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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-AA-350
YUL HILL, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.
On Petition for Review of a Decision and Order of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-19-023)
(Submitted March 26, 2020 Decided April 28, 2020) *
Krista N. DeSmyter and Kevin H. Stillman filed a brief for Petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General at the time the statement was filed, Carl J. Schifferle, Acting Deputy Solicitor General, and Sonya L. Lebsack, Assistant Attorney General, filed a statement in lieu of brief for Respondent.
Sarah O. Rollman and Mark H. Dho filed a brief for Intervenor.
* The decision in this case was originally issued as an unpublished Memorandum Opinion and Judgment. It is now being published upon the court’s grant of Intervenor’s motion to publish. 2
Before GLICKMAN, FISHER, and MCLEESE, Associate Judges.
FISHER, Associate Judge: Petitioner Yul Hill seeks review of a
Compensation Review Board (CRB) order which affirmed an Administrative Law
Judge’s (ALJ) decision to deny petitioner’s claim for temporary total disability
benefits relating to a mental-mental injury. 1 We hereby affirm.
I. Facts and Procedural Background
Mr. Hill began working as a bus operator for the Washington Metropolitan
Area Transit Authority (WMATA) in 2009. While on duty on February 1, 2013,
he suffered physical and mental injuries when he was attacked by a passenger.
After the attack, he received treatment 2 and eventually returned to full duty as a
1 “In physical-mental cases, the claimant alleges that a physical workplace injury caused a mental injury.” Muhammad v. District of Columbia Dep’t of Emp’t Servs., 34 A.3d 488, 492 n.4 (D.C. 2012). “In mental-mental cases, the claimant alleges that an emotionally traumatic workplace event or stressor caused a mental injury.” Id. at 492 n.5. 2 Dr. Joshua Sussal completed a psychiatric evaluation on April 4, 2013, and rendered a diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood.” Dr. Sussal acknowledged that “[a]lthough superficially [petitioner] meets the criteria for PTSD his intent from 2010 with the lack of initiative to drive a bus in the first place coupled to his social issues with: support, finances and dismay for the workers[’] compensation system calls into question the integrity and magnitude of his subjective complaints.” Accordingly, Dr. Sussal “left PTSD as a rule out.” Mr. Hill also received treatment for his physical injuries from Dr. Taseem Malik, who referenced petitioner’s anxiety. Dr. Phyllis Braxton (continued…) 3
bus operator. Petitioner’s doctors opined that the mental health symptoms he
experienced after the 2013 attack were also related to injuries he sustained in a
2010 accident. Dr. Sussal explained that, as in 2010, petitioner insisted that he
would “be fine” if he could return to work in a “non-operator position.”
In late February 2017, petitioner suffered the sudden and tragic loss of his
son. Petitioner took three days of bereavement leave before returning to work at
the beginning of March. On March 3, 2017, petitioner had a public disagreement
with a supervisor which — the petitioner alleges — exacerbated his existing
mental injury. The petitioner sought care through the Employee Assistance
Program (EAP) and received a referral for mental health treatment. While at EAP,
petitioner filled out a sick leave form but did not claim an on-the-job injury or file
a claim for workers’ compensation.
Mr. Hill’s WMATA supervisor, Amit Tonse, regularly contacted Mr. Hill
during his prolonged leave. Repeatedly, Mr. Hill explained that he was “stressed
_____________________ (…continued) Arnason also counseled petitioner and submitted reports to petitioner’s lawyers discussing Hill’s treatment for “[a]djustment disorder with depression and anxiety.” 4
out” because of his grief, without mentioning his discussions with the other
supervisor. During his leave, Mr. Hill received mental health care from Therapist
Alphonso Lewis to whom he had been referred by EAP. Therapist Lewis
understood the reason for the referral to be petitioner’s grief and opined that Mr.
Hill’s symptoms resulted from the traumatic loss of his son and his premature
return to duty. However, after first observing symptoms on April 11, 2017,
Therapist Lewis made a “definite diagnosis” of PTSD on May 16, 2017. On
November 30, 2017, Therapist Lewis produced a clinical summary of his treatment
of Mr. Hill for acute symptoms of anxiety and depression and symptoms of PTSD.
