DISTRICT OF COLUMBIA PUBLIC SCHOOLS v. DISTRICT OF COLUMBIA and COLICCHIO PROCTOR, INTERVENOR.

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-AA-630

DISTRICT OF COLUMBIA PUBLIC SCHOOLS, PETITIONER,

v.

DISTRICT OF COLUMBIA

DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

COLICCHIO PROCTOR, INTERVENOR.

On Petition for Review from an Order

of the Compensation Review Board

(CRB-194-12)

(Argued May 20, 2014 Decided July 31, 2014)

Stacy L. Anderson, Senior Assistant Attorney General, with whom Irvin B.

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

General, and Loren L. Alikhan, Deputy Solicitor General, were on the brief for

petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, Eugene

Dams, Principal Deputy Attorney General, Tonya Sapp, General Counsel, and

Rhesha Lewis-Plummer, Assistant Attorney General, filed a statement in lieu of

brief for respondent.

Harold L. Levi, with whom Steven M. Zelinger, was on the brief, for

intervenor.

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Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and KING,

Senior Judge.

KING, Senior Judge: District of Columbia Public Schools (“DCPS”) seeks

review of an order of the Compensation Review Board (“the Board”) which upheld

a common law treating physician preference in public-sector workers‟

compensation cases. DCPS contends that the Board erred as a matter of law in

holding that the repeal of a statutory treating physician preference revived the

common law rule, where the legislature‟s intent was to abolish the preference in

public sector cases. We agree, and accordingly we reverse the Board‟s order and

remand the case.

FACTUAL BACKGROUND

On September 26, 1994, claimant Colicchio Proctor (“claimant”) injured her

right knee after a slip and fall while working as an employee of DCPS. On

October 31, 1994, she filed for disability compensation under the District of

Columbia Comprehensive Merit Personnel Act (“CMPA”), D.C. Code §§ 1-623.01

et seq. (2012 Repl.), and began receiving temporary total disability workers‟

compensation benefits which commenced on the date of her injury.

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Claimant sought medical treatment for her knee injury from Dr. John

Delahay, who has continued to treat her since her fall. Dr. Delahay performed

arthroscopic surgery, and after completing physical therapy, claimant returned to

work in May 1995. She left thirteen months later, however, due to a recurrence of

her knee injury, at which time her disability benefits were reinstated. In September

1998, adjustments were made to claimant‟s temporary disability payments to

reflect that claimant had secured a part-time sedentary job. She was terminated

from this employment sometime before November 1999.

Claimant suffered another fall on November 7, 2003, and Dr. Delahay

observed in his reports that the injury resulting to her right knee from this fall was

exacerbated by her original work-related injury. In August 2006, Dr. Delahay

opined that claimant had sustained a “traumatic chondromalacia” and that she was

“relatively asymptomatic on her right side until the fall 12 years ago and since that

time has had ongoing and somewhat progressive problems with the right knee.” In

September 2006, Dr. Delahay further stated that, “I do believe a fall such as the

one sustained by [claimant] can accentuate underlying disease and indeed

accelerate its course,” and that some of her current arthritis was attributable to the

original fall. X-rays taken in December 2011 revealed that claimant had end-stage

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osteoarthritis in both knees, and Dr. Delahay opined that the X-ray showed that her

right knee was worse than her left.

On December 13, 2011, claimant saw Dr. Louis Levitt for an additional

medical evaluation at DCPS‟s request. After reviewing claimant‟s medical records

and conducting a physical examination, Dr. Levitt concluded that claimant had a

degenerative injury that was symmetrical in both knees and attributable to age and

chronic obesity. Dr. Levitt further opined that claimant‟s current knee arthritis was

not causally related to the original work-related injury and had not been

accelerated or enhanced by that injury.

On February 16, 2012, more than seventeen years after the date of the

original injury, the Office of Risk Management notified claimant that it would stop

paying her disability benefits on March 16, 2012. Claimant appealed the decision

to DOES‟s Office of Hearings and Adjudication, and an evidentiary hearing was

held on October 4, 2012. The administrative law judge (“ALJ”) applied a common

law rule giving preference to the treating physician‟s testimony (Dr. Delahay) over

the testimony of other physicians, and reinstated claimant‟s temporary total

disability benefits in a compensation order dated November 21, 2012.

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DCPS appealed to the Board, which rejected DCPS‟s argument that the ALJ

erred in applying the treating physician preference and affirmed the compensation

order. The Board denied DCPS‟s motion for reconsideration, and DCPS filed a

timely petition for review to this court.

