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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19

- AA

- 350
Y UL H ILL , P ETITIONER ,
V
. D ISTRICT OF C OLUMBIA D EPARTMENT OF E MPLOYMENT S ERVICES , R ESPONDENT , and
W ASHINGTON M ETROPOLITAN A REA T RANSIT A UTHORITY , I NTERVENOR
. On Petition for Review of a Decision and Order of the Compensation Review Board of the District of Columbia Department of Employment Services ( CRB

- 19

- 023 ) (Submitted March 26, 2020 Decided April 28, 2020) * Krista N. DeSmyter and Kevin H. Stillman filed a brief for Petitioner. Karl A. Racine , Attorney General for the District of Columbia , Loren L. Ali K

ha n , Solicitor General at the time the statement was filed, Carl J. Schifferle , Acting Deputy Solicitor General , and Sonya L. Lebsack , Assistant Attorney General , file d a statement in lieu of brief for Respondent.
Sara h O. Rollman and Mark H. Dho filed a brief for Intervenor.

* The decision in this case was originally issued as an unpublished Memorandum Opinion and Judgment. It is now being published upon the court’s grant of Intervenor’s motion to publish.2
Before G LICKMAN , F ISHER , and M C L EESE , Associate Judge s
.

F ISHER , Associate Judge : Petitioner Yul Hill seeks review of a Compensation Review Bo ard ( C R B ) order which affirmed an Administrative Law Judge ’s (ALJ) decision to deny petitioner’s claim for temporary total disability benefits relating to a mental

- mental injury

. 1 We hereby affirm.

I. Facts and Procedural Background
Mr. Hill began wor king as a bus operator for the Washington Metro politan
Area Transit Authority (WMATA) in 2009. While on duty on February 1, 2013, he suffered physical and mental injuries when he was attacked by a passenger. After the attack, he received treatment 2 and e ventually returned to full duty as a

1 “In physical

- mental cases, the claimant alleges that a physical workplace injury caused a mental injury.” Muhammad v. D istrict of Columbia Dep’t of Emp’t Servs. , 34 A.3d 488, 492 n.4 (D.C. 2012). “In mental

- mental cases, the claimant alleges that an emotionally traumatic workplace event or stressor caused a mental injury.” Id . at 492 n.5.

2 Dr. Joshua Sussal completed a psychiatric evaluation on April 4, 2013, and rendered a diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood.” Dr. Sussal acknowledged that “ [a]lthough superficially [petitioner] meets the criteria for PTSD his intent from 2010 with t he lack of initiative to drive a bus in the first place coupled to his social issues with : support, finances and dismay for the workers [’] compensation system calls into question the integrity and magnitude of his subjective complaints.” Accordingly, Dr. Sussal “left PTSD as a rule out.” Mr. Hill also received treatment for his physical injuries from Dr. Taseem Malik, who referenced petitioner’s anxiety. Dr. Phyllis Braxton (continued...)3 bus operator. Petitioner’s doctors opined that the mental health symptoms he experienced after the 2013 attack were also related to injuries he sustained in a 2010 accident. Dr. Sussal explained that, as in 2010, peti tioner insisted that he would “be fine” if he could return to work in a “non

- operator position.”

In late February 2017, petitioner suffered the sudden and tragic loss of his

son. P etitioner t ook three days of bereavement leave before returning to work at the beginning of March. On March 3, 2017, petitioner had a public disagreement with a supervisor which

— the petitioner alleges

— exacerbated his existing mental injury. The petitioner sought care through the Employee Assistance Program (EAP) and rece ived a referral for mental health treatment. While at EAP, petitioner filled out a sick leave form but did not claim an on

- the

- job injury or file a claim for worker s ’ compensation

.

