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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 22-AA-0957 & 23-AA-0001
CONNIE ALSTON, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.
On Petitions for Review of a Decision and Order of the District of Columbia Department of Employment Services Compensation Review Board (2022-CRB-000047)
(Submitted October 27, 2023 Decided May 2, 2024)
David M. Snyder was on the brief for petitioner.
Brian L. Schwalb, Attorney General for the District of Columbia, with whom Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Thais-Lyn Trayer, Deputy Solicitor General, filed a statement in lieu of a brief, for respondent.
Samuel B. Scott filed a brief for intervenor.
Before MCLEESE, DEAHL, and HOWARD, Associate Judges. 2
HOWARD, Associate Judge: Petitioner Connie Alston, a train operator for the
Washington Metropolitan Area Transportation Authority (“WMATA”), injured her
right arm and shoulder at work in March 2018. She sought benefits for a permanent
partial disability. In her Compensation Order (“CO”), the Administrative Law Judge
(“ALJ”) rejected a finding by Ms. Alston’s treating physician of a 35% impairment
and adopted an award recommended by WMATA’s independent medical examiner
of a 5% impairment. The Compensation Review Board (“CRB”) affirmed the CO,
and Ms. Alston petitioned for review.
We conclude that the CRB acted outside the scope of its discretion when it
affirmed the ALJ’s conclusion that the treating physician’s ratings were
“inconsistent with . . . Ms. Alston’s testimony.” But substantial evidence supported
the CRB’s conclusions about the history of Ms. Alston’s injuries and Ms. Alston’s
current role with WMATA. We reverse the CRB’s decision in part and affirm in
part, and remand for further proceedings.
I. Background
In March 2018, Ms. Alston injured her right arm and shoulder while at work.
She underwent treatment. Ms. Alston and WMATA then disputed Ms. Alston’s
entitlement to permanent partial disability benefits, and an ALJ concluded that 3
Ms. Alston was entitled to an award of 5% impairment. Ms. Alston appealed the
CO to the CRB, which affirmed the CO.
A. Ms. Alston’s Injury and Treatment
On March 29, 2018, Ms. Alston was inspecting a WMATA train. She climbed
onto the back of the train to unlock the door and her foot slipped off a platform.
Ms. Alston used her right hand to attempt to grab the train handle and door. As a
result, she suffered cervical injuries to her spine and neck. This made it difficult for
Ms. Alston to return to work since her duties as a train operator involve “using her
hand to move a control stick back and forth to operate the train.” Ms. Alston
underwent treatment for her injuries from April 2018 to June 2021, seeing
orthopedist Dr. Joel Fechter and neurosurgeon Dr. Matthew Ammerman. 1
After nearly three years of treatment, Dr. Fechter opined on June 9, 2021, that
Ms. Alston had reached maximum medical improvement (“MMI”). Using figures
16-40, 16-43, and 16-46 of the Fifth Edition of the American Medical Association
1 The CRB included facts about these visits from April 2018 to June 2021 in its December 7, 2022, Decision and Order. When it re-issued its Decision and Order on December 8, 2022, to “correct non-substantive errors,” these facts were removed. 4
Guides to the Evaluation of Permanent Impairment (“AMA Guides”), Dr. Fechter
opined that Ms. Alston was entitled to:
[N]ine percent (9%) impairment of the right upper extremity, an additional thirteen percent (13%) impairment for pain and weakness, and taking into account the additional subjective factors of loss of endurance and loss of function, an additional thirteen percent (13%) impairment rating for a total impairment rating of thirty- five percent (35%) to the right upper extremity.
About three months later, on September 29, 2021, orthopedist Dr. David
Johnson examined Ms. Alston upon WMATA’s request for an Independent Medical
Evaluation. At that point, Dr. Johnson had evaluated Ms. Alston twice: once in May
2018 and again in January 2019. Like Dr. Fechter, Dr. Johnson concluded that
Ms. Alston had reached MMI. Dr. Johnson diagnosed Ms. Alston, in connection
with her 2018 injury, with symptomatic exacerbation of multilevel degenerative disk
disease of the cervical spine with spinal stenosis, impingement syndrome, and
tendinosis of the subscapularis in the right shoulder and biceps tendon. These
injuries were “superimposed” on Ms. Alston’s “preexisting injury to the
[acromioclavicular (“AC”)] joint,” for which Ms. Alston had undergone surgery in
2008 and which was “currently objectively and symptomatically resolved.”