ANALYSIS

I. Statutory Background

In our 2004 opinion Kralick v. District of Columbia Dep’t of Emp’t Servs.,

842 A.2d 705 (D.C. 2004), we held that treating physician preference applies to

disability benefits cases brought by public employees under the CMPA. The

preference, which hails from private-sector workers‟ compensation cases, provides

that “the medical opinion of a treating physician is generally entitled to greater

weight than the opinions of doctors who have been retained to examine a claimant

solely for the purpose of litigation.” Id. at 711. “Although a Hearing Officer

remains free to reject the testimony of a treating physician, he cannot do so

„without explicitly addressing that testimony and explaining why it is being

rejected.‟” Id. (quoting Lincoln Hockey, LLC v. District of Columbia Dep’t of

Emp’t Servs., 831 A.2d 913, 919 (D.C. 2003)); see also Olson v. District of

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Columbia Dep’t of Emp’t Servs., 736 A.2d 1032, 1041 (D.C. 1999) (“[A] hearing

examiner may discount a treating physician‟s opinion if the examiner sets forth

specific and legitimate reasons for doing so.”).

Following Kralick, the Council of the District of Columbia codified in

December 2004 a treating physician preference for public sector cases brought

under the CMPA. The Disability Compensation Effective Administrative

Amendment Act of 2004, D.C. Law 15-290, amended the CMPA to provide that:

“In all medical opinions used under this section, the diagnosis or medical opinion

of the employee‟s treating physician shall be accorded great weight over other

opinions, absent compelling reasons to the contrary.” D.C. Code § 1-623.23 (a-

2)(4) (2005). All parties to this appeal essentially agree that the amendment

accorded greater deference to a treating physician‟s testimony than was provided

by Kralick. In particular, the amendment required that the treating physician‟s

testimony be given “great weight” instead of “greater weight,” and the hearing

examiner could discount the testimony only for “compelling reasons” instead of

“specific and legitimate” ones.

Subsequently, in 2010, the Council repealed the amendment by striking

altogether the above sentence which codified the preference. D.C. Council, Report

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on Bill 18-731, the Fiscal Year 2011 Budget Support Act of 2010, Attachment C,

at 19-20 (May 26, 2010). The Council did not substitute any other language for

this provision.

II. Principles of Statutory Construction

“The initial step in statutory interpretation is to „first look at the language of

the statute by itself to see if the language is plain and admits of no more than one

meaning‟ while construing the words in their „ordinary sense and with the meaning

commonly attributed to them.‟” Dobyns v. United States, 30 A.3d 155, 159 (D.C.

2011) (quoting Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751,

753 (D.C. 1983) (en banc)). “Although the „plain meaning‟ rule is certainly the

first step in statutory interpretation, it is not always the last or the most illuminating

step.” Peoples Drug Stores, 470 A.2d at 754. “[E]ven where the words of a

statute have a „superficial clarity,‟ a review of the legislative history or an in-depth

consideration of alternative constructions that could be ascribed to statutory

language may reveal ambiguities that the court must resolve.” Id. (citations

omitted). In such situations, “[t]he court may appropriately look beyond plain

meaning.” Dobyns, 30 A.3d at 159.

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Furthermore, legislative intent may indicate whether the repeal of a statutory

provision has the effect of reviving or supplanting common law. Typically, “[i]n

the case of the repeal of a statute . . . even though declaratory of the statute that is

repealed, the repeal revives the common law as it was before the statute.” 2B

Sutherland Statutory Construction § 50:1 (7th ed. 2008); accord Velez v. Tuma,

821 N.W.2d 432, 436-37 (Mich. 2012) (repeal of statutory provision codifying

common law did not abrogate common law rule); State v. Buck, 275 N.W.2d 194,

197 (Iowa 1979) (“It is well settled that: „. . . The legislature is presumed to know

the common law before the statute was enacted, and so the repeal of a statute, even

though declaratory of it, revives the common law as it was before the statute.‟”

(quoting 2A Sutherland § 50:01 (4th ed.))); Wood v. Woods, 184 Cal. Rptr. 471,

477 (Cal. Ct. App. 1982) (same); Makin v. Mack, 336 A.2d 230, 234 (Del. Ch.

1975) (same). This principle governs, however, only “[a]bsent an indication that a

legislature intends a statute to supplant common law.” 2B Sutherland § 50:1;

accord White v. State, 717 S.W.2d 784, 787 (Ark. 1986) (common law repealed

where it was legislature‟s “apparent” intent to do so when repealing statutory

provision fashioned in part on common law).

