Vernice Bowles v. District of Columbia Department of Employment Services

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-AA-561

VERNICE BOWLES, PETITIONER,

v.

DISTRICT OF COLUMBIA

DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

On Petition for Review from an Order of the

Compensation Review Board

(CRB-113-13)

(Argued June 16, 2015 Decided August 6, 2015)

Michael J. Kitzman for petitioner.

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A.

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

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

respondent.

Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge,

and NEBEKER, Senior Judge.

NEBEKER, Senior Judge: Vernice Bowles petitions this court for review of a

Department of Employment Services (“DOES”) determination, pursuant to the

D.C. Workers Compensation Act of 1979 (“WCA”), as amended, D.C. Code § 36-

301 et seq. (2012 Repl.), that she suffered only a 10% permanent partial disability

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(“PPD”) to her right leg, due to a 2008 work-related knee injury. The DOES

Administrative Law Judge (“ALJ”) determined that Bowles suffered the 10% PPD;

the DOES Compensation Review Board (“CRB”) affirmed. In her petition for

review, Bowles argues, inter alia, that the CRB erred in affirming the ALJ’s

Compensation Order because the ALJ’s error, relying on evidence not in the

record, was not harmless and the ALJ erred in failing to explain how it calculated

Bowles’s 10% PPD. We agree. This court cannot discern how the ALJ calculated

its 10% PPD determination, let alone assess whether the ALJ’s error was indeed

harmless. Accordingly, we grant Bowles’s petition for review, vacate the 2014

CRB Decision and Order, and remand for further proceedings consistent with this

opinion.

I. FACTS

At the time of her initial right knee injury, Bowles worked for Gentle Touch

Senior Care as a Residential Counselor. She assisted developmentally-challenged

individuals in various aspects of daily living including cooking, cleaning, grocery

shopping, caring for their children, and accompanying them to doctor’s

appointments. On May 30, 2008, while assisting a disabled patient at Target,

Bowles slipped on a red liquid substance on the floor and sustained injuries to her

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lower back, right knee, and both hips. The 2009 DOES Compensation Order

found that Bowles’s knee injury arouse out of and in the course of her employment

and ordered Gentle Touch Senior Care to pay Temporary Partial Disability

(“TPD”) benefits.

In April 2009, Bowles began working as an escort, accompanying elderly

patients to medical appointments, for Washington Nursing Facility (“WNF”). In

June 2011, “While walking to open the patio [at work], Bowles fell, soaked her

pants in the liquid on the floor, and injured her right knee and ankle.” “Bowles

was diagnosed with mild right knee strain secondary to her injuries of June 7,

2011.” The 2012 DOES Compensation Order, issued on October 1, 2012, found

that Bowles’s knee sprain was caused by her June 2011 work-related fall and

accordingly ordered WNF to pay Bowles temporary total disability (“TTD”)

benefits from June 7, 2011, to July 25, 2011. “Dr. Frederic L. Salter [of Phillips

and Green] stated that, based on his examination of May 25, 2011, Bowles had not

suffered any additional significant injury and her scheduled surgery [to address her

2008 knee injury] would proceed without further care for the June 7, 2011 injury.”

He recommended that Bowles “remain out of work” until her surgery.

Dr. Salter performed a partial lateral meniscectomy and debridement of

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partial ACL tear on Bowles on July 26, 2011. He examined her three days after

the surgery and determined that she was not fit for working duty, but upgraded her

from crutches to a cane. Dr. Meyer evaluated Bowles on August 15, 2011, and

observed that her “[g]ait is mildly right antalgic.” Ultimately, he allowed her to

return “to work as her job is essentially sedentary.” After receiving permission

from Dr. Meyer, about three weeks after the surgery, Bowles returned to her

previous position at WNF. Dr. Phillips conducted his final reevaluation of Bowles

on June 19, 2012 and concluded that she “ambulates with a mildly right antalgic

gait” and suffered a 42% PPD:

Impression: patient has a permanent injury caused by the

accident of 05-30-08. Using the Fifth Edition of the

AMA Guides to the Evaluation of Permanent

Impairment, she has the following permanent partial

impairment to the right lower extremity: Table 17.5, the

antalgic gait, 17%; Table 17.6, 1.8 cm of calf atrophy,

8%; Table 17.33, partial medial meniscectomy, 2%, with

an additional 2% for the damage to the cruciate ligament;

Table 17.10, 8-degree flexion contracture, 8%, with an

additional 5% for pain coming to 42% of the lower

extremity within a reasonable degree of medical certainty

based on the Fifth Edition of the AMA Guides to the

Evaluation of Permanent Impairment. Patient has

reached maximum medical improvement.

...