Using the Sixth Edition of the AMA Guides, Dr. Johnson then opined that 5
Ms. Alston warranted a zero percent (0%) impairment rating for her right upper extremity and no significant objective abnormal findings at MMI. . . . Ms. Alston would qualify for a ten percent (10%) upper extremity impairment rating according to Table 15-5 [of the AMA Guides], due to a preexisting procedure that was performed in 2008 but that procedure had no relationship to the present injury of March 29, 2018.
Ms. Alston and WMATA disputed Ms. Alston’s entitlement to permanent
partial disability benefits based on the nature and extent of her right arm disability.
B. The ALJ Hearing and Compensation Order
To resolve the dispute, a hearing was held before an ALJ. The ALJ admitted
into evidence Dr. Fechter’s reports from April 18, 2018, through April 24, 2020, and
impairment evaluation from June 9, 2021; Dr. Ammerman’s medical reports from
August 13, 2018, through May 11, 2020, and operative report from November 12,
2019; a transcript from Dr. Fechter’s deposition on May 19, 2022; Dr. Johnson’s
independent medical examinations from May 31, 2018, January 2, 2019, and
September 29, 2021; Dr. Fechter’s orthopedic discharge report from June 12, 2020;
Ms. Alston’s return-to-work wages; and selected pages of the Fifth and Sixth
Editions of the AMA Guides. Ms. Alston was the only witness to testify.
Ms. Alston testified about how she had slipped off a platform leading to the
door of the train she had been inspecting; how she had received treatment from 6
Dr. Fechter and undergone surgery performed by Dr. Ammerman; and how, despite
the doctors releasing her to “light duty,” there was “no light duty for train operators.”
Due to both her injury and her seniority, she was able to “come back to work” as a
train operator in the yard, where she couples and uncouples trains for about ten
minutes a day. This role, according to Ms. Alston, does not require her to “reinjur[e]
that same shoulder” where she is still experiencing pain. She explained that if she
had the same full-time role as before, she “would not have been able to come back
to work.” Ms. Alston described how she continued to experience pain in her right
shoulder and arm area, where she had a prior surgery in 2008.
The ALJ found Ms. Alston’s testimony credible and that Dr. Fechter was
entitled to a treating physician preference. But the ALJ rejected Dr. Fechter’s rating
as “not persuasive” since his “impairment rating [wa]s inconsistent with the medical
records and Claimant’s testimony.” The ALJ reasoned that Dr. Fechter’s “initial
impairment rating did not acknowledge Claimant’s prior injury or that the work
injury cause[d] an exacerbation of the prior injury.” And Dr. Fechter did “not
sufficiently explain the basis of his rating,” used “vague and conclusory language in
providing his rating,” and did not “specify any graphs or tables in supporting his
impairment rating.” 7
In contrast, the ALJ found that Dr. Johnson’s examination showed that
Ms. Alston “had no pain with movement of the right shoulder and no pain with
movement of the neck and there was no sensory deficit or motor weakness to either
upper extremity.” As the ALJ summarized, “Dr. Johnson acknowledged Claimant’s
prior injuries and opined that Claimant’s March 29, 2018 work injury
symptomatically exacerbated Claimant’s multilevel degenerative disc disease.” To
the ALJ, Dr. Johnson distinguished between the 2018 injury’s impact on
Ms. Alston’s cervical spine versus her right shoulder, and between the residual
impact from the 2008 surgery and the exacerbation caused by the 2018 injury. The
ALJ adopted what she characterized as Dr. Johnson’s “well-reasoned” opinion. The
ALJ concluded that Ms. Alston had failed to prove by a preponderance of the
evidence that she was entitled to an award of 35% permanent partial disability
benefits, and ordered WMATA to make payments based on a 5% award.
C. The Compensation Review Board Decision
On appeal, the CRB affirmed the ALJ’s order. The ALJ had “use[d] her
discretion as the fact finder” to find Dr. Fechter’s testimony “unclear” and his pain
ratings unsupported by the record. Dr. Fechter’s testimony, the CRB observed, was
“largely based on subjective complaints from Ms. Alston and inconsistent with both
the medical records and Ms. Alston’s testimony offered at the formal hearing.” The 8
CRB also noted that Ms. Alston “worked in a full duty capacity at a new job, where
she performed her duties without modifications” for pain, weakness, loss of
endurance, and loss of function that she suffered as a result of the 2018 injury. The
CRB found that “substantial evidence supports the finding that the ratings offered
by Dr. Fechter were not based upon a full assessment of Ms. Alston’s relevant
medical history and, therefore, were unpersuasive to the ALJ.” Ms. Alston argued
to the CRB that the ALJ incorrectly determined that deposition was an
“inappropriate place for Dr. Fechter to elaborate on an uncontested issue,” but the
CRB determined that the ALJ made no error when she decided to weigh conflicting
testimony in the manner that she did.
