Honemond v. District of Columbia Department of Employment Services and Georgetown University ( 2023 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-AA-0652
CHRISTOPHER HONEMOND, PETITIONER,
v.
D.C. DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
GEORGETOWN UNIVERSITY, et al., INTERVENORS.
On Petition for Review of a Decision and Order of
the District of Columbia Department of Employment Services
Compensation Review Board
(CRB No. 21-054)
(Argued October 27, 2022 Decided June 15, 2023)
Krista N. DeSmyter for petitioner.
Karl A. Racine, Attorney General for the District of Columbia (at the time the
statement was filed), Caroline S. Van Zile, Solicitor General, and Ashwin P. Phatak,
Principal Deputy Solicitor General, filed a statement in lieu of brief for respondent.
Jonathan M. Marlin for intervenors.
Before BLACKBURNE-RIGSBY, Chief Judge, DEAHL, Associate Judge, and
FISHER, Senior Judge.
2
BLACKBURNE-RIGSBY, Chief Judge: Petitioner Christopher Honemond filed
a workers’ compensation claim for disability benefits stemming from a work
incident that occurred on June 30, 2016. Intervenors are Mr. Honemond’s employer,
Georgetown University, and its insurance carrier, Travelers Insurance Company.
Previously, this court affirmed a compensation order on remand concluding that Mr.
Honemond had failed to establish that he has a disabling mental condition causally
related to the work incident. Honemond v. D.C. Dep’t of Emp. Servs., No. 18-AA-
635, Mem. Op. & J. (D.C. July 29, 2019).
Mr. Honemond sought modification of this order, pursuant to D.C. Code § 32-
1524 (“Modification of awards”). In his modification claim, he alleged that he
suffers from Post-Traumatic Stress Disorder (“PTSD”), Panic Disorder, and
Generalized Anxiety Disorder. He separately alleged that he has a permanent partial
physical disability in his arm. The Administrative Law Judge (“ALJ”) denied both
claims, concluding that Mr. Honemond had neither shown that a change of
conditions had occurred as to his mental conditions, nor had he proven that he is
entitled to disability benefits for his arm. The Compensation Review Board
(“CRB”) affirmed the denials. Mr. Honemond now petitions for our review. We
affirm.
3
I. Background
A. Previous Workers’ Compensation Claims
Mr. Honemond was a maintenance mechanic for Georgetown University for
nearly 30 years. On June 30, 2016, he descended into a manhole on a ladder to shut
off a steam valve. The manhole was very hot because the steam lines were
uninsulated. Overcome by the heat, Mr. Honemond had to leave the manhole. As
he ascended, he brushed his left forearm against the ladder and sustained a burn.
Mr. Honemond went to the emergency room at Medstar Georgetown
University Hospital that same day. The emergency room nurse reported that she did
not observe redness or other skin changes on Mr. Honemond’s arm but noted that
Mr. Honemond reported pain and tingling. The emergency room discharge report
directed Mr. Honemond to use over-the-counter pain medicine and ointment on the
site and to follow-up with his primary care doctor. Shortly thereafter, Mr.
Honemond visited his primary care doctor and then an orthopedist, who referred him
to a burn management specialist.
4
Mr. Honemond went to outpatient treatment at the Medstar Washington
Hospital Center Burn Center. Occupational therapist Rebekah Allely assessed Mr.
Honemond for an occupational therapy evaluation. She reported that she did not see
any redness, discoloration, or scarring on Mr. Honemond’s arm. Mr. Honemond
then completed a short course of physical therapy with Ms. Allely. On the last visit,
Ms. Allely reported that Mr. Honemond “does not appear to have physical
limitations at this time” and that, while he had some diminished grip strength in his
left arm, “it is well within functional norms.” She concluded that Mr. Honemond
did not have further occupational therapy needs. Mr. Honemond did not seek out
treatment for his arm after this August 2016 visit.