Mr. Hill’s WMATA supervisor , Amit Tonse, regularly contacted Mr. Hill du ring his prolonged leave . Repeatedly, Mr. Hill explained that he was “str essed

_____________________ (...continued) Arnason also counseled petitioner and submitted reports to petitioner’s lawyers discussing Hill’s treatment for “[a]djustment disorder with depression and anxiety.”4 out” because of his gr ief, withou t mentioning his discussions with the other supervisor

. During his leave, Mr. Hill received mental health care from Therapist Alphonso Lewis t o whom he had been referred by EAP. Therapist Lewis understood the reason for the referral to be petitioner’s grief and opined that Mr. Hill’s symptoms resulted from the traumatic loss of his son and his premature return to duty. However, after first obs erving symptoms on April 11, 2017, Therapist Lewis made a “defin ite diagnosis” of PTSD on May 16, 2017. On November 30, 2017, Therapist Lewis produced a clinical summa ry of his treatment of Mr. Hill for acute symptoms of anxiety and depression and symptom s of PTSD.

Therapist Lewis eventually advised Mr. Hill “that he should not operate a bus based upon the continued chr onicity of the symptoms of his PTSD[,]” expressing a concern that allowing Hill to return to work as a bus operator “could potentially p lace him and the public at risk.” Lewis also shared this information with WMATA. Consequently, i n a letter dated September 27, 2017, WMATA permanently disqualified Mr. Hill from operating a bus due to his “post

- traumatic stress disorder , ” effective June 20, 2017. According to petitioner, “[a]s of February 10, 2018, [WMATA] provided him with alternative employment outside of bus operation.”5 On September 26, 2017, petitioner filed for temporary total disability benefits and corresponding interest for t he period of March 4, 2017, to February 9,
2018 , stemming from the March 3, 2017 , incident

. This claim was later consolidated with a claim for temporary total disability and interest for the same period resulting from the September 2013 attack. Petitione r included a claim for payment of medical expenses from February 1, 2013 , through December 6, 2017. 3

On December 6, 2017, Dr. Cynthia Major

- Lewis conducted an independent medical evaluation (IME) of Mr. Hill, during which she reviewed his medical record s and conducted a mental health examination. Dr. Major

- Lewis concluded that (1) Mr. Hill’s PTSD diagnosis resulting from the 2013 attack was “pre

- mature and incorrect,” (2) Mr. Hill’s resolving “ [ a ] djustment [ d ] isorder with mixed anxiety and depression” s ymptoms w as related to “non

- work

- related bereavement,” and (3) there “is no chronic condition that should be considered employment related.” In reference to the PTSD diagnosis, Dr. Major

- Lewis explained that “ [Therapist] Lewis did not document the symptom s required to make a DSM

- V diagnosis of Posttraumatic Stress Disorder.”

3 Petitioner’s original claim also included a claim for temporary partial disability payments for the period after February 9, 2018. This claim was withdrawn after a p ost

- hearing review of Mr. Hill’s pay records

.6 An OAH ALJ heard evidence on July 11, 2018. At the hearing, intervenor argued that there wa s no medical causal connection between petitioner’s current symptoms and either the 2013 att ack or the March 2017 incident. Intervenor relied primarily on the IME report to argue against medical causality. Intervenor further explained that, even if the ALJ found a compensable injury resulting from the March 2017 incident , relief should neverthe less be denied because petitioner did not give timely notice of a workplace injury. Finally, w ith regard to the payment of temporary total disability benefits, intervenor a sserted that it was entitled to a credit for the payment of long term disability be nefits 4 that had occurred between September 4, 2017, and April 30, 201 8

.

In reference to the 2013 attack, the ALJ concluded that (1) Mr. Hill invoked the presumption of a medical

- causal connection between the attack and his mental health complaints, (2) WMATA rebutted the presum ption, and (3) Mr. Hill proved by a preponderance of the evidence “that there was a medical

- causal connection between the 2013 attac[k] and his mental health complaints until December 6,
2017.” T he ALJ found that Mr. Hill did not invoke the presumption for the March

4 Payments for which i ntervenor claims a credit relate to insurance payments made from the employer funded “Transit Employees’ Health and Welfare Plan” provided by Hartford Life and Accident Insurance Company

.7
2017 incident

. Despite his finding that there was medical

- causality from March 4,
2017 , until December 6, 2017, the ALJ denied all “ temporary total disability benefits [and corresponding interest] from March 4, 2017 th rough February 9,
2018. ” The ALJ did not address interveno r’s notice and credit arguments as both were rendered moot by the total denial of benefits.

