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DISTRICT OF COLUMBIA COURT OF APPEALS

No

. 13

- AA

- 200 C ASSANDRA R OSS , P ETITIONER ,

v. D ISTRICT OF C OLUMBIA D EPARTMENT OF E MPLOYMENT S ERVICES , R ESPONDENT
. On Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services

(CRB

- 189

- 1 2 ) (Submitted September 25 , 2015 Decided October 29, 2015) Cassandra Ross , pro se . Irvin B. Nathan , Attorney General for the District of Columbia at the time the brief was filed , Todd S. Kim , Solicitor General, Loren L. Ali K han , Deputy Solicitor General, and Mary L. Wilson , Senior Assistant Attorney General, were on the brief for respondent

. Jo n athan Levy and Paul Perkins were on the brief for amicus curiae , The Legal Aid Society of the District of Columbia, in support of neither party. Before F ISHER and M C L EESE , Associate Judges , and R UIZ , Senior Judge

. R UIZ , Senior Judge : P etitioner Cassandra Ross appeals the 2013 decision of the Compensation Review Board (“CRB”) terminating the disability benefits that she had received for over a decade on the basis that her injury had resolved

. We2

reverse and remand for consideration of the agency - employer‟s requ est to terminate benefits, under the proper standa rd: one that imposes the ultimate burden on the employer after a burden

- shifting analytical framework.

I. Facts
Petitioner suffered back and leg injuries in 1994 while working as a physician‟s assistant for the District of Columbia Department of Corrections (“the
agency - employer”)

. In 1998 , she suffered complications from her earlier injury, which caused additional injury to her neck and knee. Petitioner applied for, and received, temporary to tal disability benefits for these work

- related injuries pursuant to the District of Columbia Government Comprehensive Merit Personnel Act of 1978, D.C. Code, as amended, § 1

- 623.01 (201 4 Repl.) (“CMPA”). 1

In 2011, the District required that petitioner submit to a medical examination by an assigned doctor who was not her treating physician . Based on the results of that examination, the Office of Risk Management issued a Notice of Intent to Terminate, and

— af

ter reconsideration, requested by petitioner

— a Final Decision

1 Petitioner‟s temporary total disability benefits were reduced in a 2002 Compensation Order to temporary partial disability benefits, from $1010.71 to $409.08, on the basis that she was physically capable of returning to work in some capacity.3

terminating her workers‟ compensation benefits. On appeal, a Department of Employment Services (“DOES”) Administrative Law Judge (“ALJ”) upheld the termination, concluding in a 2012 Compensatio n Order that petitioner‟s injuries had resolved such that she was no longer entitled to benefits. Th e ALJ found that the agency

- employer “presented substantial evidence that [petitioner‟s] current [medical] conditions are not caused by her employment , ” th at is, the work

- related injuries that she suffered in 1994 , and that petitioner was capable of returning to work

. The ALJ further found that petitioner‟s evidence, which consisted primarily of reports from her treating physicians, was “insufficient to ove rcome that presented” by the agency

- employer , and thus terminated her benefits . In 2013, the CRB affirmed the ALJ‟s 2012 Compensation Order.

On appeal to this court , petitioner argues that : (i) DOES should have given preference to he r treating physician‟s reports over the District‟s examining physician , (ii) she is entitled to a presumption of continued compensation , and (iii) substantial evidence does not support the CRB‟s affirmance of the Compensation Order terminati ng her benefits

.
Before turning to petitioner‟s arguments, however , we address the CRB‟s en banc decision in Mahoney v. District of Columbia Public Schools , CRB No. 14

- 67 (Nov. 12, 2014) , released following the CRB‟s 2013 decision and order in this4

case . The court ap pointed the Legal Aid Society of the District of Columbia to file a brief as amicus curiae on the CRB‟s Mahoney decision and its applicability to this case.

