“the claimant may refute ... by challenging the legitimacy of the employer’s evidence of available employment or by demonstrating diligence, but a lack of success, in obtaining other employment,” but if the claimant fails, he or she is still entitled to a “finding of partial disability”
How later courts described this case
- “the claimant may refute ... by challenging the legitimacy of the employer’s evidence of available employment or by demonstrating diligence, but a lack of success, in obtaining other employment,” but if the claimant fails, he or she is still entitled to a “finding of partial disability”
- employer must prove work is in fact available
Written by the judges who cited it.
The opinion
Notice: This opinion is subject to formal revision before publication in the
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-AA-734
PROVIDENCE HOSPITAL, et al., PETITIONERS,
v.
DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.
and
BONNIE POZNANSKI, INTERVENOR.
Petition for Review of a Decision of the
Compensation and Review Board of the District of Columbia
Department of Employment Services
(CRB-819-15)
(Submitted May 3, 2016 Decided July 6, 2017)
Todd S. Sapiro was on the brief for petitioners.
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
statement in lieu of brief for respondent.
David M. Snyder was on the brief for intervenor.
2
Before BECKWITH, Associate Judge, and WASHINGTON* and NEBEKER,
Senior Judges.
NEBEKER, Senior Judge: Due to the concurrent nature of her employment,
intervenor-claimant, Bonnie Poznanski, was awarded temporary total and
temporary partial injury benefits for a work related injury sustained on April 3,
2013. At the time of injury, intervenor was employed full-time by petitioner,
Providence Hospital, and part-time by Baltimore Washington Medical Center
(“BWMC”). Intervenor’s injury occurred at work for petitioner during an
argument with a colleague. During the argument, the colleague pushed intervenor
and aggravated her pre-existing left-shoulder condition. Petitioner challenges
whether the Compensation Review Board’s (“CRB”) decision was based upon
substantial evidence and in accordance with the law. Specifically, petitioner
challenges whether the intervenor can be awarded both temporary total and
temporary partial benefits for the same injury, and whether intervenor voluntarily
limited her income. We affirm.
*
Judge Washington was Chief Judge at the time of argument. His status
changed to Senior Judge on March 20, 2017.
3
I.
Before the April 3, 2013, injury, intervenor suffered a left shoulder work
injury on December 6, 2011. After this time, intervenor’s work was modified
insofar as she needed assistance with lifting, pushing, and pulling patients. Both
employers accommodated these restrictions.1
After the April 3, 2013, injury, however, BWMC was no longer able to
accommodate intervenor’s work restrictions. Indeed, intervenor’s doctor, Dr.
David Johnson, restricted her from all work at BWMC because he was concerned
overusing the shoulder would cause further damage.
On June 27, 2013, intervenor returned to modified work for petitioner.
Then, on July 16, 2013, intervenor was lifting a patient with her right arm when
something “snapped” in her right shoulder. While doing physical therapy for her
1
BWMC may not have formally accommodated intervenor’s restrictions;
all we know is intervenor’s co-workers “helped [her].” The status of the
accommodation does not affect this court’s disposition.
4
right shoulder, intervenor’s left shoulder worsened.2 Intervenor was released to
return to modified duty with petitioner sometime before August, 31, 2013. As of
that date, however, petitioner could no longer accommodate intervenor and did not
allow her to return to work.
Petitioner had intervenor evaluated by Dr. John O’Donnell for the purpose
of an independent medical evaluation. Dr. O’Donnell found intervenor’s left
shoulder condition to be the result of a pre-existing condition and the April 3,
2013, injury.
II.
This court has created a burden-shifting frame work to determine whether a
claimant shall be awarded disability benefits. Logan v. District of Columbia Dep’t
of Emp’t Servs., 805 A.2d 237 (D.C. 2002). First, a claimant must demonstrate
inability to perform his or her usual job. Id. at 243. If the claimant demonstrates
inability, the burden shifts to the employer to establish the availability of other
similar jobs which the claimant could perform. Id. Where the employer meets its
2
It appears from the record that intervenor may have initially hurt her right
shoulder during physical therapy ordered for her injury to that shoulder. Likewise,
her left shoulder worsened during physical therapy for her right shoulder.
5
burden, the claimant has the opportunity to rebut by challenging the legitimacy of
the employer’s evidence, or the claimant can demonstrate diligence, but lack of
success, in obtaining employment. Id.
After the CRB has reviewed the ALJ’s award decision, parties may petition
this court for review. This court reviews decisions of the CRB, not decisions of the
ALJ. Reyes v. District of Columbia Dep’t of Emp’t Servs., 48 A.3d 159, 164 (D.C.