In December 2016, Dr. Brian Schulman prepared an independent medical
examination on behalf of intervenors. Dr. Schulman opined, to a reasonable degree
of medical certainty, that Mr. Honemond had not sustained a psychiatric or mental
disorder from the June 2016 event. Around this time, Mr. Honemond began
treatment with psychiatrist Dr. Patrick Sheehan. On April 10, 2017, Dr. Sheehan
diagnosed Mr. Honemond with PTSD, Depressive Disorder, and Panic Disorder
causally related to the work incident.
5
Mr. Honemond filed a claim for workers’ compensation benefits in May
2017. 1 He sought temporary total disability benefits, claiming that he had developed
PTSD, Depressive Disorder, and Panic Disorder as a result of the work incident.
The ALJ resolved these claims in a January 2018 compensation order on remand.2
The ALJ did not credit Dr. Sheehan’s diagnoses and instead credited Dr. Schulman,
who opined that Mr. Honemond did not meet the criteria for the claimed mental
conditions. The ALJ concluded that Mr. Honemond failed to establish that he has
PTSD, Panic Disorder, or Depressive Disorder “causally related” to the work
incident. The CRB affirmed.
Mr. Honemond then petitioned this court, which affirmed the CRB’s decision
by memorandum opinion and judgment. 3 The division determined that the ALJ had
properly weighed the competing evidence to come to a conclusion that Mr.
1
Intervenors voluntarily paid temporary total disability benefits from July 5,
2016 until August 19, 2016.
2
The ALJ first denied this claim on August 31, 2017, but the CRB remanded
so that the ALJ could make explicit credibility findings.
3
Honemond v. D.C. Dep’t of Emp. Servs., No. 18-AA-635, Mem. Op. & J.
(D.C. July 29, 2019).
6
Honemond did not suffer from a disabling mental condition causally related to his
employment.
B. Workers’ Compensation Claims On Appeal
Mr. Honemond applied for modification of the compensation order on
remand, pursuant to D.C. Code § 32-1524(a). Mr. Honemond alleged that he had
experienced a “change of conditions” as to PTSD, Panic Disorder, and Generalized
Anxiety Disorder. Mr. Honemond also requested benefits for permanent partial
disability and temporary total disability for his left arm. 4
At a status conference, the ALJ granted Mr. Honemond 48 hours to decide
whether he wanted to present live testimony regarding his modification claim. Mr.
Honemond did not express desire to present live testimony until over a week late.
Intervenors objected, arguing that they had already begun work on their brief. The
ALJ determined that the parties would submit on their briefs and allowed Mr.
Honemond to proffer facts he had expected to elicit through live testimony.
4
There was no contest to the timeliness of these claims.
7
In his brief to the ALJ on these issues, Mr. Honemond proffered that “his
condition has worsened” and that his panic attacks “returned and waxed and waned
over time.” He proffered that he “has an array of different but worse complaints in
2020 than he had in 2017.” He represented that he had begun treatment with a
licensed clinical social worker, Penny Zimmerman, and that he had gone to the
emergency room in August 2019 for “panic symptoms.” He represented that Ms.
Zimmerman had “noted” that he suffered from PTSD and Panic Disorder, and that
his symptoms of panic and insomnia were “more intense,” but he did not offer
corroborating evidence. He also represented that Dr. Sheehan had diagnosed him
with PTSD, an unspecified Depressive Disorder, Panic Disorder, and an alcohol use
disorder on September 30, 2019. He did not provide updated medical records from
Dr. Sheehan. He also represented generally that he had “updated psychiatric
records” but did not provide them.
The ALJ denied Mr. Honemond’s modification claim. The ALJ concluded
that the PTSD and Panic Disorder claims had been previously litigated and that Mr.
Honemond had shown no “reason to believe” that a change of conditions as to these
claims had occurred.5 The ALJ also concluded that Mr. Honemond had not shown
5
Though he referenced it in his proffer, Mr. Honemond did not raise
Depressive Disorder as a condition in his modification claim.
8
that he has Generalized Anxiety, as he provided no medical records and had not
proffered that he had been diagnosed with that condition.
