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### DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12

- AA

- 0665
K EVIN V

. R E YNOLDS , P ETITIONER ,

v. D ISTRICT OF C OLUMBIA D EPARTMENT OF E MPLOYMENT S ERVICES , R ESPONDENT ,

a nd
C ANON B USINESS S O LUTIONS , I NTERVENOR ,

a nd
B ROADSPIRE I NSURANCE C O ., I NTERVENOR

. Petition for Review from a Final Order of the Compensation Review Board of the District of Columbia Department of Employment Services

(CRB

- 47

- 11) ( Submitted December 11, 2013 Decided March 20, 2014) Benjamin T. Boscolo for petitioner.
Irvin B. Nathan , Attorney General for the District of Columbia, Todd S. Kim , Solicitor General, Donna M. Murasky , Deputy Solicitor General, and Tonya A. Sapp , General Counsel of the Department of Employment Services, filed a statement in lieu of brief in support of respondent ’s decision. Barry D. Bernstein for intervenors.2

Before B LACKBURNE

- R IGSBY and T HOMPSON , Associate Judges , and R UIZ , Senior Judge

. R UIZ , Senior Judge : Petitioner, Kevin V. Reynolds, petitions this court to
review the April 18, 2012 , Order of the Compensation Review Board (“CRB”) of the District of Columbia Department of Employment Services. The CRB affirm ed the Compensation Order issued by the Office of Hear ings and Adjudication (“OHA”) on April 14, 2011 , that determined that petitioner’s use of narcotic pain medication after July 1, 2009, was not “ reasonable and necessary ” and therefore the employer was not required to pay for it under D.C. Code § 32

- 1507 (201 2 Repl. ). F o r the reasons stated below, we conclude that the CRB’s order is not supported by sub stantial evidence in the record . We , therefore , reverse and remand the case to the agency.

FACTUAL SUMMARY

On June 29, 2004, the Office of Worker’s Compensation awarded petitioner temporary total disability benefits to start retro actively, from March 20, 2002, and continuing for medical bills and ongoing medical treatment related to a work injury sustained on March 4, 2002, when petitioner injured his back while at work lifting
a bo x. Thereafter, in 2010, petitioner’s employer, Canon Business Solutions, petitioned O H A seeking a modification of petitioner’s total disability benefits due to a claimed change of condition. The e mployer presented medical records in3

support of its claim, including an independent medical exam (IME) report by Dr. Peter Esponnette dated May 16, 2007

. Dr. Esponnette ’s IME report initially placed restrictions on petitioner’s activities . However , after reviewing the written recor ds of private investigators wh o had vie wed surveillance footage taken earlier that year of petitioner whil e performing various activities, 1 Dr. Esponnette amended his IME report on June 13, 2007, and opined that the restrictions were inappropriate
because there were “ considerable differences between what petitioner claim s he

can do and what he actually d oes.”

On February 24, 2010, the Administrative Law Judge (ALJ) , Nata K. Brown, denied the e mployer’s request for modification of the award , finding that the employer had not shown there had been a change of condition warranting the termination of petitioner’s disability benefits

. T he ALJ discredited Dr. Peter Esponnette ’s IME report explaining that :

1 As reported by the investigators, petitioner was placed under surveillance for eig ht h ours each day on April 27, 2007 , and April 28, 2007 . During that time, petitioner was seen engaging in various outdoor activities “for less than one hour.” Subsequently, petitioner was again placed under surveillance, for four

- to

- seven hours each day on August 20, 21, and 22, of 2008. According to the investigator’s reports, the surveillance revealed that petitioner was “operating a hand

- held rototiller, raking his yard, pounding stakes into the ground, tying rope to the stakes, moving a car from his dri veway, taking wood out of a pick

- up truck, riding a riding mower, driving his truck with a large screen TV in the back, and going to the gym.”4

[The doctor] b ased his findings on assumptions from second

- hand information; he never saw the video tape , nor did he mention the short amount of time that Claimant devoted to each recorded task

. . . . Dr. Esponnette further opined that a functional capacity evaluation (hereinafter, FCE) was required. Without a recent FCE, Claimant’s current physical capabilities are not known to Dr. Esponnette.

