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                 DISTRICT OF COLUMBIA COURT OF APPEALS

                                      No. 14-AA-612                              09/28/2017

                                 NERY S. ROCHA-GUZMÁN,
                                                     PETITIONER,

                                             v.

          DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES,
                                                   RESPONDENT,

                                            and

                    HARIS DESIGN & CONSTRUCTION COMPANY, et al., *
                                                   INTERVENORS.

     On Petition for Review of Decision and Order of the District of Columbia
       Department of Employment Services Compensation Review Board
                                     (CRB-006-14)

(Submitted May 7, 2015                                 Decided September 28, 2017)

      Michael J. Kitzman was on the brief for petitioner.

       Eugene A. Adams, Interim Attorney General for the District of Columbia at
the time the statement was filed, Todd S. Kim, Solicitor General, Loren L. AliKhan,
Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney
General, Office of the Solicitor General, filed a statement in lieu of brief for

      *
         There is a discrepancy in the parties’ filings with respect to the spelling of
the intervening party’s name. This opinion refers to the intervenor as Haris Design
& Construction Company.
                                         2

respondent.

      Mary G. Weidner was on the brief for intervenors.

      Before GLICKMAN and EASTERLY, Associate Judges, and RUIZ, Senior
Judge.

      RUIZ, Senior Judge:     This petition for review arises from Nery Rocha-

Guzmán’s claim for worker’s compensation benefits due to permanent total

disability resulting from an injury sustained while working for his former

employer, Haris Design & Construction Co. (“Haris Design”). Petitioner seeks

review of an order of the District of Columbia Department of Employment

Services (“DOES”) Compensation Review Board (“CRB”) which affirmed a

compensation order issued by DOES Administrative Hearings Division

Administrative Law Judge (“ALJ”) Linda F. Jory denying petitioner’s claim. We

hold that the CRB erred in affirming the ALJ’s compensation order, and thus

remand the case for further proceedings consistent with this opinion.



                                         I.



      Petitioner worked as a foreman on construction and renovation projects for

Haris Design.     His primary duties were to convey the English-speaking

superintendent’s work assignments to the Spanish-speaking construction crew and

to monitor the crew’s work.
                                        3

      On August 9, 2010, when the crew was short two workers, petitioner filled

in for one of the workers. While petitioner was standing on a roof, it gave way,

and petitioner’s legs went through the roof, causing him injuries.      Petitioner

initially sought worker’s compensation benefits for temporary total disability,

which the parties stipulated arose out of his employment with Haris Design, and

the employer paid two lump-sum payments. After receiving treatment for his

injuries, petitioner returned to work in November or December of 2010. However,

in February 2011, petitioner’s employment with Haris Design was terminated on

the basis of a review of the employer’s personnel records which revealed

insufficient documentation that petitioner, who came to this country from Bolivia,

was authorized to work in the United States. Two years later, petitioner sought

permanent total disability benefits as of April 2013, claiming that his medical

condition had worsened in the intervening period and he was no longer capable of

performing any work duties.



      Following an evidentiary hearing, the ALJ concluded that petitioner had not

established that he was permanently and totally disabled as a result of a work-

related injury — that is, that his work injury prevented him from returning to his

pre-injury job. In reaching this conclusion, the ALJ found petitioner’s testimony

about his injury and disability to be “blatantly incredible” based, in part, on
                                         4

petitioner’s request for an interpreter during the hearing. The ALJ also noted that

petitioner had returned to his pre-injury job as a foreman, and was working in that

position at the time of his termination in 2011. Further, the ALJ credited the

testimony of the president of Haris Design that, with proper documentation,

petitioner would have still been in Haris Design’s employ in 2013.1 In short, the

ALJ found that it was petitioner’s immigration status, not the work-place injury,

that explained why petitioner was not employed as a foreman, and denied

petitioner’s claim for disability compensation.