Therapist Lewis eventually advised Mr. Hill “that he should not operate a
bus based upon the continued chronicity of the symptoms of his PTSD[,]”
expressing a concern that allowing Hill to return to work as a bus operator “could
potentially place him and the public at risk.” Lewis also shared this information
with WMATA. Consequently, in a letter dated September 27, 2017, WMATA
permanently disqualified Mr. Hill from operating a bus due to his “post-traumatic
stress disorder,” effective June 20, 2017. According to petitioner, “[a]s of
February 10, 2018, [WMATA] provided him with alternative employment outside
of bus operation.” 5
On September 26, 2017, petitioner filed for temporary total disability
benefits and corresponding interest for the period of March 4, 2017, to February 9,
2018, stemming from the March 3, 2017, incident. This claim was later
consolidated with a claim for temporary total disability and interest for the same
period resulting from the September 2013 attack. Petitioner included a claim for
payment of medical expenses from February 1, 2013, through December 6, 2017. 3
On December 6, 2017, Dr. Cynthia Major-Lewis conducted an independent
medical evaluation (IME) of Mr. Hill, during which she reviewed his medical
records and conducted a mental health examination. Dr. Major-Lewis concluded
that (1) Mr. Hill’s PTSD diagnosis resulting from the 2013 attack was “pre-mature
and incorrect,” (2) Mr. Hill’s resolving “[a]djustment [d]isorder with mixed
anxiety and depression” symptoms was related to “non-work-related
bereavement,” and (3) there “is no chronic condition that should be considered
employment related.” In reference to the PTSD diagnosis, Dr. Major-Lewis
explained that “[Therapist] Lewis did not document the symptoms required to
make a DSM-V diagnosis of Posttraumatic Stress Disorder.”
3 Petitioner’s original claim also included a claim for temporary partial disability payments for the period after February 9, 2018. This claim was withdrawn after a post-hearing review of Mr. Hill’s pay records. 6
An OAH ALJ heard evidence on July 11, 2018. At the hearing, intervenor
argued that there was no medical causal connection between petitioner’s current
symptoms and either the 2013 attack or the March 2017 incident. Intervenor relied
primarily on the IME report to argue against medical causality. Intervenor further
explained that, even if the ALJ found a compensable injury resulting from the
March 2017 incident, relief should nevertheless be denied because petitioner did
not give timely notice of a workplace injury. Finally, with regard to the payment
of temporary total disability benefits, intervenor asserted that it was entitled to a
credit for the payment of long term disability benefits 4 that had occurred between
September 4, 2017, and April 30, 2018.
In reference to the 2013 attack, the ALJ concluded that (1) Mr. Hill invoked
the presumption of a medical-causal connection between the attack and his mental
health complaints, (2) WMATA rebutted the presumption, and (3) Mr. Hill proved
by a preponderance of the evidence “that there was a medical-causal connection
between the 2013 attac[k] and his mental health complaints until December 6,
2017.” The ALJ found that Mr. Hill did not invoke the presumption for the March
4 Payments for which intervenor claims a credit relate to insurance payments made from the employer funded “Transit Employees’ Health and Welfare Plan” provided by Hartford Life and Accident Insurance Company. 7
2017 incident. Despite his finding that there was medical-causality from March 4,
2017, until December 6, 2017, the ALJ denied all “temporary total disability
benefits [and corresponding interest] from March 4, 2017 through February 9,
2018.” The ALJ did not address intervenor’s notice and credit arguments as both
were rendered moot by the total denial of benefits.
Petitioner sought review of the compensation order (CO) from the CRB.
The CRB affirmed the CO in part and remanded after concluding that there was
not substantial evidence to support a finding that the claimant failed to invoke the
presumption of compensability for the March 2017 incident. The CRB did not
address the discrepancy between the ALJ’s findings and his denial of relief
stemming from the 2013 injury. On remand, the ALJ found that, while the
claimant did successfully invoke the presumption, the employer severed the
presumption with Dr. Major-Lewis’s IME report. The claimant then failed to carry
his burden to prove “that there is a medical-causal connection between the 2017
encounter with his supervisor and the allegedly-related mental health complaints.”
In an order issued on April 9, 2019, the CRB affirmed the Compensation Order on
Remand and regarded its earlier rulings as the law of the case, acknowledging 8
petitioner’s “arguments on appeal for preservation purposes and for further appeal
to the District of Columbia Court of Appeals.” Petitioner now seeks review. 5
II. Standard of Review
Petitioner argues that the underlying ALJ compensation orders were not
based on substantial evidence. Specifically, he finds fault with the ALJ’s reliance
on Dr. Cynthia Major-Lewis’s IME report.