Work status: as far as the patient’s activity, I would not

want her working on her feet all day and certainly would

not want her climbing any stairs and/or ladders on a

routine basis.

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Bowles was ultimately fired from WNF on July 23, 2012 for reasons unrelated to

her knee injuries.

DOES Compensation Order. Bowles filed a claim for WCA benefits with

DOES on the grounds that she suffered a 42% PPD (loss-of-use, schedule award)

to her right leg as a result of the May 30, 2008 injury to her leg, while employed at

Gentle Touch Senior Care. ALJ Linda F. Jory presided over a full evidentiary

hearing on July 31, 2013. At the hearing, Bowles submitted the 2009 DOES

Compensation Order and medical reports from Dr. Phillips, Dr. Meyer, and Dr.

Salter as exhibits. In addition, she testified under oath about residual problems

with her knee:

Q. What problems are you having at this point

with your knee?

A. I snap, I crack, I pop, I get stuck, I go

through it all.

Q. When you say you get stuck, what do you

mean? What happens when you get stuck?

A. If I sit too long, I mean, I can’t - - if I stand

up, I can’t walk. I have to stand for a while [sic] and

then like try to walk it off. But my [leg] is just - - it gives

out on me. I go through everything with my legs.

...

Q. What types of trouble do you have with

stairs?

A. I try not to go up them. I go up - - I have

two flights of steps. I go up, I stay up; not unless I have a

reason to come back down. I try to stay away from steps.

Q. Okay. Why do you try to stay away from

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steps?

A. Because I hurt.

Gentle Touch Senior Care submitted as exhibits, inter alia, medical records from

Howard University Hospital and the 2012 DOES Compensation Order; these

exhibits were related to the 2011 right knee sprain that Bowles suffered while

employed at WNF. Gentle Touch Senior Care attempted to show that Bowles’s

PPD was a result of the intervening knee sprain, so that it would not be responsible

for paying Bowles additional disability compensation.

The ALJ first found that Bowles’s PPD was causally related to the 2008

work incident that occurred while she was employed by Gentle Touch Senior Care.

The 2012 DOES Compensation Order referenced Dr. Slater’s report that Bowles

“had not suffered any additional significant [right knee] injury as a result of the

June 7, 2011 fall,” and thus weighed against Gentle Touch Senior Care’s argument

that Bowles’s 2011 injury severed the causal connection between her 2008 injury

and her resulting PPD. The ALJ concluded that Gentle Touch Senior Care’s

evidence was not “specific or comprehensive enough to sever the existing causal

connection between claimant’s alleged PPD and the 2008 injury.”

Next, the ALJ determined that Bowles suffered only a 10% PPD to her right

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leg, despite her claim of 42% PPD. The ALJ consulted the AMA Guides to

discredit Dr. Phillips’s 42% disability rating because a “[r]eview of Table 17.5

reveals that the Guides suggest a maximum of 7% for mild antalgic gait.” The

ALJ also mentioned that “Dr. Meyer found only a very mild effusion and a mildly

right antalgic gait” and “Dr. Phillips 42% impairment rating is also inconstant with

[Bowles’s] testimony.” In addition, the ALJ did “find it reasonable that [Bowles]

still has pain in her knee while climbing or descending stairs and cannot question

Dr. Phillips’ minor atrophy finding.” Ultimately, the ALJ explained its 10% PPD

calculation as follows:

In sum, it is concluded that based on a complex of

factors, taking into account the amount of physical

impairment caused by the surgical procedure and zero

potential for future wage loss, claimant has sustained

some permanent partial impairment of the right leg based

on her pain and atrophy and is entitled to a 10%

permanent partial disability rating to the right leg.

2014 CRB Decision and Order. Bowles petitioned the CRB for review of

the ALJ’s Compensation Order on the grounds that, inter alia, the ALJ erroneously

relied on facts not within the record to discredit Dr. Phillips’s medical report. The

CRB agreed that the ALJ erred when it “reached a medical opinion by taking

official notice of the AMA Guides without affording the parties an opportunity to

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rebut any fact officially noticed in the documents.” However, the CRB ultimately

affirmed the ALJ Compensation Order—“Because the ALJ relied on sufficient

evidence in the record to discount Dr. Phillips’ impairment rating, the error in

going beyond the record to do so is harmless.” Bowles petitioned this court for

review of the 2014 CRB Decision and Order.

II. LEGAL ANALYSIS

The touchstone of this court’s review of an agency decision is Chenery I and

Chenery II. SEC v. Chenery Corp. (“Chenery I”), 318 U.S. 80 (1943); SEC v.

Chenery Corp. (“Chenery II”), 332 U.S. 194 (1947). Congress saw fit to entrust

agencies with discretion to exercise judgment in their particular fields of expertise.

