the evidence, including Dr.
Friedman’s UR report, Dr. Ashby’s records, and Petitioner’s testimony. The CRB
specifically noted that the ALJ considered Petitioner’s testimony that he had tried
alternate therapies in addition to the oxycodone.10 This petition for review
followed.
II.
“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 must
affirm the CRB’s decision “unless it is arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” Clark v. District of Columbia Dep’t of
10 The CRB discussed Petitioner’s reference to a prior Compensation Order (dated October 17, 2015), which authorized his oxycodone use, and concluded that the reference to the prior Order indicated that Petitioner was seeking a modification of the present Compensation Order. The CRB concluded that since a modification of a prior Compensation Order is governed by procedures in D.C. Code § 32-1524, the issue was outside the scope of Petitioner’s appeal. 11
Emp’t Servs., 772 A.2d 198, 201 (D.C. 2001). While we review the decision of the
CRB, not the ALJ, we cannot ignore the ALJ’s decision. See WMATA v. District
of Columbia Dep’t of Emp’t Servs., 992 A.2d 1276, 1280 (D.C. 2010). We must
ensure that “(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.” Georgetown Univ. v.
District of Columbia Dep’t of Emp’t Servs., 971 A.2d 909, 915 (D.C. 2009).
Substantial evidence is “relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Placido v. District of Columbia Dep’t of Emp’t
Servs., 92 A.3d 323, 327 (D.C. 2014).
III.
The CRB explained that its review is limited to a determination of whether
the ALJ’s decision was supported by substantial evidence. See Marriott Int’l v.
District of Columbia Dep’t of Emp’t Servs., 834 A.2d 882, 885 (D.C. 2003)
(explaining that the CRB cannot disregard the ALJ’s factual conclusions and reach
its own from an individual review of the record). In upholding the ALJ’s
determination, the CRB opined that the Compensation Order “reflect[ed] a full
consideration of the UR and Dr. Ashby’s records, and . . . supports the ALJ’s 12
determination that the Oxycodone use alone . . . is . . . an unreasonable approach to
managing chronic low back pain, and that the record fails to reveal any other recent
or contemplated co-therapies.” The CRB further recognized that the ALJ’s
Compensation Order acknowledged Petitioner’s testimony that he had tried other
therapies, but that Dr. Ashby’s records contained no references to any alternative
treatments. Moreover, the ALJ noted that Dr. Ashby’s records did not contain a
treatment or investigative plan “as to the causes of [Petitioner’s] back pain or other
possible treatment alternatives[,]” nor did they contain any “imaging studies,
physical therapy or psychological therapy as pointed out by the UR.” For these
reasons, the ALJ concluded that the UR report was more persuasive on the issue of
the reasonableness and necessity of Dr. Ashby’s treatment.
The CRB erred in determining that the ALJ’s findings were supported by
substantial evidence, and that his conclusions of law flowed rationally from his
findings of fact. Critically, the Compensation Order failed to (1) account for
evidence that alternative therapies had been unsuccessful; and (2) consider the use
of opioids relative to the Petitioner’s circumstances. Both of these issues are
material to the determination of whether the oxycodone use was reasonable and
necessary. 13
The ALJ stated that Petitioner’s “medical records are void of any
elaborations regarding [Petitioner’s] back condition and the specific causes” and
noted that, although Petitioner testified that he had tried other therapies, “Dr.
Ashby’s records are void of any references to alternative treatments that were
considered or ordered.” The ALJ found this problematic given that the “UR also
points out that the use of opioids should be used as part of a multi-modal therapy.”
Although Dr. Ashby’s records did not indicate other treatments, the
Petitioner testified that he tried physical therapy, cortisone shots, and epidurals
under Dr. Jackson’s supervision, yet none of these offered him relief. At the
hearing, ALJ Bertram stated that he found Petitioner’s testimony to be credible; he
also noted that the Petitioner had weighed the pros and cons of back surgery, and
determined that it was not right for him. Petitioner’s credibility was further
bolstered by the prior Compensation Order which was entered into evidence and
provided details regarding Petitioner’s prior attempts at alternative treatments.