The ALJ then held a hearing regarding the nature and extent of Mr.
Honemond’s disability in his left arm. Mr. Honemond was the sole witness and
testified that he was experiencing pain and trouble with strength and functionality.
Both parties offered records from Mr. Honemond’s 2016 visit to the emergency
room, follow-up appointments with his primary care doctor and an orthopedist, and
treatment and occupational therapy at the Burn Center.
The ALJ admitted the report of Dr. Joel Fechter, who had performed an
evaluation of Mr. Honemond’s arm on December 5, 2019. In his report, Dr. Fechter
concluded, to a reasonable degree of medical certainty, that Mr. Honemond had a
total impairment of 19% of his left arm. Dr. Fechter opined that the reported
“weakness” in Mr. Honemond’s arm entitled Mr. Honemond to 10% impairment,
and that Mr. Honemond was also entitled to an additional 2% for each subjective
factor of reported “pain, loss of endurance, and loss of function.” He erroneously
added these figures up to a 19% impairment instead of 16%.
9
The ALJ also admitted intervenors’ report from Dr. Marc Danziger, who
performed an independent medical evaluation of Mr. Honemond’s arm on October
19, 2020. Dr. Danziger scored Mr. Honemond as 0% impaired because he had
“normal sensory and motor function,” a “full range of motion,” and “completely
normal skin turgor, function, and no sensory changes, scarring or abnormality[.]”
Dr. Danziger determined that Mr. Honemond had only a “heat episode to the left
forearm,” as no treating physician had noted any symptom “that would classify as
even a first degree burn.”
The ALJ concluded that Mr. Honemond had not proven, by a preponderance
of the evidence, that he was entitled to any disability benefits for his arm. The ALJ
rejected Dr. Fechter’s report as “unreliable.”
Mr. Honemond appealed both the November 2020 order regarding mental
conditions and the February 2021 order regarding physical disability to the CRB,
which partially affirmed and partially remanded. The CRB agreed that Mr.
Honemond’s mental condition claims were barred because Mr. Honemond had not
shown evidence of a new diagnosis or new symptoms. The CRB next determined
that the compensation order contained insufficient findings of fact and analysis as to
the claimed physical disability.
10
The ALJ then issued a compensation order on remand. The ALJ concluded
again that Mr. Honemond failed to prove, by a preponderance of the evidence, that
he is entitled to disability benefits for his arm. The ALJ explained that Dr. Fechter’s
report was “rejected” for four reasons. First, the ALJ explained that the report was
“unreliable” because its rating was based on subjective complaints from Mr.
Honemond, whom the ALJ found unreliable as to the nature and extent of his injury.
Second, the ALJ explained that Dr. Fechter’s report was unreliable because it lacked
meaningful explanation. Third, the ALJ explained that basic math errors in Dr.
Fechter’s report suggested inattentiveness. Finally, the ALJ explained that these
math errors made it difficult to discern both the actual rating and the components of
the rating. The ALJ instead credited Dr. Danziger’s report, and his 0% impairment
rating, as persuasive and reliable because the report was based on objective factors
and was sufficiently explained.
Mr. Honemond appealed to the CRB again. The CRB affirmed the denial of
permanent partial disability. The CRB explained that the ALJ made sufficient
additional findings of fact to support the conclusion that Dr. Fechter’s report and
opinions were unreliable. The CRB also found that the ALJ sufficiently explained
why Dr. Danziger’s report was credited as persuasive.
11
Mr. Honemond timely petitioned this court for review. Before us now are the
April 2021 decision of the CRB, which affirmed the denial of the modification claim,
and the August 2021 decision of the CRB, which affirmed the denial of the
permanent partial disability claim.
II. Discussion
Review of a final order of the CRB is limited to determining whether the
decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Reyes v. D.C. Dep’t of Emp. Servs., 48 A.3d 159, 164 (D.C.