II. Applicable Law

Under the CMPA, a n award of compensation may be modified when there is “reason to believe a change of condition has occurred” and “shall be made in accordance with [] standards and procedures” set forth in the statute . D.C. Code § 1

- 623.24 (d)(1) (201 4 Repl.) ( s et t ing forth requirem ent of written notice to claimant, opportunity for claimant to respond, and “full review of the reasons for the proposed modification and the arguments and information provided by the claimant”). Mahoney clarified the procedure to be followed when a Distr ict
agency - employer has accepted a claim for worker s ‟ compensation and paid workers‟ compensation benefit s, but later moves to terminate or modify those benefits . The CRB determined that in such situations, the employer

- agency “has the burden of proving by a preponderance of the evidence that conditions have changed such that the claimant no longer is entitled to the benefits” the agency

employer has been paying. Mahoney , CRB No. 14

- 67 at 8. Mahoney established a burden

- shifti ng framework to be applied by DOES ALJs when considering whether benefits may be terminated or modified. Under the new framework, the5

agency bears the initial burden of production, by presenting “current and probative evidence” that the claimant‟s conditi on has “sufficiently changed to warrant a modification or termination of benefits.” Id. at 9 . If the agency

- employer does so, the burden of production shifts to the claimant, who may rebut that evidence by presenting “reliable and relevant” evidence that his or her condition has not changed to warrant a modification or termination

. Id. If the claimant presents such evidence , the ALJ then considers the totality of the evidence to determine whether the agency

- employer has proved, by a preponderance of the evidence, that the claimant‟s benefits should be modified or terminated. 2 Id.

T he District of Columbia , on behalf of the Department of Employment Services , acknowledges that the Mahoney framework is a proper inter pretation of CMPA , and that it should apply to petitioner‟s case , which was pending on appeal to this court when Mahoney was decided

. DOES further acknowledges that the ALJ‟s rationale does not follow the burden

- shifting framework or apply the ultimate st andard of proof laid out in Mahoney

. We agree.

Although we retain final authority on issues of statutory interpretation , we

2 Two CRB panel members dissented in Mahoney . Both would have preferred a two

- step approach in which the ultimate burden of proof fell on the claimant. Mahoney , CRB No. 14

- 67 at 12

- 14.6

acknowledge the “CRB‟ s special expertise in administering the CMPA, ” and accordingly we “defer to their reasonable interpretations of ambiguous provisions in that legislation. ” Sheppard v. District of Columbia Dep’t of Emp’ t Servs. , 993 A.2d 525, 527 (D.C. 2010) (quoting Howard Univ. Hosp. v. Distric t of Columbia Dep’t of Emp’ t Servs. , 960 A.2d 603, 606 (D.C. 2008) ). We will abide by the CRB‟s interpretation of the CMPA even where an alternate interpretation is also reasonable, or where we may have interpreted the statute differently than did the CRB if construing the statute in the first instance. Id.

T he CMPA is silent on the burdens of production and persuasion where an
agency - employer seeks to terminate a claimant‟s workers‟ compensation benefits granted by a prior compensation order

. In the absence of express statutory guidance, we conclude that the burden

- shifting framework established by the CRB in Mahoney , which places the ultimate burden of persuasion on the agency

employer, is a reasonable interpretation of the statute

.

As this court noted in Kea v. Police & Firemen’s Ret

. & Relief B d

. , “[i]t is a fundamental principle of administrative, statutory and case law that the „ burden of proof is on the proponent of the rule or order. ‟ ” 429 A.2d 174, 175 (D.C. 1981) (quoting D.C. Code 1973, § 1

- 1509 (b) (currently codified as D.C. Code § 2

- 5097

(2012 Repl.) and 5 U

. S

. C

. § 556 (d) (1976)). Under that principle, where the
agency - employer asserts that circumstances have changed so as to warrant termination or modification of a public worker ‟ s compensation benefits, the ultimate burden of demonstrating a change of circumstances should fall on the
agency - employer as the proponent of a change in benefits . The CRB‟s Mahoney decision appl ies that “fundamental principle” to CMPA cases.

Moreover, placing the burden of proof on the agency - employ er seeking to terminate workers ‟ compensation benefits of a public employee under the CMPA is consistent with the District‟s other workers‟ compensation statutes. While workers‟ compensation for most public sector employees is governed by the CMPA, the Po lice and Firefighters Retirement and Disability Act, D.C. C ode § 5

- 701 (“PFRDA”) provides workers ‟ compensation benefits for the District‟s police and firefighters, and the District of Columbia Workers ‟ Compensation Act, D.C. Code § 32