Chenery I, supra, 318 U.S. at 94. However, this discretion comes at a price. The

basis for the agency’s judgment “must be set forth with such clarity as to be

understandable,” otherwise the reviewing court cannot exercise its duty to review.

Chenery II, supra, 332 U.S. at 196. If the reviewing court cannot exercise its duty

of review, it will not “intrude upon the domain which Congress has exclusively

entrusted to an administrative agency” by supplying a proper rationale for the

agency’s decision. Chenery I, supra, 318 U.S. at 88. Instead, the reviewing court

remands the case to the agency for further proceedings. Id. at 95.

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In agency cases where the disputed issue is “complicated and

understandably prone to technical, often shorthand terminology, there is a

substantial risk that agency action will be too conclusional—not elaborated

enough—for a non-expert court confidently to review.” Washington Pub. Interest

Org. v. Public Serv. Comm’n, 393 A.2d 71, 78 (D.C. 1978), supplemented sub

nom. Washington Pub. Interest Org. v. Public Serv. Comm’n, 404 A.2d 541 (D.C.

1979).

Perhaps paradoxically, therefore, the less equipped the

court is to do the job of the agency, and thus the more

deference the reviewing court must show to the agency’s

authority and expert judgment, the greater the agency’s

obligation is to explain exactly why it chooses to take a

particular course of action. The broad scope of an

agency’s authority is the very reason why that agency is

obliged to explain itself with precision. If such broad

authority implied, to the contrary, that the agency need

not explain itself, or could do so in shortcut fashion, then

judicial review would be a nullity. While our own

authority to intrude on agency functions is therefore

limited, our authority and responsibility to find out why

an agency acts as it does is considerable.

Id. at 78-79. This explanation of the role of judicial review serves as a useful

backdrop for our analysis in this case.

We must evaluate whether (A) the CRB erred in affirming the ALJ’s 10%

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PPD calculation and (B) the CRB erred in concluding that the ALJ’s use of

evidence not in the record (AMA Guides) was harmless error. 1

A. INSUFFICIENT EXPLANATION OF PPD CALCULATION

We first consider whether the ALJ’s 10% PPD calculation was supported by

substantial evidence. The ALJ explained Bowles’s disability level as follows:

In sum, it is concluded that based on a complex of

factors, taking into account the amount of physical

impairment caused by the surgical procedure and zero

potential for future wage loss, claimant has sustained

some permanent partial impairment of the right leg based

on her pain and atrophy and is entitle to a 10% permanent

partial disability rating to the right leg.

Unfortunately this court cannot discern which values the ALJ assigned to each

factor (impairment, pain, atrophy, etc.) to reach the 10% PPD level and therefore

cannot say whether substantial evidence supports the ALJ’s determination.

1

Given this court’s disposition of the case, we need not evaluate Bowles’s

two other claims of error—whether substantial evidence supported the ALJ’s

decision to discredit Dr. Phillips’s medical report and whether the ALJ failed to

take into account the differences in the physical requirements of the claimant’s pre-

and post-injury employment when assessing wage loss.

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We review the CRB’s Decision and Order which affirmed the ALJ’s

Compensation Order—we do not directly review the ALJ’s determination on

appeal. Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219, 1221

(D.C. 2012). “Under the Administrative Procedure Act, this court may overturn a

decision of the CRB only if it is arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” McNeal v. District of Columbia Dep’t of

Emp’t Servs., 917 A.2d 652, 656 (D.C. 2007) (citing D.C. Code § 2-510 (a)(3)

(2001)). “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.” Georgetown Univ. v. District of Columbia Dep’t of Emp’t

Servs., 971 A.2d 909, 915 (D.C. 2009). “An administrative order can only be

sustained on the ground relied on by the agency.” Walsh v. District of Columbia

Bd. of Appeals & Review, 826 A.2d 375, 380 (D.C. 2003) (citation and internal

quotation marks omitted). When the ALJ fails to “explain [its] reasoning in

arriving at a disability award” such that “we are unable to meaningfully review the

decision to determine whether it is based on substantial evidence,” we must

remand the case back to the CRB. Jones, supra, 41 A.3d at 1225.

This court in Jones addressed a very similar analysis in an ALJ’s

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Compensation Order. Jones, supra, 41 A.3d at 1219. The Jones opinion described

the ALJ Compensation Order as containing the following explanation for its PPD

calculation:

In consideration of the evidence in the record as detailed

above, and setting aside any consideration of wage loss

but presuming an effect on claimant’s earning capacity,

claimant qualifies for a 7% permanent partial disability

award for her left leg disability.