2012). While the CRB’s legal decisions are reviewed de novo, Howard Univ.
Hosp. v. District of Columbia Dep’t of Emp’t Servs., 690 A.2d 603, 606 (D.C.
2008), review of its factual findings are governed by the substantial evidence test,
Ferreira v. District of Columbia Dep’t of Emp’t Servs., 667 A.2d 310, 312 (D.C.
1995) (“Ferreira II”). The substantial evidence test is deferential as it only
requires this court to search for such evidence that a reasonable mind might accept
to support a conclusion. Stewart v. District of Columbia Dep’t of Emp’t Servs.,
606 A.2d 1350, 1351 (D.C. 1992).
Two areas deserve attention. First, whether a decision is based on
substantial evidence. To make this determination, a court should focus on (1)
whether the agency has made a finding of fact on each contested, material issue of
fact; (2) whether substantial evidence of record supports each finding; and (3)
6
whether conclusions legally sufficient to support the decision flow rationally from
the findings. Ferreira II, 667 A.2d at 312. Second, whether the employer has
demonstrated the availability of work that the injured employee has voluntarily
forgone. Logan, 805 A.2d at 243; see also Washington Post v. District of
Columbia Dep’t of Emp’t Servs., 675 A.2d 37, 41 & n.4 (D.C. 1996) (employer
must prove work is in fact available); Joyner v. District of Columbia Dep’t of
Emp’t Servs., 502 A.2d 1027, 1031 n.4 (D.C. 1986). Joyner states:
Job availability should incorporate the answer to two
questions. (1) Considering claimant’s age, background,
etc., what can the claimant physically and mentally do
following his injury, that is, what types of jobs is he
capable of performing or capable of being trained to do?
(2) Within this category of jobs that the claimant is
reasonably capable of performing, are there jobs
reasonably available in the community for which the
claimant is able to compete and which he could
realistically and likely secure? This second question in
effect requires a determination of whether there exists a
reasonable likelihood, given the claimant’s age,
education, and vocational background that he would be
hired if he diligently sought the job.
Id. Further, if the employer meets its burden, “the claimant may refute . . . by
challenging the legitimacy of the employer’s evidence of available employment or
by demonstrating diligence, but a lack of success, in obtaining other employment.”
7
Logan, 805 A.2d at 243. If, however, the claimant fails, he is still entitled to a
“finding of partial disability.” Id.
The court now turns to whether the CRB’s decision was based on substantial
evidence and whether that decision flows logically from the findings. First, the
CRB did not err in finding that the July 2013 accident did not sever petitioner’s
liability nor was further consideration required. While it may be true that this court
has remanded in other instances where the CRB or ALJ did not evaluate a
subsequent accident pursuant to D.C. Code § 32-1508 (6)(A), this claim does not
present reversible error. Petitioner disagrees and cites Washington Metro. Area
Transit Auth. v. District of Columbia Dep’t of Emp’t Servs., 704 A.2d 295 (D.C.
1997), for the proposition that a subsequent injury to a pre-existing condition will
always be looked to as the sole cause of the subsequent disability.
Petitioner, however, is only partially correct. A close reading of that
decision reveals this court’s focus was § 32-1508 (6)(B)—the “special fund”
provision. This court held that when an employee with a pre-existing condition is
subsequently injured, the employer shall only be liable for the amount of disability
attributable to that subsequent injury provided the employer knew of the pre-
existing condition prior to the subsequent injury. Washington Metro. Area Transit
8
Auth., 704 A.2d at 297-99. Stated differently, if the employer knew of the pre-
existing condition before the subsequent work-related accident, the employer is
only liable for the increase to that disability; inversely, if the pre-existing condition
was unknown to the employer at the time of the subsequent injury, the employer is
liable as if the subsequent injury created the entire disability anew. Id. In
Georgetown Univ., this court elaborated that an employer is liable for a subsequent
injury to a previous disability if that disability is now “substantially greater.”
Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs., 830 A.2d 865,
873 (D.C. 2003) (citing Washington Metro. Area Transit Auth., 704 A.2d at 297-
99) (emphasis added).