- 1501 (“WCA”) provide s workers‟ compensation benefits for private sector employees. We interpret these three statutes to be consistent with each other, even where the statutes‟ language is not identical , in light of their similar humanitarian purpose . See, e.g. , Nunnally v. District of Columbia Metro. Police Dep’t , 80 A.3 d 1004, 1011 & n.14 (D.C. 2013) (utilizing language of the PFRDA
to constru e the meaning of “performance of duty” under the CMPA) ; Mc Camey v. District of Columbia Dep’t of Emp’ t Servs. , 947 A.2d 1191, 1 19 9

- 2 01 (D.C. 2008)8

(en banc) ( discussing the conceptual closeness of the CMPA to the WCA and applying the aggravation rule, expressly codified in the WCA, to the CMPA)

. In Washington Met ro . Area Transit Auth

. v. District of Columbia Dep’t of Emp’ t Servs. , a private sector case under the WCA, we stated that where the employer wished to terminate workers‟ compensation benefits , “the burden is on the party asserting that a change of circumstances warrants modification to prove the change.” 703 A.2d 1225, 12 31 (D.C. 1997) (citing, inter alia , 8 L ARSON , L ARSON W ORKERS ‟ C OMPENSATION L AW , § 81.33 (c) at 15

- 1194.32 )

. T he CRB‟s decision in Mahoney interprets the CMPA consistently with this court‟s interpretation of the WCA.

Additionally, placing the burden of pe rsuasion on the agency

- employer is consistent with the Federal Employees‟ Compensation Act , 5 U. S.C. § 8101 (“FECA”), the “pre

- existing federal counterpart” to the CMPA. McCamey , 947 A.2d at 1200 . We have previously “analogized provisions of the CMPA to FECA,” and follow the interpretation of the FECA in interpreting the CMPA where both statutes are silent on a matter. Id. at 1200

- 01 (interpreting the CMPA to contain an aggravation rule where it , like the FECA, is s tatutorily silent , but FECA had pr eviously been interpreted as contain ing an aggravation rule)

. The FECA and CMPA statutes are both silent regarding the burden of persuasion where the agency - employer seeks to reduce or terminate previ ously

- paid benefits . T he9

FECA , however, has been interpreted as placing this burden on the government. See, e.g. , McCall v. United States , 901 F.2d 548, 549 (6 th Cir. 1990) (noting, as part of the appeal‟s procedural history, that the Department of Labor “ concluded that [ the agency - employer] had failed to carry its burden of proof with respect to termination of [ the employee‟s ] FECA benefits, and rest ored [the employee‟s] FECA compensation”). The CRB‟s interpretation of the CMPA in Mahoney is therefore also consistent with the interpretation of the FECA. We have no difficulty concluding that the CRB‟s imposition of the burden of proof , by a preponderance of the evidence, on the age ncy - employer before benefits can be modified or terminated is reasonable.

We further conclude that Mahoney ’s framework , which places the initial burden of production on t he agency

- employer , and then shifts it to the claimant while keeping the burden of persuasion at all times with the agency - employer, is also reasonable. We have noted that, in the workers ‟ compensation realm, the burden of production “ may shift once the mov ing party establishes his case.” Washington Metro. Area Transit Auth. v. District of Columbia Dep’t of Emp’t Servs ., 703 A.2d at 1231 (citing 8 L ARSON , § 81.33 (c) at 15

- 1194.42 )

. Additionally, burden

- shifting frameworks similar to Mahoney have been approved by this court in other contexts that place the initial burden of production on the
movant
. See, e.g. , Gatewood v. District of Columbia Water & Sewer Auth. , 8210

A.3d 41, 51

- 52 & nn.59

- 60 (D.C. 2013) (discussing the burden

- shifting framework for adjudicating disputes with the water authority wherein a customer has the initial burden of proof

); Nader v. de Toledano , 408 A.2d 31, 48 (D.C. 1979) (expl aining burden

- shifting in the context of a motion for summary judgment); Larry v. National Rehab. Hosp. , 973 A.2d 180, 183 n.4 (D.C. 2009) (describing the framework for determining gross misconduct in the unemployment compensation context); see also Dir

. , OWCP v. Greenwich Collieries , 512 U.S. 267, 279

- 80 (1994) (invalidating rule that shifted burden of persuasion to party opposing benefits claim in contravention of requirement in Administrative Procedures Act placing burden on proponent of rule or order)

. We discern no cause to deviate from that established method here.