      Petitioner filed an administrative appeal with the CRB, challenging the

ALJ’s analysis and lack of substantial evidence to support the ALJ’s findings. The

CRB affirmed, concluding that the ALJ’s Compensation Order properly applied

the burden-shifting framework set out in Logan v. District of Columbia Dep’t of

      1
         The parties stipulated that petitioner did not have work authorization when
he was hired by Haris Design in 2007. The testimony was at odds as to whether
the employer was aware of this fact at the time. The president of Haris Design
testified that petitioner had a Washington Metro Transit Authority certification,
which required a “rigorous” background check, implying that it included work
authorization. Petitioner testified, however, that although he presented a tax
number (ITIN) when he was hired, he had no social security number or permanent
residence, and that the employer had promised to sponsor him to obtain the proper
documentation, but did not follow through. The ALJ did not make specific
findings on this point, but credited Haris Design’s contention that it decided to
terminate petitioner when a review of its personnel files in 2011 revealed
insufficient documentation of his authorization to work.
                                         5

Emp’t Servs., 805 A.2d 237 (D.C. 2002), and that substantial evidence supported

the ALJ’s determination that petitioner was not a credible witness, and thus had

failed to demonstrate that he was totally and permanently disabled. Petitioner filed

this petition for review of the CRB’s decision pursuant to D.C. Code § 32-1522

(b)(3) (2012 Repl.).



                                         II.



      On petition for review of a case involving worker’s compensation, we

review the decision of the CRB. See Jones v. District of Columbia Dep’t of Emp’t

Servs., 41 A.3d 1219, 1221 (D.C. 2012). We will set aside the CRB’s decision if it

is “[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” D.C. Code § 2-510 (a)(3)(A) (2012 Repl.). The standard the CRB must

apply in reviewing compensation orders is well established. “[O]ur cases require

that (1) the [ALJ’s] decision must state findings of fact on each material, contested

factual issue; (2) those findings must be based on substantial evidence; and (3) the

conclusions of law must follow rationally from the findings.” Stewart v. District of

Columbia Dep’t of Emp’t Servs., 606 A.2d 1350, 1351 (D.C. 1992). “Substantial

evidence is more than a mere scintilla . . . [and] means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Muhammad v.
                                          6

District of Columbia Dep’t of Emp’t Servs., 774 A.2d 1107, 1111 (D.C. 2001)

(quoting Stewart, 606 A.2d at 1351). Whether a compensation order is supported

by substantial evidence “presents an issue of law which this court is in a position to

address without need for deference to the agency’s decision.” Id. at 1110 (quoting

Wash. Metro Area Transit Auth. v. District of Columbia Dep’t of Emp’t Servs., 683

A.2d 470, 476 (D.C. 1996) (“WMATA I”).



                                              III.



      Petitioner makes two arguments for reversal, both of which were also

presented to the CRB: first, that the ALJ improperly applied the Logan burden-

shifting framework for analyzing evidence of total disability claims, and second,

that the ALJ committed legal error in the consideration of evidence to determine

that petitioner was not a credible witness. We disagree on the first point, but agree

on the second and remand for proper reconsideration of the evidence presented.



                       A. Logan Burden-Shifting Framework



      Logan adopted a three-step burden-shifting analysis for worker’s

compensation claims of total disability, whereby: (i) “a claimant establishes a
                                           7

prima facie case of total disability,” (ii) “the employer [then] must present

sufficient evidence of suitable job availability to overcome a finding of total

disability,” and finally, (iii) the claimant “refute[s] the employer’s presentation . . .

either by challenging the legitimacy of the employer’s evidence of available

employment or by demonstrating diligence, but a lack of success, in obtaining

other employment.” Logan, 805 A.2d at 243 (adopting burden-shifting approach

for adjudication of claims under the federal Longshoreman’s Act set out, inter alia,

in Crum v. Gen. Adjustment Bureau, 738 F.2d 474, 479 (D.C. Cir. 1984)). We

have described the claimant’s initial burden of making a prima facie case as

requiring a showing of “an inability to return to his usual employment,” or “an

inability to perform his or her usual job.” Id. at 242 (quoting Crum, 738 F.2d at

479). To make a prima facie case, the plaintiff’s burden is to prove total disability

by a preponderance of the evidence. See Wash. Metro Area Transit Auth. v.