On March 16, 2011, the O H A held a formal hearing on petitioner’s request
for authorization of medical treatment, payment of medical bills, and
reimbursement of out

- of

- pocket expenses , with interest , for treatment of depression
and pain medication he claimed were causally related to the chronic pain from the back injury he sustained in 2002

. In a C ompensation O rder dated April 14, 2011 , the ALJ (Gerald D. Roberson) found that while treatment for petitioner’s depression was causally related to his chronic back pain, the use of narcotic pain medication after July 1, 2009 , was not reasonabl e and necessary . Therefore, the

e mployer was obligated to pay only for narcotic medications prescribed and filled between August 20, 2007 , and June 17, 2009. 2 In arriving at this conclusion, t he
ALJ relied on a Utilization Review (UR) report, which the employer had requested

2 The ALJ affirmed the employer’s responsibility to reimburse for other non
- narcotic medications, Cymbalta and Effexor, being used to treat petitioner’s depression and chronic pain.5

on June 22, 2009, from Dr. William Abraham, for the purpose of certifying whether petitioner’s ongoing treatment was reasonable and medically necessary.

The UR report recommended discontinuing petitioner’s narcotic pain medication, based on the 2007 IME report of Dr. Esponnette

. The UR report
reasoned as follows:

Dr. Esponnette noted his report needed amended [sic] to note the excessive reports of disability and symptom magnification. There were no recent records for this individual who apparently underwent lumbar surgery in 1997 and had been diagnosed with postlaminectomy syndrome. The most recent records, from 20 07, suggest that perhaps no treatment is indicated in this particular case, as this individual appeared to be quite active, at least as suggested by the investigative report. To the extent this individual may be unfairly representing his ongoing disabilit y, it is unclear that there would be any indication for anything other than p.r.n. [ 3 ] treatment. There would certainly be no indication for imaging studies and/or surgical intervention. If this gentleman is continuing to require narcotic pain medications , it would appear reasonable to recommend their discontinuation in a medically appropriate fashion.

3 The term “ p .r.n.” stands for “pro re nata,” or on an as

- needed basis r ather than at regularly scheduled intervals.6

P etitioner appealed to the CRB , claiming that insofar as the 2009 UR report
was based on the 2007 IME report that ALJ Brown had discredited in the February 24, 2010 , Compensation Order , ALJ Roberson’s 2011 Compensation Order err ed in relying on the UR report to conclude that the continuation of narcotic pain
medication was not reasonable and necessary. O n April 18, 2012, the CRB
affirmed ALJ Roberson’s Order. The CRB concluded there was no error in the
AL J’s reliance on the UR report because the ALJ had noted that the IME report
had been discredited only with respect to its discussion on the nature and extent of petitioner’ s disability, which did not prevent the ALJ from relying on the UR report, a long with other medical records , on the separate issue of the reasonableness and necessity of continuing the use of narcotics.

On appeal to the CRB, Petitioner also asserted that it was err or for the ALJ
to substitute his judgment for that of medical professionals by giving a date certain
for the termination of employer payment for narcotic pain medication. The CRB
concluded that there was no error because the ALJ’s finding did not prevent
pe titioner from seeking narcotic pain medication; instead it relieved his employer from its obligation to continue reimbursi ng petitioner for its cost

. Petitioner appeals the CRB’s Order

.7

I.

We review administrative determinations under a well

- established
deferential standard

. See, e.g. , W ashington Metro Area Transit Auth. v. District of Columbia Dep’t of Emp’t Servs. , 926 A.2d 140, 14 6

- 4 7 (D.C. 2007)

. “We must determine first, w h e ther the agency has made a finding of fact on each material contested issue of fact; second, whether the agency’s findings are supported by substantial evidence on the record as a whole; and third, whether the Board’s conclusions flow rationally from th o se findings and comport with the applicable
law.” Id. ( quoting Mills v. District of Columbia Dep’t of Emp’t Servs. , 838 A.2d 325, 327 (D.C. 2003) ). The CRB reviews Compensation Orders to determine
whether the ALJ’s factual findings are supported by substantial evidence in the record and whether the legal conclusions drawn from those facts are in accordance
with applicable law. D

. C

. Code § 32

- 1521.01 (d)(2)(A) (2005) ; see Marriott Int’l v. District of Columbia Dep’t of Emp’t Servs. , 834 A.2d 882 , 88 5

- 86 (D.C. 2003).
“Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion

. ” W ashington Metro Area
Transit Auth. , 926 A.2d at 147 (quoting Ferreira v. District of Columbia Dep’t of Emp’t Servs. , 667 A.2d 310, 312 (D.C. 1995)). “[W] e review the decision of the [CR B ] , not that of the ALJ . . . however, we cannot ignore the compensation order8

which is the subject of the [CRB’s] review.’” Washington Metro. Area Transit
Auth. v. District of Columbia Dep’t of Emp’t Servs. , 992 A.2d 1276, 1280 (D.C. 2010) (quoting Georgetown Univ. Hosp. v. District of Columbia Dep’t of Emp’t
Servs. , 916 A.2d 149, 151 (D.C. 2007)).