Finally, it is well

- established that judicial decisions interpreting statutes are “given full retroactive effect in all cases still open on direct review and as to all events, regardless o f whether such events predate or postdate our announcement of the rule

. ” Harper v. V

irginia Dep’t of Taxation , 509 U.S. 86, 97 (1993) (quoting James B. Beam Distilling Co. v. Georgia , 501 U.S. 529 (1991)); see Davis v. Moore , 772 A.2d 204, 215 (D.C. 2001) ( en banc ); id

. at 233

- 34 (Ruiz, J., concurring in part) (noting need to respect a separate branch of government); Otts v. United States , 952 A.2d 156, 161 n.4 (D.C. 2008). We apply this rule even where “the trial judge‟s disposition was correct at the ti me of his ruling.”11

Washington v. Guest Servs

. , 718 A.2d 1071, 1074 (D.C. 1998).
Having concluded that the Mahoney framework is a reasonable interpretation of the CMPA, and that this case

— which was pending on appeal when Mahoney was released

— is eligible for Mahoney ‟s retroactive application, we turn to the CRB‟s affirmance of the ALJ‟s 2012 Compensation Order terminating petitioner‟s benefits . It is clear , as the District of Columbia concedes, that the ALJ‟s analysis deviated from the three

- part burden

- shifting framework set out in Mahoney

. The 2012 Compensation Order recognized that the agency

- employer had the initial burden of production to demonstrate cause for termination of petitioner‟s workers‟ compensation benefits

. T he ALJ fo und that the agency employer satisfied this burden by presenting “substantial evidence” of petitioner‟s ability to return to work , but did not expressly address whether the evidence was “current and probative” in support of a “sufficient[] change ” in clai mant‟s condition warranting termination of benefits, as Mahoney directs. See Mahoney , CRB No. 14

- 67 at 9 . Furthermore, although the ALJ state d that the agency

employer had the initial burden of p roof, the ALJ went on to cite Jones v. District of Columbia Superior Court , CRB No. 10

- 003, at 2

- 3 (March 10, 2011), which followed a two

- part burden

- shifting test and placed the ultimate burden of persuasion on the claimant. Similar to Jones , the ALJ‟s 2012 Compensation Order in this case ultimately concluded th at petitioner presented evidence “insufficient to12

overcome that presented” by the agency

- employer, a formulation that could be read as placing the ultimate burden on the petitioner. The CRB affirmed the ALJ‟s Compensation Order in 2013. The following yea r, the CRB issued Mahoney , which implicitly overruled Jones

.
Accordingly, we remand the case to the CRB, for further remand to the ALJ , for evaluat ion of the evidence in light of the burden

- shifting framework established in Mahoney with the ultimat e burden of proof , by a preponderance of the evidence, on the agency

- employer

.

III. Remand

M ahoney ’s framework is based on the presumption that benefits will continue unless and until there is a final determination that the agency

- employer has proven, by a preponderance of evidence, that circumstances have changed such that the claimant is no longer entitled to compensation. Id

. ; see D.C. Code § 1

- 623.24 (d)(3) (providing that benefits may not be modified until procedure s “have been completed” e xcept in fiv e specific circumstances). We do not discern, on the arguments before us, that petitioner is entitled to a further legal pr esumption of continued benefits.13

While this appeal was pending, petitioner moved to supp lemen t the record with medical reports from her physicians concerning her condition. Some o f the documents bear dates that precede the hearing befor e the ALJ, and others post

- date the proceedings. Although the court denied the motion in connection with this

a ppeal, petitioner may seek to introduce that evidence on remand, and the ALJ may admit further evidence as appropriate. 3

As the ALJ considers the evidence on remand, however, there is no legal obligation to give greater weight to petitioner‟s treating physicians‟ reports. As noted in District of Columbia Pub. Sch. v. District of Columbia Dep ’t. of Emp’ t , 95 A.3d 1284 (D.C. 2014), the Council of the District of Columbia abolished the treating physician preference in public sector w orkers‟ compensation cases. Id. at 1288

- 89. As petitioner was a public sector employee, DOES was under no obligation to give preference to her treating physician as a matter of law.

3 In light of the possibility that on remand the ALJ may admit additional evidence and that the ALJ is charged with reconsidering the evidence under the Mahoney burden

- shifting framework and applying the ultimate burden of proof (preponderance of the evide nce) on the agency

- employer, there could be a change in the ALJ‟s ultimate determination. Therefore, we do not address petitioner‟s argument that the ALJ‟s decision was not supported by substantial evidence.14 So ordered

.