2012) (internal quotation marks omitted). Though the court’s review is of the CRB’s
decision, we do not “ignore the compensation order which is the subject of the
Board’s review.” Georgetown Univ. Hosp. v. D.C. Dep’t of Emp. Servs., 916 A.2d
149, 151 (D.C. 2007). In conducting a review, we first decide “whether 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 those findings and
comport with the applicable law.” Id. (quoting Mills v. D.C. Dep’t of Emp. Servs.,
12
838 A.2d 325, 328 (D.C. 2003)). A review of the CRB’s legal rulings is de novo.
Reyes, 48 A.3d at 164.
A. Modification
Mr. Honemond argues that the CRB erred in affirming the determination that
he had not demonstrated a reason to believe that there has been a change of condition
as to claimed mental disabilities. We disagree. Mr. Honemond neither made an
adequate proffer of facts, nor provided adequate medical evidence, to support his
assertion that a “change of condition” occurred.
The principles of res judicata and collateral estoppel apply in administrative
agency proceedings when “the earlier proceeding is the essential equivalent of a
judicial proceeding.” Oubre v. D.C. Dep’t of Emp. Servs., 630 A.2d 699, 703 (D.C.
1993) (quoting William J. Davis, Inc. v. Young, 412 A.2d 1187, 1194 (D.C. 1980)).
“After a valid final adjudication on the merits, the doctrine of res judicata bars
relitigation of the same claim between the same parties. Collateral estoppel, a related
doctrine, precludes relitigation of issues of fact or law determined in a prior
proceeding which were essential to that judgment.” Id. (internal quotation marks
and citations omitted).
13
The D.C. Workers’ Compensation Act provides a specific procedure in which
a claimant may “revisit issues previously decided by a compensation order.” Short
v. D.C. Dep’t of Emp. Servs., 723 A.2d 845, 850 (D.C. 1998).
At any time prior to 1 year after the date of the last
payment of compensation or at any time prior to 1 year
after the rejection of a claim, . . . the Mayor may, upon his
own initiative or upon application of a party in interest,
order a review of a compensation case pursuant to the
procedures provided in § 32-1520 where there is reason to
believe that a change of conditions has occurred which
raises issues concerning:
(1) The fact or the degree of disability or the amount of
compensation payable pursuant thereto; or
(2) The fact of eligibility or the amount of compensation
payable pursuant to § 32-1509.
D.C. Code § 32-1524(a). Thus, a claimant may pursue modification of a previous
order if there is a “change as to the ‘fact or the degree of disability[.]’” Short, 723
A.2d at 850 (quoting D.C. Code § 32-1524(a)(1)); see also Washington Metro. Area
Transit Auth. v. D.C. Dep’t of Emp. Servs., 770 A.2d 965, 972 (D.C. 2001)
(“Young”). “[T]he relevant change is a change in the condition determined to exist
by the previous factfinder (here, [the ALJ]), not a change from a [medical estimation]
of the claimant’s condition.” Bowser v. D.C. Dep’t of Emp. Servs., 129 A.3d 253,
260 (D.C. 2015), as amended (Feb. 25, 2016).
14
There is a two-step procedure for when a claimant pursues modification of a
previous order. First, “the agency must conduct a ‘preliminary examination of
evidence intended to be submitted at an evidentiary hearing[.]’” Bowser, 129 A.3d
at 258 (quoting Snipes v. D.C. Dep’t. of Emp. Servs., 542 A.2d 832, 834 n.4 (D.C.
1988)). This review “shall be limited solely to new evidence which directly
addresses the alleged change of conditions.” D.C. Code § 32-1524(b). But “it seems
evident that in this determination a hearing examiner must necessarily take into
account what came before in determining whether a ‘change’ has occurred.” Snipes,
542 A.2d at 835. Second, “if that examination reveals ‘evidence which could
establish, if credited, changed conditions’ (the ‘threshold test’),” then the agency
must “conduct an evidentiary hearing on the issue of whether there has been a change
in conditions.” Bowser, 129 A.3d at 258 (quoting Snipes, 542 A.2d at 835). The
“scope of review on these issues requires [us] to decide whether the agency made
the threshold determination under the statute and whether its determination is
supported by substantial evidence in the record.” Id. (cleaned up).