I I .

We conclude that the CRB’s order does not satisfy these standar d s in various respects. Petitioner ’s first claim is that the CRB erred by affirming the April 14,
2011 , Compensation Order because it relied on Dr. Abraham’s 2009 UR report
which , in turn, was based on Dr. Esponnette’s 2007 IME report that was later (in 2010) discredited by ALJ Brown

. The CRB examined ALJ Roberson’s analysis
and concluded the ALJ had not err ed in relying on the UR report because (1) the
IME was discredited only on the issue of the extent and na ture of petitioner’s disability, rather than the issue of reasonableness and necessity of petitioner’s narcotic pain medication , and (2) the IME was not the only medical record the UR
had relied on.

We cannot agree with the CRB’s conclusion. ALJ Brown rejected Dr. Espon n ette’s IME report on the nature and extent of petitioner’s physical capabilities in 2007 , because it was based on second

- hand observations by private9

investigators and lacked information from a current functional capacity evaluation. Although the question of the need for narcotics pain medication was not before Dr. Espo n nette in 2007 , the 2009 UR report prepared by Dr. Abraham reached the conclusion that no narcotics pain medication was required based on the assumpt ion that petitioner was in fact capable o f performing the activities reported by the private investigators. 4 That assumption is relevant only as a basis from which to
draw the further infer ence that if petitioner is able to engage in the type of activities reported by the private investigat ors, he must not be in such pain as to require narcotics for pain management

. Subsequent to Dr. Abraham’s UR report, however, ALJ Brown concluded in 2010 that the private investigators ’ report could
not substitute for a medical doctor’s own observations and a current evaluation of the petitioner

. If there was no reliable current evidence of the petitioner’s activities
in 2010 when ALJ Brown dismissed Dr. Esponnette ’s IME report, that evidence

was even less reliable and more out

- of

- date in 2011, when ALJ Rober son considered Dr. Abraham’s UR report. Thus , insofar as ALJ Roberson’s 2010 Compensation Order relied on the UR report, that reliance was f atally undermined

4 The UR report’s language in this respect could not be clearer. Referring to the 2007 IME report as the “most recent” record, the UR report noted: “.

. . this individual appeared to be quite active, at lea st as suggested by the investigative report

. To the extent that this individual may be unfairly representing his ongoing disability , it is unclear that there would be any indication for anything other than p.r.n. treatment . . . .” (emphasis added)

.10

by ALJ Brown’s 20 10 Compensation Order. Moreover, as we discuss below, there is no support in the record for the CRB ’s assertion that the ALJ properly relied on
“other records , ” in addition to the UR report , to conclude that narcotics medication

w as no longer necessary and reasonable.

There is also a fundamental analytic problem with the CRB’s o rder affirming ALJ Roberson’s Compensation Order. The CRB concluded that the Compensation Order was supported by substantial evidence , after it examined the
ALJ’s reasoning and found that it comported with the standards the CRB has stated the ALJ must apply to resolve disputes when the UR process is invo ked : 5

5 The CRB has interpreted the UR statute as requiring that the ALJ must evaluate the opinion of the medical provider and the UR report on an equal footing and must articulate the reasons for choosing one opinion over the other. As the CRB has explained:

[The] framework [requiring an explanation for rejecting a UR report] set forth by the court in Sibley [ Mem. Hosp. v. District of Columbia Dep’t of Emp’t Servs. , 711 A.2d 105, 107 (D.C. 1998),] is substantially identical to that espoused by the court in th e treating physician cases, [ see, e.g., Short v. District of Columbia Dep’t of Emp’t Servs. ,] 723 A.2d 849 (D.C. 1998), and we view it as the appropriate manner to treat UR opinion under the Act. While it can be argued that the Act could be viewed so as t o grant an even higher preference to UR opinion over treating physician opinion, we note that the processes envisioned by the statutory UR provisions call for (continued .