Petitioner sought review of the compensation order (CO) from the CRB. The CRB affirmed the CO in part a nd remanded after concluding that there was not substantial evidence to support a finding that the claimant failed to invoke the presumption of compensability for the March 2017 incident. The CRB did not address the discrepancy between the ALJ ’s findings and his denial of relief stemming from the 2013 injury. On remand, the ALJ found that, while the claimant did successfully invoke the presumption, the employer severed the presumption with Dr. Major

- Lewis ’s IME report

. The claimant then failed to carry
h is burden to prove “that there is a medical

- causal connection between the 2017 encounter with his supervisor and the allegedly

- related mental health complaints.” In an order issued on April 9, 2019, t he CRB affirmed the Compensation Order on Remand and regarded its earlier rulings as the law of the case , acknowledging8 petitioner’s “arguments on appeal for preservation purposes and for further appeal to the District of Columbia Court of Appeals.” P etitioner now seeks review

. 5

II. Standard of Review

Petitioner argues that the underlying ALJ compensation order s were not based on substantial evidence. Speci fic ally, he finds fault with the ALJ’s reliance on Dr. Cynthia Major

- Lewis’ s IME report.

“ 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. ” Bowles v. District of Columbia Dep’t of Emp’t S ervs. , 121 A.3d 1264, 1269 (D.C. 2015) (quoting Georgetown Univ. v. District of Columbia

5 The CRB decision and partial remand order issued on December 5, 2018, wa s not a final order which this court had jurisdiction to review. Warner v. District of Columbia Dep’t of Emp’t Servs. , 587 A.2d 1091, 1093 (D.C. 1991) (“As a general matter, th is court has jurisdiction to review only agency orders or decisions that are final.”). On remand, the ALJ issued a Compensation Order on Remand that has since been affirmed by the CRB in a final Decision and Order. Because petitioner has exhausted his ad ministrative remedies , both CRB orders are now ripe for review. See Bender v. District of Columbia Dep’t of Emp’t Servs ., 562 A.2d 1205, 1207 (D.C. 1989).9 Dep’t of Emp’t Servs., 971 A.2d 909, 915 (D.C. 2009)). “Substantial evidence is

‘ more than a mere scintilla

. I t means such relevant evidence as a reasonable mind mig ht accept as adequate to support a conclusion. ’ ” Rodriguez v. Filene’s
Basement , Inc. , 905 A.2d 177, 181 (D.C. 2006) (quoting Gardner v. District of Columbia Dep’t of Emp’t Servs. , 736 A.2d 1012, 1015 (D.C. 1999) )

. “ A lthough our review in a workers’ comp ensation case is of the decision of the CRB, not that of the ALJ, ‘ we cannot ignore the compensation order which is the subject of the
CRB's review.’” Reyes v. District of Columbia Dep’t of Emp’t Servs. , 48 A.3d 159, 164 (D.C. 2012) ( quoting Georgetown Un iv. Hosp. v. District of Columbia Dep't of Emp't Servs., 916 A.2d 149, 151 (D.C. 2007)).

III. Analysis

Under the w orker s ’ c ompensation framework, there is a statutory presumption in favor of finding a medical

- causal connection after the claimant
pres ents “ some evidence of a work

- related event, activity or requirement which has the potential of resulting in or contributing to” a disability

. Wash. Post v. District of Columbia Dep’t of Emp’t Servs. , 852 A.2d 909, 911 (D .C . 2004) (internal quotation mark s omitted) (quoting Ferreira v. District of Columbia Dep’t of Emp’t
Servs. , 531 A.2d 651, 655 (D.C. 1987)). The employer may rebut that10 presumption , at which time “t he statutory presumption drops out of the case entirely” and the burden shifts back to the claimant , who must prove by a preponderance of the evidence that “ a work

- related injury caused or contributed to his or her disability.” Id. at 911.

