Mirna Placido v. District of Columbia Department of Employment Services and Compass Group USA, Inc. and Gallagher Bassett Services

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12-AA-1654

MIRNA PLACIDO, PETITIONER,

v.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

COMPASS GROUP USA, INC. and GALLAGHER BASSETT SERVICES, INTERVENORS.

Petition for Review of an Order of the

District of Columbia Department of Employment Services

Compensation Review Board

(CRB-121-12)

(Submitted December 13, 2013 Decided June 5, 2014)

David J. Kapson was on the brief for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim,

Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a

statement in lieu of brief.

Barry D. Bernstein was on the brief for intervenors.

Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and

NEBEKER, Senior Judge.

MCLEESE, Associate Judge: Petitioner Mirna Placido challenges a decision

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of the Compensation Review Board (“CRB”) denying her claim for workers’

compensation benefits. We affirm.

I.

In August 2010, Ms. Placido injured her left shoulder and back while

working as a food preparer for intervenor Compass Group USA, Inc. Dr. Joel D.

Fechter, an orthopedic specialist, treated Ms. Placido’s injuries. Dr. Fechter

initially administered injections for the pain, restricted Ms. Placido to light duty,

and recommended home exercise and physical therapy. Although her back pain

improved, Ms. Placido continued to experience intermittent pain in her left

shoulder. After an MRI scan, Dr. Fechter reported that Ms. Placido had two

choices: She could “live with the symptoms, manage[] them symptomatically as

best she can, or . . . undergo arthroscopic evaluation and treatment of the left

shoulder.”

Ms. Placido sought authorization for arthroscopic shoulder surgery, which

Compass Group denied. In support of the denial, Compass Group relied on

independent medical evaluations (“IMEs”) conducted by Dr. Robert O. Gordon, an

orthopedic specialist, and a utilization review (“UR”) report prepared by Dr. Reese

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Polesky, an orthopedic surgeon. The parties then proceeded to an evidentiary

hearing before an administrative law judge (“ALJ”).

The ALJ denied Ms. Placido’s claim for workers’ compensation benefits,

concluding that the surgery was not medically reasonable or necessary. First, the

ALJ found that Dr. Fechter had “not strongly recommend[ed] the left shoulder

surgery.” The ALJ explained that Dr. Fechter had suggested “the option of living

with the symptoms[,]” had told Ms. Placido that undergoing surgery did not

“guarantee . . . improvement,” and had reported that he believed that “rotator cuff

repair was not likely to be necessary because he saw no evidence of a cuff tear on

the MRI and [Ms. Placido] had full strength of her cuff on clinical exam.” The

ALJ thus concluded that Dr. Fechter had not “set forth [a] persuasive rationale

[for] proceed[ing] with the surgery.” Second, the ALJ relied on the conclusions of

the UR report and the IME physician that the surgery was not medically reasonable

or necessary. The ALJ noted that the IME physician had concluded that Ms.

Placido’s “very mild symptoms [did] not warrant surgery . . . and . . . the MRI [did]

not support invasive measures.” The ALJ also credited the UR report, which

concluded that “there [were] no significant functional deficits, as shown by the

most recent MRI, to support the request for surgical intervention at this time.”

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The CRB affirmed.

II.

“Our limited role in reviewing the decision of the CRB permits us to reverse

only if we conclude that the decision was arbitrary, capricious, or otherwise an

abuse of discretion and not in accordance with the law.” Washington Hosp. Ctr. v.

District of Columbia Dep’t of Emp’t Servs., 983 A.2d 961, 965 (D.C. 2009)

(internal quotation marks omitted). “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) (internal

quotation marks and brackets omitted). The CRB must affirm a compensation

order if the ALJ’s factual findings are supported by substantial evidence and the

ALJ’s legal conclusions flow rationally from those facts. Id.

III.

Ms. Placido first argues that the District of Columbia Workers’

Compensation Act (“WCA”), D.C. Code § 32–1501 et seq. (2012 Repl.), and prior

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CRB decisions preclude the ALJ “from weighing the opinions of an IME doctor in

determining the . . . reasonableness and necessity of medical treatment . . . .” We

disagree.

“The proper construction of a statute raises a question of law . . . .”

Washington v. District of Columbia Dep’t of Pub. Works, 954 A.2d 945, 948 (D.C.

2008). Although this court generally resolves legal questions de novo, see id., the

court ordinarily accords deference to an agency’s interpretation of a statute that the

agency administers, unless the “interpretation is unreasonable or is inconsistent

with the statutory language or purpose.” District of Columbia Dep’t of Env’t v.

East Capitol Exxon, 64 A.3d 878, 880–81 (D.C. 2013) (internal quotation marks

omitted). Moreover, the “court generally defers to an agency’s interpretation of its

own regulations unless that interpretation is plainly erroneous or inconsistent with

the regulations.” District of Columbia Office of Tax & Revenue v. BAE Sys. Enter.

Sys., 56 A.3d 477, 481 (D.C. 2012) (internal quotation marks omitted).