As a preliminary matter, we note that the ALJ gave both parties the
opportunity to present live testimony as to issues implicated by a Snipes inquiry.
Mr. Honemond was over a week late in informing the ALJ that he wanted to present
15
testimony, but he was allowed to proffer facts that he had expected to elicit. We
have never suggested that the threshold determination requires live testimony. See
Bowser, 129 A.3d at 258 (explaining only that an ALJ must conduct a “preliminary
examination of evidence intended to be submitted at an evidentiary hearing”). Thus,
contrary to his assertions, Mr. Honemond was given an adequate opportunity to
support his claim for modification. 6
At the threshold stage, movant must “meet the modest threshold burden of
producing minimal evidence to support the ‘reason to believe’ standard.”
Washington Metro. Area Transit Auth. v. D.C. Dep’t of Emp. Servs., 703 A.2d 1225,
1230 (D.C. 1997) (“Anderson”); see also Snipes, 542 A.2d at 835 (“[A] claimant’s
right to an evidentiary hearing . . . is triggered only where there is reason to believe
that a change of conditions has occurred.”) (internal quotation marks omitted). This
is “short of full proof,” but requires “some affirmative factual showing that a change
of conditions has occurred.” Anderson, 703 A.2d at 1230; see also Quaranta v. D.C.
Dep’t of Emp. Servs., 284 A.3d 389, 393 (D.C. 2022) (“That is not an exacting
standard, but it does require an applicant to produce evidence or at least a proffer
6
We also find no merit to Mr. Honemond’s assertion at oral argument that the
ALJ prevented him from supplementing his claim with exhibits. There is nothing in
the order suggesting that Mr. Honemond was barred from providing exhibits or
otherwise presenting corroborating evidence.
16
‘which could establish, if credited, changed conditions’ that might alter their
disability award.”) (quoting Bowser, 129 A.3d at 258).
Mr. Honemond failed to put forth any more than generic and conclusory
proffers regarding his modification claim. As to Generalized Anxiety Disorder, the
only condition that was not litigated previously, Mr. Honemond provided no medical
evidence, nor did he even proffer that he had been diagnosed with that condition.
The CRB correctly determined that “[m]erely claiming a new diagnosis (generalized
anxiety), with similar symptoms, does not rise to the level of a reason to believe that
there has been a change in Claimant’s condition that warrants a modification.”
As to claims of PTSD and Panic Disorder, Mr. Honemond did not present
sufficient evidence to support a conclusion that he had developed PTSD or Panic
Disorder causally related to the work incident since the ALJ’s previous findings on
these issues. See Bowser, 129 A.3d at 260 (explaining that the “relevant change is a
change in the condition determined to exist by the previous factfinder”).
Importantly, Mr. Honemond presented no new medical evidence. Though Mr.
Honemond represented that Dr. Sheehan diagnosed him with PTSD, an unspecified
Depressive Disorder, Panic Disorder, and an alcohol abuse disorder in September
2019, there was no accompanying medical record to support this assertion. Based
17
on these general proffers, it is also unclear if Dr. Sheehan newly diagnosed Mr.
Honemond with these conditions or if Dr. Sheehan was merely reiterating his
diagnoses from 2017—diagnoses which the ALJ found were too insufficiently
explained and supported to be credible.