. .)11

T he ALJ has taken into consideration the competing medical evidence and determined that the UR report is more persuasive

. . . . he has reviewed and we i ghed the competing medical opinions and explained why he chose the UR report without giving any opinion an initial preference in keeping with the current state of the law in this jurisdiction.

T he Board misapprehended the ALJ’s analysis. In this case, t he ALJ did not

— as the CRB thought

— give precedence to the UR report. Rather, the ALJ concluded that there was no conflict between the UR report and the treating physician’s opinion . In reaching that conclusion, t he ALJ made two findings , neither of which is supported by the record. The ALJ first noted that the records of
the treating physician , Dr. Keniston

- Dubocq , “ did not reveal whether she had an
(.

. . continued)

consideration of treating physician opinion and UR opinion, without specifying any preference for one or the other by virtue of its being treating physician opinion on the one hand, and UR opinion on the other. Accordingly, we view the statute as placing an obligation upon the ALJ to weigh the competing opinions based upon the record as a whole, and to explain why the ALJ chose one opinion and not the other, but does not require that either opinion be given an initial preference. Haregewoin v. Loews Washington Hotel and Liberty Mutual Insurance Co. , CRB No. 08

- 068, 2008 WL 788313, at *3 (Feb. 19, 200 8). This court has referred to the CRB’s interpretation, but has not adopted or rejected it. See Children’s Nat’l Med. Ctr. v. District of Columbia Dep’t of Emp’t Servs. , 992 A.2d 403, 410 n.11 (D.C. 2010). It is not raised in this case, and we do not address it.12

opinion regarding the reasonable [ ness ] and necessity of continuing the narcotic
medication , ” in this case, fentanyl patches

. 6 The ALJ also stated that Dr. Keniston

Dubocq’s treatment recommendations were consistent with the findings of the UR report because she had “attempted to wean [petitioner] off the narcotics.”

The records do not support that Dr. Keniston

- Dubocq had implemented a narcotics pain medication discontinuation program. Although h er entry for August 26, 2009, state s that “we will, in the future, try to wean [petitioner] off the [narcotics] patches , ” as of as May 21, 2010, she was still recommending that petitioner “continue to use the [narcotic] fentanyl patches, ” and on July 7, 2010, her notes indicate that petitioner reported that the patch “continues to be very helpful” for his chronic pain. 7 Th e UR report, issued in 2009, could not have taken note of, and was inconsistent with, the treating physician’s later notes

. T he ALJ
also erred in stating that D r. Keniston

- Dubocq had not expressed an opinion on the reasonableness and necessity of p etitioner’s narcotic medication. Although there is
no exp licit statement from Dr. Keniston

- Dubocq to that effect, absent clear

6 F entanyl is an opiate narcotic listed by the Drug Enforcement Administration as a Schedule II controlled substance. See 21 C.F.R. § 1308.12 (c)(9) (2012)

. 7 At that visit, Dr. Keniston

- Dubocq increased the dosage of Cymbalta, a non
- narcotic pain medication.13

evidence to the contrary, it is logical to conclude that a doctor’s continued prescription of medication, especially narcotics , is an implicit statement that the
doctor believe s it is reasonable and necessary for treating the patient

.

Th ese flawed findings le d the ALJ to conclude that Dr. Keniston

- Dubocq’s
medical records “a ppear to be consistent with the findings of the [UR] report.” The UR report recommended in 2009 that “[i]f this gentleman is continuing to require narcotic pain medications, it would appear reasonable to recommend their discontinuation in a medically appr opriate fashion ,” whereas Dr. Keniston

Dubocq’s 2010 medical notes reflect continuation of narcotics pain medication

. We do not know how the ALJ would have resolved this discrepancy between the medical opinions presented.

There is a further finding in the Compensation Order that, we conclude, is not supported by the record, e ven if the ALJ had provided (or were, on remand, to provide) an explan a tion for choosing bet ween competing medical evidence. The Compensation Order determined t hat petitioner’s “na rcotic pain medications
should have been discontinued effective July 1, 2009.” 8 Petitioner asserts that the

8 As the CRB pointed out, t he ALJ could not set a termination date for petitioner’s use of narcotic pain medication per se, but rather a date by which the (continued .