Utilization review is a procedure for determining the “necessity, character,

and sufficiency of both the level and [the] quality of medically related services

provided to an injured employee . . . .” D.C. Code § 32-1501 (18A) (2012 Repl.);

7 DCMR § 232.3 (2014). “[T]he [CRB] has held that, if there is a dispute about

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the necessity of proposed medical treatment, utilization review is the mandatory

first step in the resolution of that dispute.” Children’s Nat. Med. Ctr. v. District of

Columbia Dep’t of Emp’t Servs., 992 A.2d 403, 410 (D.C. 2010). Neither the UR

statute nor the applicable regulations expressly say whether an ALJ may consider

an IME physician’s opinion in determining whether medical services are

reasonable or necessary. D.C. Code § 32-1501 (18A); 7 DCMR § 232.1 to .8.

The CRB concluded in this case that it was permissible for the ALJ to

consider an IME physician’s opinion as evidence supporting the UR report. The

CRB said that “[t]here is no prohibition on considering the evidence as a whole

when determining” whether the treating-physician’s opinion or the UR report

“deserves greater weight . . . .”

We have previously indicated that an ALJ reviewing a benefits

determination made after UR could appropriately consider an IME physician’s

opinion. See, e.g., Hisler v. District of Columbia Dep’t of Emp’t Servs., 950 A.2d

738, 746 (D.C. 2008) (“The ALJ properly relied on the conclusion of the

utilization review, which was supported by employer’s medical expert, despite the

contrary opinions of [the treating] physicians . . . .”); see also Hensley v. District of

Columbia Dep’t of Emp’t Servs., 49 A.3d 1195, 1202 (D.C. 2012) (substantial

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evidence, including IME evidence, “supports the ALJ’s reliance on the conclusions

of the utilization review report”). It is unclear, however, whether the parties in

those cases raised the precise argument that Ms. Placido raises in this case.

Assuming that the issue therefore remains an open one in this court, we

defer to the CRB’s conclusion that an ALJ may consider an IME physician’s

opinion when determining the reasonableness and necessity of medical services.

First, Ms. Placido has not identified provisions of the UR statute or the applicable

regulations that limit the ALJ’s ability to consider relevant medical evidence.

Second, it is reasonable for the CRB to conclude that the ALJ should consider all

the relevant medical evidence before deciding whether particular medical services

are reasonable or necessary. Third, a thorough UR would consider any IMEs that

had previously been conducted, and an ALJ reviewing such a UR would thus often

need to assess the IME in evaluating the reasonableness of the UR. Fourth,

although Ms. Placido’s brief quotes from a CRB decision that refers to the ALJ

weighing only the treating-physician’s opinion and the UR report, that same

decision makes clear that the ALJ “is free to consider the medical evidence as a

whole . . . .” See, e.g., Green, CRB No. 08-208, 2009 WL 2058375, at *3 (D.C.

Dep’t of Emp’t Servs. June 17, 2009). In sum, we defer to the CRB’s conclusion

that the ALJ permissibly considered the IME physician’s opinion.

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IV.

Ms. Placido next argues that substantial evidence does not support the ALJ’s

finding that the proposed surgery was not medically reasonable or necessary.

“Substantial evidence means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Reyes, 48 A.3d at 164 (internal

quotation marks omitted). “[O]nce the utilization review is completed . . . the

report . . . is decisive on the issue of reasonableness and necessity of medical

services unless specific reasons are articulated why it should not be decisive.”

Hisler, 950 A.2d at 746 (internal quotation marks omitted).

Here, the ALJ reasonably concluded that that the proposed shoulder surgery

was not medically reasonable or necessary. First, the ALJ gave specific reasons

for adopting the UR report: (1) the treating physician gave Ms. Placido the option

of living with the injury and (2) the treating physician had not articulated a

persuasive justification for the surgery. Second, Ms. Placido has not shown that

the substantive conclusion of the UR report was incorrect.

Instead, Ms. Placido argues that her treating physician’s suggestion that she

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could live with the injury does not undermine the treating physician’s suggestion

that she have surgery, because refusing surgery is always an option. Even if the

ALJ could have interpreted the evidence that way, the ALJ acted reasonably by

instead interpreting the evidence as suggesting that the treating physician did not

view surgery as essential. We therefore cannot disturb the ALJ’s determination.

Cf., e.g., Hildreth Consulting Eng’rs, P.C. v. Larry E. Knight, Inc., 801 A.2d 967,

972 (D.C. 2002) (“Where the facts admit of more than one interpretation, the

appellate court must defer to the trial court’s judgment.”) (internal quotation marks

omitted).

Ms. Placido also argues that the ALJ acted inconsistently by accepting the

treating physician’s testimony on medical causation but not on the necessity and

reasonableness of the surgery. The ALJ was free, however, to decide which parts

of the treating physician’s testimony to accept and which to reject. See, e.g., Payne

v. United States, 516 A.2d 484, 495 (D.C. 1986) (fact-finder “is always free to

accept parts of a witness’ testimony and reject other parts”). We therefore

conclude that substantial evidence supports the ALJ’s finding that the proposed

surgery was not medically reasonable or necessary.

The judgment of the CRB is

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Affirmed.