In this case, petitioner argues that the CRB erred in affirming the ALJ’s finding that the employer p resented medical evidence “specific and comprehensive” enough to rebut the presumption

. Petitioner further argues that, even if the employer did successfully rebut the presumption, the ALJ erred by crediting the IME report of Dr. Major

- Lewis over the opin ion s of petitioner’s multiple physicians

— including treating physician, Therapist Lewis

— to conclude that the petitioner failed to carry his burden.

A . Rebuttal Evidence

In order to rebut the presumption of compensability, “ the burden is upon the employer to br ing forth substantial evidence showing that death or disability did not arise out of and in the course o f employment.” Wash. Post , 852 A.2d at 911 (internal quotation marks omitted) (quoting Ferreira , 531 A.2d at 655). That is, the employe r’s evidence must be “ specific and comprehensive enough to sever the11 potential connection between a particular i njury and a job

- related event.” Jackson v. District of Columbia Dep’t of Emp’t Servs. , 955 A.2d 728, 732 (D.C. 2008) (internal quotation marks omitted) (quoting Parodi v. District of Columbia Dep’t of Emp’t Servs. , 560 A.2d 524, 526 (D.C. 1989)). “It is sufficient for the employer to present substantial medical evidence

— as opposed to unequivocal medical evidence

— to rebut the statutory presum ption.” Safeway Stores, Inc

. , v. District of Columbia Dep’t of Emp’t Servs ., 80 6 A.2d 1214, 1221 (D.C. 2002). Compare Wash. Post , 852 A.2d at 914 (defense medical report considered substantial evidence w here a qualified physician examined the claimant, r eviewed records, and rendered a clear and consistent opinion ) , with Wash. Metro

. Area Transit Auth

. v. District of Columbia Dep’t of Emp’t Servs. , 827 A.2d 35, 42

- 44 (D.C. 2003) (non

- treating physician medical report not substantial evidence where the phys ician did not review treating physician records, provided only a vague opinion , and omitted key complain ts )

.

In this case , the ALJ ultimately found (and the CRB affirmed) that WMATA successfully rebutted the presumption of medical causality for both th e 2013 and 2017 injuries

— primarily through the IME report of Dr. Major

- Lewis

. The IME report does not deny the existence of a mental health condition but unambiguously12 states that “Mr. Hill’s current symptoms are not related to his employment.” 6
There is no dispute as to Dr. Major

- Lewis’s qualifications as a board certified psychiatrist licensed in Maryland. Before preparing her report, Dr. Major

- Lewis examined Mr. Hill and reviewed his medical records. 7 The report is comprehensive and gives specific reasoning to support her unambiguous conclusion that petitioner’s current mental health symptoms were not the result of a work

- related event but were an appropriate reaction to the sudden loss of his

6 While Dr. Major

- Lewis does express disagreement with Therapist Lewis’s PTSD diagnosis, there i s no disagreement over the existence of a mental health condition . T he label applied to the condition is of little consequence in this case. In fact, the ALJ did not distinguish between the conditions, finding that Hill suffered from “PTSD or adjustment disorder.” The central issue to be resolved is whether or not there was a medical

- ca us al connection between the symptoms and employment; a connection that the IME report definitively denies.