“We affirm an administrative agency decision when (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.” Bowles v. District of Columbia Dep’t of Emp’t Servs., 121
A.3d 1264, 1269 (D.C. 2015) (quoting Georgetown Univ. v. District of Columbia
5 The CRB decision and partial remand order issued on December 5, 2018, was not a final order which this court had jurisdiction to review. Warner v. District of Columbia Dep’t of Emp’t Servs., 587 A.2d 1091, 1093 (D.C. 1991) (“As a general matter, this court has jurisdiction to review only agency orders or decisions that are final.”). On remand, the ALJ issued a Compensation Order on Remand that has since been affirmed by the CRB in a final Decision and Order. Because petitioner has exhausted his administrative remedies, both CRB orders are now ripe for review. See Bender v. District of Columbia Dep’t of Emp’t Servs., 562 A.2d 1205, 1207 (D.C. 1989). 9
Dep’t of Emp’t Servs., 971 A.2d 909, 915 (D.C. 2009)). “Substantial evidence is
‘more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Rodriguez v. Filene’s
Basement, Inc., 905 A.2d 177, 181 (D.C. 2006) (quoting Gardner v. District of
Columbia Dep’t of Emp’t Servs., 736 A.2d 1012, 1015 (D.C. 1999)). “Although
our review in a workers’ compensation case is of the decision of the CRB, not that
of the ALJ, ‘we cannot ignore the compensation order which is the subject of the
CRB's review.’” Reyes v. District of Columbia Dep’t of Emp’t Servs., 48 A.3d
159, 164 (D.C. 2012) (quoting Georgetown Univ. Hosp. v. District of Columbia
Dep't of Emp't Servs., 916 A.2d 149, 151 (D.C. 2007)).
III. Analysis
Under the workers’ compensation framework, there is a statutory
presumption in favor of finding a medical-causal connection after the claimant
presents “some evidence of a work-related event, activity or requirement which has
the potential of resulting in or contributing to” a disability. Wash. Post v. District
of Columbia Dep’t of Emp’t Servs., 852 A.2d 909, 911 (D.C. 2004) (internal
quotation marks omitted) (quoting Ferreira v. District of Columbia Dep’t of Emp’t
Servs., 531 A.2d 651, 655 (D.C. 1987)). The employer may rebut that 10
presumption, at which time “the statutory presumption drops out of the case
entirely” and the burden shifts back to the claimant, who must prove by a
preponderance of the evidence that “a work-related injury caused or contributed to
his or her disability.” Id. at 911.
In this case, petitioner argues that the CRB erred in affirming the ALJ’s
finding that the employer presented medical evidence “specific and
comprehensive” enough to rebut the presumption. Petitioner further argues that,
even if the employer did successfully rebut the presumption, the ALJ erred by
crediting the IME report of Dr. Major-Lewis over the opinions of petitioner’s
multiple physicians — including treating physician, Therapist Lewis — to
conclude that the petitioner failed to carry his burden.
A. Rebuttal Evidence
In order to rebut the presumption of compensability, “the burden is upon the
employer to bring forth substantial evidence showing that death or disability did
not arise out of and in the course of employment.” Wash. Post, 852 A.2d at 911
(internal quotation marks omitted) (quoting Ferreira, 531 A.2d at 655). That is,
the employer’s evidence must be “specific and comprehensive enough to sever the 11
potential connection between a particular injury and a job-related event.” Jackson
v. District of Columbia Dep’t of Emp’t Servs., 955 A.2d 728, 732 (D.C. 2008)
(internal quotation marks omitted) (quoting Parodi v. District of Columbia Dep’t
of Emp’t Servs., 560 A.2d 524, 526 (D.C. 1989)). “It is sufficient for the employer
to present substantial medical evidence — as opposed to unequivocal medical
evidence — to rebut the statutory presumption.” Safeway Stores, Inc., v. District
of Columbia Dep’t of Emp’t Servs., 806 A.2d 1214, 1221 (D.C. 2002). Compare
Wash. Post, 852 A.2d at 914 (defense medical report considered substantial
evidence where a qualified physician examined the claimant, reviewed records,
and rendered a clear and consistent opinion), with Wash. Metro. Area Transit Auth.
v. District of Columbia Dep’t of Emp’t Servs., 827 A.2d 35, 42-44 (D.C. 2003)
(non-treating physician medical report not substantial evidence where the
physician did not review treating physician records, provided only a vague opinion,
and omitted key complaints).