Petitioner, however, goes astray in its application of that holding to the facts
of this case. Here, in terms of the July 2013 injury, the pre-existing disability, the
April 2013 injury, is work related, and the subsequent injury did not increase
intervenor’s disability. To be sure, intervenor’s doctor ordered the same work
restrictions be put in place for both the April and July 2013 injuries.3 Only after
3
Similarly, petitioner misplaces its reliance on Harris v. District of
Columbia Dep’t of Emp’t Servs., 746 A.2d 297 (D.C. 2000). That case was
concerned with a subsequent injury that caused a pre-existing disability to be
elevated to permanent status. Id. at 301-02. Here, the disability was not increased
nor is this a claim for a permanent disability award. Clark, likewise, is
inapplicable. In Clark, this court remanded because the examiner determined
(continued…)
9
intervenor tried to return to modified work from the July 2013 injury did petitioner
tell intervenor it could not accommodate her. Accordingly, the disability was not
increased by the July 2013 injury for compensation award purposes; thus, the
failure to focus on the July 2013 injury to determine the award was harmless4 and
the award granted logically flows from substantial evidence.
Next, petitioner challenges whether one injury can sustain an award of both
temporary total and temporary partial benefits. We note petitioner has failed to
cite any authority that bars a claimant from receiving differing temporary disability
awards as a result of the same injury due to concurrent employment; the court,
(…continued)
claimant’s disability was not causally related to work, but failed to consider
whether that pre-existing, non-work related disability could have been aggravated
by claimant’s work responsibilities, which could result in an award for benefits.
Clark v. District of Columbia Dep’t of Emp’t Servs., 772 A.2d 198 (D.C. 2001).
Here, remand is not necessary because the record demonstrates that intervenor’s
disability was not aggravated for purposes of determining a disability award.
Further, as petitioner points out, if “a work-related injury when combined with a
previous disability . . . causes substantially greater disability, . . . the liability of
the employer shall be as if the subsequent injury alone caused the subsequent
amount of disability.” (citing Georgetown, 830 A.2d 865) (emphasis added).
Here, the July 2013 injury has not caused a substantially greater disability.
Therefore, it is immaterial. Thus, Harris, Clark, and Georgetown are inapposite.
4
In any event, intervenor has established the nature and extent of her injury
by substantial evidence, and the petitioner is liable for the injuries regardless of the
date of injury.
10
likewise, has not found such. In its absence, this court reaches the same logical
conclusion the CRB made: a claimant can receive differing temporary awards
attributable to one work related injury because of concurrent employment. A legal
paradox is not created by this decision. It is permissible to have two separate
awards attributable to one injury because there are two separate jobs—and
earnings—being affected by one injury. One injury can impact a person’s
concurrent earnings differently because of differing job responsibilities—the
examples are infinite.
Moreover, receiving two differing awards is possible under existing
precedent. A claimant who has two jobs could receive two differing temporary
awards by failing to refute an employer’s showing that the claimant has voluntarily
limited his or her income as to one wage source but not the other. See Logan, 805
A.2d at 243 (“the claimant may refute . . . by challenging the legitimacy of the
employer’s evidence of available employment or by demonstrating diligence, but a
lack of success, in obtaining other employment,” but if the claimant fails, he or she
is still entitled to a “finding of partial disability”). For example, it may be the case,
as it is here, that a claimant has two different jobs that have two different schedules
and requirements. It would then be possible for an employer to put on evidence
that one of those two jobs is available but the other is not, leading to a temporary
11
total award for the unavailable job and a temporary partial award for the other if
the claimant failed to refute the employer’s evidence. While that did not occur
here, it demonstrates that a single injury can lead to two differing temporary
awards because a claimant had two jobs.
Finally, petitioner has failed to meet its burden in establishing intervenor
voluntarily limited her income. As mentioned above, petitioner must establish job
availability in fact, which means the petitioner must prove that there are jobs
reasonably available in the community for which the intervenor is able to compete
and which she could realistically and likely secure. Washington Post, 675 A.2d 37,
41 & n.4; Joyner, 502 A.2d 1027, 1031 n.4. All petitioner has done is argue that
Dr. Johnson’s concern that overuse will cause more damage is obviated because
intervenor no longer has a full-time job that will cause her to overuse her shoulder.
Like the CRB, we recognize the logical appeal of this argument, but similarly
reject it. This argument does not establish that there is in fact an available job for
intervenor to work. At best, it establishes that intervenor has the ability to work an
available job.5 Moreover, the ALJ credited intervenor’s testimony, which included
5
Ability may require a claimant to search, but it is the employer’s burden to
first prove that there is in fact a job available. Lack of diligence is an element of
the claimant’s rebuttal, Logan, 805 A.2d at 243, but rebuttal is only necessary after
the employer has established job availability in fact.
12
statements that BWMC did not have any type of work that she was able to do.
Simply, petitioner did not meet its burden to establish there were any available
jobs.
Therefore, we affirm the CRB and ALJ as the decision to award a differing
temporary award for the wages lost at BWMC was supported by substantial
evidence.
So ordered.