7 Petitioner claims that Dr. Major

- Lewis’s report was insuffi cient, in part, because she did not review the “ treating m ental health provider’s records after October 10, 2017.” However, the only record from Therapist Lewis dated after October 10, 2017 , is a clinical summary prepared on November 30, 2017. The medica l records do not suggest that an exam took place on November 30. Rather, Therapist Lewis simply summarized his notes from prior exams. The ALJ did not consider the counselor’s clinical summary as a part of the medical record but rather as a document prep ared for litigation. See infra note 11

. This court has recognized the danger of conscious and subconscious bias created by the potential for litigation. Changkit v. District of Columbia Dep’t of Emp’t Servs ., 99 4 A.2d 380, 387

- 88 (D.C. 2010). As the he aring examiner, the ALJ retained discretion to evaluate the credibility of evidence. The ALJ was acting within his discretion to discredit the November 30 , 2017, clinical summary.13

son
. 8 While Dr. Major

- Lewis’s report may not have const ituted “unequivocal evidence,” it met the substantial evidence burden to sever the presumption of medical causality between the work related events of 2013 and 2017 and the claimant’s mental health complaints.

B . Claimant’s Burden

In order to prevail a fter the employer has rebutted the presumption, the claimant must prove

— by a preponderance of the evidence and withou t benefit of the presumption

— “ that a work

- related injury caused or contributed to his or her disability. ” Wash. Post , 852 A.2d at 911

. In reviewing the conclusions of the
CRB we apply the same standard as the B oard

— substantial evidence review.

The ALJ found that the claimant failed to carry his burden to prove causality for his March 2017 injury

. In reaching this determination , th e ALJ gave considerable weight to the IME report from Dr. Major

- Lewis. While the law of

8 “Mr. Hill continues to appropriately grieve the [death] of his son. Mr. Hill’s current symptoms are not related to his employment . Most of his complaints are in the context of dissatisfaction with his employer and supervisor. It is my medical and professional opinion that Mr. Hill’s current symptoms, which are mild and vagu e, are not related to the 2/1/13 date of injury or the questionable 3/3/17 date of injury.”14 this jurisdiction “embodies ‘ a preference for the testimony of treating physicians over doctors re tained for litigation purposes,’ th e hearing examiner nonetheless

‘ ma y choose to credit the testimony of a non

- treating physi cian over a treating physician.’” Can la s v. District of Columbia Dep’t of Emp’t Servs. , 723 A.2d 1210,
1211

- 12 (D.C. 1999) (quoting Short v. District of Columbia Dep’t of Emp’t Servs. , 723 A.2d 845, 851 (D.C. 1998)). In so doing, the ALJ must explain his reasons for crediting the non

- treating physician

. Changkit v. District of Columbia Dep’t of Emp’t Servs ., 99 4 A.2d 380, 387

- 88 (D.C. 2010).

Both the ALJ’s Compensation Order and t he CRB’s Decision and Partial Remand Order give specific reasons for crediting Dr. Major

- Lewis’s opinion over the opinion of the treating “ physician ”

— Therapist Lewis

. 9 The ALJ cited the fact that Dr. Major

- Lewis conducted an “extensive review of the treatment records,”

c ited to the DSM

- V criteria, 10 and gave a clear opinion about the true nature of

9 Although not a doctor, Therapist Lewis (MHS, LCRC, NCC) is a licensed professional counselor. At the outset of the July 11, 2018 , hearing, the parties agreed that Therapist Lewis should be considered the treating physician.

10 Petitioner cites Johnson v. District of Columbia Dep’t of Emp’t Servs. , 167 A.3d 1237 (D.C. 2017), to support the proposition that Dr. Major

- Lewis’s report is insufficient in part beca use “ a DME must identify their criteria for PTSD so that a tribunal can determine if the injured worker meets it in or der to weigh the credibility of the defense medical evaluation.” The facts i n Johnson required the ALJ to distinguish between conflicting definitions of adjustment disorder and (continued...)15 petitioner’s symptoms. T he ALJ also found that Dr. Sussal’s early relucta nce to give a formal PTSD diagnosis tended to support Dr. Major

- Lewis’s later conclusion that the petit ioner’s resolved symptoms were more “akin to adjustment disorder.”