In this case, the ALJ ultimately found (and the CRB affirmed) that WMATA
successfully rebutted the presumption of medical causality for both the 2013 and
2017 injuries — primarily through the IME report of Dr. Major-Lewis. The IME
report does not deny the existence of a mental health condition but unambiguously 12
states that “Mr. Hill’s current symptoms are not related to his employment.” 6
There is no dispute as to Dr. Major-Lewis’s qualifications as a board certified
psychiatrist licensed in Maryland. Before preparing her report, Dr. Major-Lewis
examined Mr. Hill and reviewed his medical records. 7 The report is
comprehensive and gives specific reasoning to support her unambiguous
conclusion that petitioner’s current mental health symptoms were not the result of
a work-related event but were an appropriate reaction to the sudden loss of his
6 While Dr. Major-Lewis does express disagreement with Therapist Lewis’s PTSD diagnosis, there is no disagreement over the existence of a mental health condition. The label applied to the condition is of little consequence in this case. In fact, the ALJ did not distinguish between the conditions, finding that Hill suffered from “PTSD or adjustment disorder.” The central issue to be resolved is whether or not there was a medical-causal connection between the symptoms and employment; a connection that the IME report definitively denies. 7 Petitioner claims that Dr. Major-Lewis’s report was insufficient, in part, because she did not review the “treating mental health provider’s records after October 10, 2017.” However, the only record from Therapist Lewis dated after October 10, 2017, is a clinical summary prepared on November 30, 2017. The medical records do not suggest that an exam took place on November 30. Rather, Therapist Lewis simply summarized his notes from prior exams. The ALJ did not consider the counselor’s clinical summary as a part of the medical record but rather as a document prepared for litigation. See infra note 11. This court has recognized the danger of conscious and subconscious bias created by the potential for litigation. Changkit v. District of Columbia Dep’t of Emp’t Servs., 994 A.2d 380, 387-88 (D.C. 2010). As the hearing examiner, the ALJ retained discretion to evaluate the credibility of evidence. The ALJ was acting within his discretion to discredit the November 30, 2017, clinical summary. 13
son. 8 While Dr. Major-Lewis’s report may not have constituted “unequivocal
evidence,” it met the substantial evidence burden to sever the presumption of
medical causality between the work related events of 2013 and 2017 and the
claimant’s mental health complaints.
B. Claimant’s Burden
In order to prevail after the employer has rebutted the presumption, the
claimant must prove — by a preponderance of the evidence and without benefit of
the presumption — “that a work-related injury caused or contributed to his or her
disability.” Wash. Post, 852 A.2d at 911. In reviewing the conclusions of the
CRB we apply the same standard as the Board — substantial evidence review.
The ALJ found that the claimant failed to carry his burden to prove causality
for his March 2017 injury. In reaching this determination, the ALJ gave
considerable weight to the IME report from Dr. Major-Lewis. While the law of
8 “Mr. Hill continues to appropriately grieve the [death] of his son. Mr. Hill’s current symptoms are not related to his employment. Most of his complaints are in the context of dissatisfaction with his employer and supervisor. It is my medical and professional opinion that Mr. Hill’s current symptoms, which are mild and vague, are not related to the 2/1/13 date of injury or the questionable 3/3/17 date of injury.” 14
this jurisdiction “embodies ‘a preference for the testimony of treating physicians
over doctors retained for litigation purposes,’ the hearing examiner nonetheless
‘may choose to credit the testimony of a non-treating physician over a treating
physician.’” Canlas v. District of Columbia Dep’t of Emp’t Servs., 723 A.2d 1210,
1211-12 (D.C. 1999) (quoting Short v. District of Columbia Dep’t of Emp’t Servs.,
723 A.2d 845, 851 (D.C. 1998)). In so doing, the ALJ must explain his reasons for
crediting the non-treating physician. Changkit v. District of Columbia Dep’t of
Emp’t Servs., 994 A.2d 380, 387-88 (D.C. 2010).
Both the ALJ’s Compensation Order and the CRB’s Decision and Partial
Remand Order give specific reasons for crediting Dr. Major-Lewis’s opinion over
the opinion of the treating “physician” — Therapist Lewis. 9 The ALJ cited the fact
that Dr. Major-Lewis conducted an “extensive review of the treatment records,”
cited to the DSM-V criteria, 10 and gave a clear opinion about the true nature of
9 Although not a doctor, Therapist Lewis (MHS, LCRC, NCC) is a licensed professional counselor. At the outset of the July 11, 2018, hearing, the parties agreed that Therapist Lewis should be considered the treating physician. 10 Petitioner cites Johnson v. District of Columbia Dep’t of Emp’t Servs., 167 A.3d 1237 (D.C. 2017), to support the proposition that Dr. Major-Lewis’s report is insufficient in part because “a DME must identify their criteria for PTSD so that a tribunal can determine if the injured worker meets it in order to weigh the credibility of the defense medical evaluation.” The facts in Johnson required the ALJ to distinguish between conflicting definitions of adjustment disorder and (continued…) 15
petitioner’s symptoms. The ALJ also found that Dr. Sussal’s early reluctance to
give a formal PTSD diagnosis tended to support Dr. Major-Lewis’s later
conclusion that the petitioner’s resolved symptoms were more “akin to adjustment
disorder.”
