Porter v. District of Columbia Department of Employment Services

ROGERS, Associate Judge,

dissenting:

The majority correctly states that in determining whether there is substantial evidence to support the agency’s denial of benefits, “this court’s function in review is not to weigh the testimony and substitute itself for the trier of fact who receives conflicting evidence and determines the weight to be accorded to such evidence.” Supra at 1022. McLean v. Department of Employment Services, 506 A.2d 1135, 1136-37 (D.C.1986). But neither can the court ignore a record which contains no evidence explaining the meaning of Dr. Cooney’s ambiguous statement on April 18, *1024 1984, or the relevance of Dr. Jenkins’ report of October 24, 1984, to the preceding six month period, and which otherwise contains uncontradicted evidence of disability until October 24, 1984. Substantial evidence requires reliable, relevant evidence “as a reasonable mind might accept as adequate to support a conclusion.” Nova University v. Educational Institution Licensure Commission, 483 A.2d 1172, 1190 (D.C.1984), cert. denied, 470 U.S. 1054 , 105 S.Ct. 1759 , 84 L.Ed.2d 822 (1985), quoting from Vestry of Grace Parish v. District of Columbia Alcoholic Beverage Control Board, 366 A.2d 1110 (D.C.1976), and cited in McLean v. Department of Employment Services, supra, 506 A.2d at 1137 . Accordingly, I would reverse and remand, and respectfully dissent.

The District of Columbia Worker’s Compensation Act (D.C.Code §§ 36-301 et seq.) (1981) (the D.C. Act) is based on the federal Longshore and Harbor Workers’ Compensation Act, and cases interpreting the federal statute provide persuasive authority in interpreting the D.C. Act. Dunston v. Department of Employment Services, 509 A.2d 109 , 111 n. 2 (D.C.1986); Hughes v. Department of Employment Services, 498 A.2d 567 , 571 n. 8 (D.C.1985). The D.C. Act, consistent with the general rule for worker’s compensation statutes, is to be construed liberally. Grayson v. Department of Employment Services, 516 A.2d 909, 911 (D.C.1986); Wheatley v. Adler, 132 U.S.App.D.C. 177, 183-84 , 407 F.2d 307, 313-14 (1968); Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414 , 52 S.Ct. 187, 189 , 76 L.Ed. 366 (1932). Thus, in worker’s compensation cases, “inferences [are] made and doubtful questions of fact [are] resolved in favor of the employees seeking benefits under the Act.” Geddes v. Benefits Review Board, 236 U.S.App.D.C. 381, 385 , 735 F.2d 1412, 1416 (1984) (construing a retaliatory discrimination claim filed under the federal Longshore and Harbor Workers’ Compensation Act, and noting that such a claimant, like a disability claimant, is not required to prove his or her case by a preponderance of the evidence because, consistent with the Act’s purposes, a lesser standard suffices) (citations omitted). See also Wheatley, supra, 132 U.S.App.D.C. at 183-184 , 407 F.2d at 314 ; Swinton v. Kelly, 180 U.S.App.D.C. 216, 225 , 554 F.2d 1075 , 1084, cert. denied, 429 U.S. 820 , 97 S.Ct. 67 , 50 L.Ed.2d 81 (1976) (same); D.C. Code § 36-321 (1981). Although Geddes is not binding on us, M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), and there are differences between the federal and D.C. Act, Hughes v. Department of Employment Services, supra, 498 A.2d at 569-70 , the opinion is persuasive and consistent with our opinions that the D.C. Act is to be liberally construed. Cf. Green v. Department of Employment Services, 499 A.2d 870, 877 (D.C.1985) (fair preponderance required to overcome presumption employee involuntarily quit).

In holding that the hearing examiner’s finding that Ms. Porter was able to return to work as of April 18,1984 and was therefore not entitled to disability benefits after her employer stopped paying them on May 12, 1984 was supported by substantial evidence, McLean v. Department of Employment Services, supra, 506 A.2d at 1136 ; D.C.Code § 1-1509(e) (1981), the majority opinion relies on Dr. Cooney’s April 18, 1984 report and the fact that it was consistent with Dr. Jenkins’ October 24, 1984 report. However, Dr. Jenkins did not examine Ms. Porter until five months after her temporary disability benefits had been terminated, on May 12,1984, and hence, in the absence of evidence to the contrary, his findings about her physical condition were relevant only as of .that date. While Dr. Cooney’s April 18 report stated that Ms. Porter should “be able to begin thinking about returning to her work,” it did not say that she was able to return to work either as of that day, or at any particular time between April 18 and the date when Dr. Jenkins examined her. The only evidence before the hearing examiner which directly addressed Ms. Porter’s condition during the six months between Dr. Cooney’s and Dr. *1025 Jenkins’ reports were two reports of Ms. Porter’s treating physician, Dr. Toerge. Dr. Toerge’s reports of June 25 and October 2, 1984, recommended that she not return to work in order to avoid aggravating her injury. 1

