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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-AA-200

CASSANDRA ROSS, PETITIONER,

v.

DISTRICT OF COLUMBIA 

DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

On Petition for Review of a Decision

of the Compensation Review Board of the 

District of Columbia Department of Employment Services

(CRB-189-12)

(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. AliKhan, Deputy 

Solicitor General, and Mary L. Wilson, Senior Assistant Attorney General, were on 

the brief for respondent.

Jonathan 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 FISHER and MCLEESE, Associate Judges, and RUIZ, Senior Judge.

RUIZ, Senior Judge: Petitioner 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. We 
2

reverse and remand for consideration of the agency-employer‟s request to 

terminate benefits, under the proper standard: 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 total 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 (2014 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—after 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 Compensation Order that petitioner‟s injuries 

had resolved such that she was no longer entitled to benefits. The ALJ found that 

the agency-employer “presented substantial evidence that [petitioner‟s] current 

[medical] conditions are not caused by her employment,” that 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 overcome 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 her 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 terminating 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 this 
4

case. The court appointed 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, an 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) (2014 Repl.) (setting forth requirement 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 District

agency-employer has accepted a claim for workers‟ compensation and paid 

workers‟ compensation benefits, 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 agencyemployer has been paying. Mahoney, CRB No. 14-67 at 8. Mahoney established a 

burden-shifting framework to be applied by DOES ALJs when considering 

whether benefits may be terminated or modified. Under the new framework, the 
5

agency bears the initial burden of production, by presenting “current and probative 

evidence” that the claimant‟s condition 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. 

The District of Columbia, on behalf of the Department of Employment 

Services, acknowledges that the Mahoney framework is a proper interpretation 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 standard 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. District 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.

The 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 agencyemployer, is a reasonable interpretation of the statute.

As this court noted in Kea v. Police & Firemen’s Ret. & Relief Bd., “[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 § 2-509
7

(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 applies that “fundamental principle” to CMPA cases.

Moreover, placing the burden of proof on the agency-employer 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 Police and Firefighters Retirement and Disability Act, D.C. Code § 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”) provides 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.3d 1004, 1011 & n.14 (D.C. 2013) (utilizing language of the PFRDA 

to construe the meaning of “performance of duty” under the CMPA); McCamey v. 

District of Columbia Dep’t of Emp’t Servs., 947 A.2d 1191, 1199-201 (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 Metro. 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, 1231 (D.C. 1997) (citing, inter alia, 8 LARSON, LARSON 

WORKERS‟ COMPENSATION LAW, § 81.33 (c) at 15-1194.32). The CRB‟s decision 

in Mahoney interprets the CMPA consistently with this court‟s interpretation of the 

WCA.

Additionally, placing the burden of persuasion 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 statutorily silent, but 

FECA had previously been interpreted as containing 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 previously-paid benefits. The 
9

FECA, however, has been interpreted as placing this burden on the government. 

See, e.g., McCall v. United States, 901 F.2d 548, 549 (6th 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 restored [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 agency-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 the 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 moving 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 LARSON, § 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., 82 
10

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)

(explaining 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 of whether such events predate or postdate our announcement of 

the rule.” Harper v. Virginia 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 time 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. The ALJ found that the agencyemployer 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 claimant‟s 

condition warranting termination of benefits, as Mahoney directs. See Mahoney, 

CRB No. 14-67 at 9. Furthermore, although the ALJ stated that the agencyemployer had the initial burden of proof, 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 that petitioner presented evidence “insufficient to 
12

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 year, the CRB issued Mahoney, 

which implicitly overruled Jones. 

Accordingly, we remand the case to the CRB, for further remand to the ALJ,

for evaluation of the evidence in light of the burden-shifting framework established 

in Mahoney with the ultimate burden of proof, by a preponderance of the evidence,

on the agency-employer.

III. Remand

Mahoney’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 procedures “have 

been completed” except in five specific circumstances). We do not discern, on the 

arguments before us, that petitioner is entitled to a further legal presumption of 

continued benefits. 
13

While this appeal was pending, petitioner moved to supplement the record 

with medical reports from her physicians concerning her condition. Some of the 

documents bear dates that precede the hearing before the ALJ, and others post-date

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

appeal, 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 workers‟ 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 evidence) 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.