. .)14

ALJ substituted his judgment for that of the medical professionals by fixing a date
for the termination of narcotic pain medication. We agree. Th e July 1, 2009, UR report recommended “discontinuation in a medically appropriate fashion,” not
immediate cessation. This is consistent with Dr. Keniston

- Dubocq ’s notation that any future discontinuation would entail a “weaning” process. ALJ Roberson sa w no inconsistency between these opinions. When issuing the Compensation Order in 2011, however, ALJ Roberson set the reimbursement termination date for
narcotics medication retroactively to July 1, 2009 , when there was no medical support that abrupt termination of narcotics on a date certain was medically appropriate

. In light of these flaws in the CRB’s analysis and lack of substantial evidence to support the ALJ’s finding s , we reverse the CRB’s order and remand the case to the agency.

III.

Petitioner claim s that the ALJ ’s and CRB’s uncritical acceptance of the UR report in this case illustrates that the statutory UR mechanism is generally being
mis used to terminate the responsibili ty of employers and insurers to provide
(.

. . continued) e mployer would no longer be legally obligated to reimburse petitioner for the cost of any narcotic pain medication because it was no longer deemed to be reasonable and necessary

.15

medical benefits for work

- related conditions , shifting this cost to D.C. taxpayers

. Petitioner’s contention about systemic misuse of the UR mechanism is not a claim
for which relief can be granted in his individual case

. Especially i n an area w h e re the legislat ure has enacted a comprehensive scheme for worker’s compensation , i t is primarily for lawmakers to craft laws that balance competing interests and embody the public policy of the state.

We note that there are various safeguards in place to prevent abuse of the
UR mechanism. Utilization reviews are available to any p arty seeking a third

party opinion on the “necess i ty, character, or sufficiency” of medical care or service. D.C. Code § 32

- 1507 (b)(6)(B) (“When it appears that the necessity, character, or su fficiency of medical care or service to an employee is improper or that medical care or service scheduled to be furnished must be clarified, the Mayor, employee, or employer may initiate review by a utilization review organization or individual.”). This c an be done before, during, or after medical treatment. See
D.C. Code § 32

- 1507 (b)(6). T he medical provider who recommended or recommends the challenged care has “the right to request reconsideration” of the UR report

. D.C. Code § 32

- 1507 (b)(6)( C ). T he UR report is not dispositive;
d is agreements between a UR report and a medical care provider are submitted to the Mayor ( i.e ., D.C. Department of Employment Services) for resolution

. See16

D.C. Code § 32

- 1507 (b)(6)(D). 9 As the UR process is being implemented by the CRB, w hen a UR report is submitted , the ALJ must evaluate it by taking into
account the medical service provider’s opinion , and must articulate a reason for choosing one opinion over the other

. See supra n ote 5. The ALJ’s determination is subject to administrative appeal to the CRB. The CRB’s decision, in turn, is subject to judicial review. See D.C. Code § 32

- 1507 (b)(6)(D). In this case, these safeguards have been effective.

In light of th e UR report’s reliance on a discredited IME report and the discrepancy between the UR report and the tre ating doctor’s medical records we
have discussed supra , the ALJ ’s analysis was flawed

. The ALJ further erred in setting the reimbursement termination dat e retroactively to July 1, 2009 , without any support in the record. The CRB erred, therefore, in affirm ing the ALJ’s Compensation O rder

.

9 It ap pears that petitioner’s treating physician did not request reconsideration of the UR report. The CRB has interpreted D.C. Code § 32

- 1507(b)(6)(D) as making the UR process mandatory where there is a dispute about the reasonableness and necessity of medical care. S ee Children’s Nat’l Medical Ctr. , 992 A.2d at 410 (assuming, without deciding, that UR process is mandatory (citing Gonz alez v. UNIC C O Serv. Co. , CRB No. 07

- 005, 2007 WL 867067, at *13 (Feb. 21, 2007))). A request for reconsideration of the UR report, however, is not required before a dispute may be submitted to DOES. See id . at 412 (accepting CRB’s interpretation as reas onable (citing McCormick v. Children’s Nat ’l Med. Ctr. , CRB No. 09

- 016, 2009 WL 345799, at *5 (Jan. 2, 2009))).17

Accordingly, we reverse and remand the case for re
- examin ation of the
medical evidence and findings and conclusions consistent with established legal principles.

So ordered

.