Thus, the only evidence regarding Ms. Porter’s ability immediately to return to work was Dr. Jenkins’ report of October 24, 1984. That report did not state whether Ms. Porter was able to return to work prior to October 24. Dr. Toerge’s reports stated that Ms. Porter was not. The only evidence that Ms. Porter may no longer have been disabled between April 18 and October 24 was the ambiguous statement in Dr. Cooney’s April 18 report that he saw “no reason why she should not be able to begin thinking about returning to her work.” If any inference in support of Ms. Porter’s claim can be drawn from Dr. Coo-ney’s report, it must be drawn.

The hearing examiner, in order to reach the result she did, must have inferred that the statement in Dr. Cooney’s April 18 report meant Ms. Porter was able to return to work immediately. Dr. Cooney’s report does not say this, and no evidence was offered to interpret his medical report. 2 It is entirely possible that Dr. Cooney would have testified that in his opinion, contrary to Dr. Toerge’s opinion, Ms. Porter could return to work immediately. On the other hand, he might have testified that although he thought Ms. Porter should begin thinking about returning to work as of April 18, she should not actually resume' her duties until a later time. Ms. Porter testified that in working as a special diet cook she was required to lift heavy pots of soup, and that heavy lifting still aggravated the pain which extended from her neck all the way down her right arm to her hand.

Neither the ambiguity of Dr. Cooney’s statement nor the basis for interpreting medical test results on which the three doctors based their reports could be resolved by evidence before the hearing examiner. 3 Since factual doubts are to be resolved and inferences are to be drawn in favor of the claimant, the hearing examiner properly could infer only that Dr. Cooney was of the opinion Ms. Porter was not able to return to work until some time after April 18, 1984. Accordingly, the hearing examiner’s finding that Ms. Porter was no longer disabled as of April 18 is not based on substantial evidence of record, and the ruling that therefore she was not entitled to disability benefits after May 12, 1984 must be reversed.

This does not end the matter, however. Ms. Porter testified that she had failed to keep several appointments made by her employer for her to be examined by Dr. *1026 Jenkins. Therefore, in view of the statutory requirement that claimants cooperate in such independent examinations, D.C. Code § 36-320 (f) (1981), upon remand the hearing examiner would have to determine whether Ms. Porter’s explanations would excuse her failure to keep the appointments. See Maryland Shipbuilding and Drydock Co. v. Jenkins, 594 F.2d 404, 405 (4th Cir.1979) (where employee’s only excuse for his failure to submit to examination by employer’s doctor was lack of confidence in that doctor, his failure to submit to the examination was arbitrary, and the administrative law judge abused his discretion by excusing employee’s actions). If the hearing examiner found Ms. Porter’s explanations to be unreasonable, id. at 406 , then her eligibility for disability benefits would have to be reduced to the period preceding the first scheduled examination which Ms. Porter failed to keep and for which failure she is found to have offered no reasonable explanation. § 36-320(f). 4

. In his June 25 report, Dr. Toerge stated that based on a physical examination of Ms. Porter he diagnosed her as having "C-7 radiculopathy on the right, with somatic dysfunction of the cervicodorsal junction and left low back pain with mild radiculitis in the left lower extremity." In his October 2 report, Dr. Toerge stated after a physical examination he found "persistent C-7 radiculopathy ... [and] dysfunction of the cervical spine in relationship to the thoracic spine_”

. The hearing examiner was not limited to the evidence presented by the parties. D.C.Code § 36-320(g) (1981).

. Dr. Jenkins’ report states that on May 30, 1984, Dr. Cooney told Ms. Porter “In view of the fact that she has had a normal myelogram and that there is absolutely no objective finding, I have nothing further to offer the patient.” In addition to being ambiguous as to when Ms. Porter could actually return to work, this statement constitutes inadmissible hearsay because it is not contained in any of Dr. Cooney’s reports which were in the record before the agency. As a general rule, “a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing.” Richardson v. Perales, 402 U.S. 389, 402 , 91 S.Ct. 1420, 1428 , 28 L.Ed.2d 842 (1971); see also Dowd v. D.C. Pol. & Firefighters’ Retirement, 485 A.2d 212, 215 (D.C.1984); District of Columbia v. Jones, 442 A.2d 512 , 523 n. 19 (D.C.1982). This rule does not allow for the double hearsay at issue here. Dr. Jenkins’ statement of what Dr. Cooney told Ms. Porter does not constitute a medical finding based on his own examination of the claimant, and so lacks the indicia of reliability that such a medical finding would have.

. I do not reach the issues relating to medical bills and attorney’s fees.