District of Columbia Dep’t of Emp’t Servs., 992 A.2d 1276, 1282 (D.C. 2010)

(“WMATA II”); Golding-Alleyne v. District of Columbia Dep’t of Emp’t Servs.,

980 A.2d 1209, 1215-16 (D.C. 2009).



      Petitioner contends that the ALJ and the CRB did not follow the Logan

framework by “skip[ping] step one, establishing a prima facie case of disability,

and proceed[ing] instead to a hybrid of steps two and three.”             According to
                                           8

petitioner, he established a prima facie case for disability through the reports of his

doctors and vocational counselor, and the ALJ improperly considered evidence

presented by the employer (employer’s testimony that petitioner was able to

resume his usual duties when he returned to work in late 2010, and could have

remained in Haris Design’s employ but for his undocumented work status) in

determining that he had failed to do so.



      We disagree with petitioner’s contention that proper application of the

Logan burden-shifting framework precludes the ALJ’s consideration of the

employer’s evidence in determining whether a claimant’s initial burden to present

a prima facie case of total disability preventing return to prior employment has

been satisfied. That the ALJ may consider the employer’s evidence in making this

determination is implicit in the claimant’s burden, in “step one” of the Logan

analysis, to prove disability by a preponderance of the evidence, which requires a

weighing of all the evidence presented.2 Logan’s burden-shifting framework does

not dictate the order in which evidence may be presented or admitted during a

hearing or procedurally constrain the ALJ’s consideration of evidence. As long as

      2
          See Preponderance of the Evidence, BLACK’S LAW DICTIONARY (10th ed.
2014) (defining “preponderance of the evidence” as “the greater weight of the
evidence” presented “in which the [fact-finder] is instructed to find for the party
that, on the whole, has the stronger evidence”).
                                          9

the ALJ considers evidence relevant to each step, and applies the shifting burdens

of proof to the subject of each step, the order in which evidence is presented,

admitted, and/or reviewed does not necessarily matter.3             Accordingly, in

considering whether a claimant has made a prima facie case of permanent total

disability under “step one,” i.e., inability to return to his usual employment or

perform his usual job duties due to a work-related injury, the ALJ may consider

relevant evidence presented by the employer, such as that the claimant had, in fact,

returned to his former job and performed the same functions. Such evidence

would not pertain to Logan’s “step two” inquiry — whether the employer has met

its burden to show there are other suitable jobs available that might change the

claimed disability from total to partial — but instead, would directly negate

claimant’s evidence relevant to “step one.” We, therefore, conclude that the CRB

did not err in its determination that in this case the ALJ could properly consider the

employer’s evidence that petitioner returned to work after the work accident in


      3
          Cf. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 533 n.9 (1993) (Souter,
J. dissenting) (“In a bench trial, for example, the parties may be limited in their
presentation of evidence until the court has decided whether the plaintiff has made
his prima facie showing. But the court also may allow in all the evidence at
once.”). See also Stephen W. Smith, Title VII's National Anthem: Is There A
Prima Facie Case for the Prima Facie Case? 12 LAB. LAW. 371, 379 (1997) (“The
real-life sequence of a Title VII trial thus bears little resemblance to the McDonnell
Douglas three-step [framework].”); McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-805 (1973).
                                         10

determining whether he met his burden of presenting a prima facie case under the

first step of the Logan burden-shifting framework.



                            B. Credibility Determination



      The ALJ’s determination that petitioner was not a credible witness was a

significant factor in the ALJ’s and CRB’s decision that petitioner did not meet his

burden of establishing that he was totally disabled. Credibility determinations are

within the discretion of the ALJ, and typically are “entitled to great weight” due to

the ALJ’s unique ability to hear and observe witnesses first hand. WMATA I, 683

A.2d at 477. Petitioner argues that notwithstanding this deference, the ALJ’s

determination in this case that he was not credible cannot be sustained because it

rested, at least in part, on an impermissible consideration: petitioner’s request for

and use of an interpreter during the hearing. We agree.