Moreover, during the hearing, the Employer stated that they had Petitioner “seen
by IME physicians before in the past” and that “[t]hey typically said he’d reached
MMI [maximum medical improvement], that there wasn’t any treatment that he
needed.” The Employer continued: “So I guess that’s our opinion as far as what 14
other medical treatment might help him. Dr. Ashby’s [sic] at no point said
anything different, other than just keep taking meds.”
This evidence all contravenes the UR report’s recommendation suggesting
that the use of alternative treatments was reasonable and necessary, as this
evidence suggests that alternatives were considered and did not work, a conclusion
that the Employer orally acknowledged at the hearing. The CRB, in reviewing
ALJ Bertram’s decision, summarily opined that “the record supports the ALJ’s
determination that the Oxycodone use alone, without any other treatment
interventions, is condemned by the UR report as an unreasonable approach to
managing chronic low back pain” and that the Compensation Order “reflect[ed] a
full consideration of the UR and Dr. Ashby’s records.” In Straughn v. District of
Columbia Department of Employment Services, we held that an ALJ was required
to address the Petitioner’s testimony that, if credited, “could tend to undermine a
conclusion that [Petitioner’s] symptoms were attributable to [a] preexisting
[condition] . . . .” 176 A.3d 125, 128 (D.C. 2017). Although ALJ Bertram briefly
referred to Petitioner’s testimony about other treatments, he did not appear to
weigh this evidence in deciding to credit the UR report over Dr. Ashby’s treatment
records, which is inconsistent with the ALJ’s obligation to “weigh the competing
opinions based upon the record as a whole.” Haregewoin v. Loews, 15
CRB No. 08-068, 2008 DC Wrk. Comp. LEXIS 32, at *8 (Feb. 19, 2008); see also
Darden v. District of Columbia Dep’t of Emp’t Servs., 911 A.2d 410, 416 (D.C.
2006) (stating that “[a]n agency fails to base its decision on substantial evidence in
the record when it ignores material evidence in the record”).
Similarly, the ALJ accepted the UR report’s generalized conclusion that the
use of “controlled substances on a regular basis for non-cancer pain is considered
to be a substandard approach to the management of chronic pain syndromes”
because “narcotics are addictive, and often ineffective, and may lead to a variety of
undesirable outcomes and side effects when prescribed on a regular basis for non-
cancer pain.”11 This generalized conclusion, however, does not appear to have
been considered in the context of Petitioner’s evidence, which suggested that the
opioids had been effective12 in alleviating his pain and that petitioner did not have
11 ALJ Bertram stated during the February 1, 2015 hearing that he “thought the Utilization report laid out some very compelling stats and statistics about the long-term use of narcotics.” He then stated, “That’s my concern in this case.” 12 Some of Dr. Ashby’s treatment records that postdate the treatment records discussed in the UR report suggest that the Petitioner was responding favorably to the oxycodone. A March 10, 2015 note stated that “medication makes pain better” and that “pain w/ meds is 6/10.” A January 9, 2015 note stated that “chronic pain in lower back is responding to analgesics.” A December 11, 2014 note stated “managing pain and functioning at current dosing.” Moreover, Petitioner testified that in the short gap between seeing Dr. Jackson and Dr. Ashby, he was in extreme pain and suffering because he was not taking his medication. 16
any substance abuse issues.13 The UR report did not point to any evidence to the
contrary. The ALJ, in deciding to credit the UR report, does not discuss the urine
tests contained in the medical records or any of the specific comments contained in
Dr. Ashby’s treatment records. Although it may be true that oxycodone use alone
is not appropriate in certain cases, the ALJ was required to weigh the evidence in
the record suggesting that the oxycodone had alleviated Petitioner’s pain, and the
evidence suggesting that Petitioner had fully complied with his medication
regimen.
Accordingly, we reverse and remand the case for re-examination of the
record and findings and conclusions not inconsistent with this opinion.
So ordered.
13 Petitioner’s credible testimony, the urine tests, and ALJ Bertram’s statement that he didn’t “think there’s a problem with the opioid part” all supported a finding that Petitioner was not abusing the oxycodone.