Mr. Honemond’s other proffers related to PTSD and Panic Disorder were too
perfunctory and vague to be of value. Mr. Honemond just generally represented that
he “has an array of different but worse complaints in 2020 than he had in 2017” and
that “his condition[] has worsened.” There is no specificity in the descriptions of
symptoms, and there are no supporting medical records to shed light on claimed
symptoms or treatments. Cf. Walden v. D.C. Dep’t of Emp. Servs., 759 A.2d 186,
191 (D.C. 2000) (concluding that claimant met the threshold test when she offered
a medical report from her doctor “clearly identif[ying] at least one new symptom
attributable to . . . previous injury” and a “significant change in the degree of her
disability”). These conclusory proffers are not enough.7
7
We also find no merit to Mr. Honemond’s contention that the ALJ
incorrectly used a “preponderance of the evidence” standard for this claim. Instead,
the ALJ properly examined whether Mr. Honemond had demonstrated a “reason to
believe” that a change had occurred by comparing both the factual determinations in
the previous compensation order on remand and the new evidence and proffers.
18
Mr. Honemond argues that the CRB erred as a matter of law by determining
that a “worsening” condition would never merit modification. The statute
contemplates “worsening” conditions, as well as new conditions. See D.C. Code §
32-1524(a)(1) (a claimant may apply for modification if there is a change regarding
“the fact or the degree of disability”) (emphasis added). But a claimant must still
show some reason to believe a change has occurred. For example, in Short, 723
A.2d at 848, in support of modification, Mr. Short presented new medical evidence
from two different doctors, which showed that he was exhibiting new symptoms and
had been diagnosed with a new disability attributable to a work injury. Similarly, in
Young, 770 A.2d at 969, the initial compensation orders had acknowledged that Mr.
Young had “some initial work-related disability.” Mr. Young presented new
testimony from his treating psychiatrist, as well as evidence of specific new
symptoms, to show the “subsequent emergence of a work-related injury.” Id. at 967,
970. In both cases, though there was some similarity between both the previously
litigated conditions and the new conditions, the claimant provided adequate evidence
of a “change” such that the modification provision would apply. Short, 723 A.2d at
850; Young, 770 A.2d at 970.
19
Here, however, Mr. Honemond is not arguing that a recognized condition
“worsened.” He is simply re-litigating the findings and conclusions from the first
compensation order on remand. We previously affirmed that Mr. Honemond “did
not suffer from a disabling mental injury that was causally related to his
employment.” Mr. Honemond cannot now claim that these conditions have
“worsened” when he failed to establish that he had PTSD or panic disorder causally
related to the work incident in the first place. Mr. Honemond is barred by collateral
estoppel, to the extent he attempts to re-litigate the findings from the first
compensation order on remand, and res judicata, to the extent that he re-litigates the
same mental condition claims against intervenors. See Walden, 759 A.2d at 189.
Mr. Honemond’s burden was to show that these doctrines do not apply, which he
did not do.
Overall, although a claimant has a minimal burden at the threshold stage, he
must still present some evidence to suggest a “change of conditions” has occurred.
Mr. Honemond has not. Accordingly, we affirm the judgment of the CRB.
20
B. Permanent Partial Disability
Mr. Honemond also challenges the CRB’s determination that he is not entitled
to permanent partial disability benefits because he did not demonstrate that he is
permanently and partially disabled. We disagree and affirm.
A claimant has the burden of proving, by the preponderance of the evidence,
that he is entitled to a disability award. Washington Metro. Area Transit Auth. v.
D.C. Dep’t of Emp. Servs., 926 A.2d 140, 149 (D.C. 2007) (“Browne”). A
“disability” is a “physical or mental incapacity because of injury which results in the
loss of wages.” Negussie v. D.C. Dep’t of Emp. Servs., 915 A.2d 391, 396 (D.C.
2007) (quoting D.C. Code § 32-1501(8)) (cleaned up). “An award may be paid for
permanent partial disability, in which case ‘[c]ompensation for permanent partial
loss or loss of use of a member may be for proportionate loss or loss of use of the
member.’” Id. (quoting D.C. Code § 32-1508(3)(S)).
“Disability is an economic and not a medical concept.” Washington Post v.
D.C. Dep’t of Emp. Servs., 675 A.2d 37, 40 (D.C. 1996). “Disability, as defined in
our statute, ultimately requires a legal determination.” Negussie, 915 A.2d at 397.