This petition for review followed. 2
II. Standard of Review
“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.’” Howard Univ. Hosp. v. D.C. Dep’t of Emp. Servs., 200 A.3d 1244, 1248
2 Ms. Alston petitioned for review of the December 7, 2022, Decision and Order at No. 22-AA-0957 and the December 8, 2022, re-issued Decision and Order at No. 23-AA-0001. This court sua sponte consolidated these petitions on January 9, 2023. 9
(D.C. 2019) (quoting Reyes v. D.C. Dep’t of Emp. Servs., 48 A.3d 159, 164 (D.C.
2012)). “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 (citations omitted). “Substantial evidence” consists of
evidence that “a reasonable mind might accept as adequate to support a conclusion.”
D.C. Pub. Schs. v. D.C. Dep’t of Emp. Servs., 262 A.3d 213, 219 (D.C. 2021)
(quoting Marriott Int’l v. D.C. Dep’t of Emp. Servs., 834 A.2d 882, 885 (D.C. 2003)).
When we review a decision of the CRB, we “cannot ignore” the ALJ’s CO.
Georgetown Univ. Hosp. v. D.C. Dep’t of Emp. Servs., 916 A.2d 149, 151 (D.C.
2007). We may not review the factual findings de novo and “substitute our view of
the facts for that of the ALJ,” but we “will not defer” to the ALJ’s factual findings
if they are not supported by substantial evidence. Reyes, 48 A.3d at 164 (citations
omitted). “Although our review of agency decisions is deferential, it is by no means
toothless. 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., 916 A.2d at 151 (citations omitted). “The court can only
perform this function when the agency discloses the basis of its order by an
articulation with reasonable clarity of its reasons for the decision.” Id. (citations
omitted). 10
III. Discussion
We conclude that the CRB acted beyond its discretion in its rejection of
Dr. Fechter’s ratings without sufficient explanation, but that substantial evidence
supports the CRB’s conclusions about the history of Ms. Alston’s injuries and
characterization of Ms. Alston’s current role.
A. Consistency of Dr. Fechter’s Ratings with Ms. Alston’s Testimony
When the ALJ concluded that Dr. Fechter’s ratings were “inconsistent
with . . . [Ms. Alston’s] testimony,” the ALJ needed to more specifically explain
why.
When concluding that evidence lacks clarity, a fact-finder must explain why
with sufficient specificity to allow for review. See Georgetown Univ. Hosp., 916
A.2d at 151; see also Clark v. D.C. Dep’t of Emp. Servs., 772 A.2d 198, 204 (D.C.
2001) (remanding where hearing examiner and Director of the Department of
Employment Services failed to “properly conside[r]” treating physician’s testimony
that wearing headset aggravated claimant’s condition); Jones v. D.C. Dep’t of Emp.
Servs., 41 A.3d 1219, 1226 (D.C. 2012) (remanding where “[h]ow the ALJ
determined that the disability award should be 7%—and not, for example, 1%, 10%
or 30%—[wa]s a complete mystery”); Bowles v. D.C. Dep’t of Emp. Servs., 121 11
A.3d 1264, 1269-70 (D.C. 2015) (remanding where ALJ had considered the amount
of physical impairment caused by a surgical procedure and claimant’s potential
future earnings, pain, and atrophy and had concluded that claimant was entitled to
10% permanent partial disability, but this court could not determine which values
the ALJ assigned to each factor).
Here, the ALJ did not explain why Dr. Fechter’s ratings were “inconsistent
with . . . [Ms. Alston’s] testimony.” In his deposition, Dr. Fechter shared how
Ms. Alston told him that
she had more pain in the neck and into the right shoulder with lifting, overhead work if she had to do any pushing, pulling, bending, had some popping and clicking, had stiffness and weakness in the neck and right shoulder. She had more pain and achiness, aching discomfort with cold or damp weather changes in the neck and in the shoulder, and also some occasional numbness and tingling to the fingers of the right hand also.