Id. at 1226 (internal quotation marks and emphasis omitted). This court ultimately

found that “because the ALJ did not explain her reasoning in arriving at a disability

award of 7%, we are unable to meaningfully review the decision to determine

whether it is based on substantial evidence, applying proper legal principles.” Id.

at 1225. “How the ALJ determined that the disability award should be 7%—and

not, for example, 1%, 10% or 30%—is a complete mystery, however.” Id. at 1226.

This court remanded the case for the agency to essentially show its work and

explain how exactly it calculated the 7% PPD.

The ALJ in this case put forth an analysis very similar to the ALJ in Jones.

The ALJ in this case found that Bowles suffered an impairment of the right leg and

suffered both pain and atrophy. The ALJ considered the “amount of physical

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impairment caused by the surgical procedure,” “zero potential for future wage

loss,” pain, and atrophy and ultimately determined that Bowles suffered a 10%

PPD in her right leg. How the ALJ reached this conclusion is a mystery; this court

cannot discern which values were assigned to each factor that add up to 10%.

When the ALJ evaluated the “amount of physical impairment caused by the

surgical procedure,” it discredited Dr. Phillips assignment of 17% disability for

antalgic gait because a “[r]eview of Table 17.5 reveals that [the Fifth Edition of]

the [AMA] Guides suggest a maximum of 7% for mild antalgic gait.” The ALJ

also notes that “Dr. Meyer found only a very mild effusion and a mildly right

antalgic gait.” The ALJ uses Table 17.5 and Dr. Meyer to discredit Dr. Phillips’

medical report, but does not decide a level of impairment suffered by Bowles as a

result of the surgical procedure, although this number is apparently incorporated

into the 10% disability level. In addition, Dr. Phillips opined that Bowles suffered

8% disability for atrophy and 5% for pain. The ALJ then goes on to state that

“claimant still has pain in her knee while climbing or descending stairs and cannot

question Dr. Phillips’ minor atrophy finding.” No combination of 7%, 8%, and 5%

add up to just 10%.

On this record we are unable to affirm the CRB’s conclusion that the ALJ’s

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determination was supported by substantial evidence.

B. UNCLEAR IF ALJ’S ERROR WAS HARMLESS

We next consider whether the CRB erred in holding that the ALJ’s reliance

on evidence outside the record, namely the Fifth Edition of the AMA Guides, was

harmless error “[b]ecause the ALJ relied on sufficient evidence in the record to

discount Dr. Phillips’ impairment rating.” DOES’s brief on appeal merely argues

that “Ms. Bowles’s challenges to this determination and the CRB’s decision to

affirm are unavailing.” We review de novo but cannot conclude that the ALJ’s

error was harmless. See Georgetown Univ. Hosp. v. District of Columbia Dep’t of

Emp’t Servs., 929 A.2d 865, 870 (D.C. 2007).

The ALJ discredited Dr. Phillips assignment of 17% disability for antalgic

gait because a “[r]eview of Table 17.5 reveals that [the Fifth Edition of] the

[AMA] Guides suggest a maximum of 7% for mild antalgic gait.” Unfortunately,

the Fifth Edition of the AMA Guides was not admitted into evidence. The CRB

found that the ALJ erred by going beyond the record and reaching an independent

medical opinion “without affording the parties an opportunity to rebut any fact

officially noticed in the documents.” This finding is not contested in the petition

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for review. 2 The CRB goes on to explain that the error is harmless because “the

ALJ did not rely solely on the AMA Guides to reduce Dr. Phillips’ impairment

rating.” The CRB cites Dr. Meyer’s finding that Bowles suffered “only a very

mild effusion and a mildly right antalgic gait” and Bowles’s testimony that she gets

“stuck” and has trouble traversing stairs.

Given that the ALJ’s explanation of its 10% PPD calculation was not

sufficient to afford this court the opportunity to review for substantial evidence, we

also cannot evaluate whether the ALJ’s reliance on evidence not in the record was

harmless error.

*****

“It will not do for a court to be compelled to guess at the theory underlying

the agency’s action; nor can a court be expected to chisel that which must be

2

At oral argument, the government noted that D.C. Code § 32-1508 (U-i)

(2012 Repl.) (“In determining disability pursuant to subparagraphs (A) through (S)

of this subsection, the most recent edition of the American Medical Association’s

Guides to the Evaluation of Permanent Impairment may be utilized, along with the

following 5 factors . . . .”), appears to contemplate that an ALJ will consider the

AMA Guides when determining a percentage disability; however, the CRB’s

finding of error, for the ALJ’s use of the AMA Guides, was challenged before this

court.

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precise from what the agency has left vague and indecisive.” Chenery II, supra,

332 U.S. at 196 ‒

97. We grant Bowles’s petition for review, vacate the CRB

Decision and Order, and remand to the CRB for further action consistent with this

opinion.

So ordered.