A claimant is not entitled to any presumptions on the nature and extent of disability.
21
Browne, 926 A.2d at 149. In determining disability, the most recent edition of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment
may be utilized, along with factors of pain, weakness, atrophy, loss of endurance,
and loss of function. Negussie, 915 A.2d at 396 n.2 (citing D.C. Code § 32-1508(U-i)). An “ALJ is required by statute to consider all the evidence and to exercise
independent judgment in determining whether the claimant has a permanent
disability and, if so, the extent of that disability.” Golding-Alleyne v. D.C. Dep’t of
Emp. Servs., 980 A.2d 1209, 1215 (D.C. 2009).
“The trier of fact is entitled to draw reasonable inferences from the evidence
presented.” George Hyman Const. Co. v. D.C. Dep’t of Emp. Servs., 498 A.2d 563,
566 (D.C. 1985). The ALJ’s credibility determinations are entitled to great weight.
Golding-Alleyne, 980 A.2d at 1213. Our role in reviewing a credibility
determination is to see whether it is supported by substantial evidence on
consideration of the entire record. Id. at 1214.
The only disputed issue is the nature and extent of Mr. Honemond’s alleged
physical disability. The medical evaluations provided competing opinions: Dr.
Fechter opined that Mr. Honemond was 19% impaired, and Dr. Danziger opined that
22
Mr. Honemond was 0% impaired. 8 Mr. Honemond raises various challenges to the
ALJ’s determination that Dr. Fechter’s report was unreliable and that he did not
provide evidence of physical disability. We disagree.
Substantial evidence supports the determination that Dr. Fechter’s report was
unreliable and that Dr. Danziger’s report was reliable. The ALJ gave ample
justification for not crediting Dr. Fechter’s report. The ALJ explained that Dr.
Fechter’s report was unduly influenced by Mr. Honemond’s subjective complaints,
which were not credible, as they were often contrary to the observations of treating
medical personnel. The ALJ also explained that Dr. Fechter’s report lacked
meaningful explanation. Dr. Fechter reported that he generally observed “some
weakness of grip strength” and atrophy in Mr. Honemond’s left arm. Dr. Fechter
then determined, without explanation for the calculation of this number, that Mr.
Honemond’s complaints of “weakness” supported an impairment rating of 10%. Dr.
Fechter then allocated 2% for each “subjective factor[]” of pain, loss of endurance,
and loss of function, with no further explanation.
8
There is a preference for the testimony of treating physicians over doctors
retained for litigation purposes. Short, 723 A.2d at 851. Here, neither physician is
Mr. Honemond’s treating physician.
23
The ALJ additionally determined that the basic math errors in Dr. Fechter’s
report showed inattentiveness and obscured the basis for the impairment rating. Dr.
Fechter erroneously totaled the impairment rating to 19% instead of 16%, which we
agree both shows carelessness and also obscures the specifics and the total of the
rating. It is unclear if Dr. Fechter meant to score Mr. Honemond as 16% impaired
or if the individual components of the rating are not as reported. The ALJ thus
reasonably concluded that these factors weigh against the report’s credibility.
The ALJ then reasonably credited Dr. Danziger’s report as persuasive. The
ALJ explained that Dr. Danziger’s report had “objective findings” and that “his
examination was performed with greater care.” Indeed, Dr. Danziger’s report
includes notations on bending and rotation, range of motion, sensitivity, and skin
turgor in Mr. Honemond’s arm. Dr. Danziger explained that he based his
impairment rating on the fact that Mr. Honemond has normal motor and sensory
function, a full range of motion, normal skin and sensory changes, and no
abnormality. Dr. Danziger further explained that he also reviewed Mr. Honemond’s
medical records from the date of injury and subsequent treatment, which he took into
account for his rating.
24
The ALJ thus gave ample and reasonable justification for crediting Dr.
Danziger’s report, and discrediting Dr. Fechter’s report, and the CRB did not err in
affirming the ALJ’s findings and conclusions. 9 Mr. Honemond failed to meet his
burden in showing that he is entitled to an award for physical disability.