Dr. Fechter accordingly determined percentages for pain, weakness, loss of function,
and loss of endurance “from [his] conversation with her.” In her hearing before the
ALJ, Ms. Alston described how she continued to experience pain in her right
shoulder and arm area. The ALJ, in what appears to be a summary of Ms. Alston’s
testimony, discussed how Ms. Alston “still experiences pain but it is not as intense,”
“has difficulty turning her neck to the right side,” and has difficulty “reaching 12
overhead,” “carrying heavy things,” and “reaching around the back area.” In turn,
the ALJ explained why she did not find Dr. Fechter’s rating persuasive: Dr. Fechter
“based his impairment rating on the information [Ms. Alston] provided to him,”
“admitted that he arrived at the impairment percentages based on his conversations
with [Ms. Alston],” and “first mentioned” at his deposition that Ms. Alston’s
“stenosis and degenerative changes were aggravated by the work injury.” But the
ALJ did not give an example of a gap between Ms. Alston’s testimony and
Dr. Fechter’s rating, or otherwise explain why the rating was “inconsistent” with
Ms. Alston’s testimony.
The ALJ discussed Ms. Alston’s testimony in the context of describing that
testimony as “more aligned with Dr. Johnson’s permanent impairment rating.” But
it is even more difficult to determine from the ALJ’s discussion of Dr. Johnson’s
rating how Ms. Alston’s testimony was more aligned with Dr. Johnson’s rating than
with Dr. Fechter’s rating. The ALJ wrote:
When evaluating the competing medical opinions and considering Claimant’s testimony that she experiences pain, Dr. Johnson’s examination of Claimant which was after Dr. Fechter’s, revealed that she had no pain with movement of the right shoulder and no pain with movement of the neck and there was no sensory deficit or motor weakness to either upper extremity. 13
This statement does not clarify which parts of Ms. Alston’s testimony were
consistent with Dr. Johnson’s rating and inconsistent with Dr. Fechter’s rating.
Without such clarification, we cannot determine to what extent the ALJ
considered Ms. Alston’s testimony—a requirement to sustain the CRB’s finding that
substantial evidence supported the ALJ’s conclusion. See Catlett v. D.C. Dep’t of
Emp. Servs., 257 A.3d 543, 550 (D.C. 2021) (finding ALJ erred where, “although
the ALJ summarized petitioner’s testimony . . . the ALJ appears not to have
considered petitioner’s testimony”). We therefore conclude that the CRB should
have required the ALJ to discuss why Dr. Fechter’s impairment ratings were
“unclear.”
B. History of Ms. Alston’s Injuries
When it came to the impact of Ms. Alston’s prior injury on her impairment
rating, the CRB correctly concluded that “substantial evidence supports the finding
that the ratings offered by Dr. Fechter were not based upon a full assessment of
Ms. Alston’s relevant medical history.” 3 This is because, “in cases involving
3 Ms. Alston also advances an argument about apportionment regarding her injuries. But we agree with the CRB that apportionment is a legal concept that is “irrelevant to this case” since this petition focuses on the clarity or ambiguity in Dr. Fechter’s testimony. 14
disability arising in part from prior injury and in part from a subsequent injury,
employers were made responsible [under the Workers’ Compensation Act] ‘as if the
subsequent injury alone caused the subsequent amount of disability.’” Howard
Univ. Hosp., 200 A.3d at 1249 (quoting D.C. Code § 32-1508(6)(A)). This means
that when determining an impairment, a physician should explicitly discuss the
extent to which prior injuries contribute to an impairment rating. Compare Jackson
v. D.C. Dep’t of Emp. Servs., 979 A.2d 43, 51 (D.C. 2009) (reversing a CRB decision
where an independent medical examiner mistakenly reported that petitioner had been
scheduled for a knee surgery prior to an on-the-job fall, whereas treating physician
noted that petitioner rescheduled surgery in light of the fall), with Hensley v. D.C.
Dep’t of Emp. Servs., 49 A.3d 1195, 1200 (D.C. 2012) (upholding an independent
medical examiner’s assessment where an examiner concluded—and the treating
physician conceded—petitioner’s medical condition resulted from natural
progression of prior condition and not from a work-related injury). As the ALJ
pointed out, however, Dr. Fechter “did not acknowledge” Ms. Alston’s 2008 injury
“or that the work injury cause[d] an exacerbation of the prior injury.” The ALJ here
correctly pointed out Dr. Fechter’s failure to do so.
Dr. Johnson, however, incorporated such a discussion in his ratings. First, he
explained that Ms. Alston would have qualified for a 10% impairment rating for her
right shoulder, but that “10% would be apportioned to preexisting causes” since the 15
impairment had “no relationship to the present injury of 03/29/2018.” Second, out
of the 5% impairment rating from the “preexisting multilevel degenerative disc
disease that was symptomatically exacerbated,” Dr. Johnson identified that at least
3% was due to “causes that preexisted” the 2018 injury.