Contrary to petitioner’s contention, Dr. Major-Lewis’s report did not stand
alone in weighing against a finding of causality. In evaluating the evidence before
him to determine if the March 2017 workplace disagreement exacerbated
petitioner’s mental injury, the ALJ correctly explained that credibility is “an
inherent component of mental-mental disability claims.” See Ramey v. District of
Columbia Dep’t of Emp’t Servs., 997 A.2d 694, 699-700 (D.C. 2010). The ALJ
examined the documentary evidence and evaluated Mr. Hill’s testimony before
concluding that Hill’s “characterization of the long-term emotional impact of his
_____________________ (…continued) PTSD. In so doing, he relied on a definition of PTSD from a medical dictionary that had not been introduced into evidence. “[B]ecause neither party had introduced that definition into evidence, the definition related to a disputed factual matter, and neither party was given an opportunity to respond to the definition” this court held that the ALJ erred. Id. at 1242. Mr. Hill’s case does not present a similar dispute over the definition of PTSD, nor did the ALJ take judicial notice of medical evidence outside the record. Instead, the ALJ considered the IME report along with the testimony of Mr. Hill, his supervisor, and a lengthy medical record before reaching a final determination. 16
encounter with his supervisor is incongruent with other compelling evidence.” 11
The ALJ noted that petitioner, when contacted by Supervisor Tonse during his
leave, made consistent statements about his grief — not the workplace incident.
The ALJ also chose to discredit some documentation from Therapist Lewis as it
“appear[ed] to have been prepared for litigation, which eliminates one of the
reasons to defer to his opinion.” 12 Accordingly, the ALJ concluded that
petitioner’s symptoms were the result of bereavement and not a workplace incident
— a decision that the CRB affirmed. We agree with the CRB that the ALJ’s
determination was supported by substantial evidence.
11 Under Storey v. District of Columbia Dep’t of Emp’t Servs., 162 A.3d 793, 807 (D.C. 2017), an ALJ is not permitted to consider credibility when determining if the presumption has been invoked in cases of physical injury. However, nothing in Storey prohibits an ALJ from considering credibility when — as here — he is weighing the evidence to determine if the claimant has carried his burden by a preponderance. Nor does Storey prevent the ALJ from considering credibility when determining if the presumption has been invoked in cases of mental-mental injury. Id. at 803 (quoting Ramey, 997 A.2d at 699-700). 12 The ALJ does not explain why he believed that the November 30 clinical summary was prepared for litigation. However, we note that the content and the timing of the summary support the ALJ’s conclusion. The medical records do not indicate that Therapist Lewis conducted an exam on November 30. Instead, the clinical summary simply recounts Lewis’s earlier notes. Further, the summary was completed after Mr. Hill initiated his claim on September 26, 2017, and contains the following note that appears to be intended for litigation purposes: “It is important to note that Mr. Hill was never referred to this office for any form of workman’s compensation. His treatment was primarily for the symptoms of depression and anxiety. He continues to exhibit the acute symptoms of both. His primary psychiatric diagnosis remains Post Traumatic Stress Disorder.” 17
C. Insult as an Injury
Petitioner’s final argument is that the ALJ and CRB erred by concluding that
“Mr. Hill did not and could not have suffered an accidental mental injury on March
3, 2017.” However, petitioner’s brief misinterprets the language of the ALJ. In
the CO, the ALJ explained, “being insulted is not, by itself, a mental injury. Mr.
Hill might reasonably have resented her treatment of him, but that was insufficient
under the facts of this case to result in or aggravate any of the mental health issues
raised in this case.” The ALJ did not assert that it was impossible for a worker to
suffer an injury during a workplace incident similar to that of March 3; rather, the
ALJ concluded that the evidence in this case was insufficient to show a medical-
causal relationship between the insult and petitioner’s symptoms. In other words,
the petitioner failed to prove there was a compensable injury stemming from
March 2017. For the reasons discussed in the previous section, we agree.
IV. Conclusion
Because the CRB’s order was supported by substantial evidence, it is hereby
Affirmed.