Mr. Honemond also argues that there is not enough specificity in the order to
support a determination that Mr. Honemond was not credible. We disagree.
In judging Mr. Honemond’s credibility, the ALJ made specific comparisons
between Mr. Honemond’s testimony and reports from treating nurses and physicians
around the time of injury. While Mr. Honemond testified that he has diminished
grip strength, Ms. Allely, his occupational therapist, reported that his grip strength
was “well within functional norms” and that he “does not appear to have physical
limitations[.]” Ms. Allely reported that there is “no wound, no discoloration, skin
fully intact,” with “no reported discomfort or sensitivity.” As of August 2016, Ms.
Allely concluded that Mr. Honemond had no more physical limitations.
9
The ALJ is not required to “choose a disability percentage rating provided
either by the claimant’s or the employer’s medical examiner.” Negussie, 915 A.2d
at 399. But the ALJ may choose to credit one medical report over another and adopt
the impairment rating within. See Abebe v. D.C. Dep’t of Emp. Servs., 185 A.3d
723, 727 (D.C. 2018).
25
The ALJ also emphasized that Mr. Honemond was “fully treated” during the
initial round of diagnosis and treatment in the summer of 2016. As Mr. Honemond
testified, he did not seek out medical care for his arm after August 2016. While
evidence of continuing medical care is not required to prove the existence of a
disabling condition, “the nature and regularity of continuing medical care after the
injury has stabilized may be useful information in assessing the statutory factors of
pain, weakness, atrophy, loss of endurance, and loss of function[.]” Dent v. D.C.
Dep’t of Emp. Servs., 158 A.3d 886, 904 (D.C. 2017), as amended (May 25, 2017).
“[A] dearth of evidence of medical analysis and treatment is significant when
assessing whether a claimant is entitled to a schedule award.” Id. (internal quotations
removed).
The ALJ also heard Mr. Honemond’s testimony at the hearing and still did not
credit it. See Washington Metro. Area Transit Auth. v. D.C. Dep’t of Emp. Servs.,
683 A.2d 470, 477 (D.C. 1996) (“[T]he hearing examiner is in the best position to
observe the demeanor of witnesses.”) (internal quotation marks and citations
omitted). Overall, there was substantial evidence to support the ALJ’s determination
that Mr. Honemond was not credible.10
10
We also find no merit to Mr. Honemond’s argument that the CRB “refus[ed]
to evaluate” the ALJ’s credibility findings. The CRB explained that, on remand for
26
Finally, Mr. Honemond argues that the ALJ was required to arrive at an
independent impairment percentage. An ALJ need not accept the impairment
percentage of a medical expert; instead, an ALJ must exercise independent judgment
in fixing a disability percentage rating. See Abebe v. D.C. Dep’t of Emp. Servs., 185
A.3d 723, 727 (D.C. 2018). In Abebe, this court explained that because the petitioner
there had proved, by a preponderance of the evidence, that he had a disability, the
ALJ was required to assign a percentage—the ALJ’s rejection of the competing
medical evaluations and the percentages within them notwithstanding. Id.Here, however, the ALJ credited Dr. Danziger’s report as “persuasive” and
“reliable.” The ALJ further noted that “the record does not support a persuasive
reason . . . to deviate from the zero-percent baseline Dr. Danziger identified.” The
contrast to Abebe is clear: Mr. Honemond did not prove by a preponderance of the
evidence that he has a disability, so the ALJ was not required to assign its own
independent impairment percentage.
this specific purpose, the ALJ made sufficient findings of fact to support its
determination that Dr. Fechter’s opinions were unreliable.
27
III. Conclusion
For the foregoing reasons, we affirm the judgment of the CRB. Mr.
Honemond did not show a “reason to believe” that a change of conditions had
occurred such that he was entitled to an evidentiary hearing on his modification
claim, and he also failed to prove that he is entitled to any disability benefits for his
left arm.
So ordered.