It is true that Dr. Fechter noted that Ms. Alston’s “right shoulder dislocation
at work in 2008” made Ms. Alston’s pain “much worse since the work injury of
3-29-18,” and testified similarly at his deposition. The ALJ, however, concluded
within her discretion that Dr. Johnson’s discussion provided substantial evidence for
the permanent partial disability determination; the CRB accordingly affirmed that
determination. Unlike the lack of discussion on the rationale Dr. Fechter shared for
his ratings, here the ALJ supported her determination of Dr. Fechter’s treatment
when the ALJ “explicitly addressed the treating physician’s testimony and explained
why it [wa]s rejected.” Jackson, 979 A.2d at 49.
Because the prior injury never comprised part of Dr. Fechter’s impairment
rating, we conclude that substantial evidence supports the CRB’s reasoning
specifically with respect to Ms. Alston’s 2008 shoulder injury. 16
C. Characterization of Ms. Alston’s Current Role
To minimize “repetitive motion” in her shoulder, Ms. Alston went from
operating trains for commuters eight hours a day to coupling and uncoupling trains
for about ten minutes a day in a WMATA maintenance yard. The CRB adopted the
ALJ’s observation that Ms. Alston “worked in a full duty capacity at a new job,
where she performed her duties without modifications” related to the factors
Dr. Fechter cited in his impairment rating. Our case law prevents us from adopting
Ms. Alston’s argument that the CRB—and the underlying CO—erred in doing so.
Although Ms. Alston may have returned to a “lighter duty position” after her
injury, the lack of a corresponding wage loss supported the ALJ’s and CRB’s
conclusions. This is because, under the District of Columbia Workers’
Compensation Act, disability has been defined in “economic terms” as “incapacity
because of injury which results in the loss of wages.” Dent v. D.C. Dep’t of Emp.
Servs., 158 A.3d 886, 901 (D.C. 2017), as amended (May 25, 2017) (interpreting
D.C. Code § 32-1501(8)) (citation omitted).
While wage loss is not the sole determinant of a schedule award under the
Workers’ Compensation Act, an ALJ’s weighing of relevant evidence includes
“evidence of post-injury wages, compared with pre-injury wages . . . .” Id. at 903
(citing Jones, 41 A.3d at 1224). Here, the ALJ correctly considered such evidence 17
when her conclusions were informed by the fact that Ms. Alston had “returned to
work, full duty and at her full wages, albeit in a different position that requires her
to operate trains for approximately 10 minutes each day.” To be sure, when the CRB
observed Ms. Alston was “perfom[ing] her duties without modifications,” the
CRB’s reasoning could have more specifically focused on the lack of wage loss.
But, in light of the ALJ’s findings, the CRB did not err when it concluded that
Ms. Alston was “work[ing] in a full duty capacity at a new job.”
IV. Conclusion
ALJs are an important part of our system for resolving the disputes of parties.
They are entrusted with hearing cases without a jury and operating without the same
evidentiary rules as courts of general jurisdiction. This comes with several important
obligations, including: (1) weighing the evidence; (2) making findings on every
contested material fact; (3) making conclusions of law that rationally flow from
those facts; and (4), where necessary to making findings of fact and conclusions of
law, completing the administrative record. See Wood v. Dep’t of Consumer & Regul.
Affs., 293 A.3d 163, 167 (D.C. 2023) (“We review OAH decisions to determine
whether (1) OAH made findings of fact on each materially contested issue of fact,
(2) substantial evidence supports each finding, and (3) OAH’s conclusions flow
rationally from its findings of fact.”) (citation omitted); Honemond v. D.C. Dep’t of 18
Emp. Servs., 295 A.3d 1197, 1209 (D.C. 2023) (“An ALJ is required by statute to
consider all the evidence and to exercise independent judgment in determining
whether the claimant has a permanent disability and, if so, the extent of that
disability.”) (citation omitted).
This is a significant responsibility. An ALJ is entrusted to carry out that
responsibility in a manner that is not “[a]rbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” D.C. Code § 2-510(a)(3)(A).
Consequently, an administrative tribunal must engage with the evidence across the
record. In other words, an ALJ’s job is to get to the bottom of the issue.
In the discrete way identified above, we are not confident that occurred here.
We reverse in part and affirm in part the judgment of the Compensation Review
Board, and remand for further proceedings consistent with this opinion.
So ordered.