It is a maxim of statutory construction that “[r]epeals by implication are not

favored.” United States Parole Comm’n v. Noble, 693 A.2d 1084, 1108 (D.C.

9

1997) (citation omitted). Accordingly, “no statute is to be construed as altering the

rules of the common law, farther than its words plainly import.” Holiday v. United

States, 683 A.2d 61, 98 (D.C. 1996) (internal quotation marks omitted); see, e.g.,

Velez, 821 N.W.2d at 436-37 (“[T]he Legislature should speak in no uncertain

terms when it exercises its authority to modify the common law.”); Northern

Indiana Pub. Serv. Co. v. Citizens Action Coal. of Indiana, Inc., 548 N.E.2d 153,

159 (Ind. 1989) (“It is well settled that the legislature does not intend by a statute

to make any change in the common law beyond what it declares either in express

terms or by unmistakable implication.” (internal quotation marks omitted)).

Nevertheless, courts may “supply words to a statute . . . where necessary to give

effect to a legislative intent clearly indicated by the statute‟s context or other

parts.” 2B Sutherland § 47:38.

III. Council’s Intent in Repealing Treating Physician Preference

At oral argument, counsel for DCPS agreed that when considering only the

specific language of the 2010 repeal, in the absence of any provision relating to

supplanting the common law, the effect of the repeal would be to revive the

Kralick common law rule. Notwithstanding, DCPS argued – and we agree – that a

review of the legislative history reveals ambiguities which compel us to look

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beyond the plain meaning of the statute. The legislative history manifests a clear

and unmistakable intent on the part of the Council to accord equal weight to the

testimonies of both treating and non-treating physicians in public-sector cases

brought under the CMPA.

The most significant indication of the Council‟s intent lies in the language of

the bill as originally introduced. Initially, the Council had considered replacing the

amendment codifying the preference with an equal weight provision. Report on

Bill 18-731, Attachment A, at 37. That provision would have modified the

amendment to read: “In all medical opinions used under this section, the diagnosis

or medical opinion of the employee‟s treating physician and the opinion of other

physicians who would have examined the employee shall be given equal weight.”

Id. A report by the Council‟s Committee on Government Operations reveals that

the Council decided against enacting this equal weight provision because it was

concerned that the provision could be misinterpreted to preclude credibility

determinations:

Adding a provision that requires all evidence to be

afforded equal weight, as proposed, could be interpreted

to prevent a judicial or quasi-judicial body from

assigning different values of credibility to difference

pieces of evidence. Thus, the Committee recommends

amending this provision to simply delete the current

“great weight” provision.

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D.C. Council, Report and Recommendation of the Committee on Government

Operations and the Environment on the Fiscal Year 2011 Budget For Agencies

Under Its Purview, at 144 (May 13, 2010) (emphasis omitted). This concern

notwithstanding, the Committee never suggested that the purpose of the 2010

repeal should be altered. The Committee recognized that the clear purpose of the

repeal was to “allow all medical evidence to be treated equally in resolving

medical disputes,” in contrast with “[c]urrent law [which] requires evidence from

the patient‟s treating physician to be afforded great weight.” Id. Thus, the

legislative history demonstrates that the Council‟s intention in repealing the 2004

amendment was to eliminate the treating physician preference.

Claimant asserts that the Board has construed the 2010 statute as reviving

the Kralick common law rule, and considerable deference should be given to the

Board‟s construction. While the Board‟s “interpretation of . . . the statute which it

administers is generally entitled to great deference from this court,” it “is not

binding upon this court if it conflicts with the plain meaning of the statute or its

legislative history.” McCamey v. District of Columbia Dep’t of Emp’t Servs., 947

A.2d 1191, 1196 (D.C. 2008) (en banc) (internal alterations and quotation marks

omitted). “The judiciary is the final authority on issues of statutory construction.”

Id. (internal alteration and quotation marks omitted). Because the Board‟s

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construction of the 2010 repeal contradicts the Council‟s unmistakable intent to

eliminate the treating physician preference, we hold that the Board‟s interpretation

is erroneous as a matter of law.

For these reasons, the 2010 repeal eliminated the treating physician

preference in public-sector cases brought under the CMPA. We therefore reverse

the Board‟s order and remand for additional proceedings consistent with this

opinion.

So ordered.