Contrary to petitioner’s contention, Dr. Major

- Lewis’s report did not stand alone in weighing against a finding of causality. In evaluating the evidence before
him to determine if the M arch 2017 workplace disagreement exacerbated petitioner’s mental injury , t he ALJ correctly explained that credibility is “ an inherent component of mental

- mental disability claims.” See Ramey v. District of Columbia Dep’t of Emp’t Servs. , 997 A.2d 694, 699

- 700 (D.C. 2010). The ALJ examined the documentary evidence and evaluated Mr. Hill’s testimony before concluding that Hill’s “ characterization of the long

- term emotional impact of his

_____________________ (...continued) PTSD. In so doing, he relied on a definition of PTSD from a medical dictionary that had not been introduced into evidence. “[B]ecause neither party had introduced that definition into evidence, the definition relat ed to a disputed factual matter, and neither party was given an opportunity to respond to the definition” this court held that the ALJ erred. Id. at 1242. Mr. Hill’s case does not present a similar dispute over the definition of PTSD , nor did the ALJ tak e judicial notice of medical evidence outside the record

. Instead, the ALJ considered the IME report along with the testimony of Mr. Hill, his supervisor, and a lengthy medical record before reaching a final determination.16 encounter with his supervisor is incongruent with other compelling evid ence. ” 11
The ALJ noted that pet itioner, when contacted by S up ervisor Tonse during his leave, made consistent statements about his grief

— not the workplace incident. The ALJ also chose to discredit some documentation from Therapist Lewis as it

“ appear [ed] to have been prepared for litigation, which eliminates one of the reasons to defer to his opinion. ” 12 Accordingly , the ALJ concluded that petitioner’s symptoms were the result of bereavement and not a workplace incident

— a decision that the CRB affirmed. We agree with the CRB that the ALJ’s determination was supported by substantial evidence.

11 U nder Storey v. District of C olumbia Dep’t of Emp’t Servs ., 162 A.3d 793, 807 (D.C. 2017), an ALJ is not permitted to consider credibility when determining if the presumption has been invoked in cases of physical injury

. However, nothing in Storey prohibits an ALJ from considering cr edibility when

— as here

— he is weighing the evidence to determine if the claimant has carried his burden by a preponderance. Nor does Storey prevent the ALJ from considering credibility when determining if the presumption has been invoked in cases of me ntal

- mental injury. Id. at 803 (quoting Ramey , 997 A.2d at 699

- 700).

12 The A LJ does not explain why he believed that the November 30 clinical summary was prepared for litigation

. However, w e note that the content and the timing of the summary support the ALJ’s conclusion. The medical records do not indicate that Therapist Lewis conducted an exam on November 30 . Instead, t he clinical summary simply recounts Lewis’s earlier notes. Further, the summary was completed after Mr. Hill initiated his claim o n September 26, 2017, and contains the following note that appears to be intended for litigation purposes : “It is important to note that Mr. Hill was never referred to this office for any form of workman ’ s compensation. His treatment was primarily for the symptoms of depression and anxiety. He continues to exhibit the acute symptoms of both. His primary psychiatric diagnosis remains Post Traumatic Stress Disorder.”17

C . Insult as an Injury

Petitioner’s final argument is that th e ALJ and CRB erred by concluding that “Mr. Hill did not and could not have suffered an accident al mental injury on March 3, 2017.” However, petitioner’s brief mis interprets the language of the ALJ. In the CO , the ALJ explained, “being insulted is not, by itself, a mental injury

. Mr. Hill might reasonably have resented her treatment of him, but th at was insufficient under the facts of this case to result in or aggravate any of the mental health issues raised in this case .” The ALJ did not assert that it was impossible for a worker to suffer an injury during a workplace incident similar to that of March 3 ; rather, the ALJ concluded that the evidence in this case was insufficient to show a medical

causal relationship between the insult and petitioner’s symptoms. In other words, the petitioner failed to prove there was a compensable injury stemming f rom March 2017

. For the reasons discussed in the previous section, we agree.

IV. Conclusion

Because the CRB’s order was supported by substantial evidence, it is hereby

Affirmed.