      Persons with limited English proficiency are legally entitled to an interpreter

in administrative proceedings.4     Thus, we would not countenance an ALJ’s


      4
        See D.C. Code § 2-1902 (c) (2012 Repl.) (providing that in administrative
proceedings a qualified interpreter “shall” be appointed “upon the request of the
communication-impaired person”). See generally Guidance to Federal Financial
                                                                     (continued . . .)
                                          11

decision to discredit a witness of limited English proficiency on the basis that the

witness requested an interpreter or testified with the assistance of an interpreter.

This is so even if the witness had some acknowledged or observable understanding

of English.5    We, therefore, scrutinize carefully the ALJ’s comments about

petitioner’s English proficiency and request for an interpreter in this case.



      The determination that petitioner was not credible was an inference based on

the ALJ’s opinion that petitioner’s request for an interpreter was unwarranted

because, according to the ALJ, petitioner was “clearly” able to understand more

English than he was willing to admit.6 The ALJ was also of the opinion that

________________
(. . . continued)
Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41455-
01 (June 18, 2002) (“In certain circumstances, failure to ensure that [Limited
English Proficient] persons can effectively participate in or benefit from Federally
assisted programs and activities may violate the prohibition under Title VI of the
Civil Rights Act of 1964 . . . and Title VI regulations against national origin
discrimination.”).
      5
         See D.C. Code § 2-1901 (2) (2012 Repl.) (defining a “communication-
impaired person” as “a hearing-impaired person or a non-English or limited-
English speaking person”).
      6
         The ALJ commented that petitioner “requested a translator yet he clearly
was able to understand the questions asked in English and on many occasions
answered questions in English before the translator finished translating the
question from English to Spanish.”
                                         12

petitioner had not been truthful when he said that he had “a little bit of difficulty

understanding” the English language.          This opinion was based on another

inference, that petitioner was sufficiently proficient in English for purposes of the

legal proceeding because as part of his job at Haris Design petitioner had to convey

instructions given to him in English to a Spanish-speaking construction crew.

Although the fact-finder may make findings based on reasonable inferences from

the evidence, on this record, the inferences made were not reasonable.



      First, a person’s ability to carry out functions at certain jobs or in

commonplace interactions using English does not necessarily mean that the person

is equipped to navigate the complex, stressful, and often unfamiliar terrain of a

legal proceeding with important consequences and the potential for waiver of legal

rights. See American Bar Association Standards for Language Access in Courts 1

(2012) (“[A] high level of English proficiency is required for meaningful

participation in court proceedings due to the use of legal terms, the structured

nature of court proceedings, and the stress normally associated with a legal

proceeding when important interests are at stake.”); id. at 11 (defining “Limited

English Proficient Person” as “someone who speaks a language other than English

as his or her primary language and has a limited ability to read, write, speak or

understand English”); id. at 7 (defining “court” as including administrative
                                         13

tribunals).   There is no evidence concerning the nature or complexity of the

instructions petitioner was asked to convey to the construction crew or the English

proficiency level required to do so and how it compared to a legal proceeding.

Before the ALJ could draw an inference adverse to petitioner’s credibility based on

the nature of his work, the ALJ had to ascertain the truth of the premise (that

petitioner’s work required comparable English proficiency) for the inference that

petitioner was dissembling when he asked for an interpreter at the hearing. There

is reason to doubt the premise on this record, based on evidence the ALJ appears to

have overlooked. For example, the ALJ did not consider petitioner’s testimony

about the laborious process he undertook to be able to translate the work

instructions each day.7 Nor did the ALJ take note that most of the medical reports

indicate that an interpreter was present during the office visits — occasions when it

was important that nuances in language be well understood and communicated.

Similarly, the vocational assessment report notes that although petitioner “speaks

and comprehends basic English . . . he was more comfortable responding in

Spanish, and some concepts were more easily understood by [him] in Spanish.”

The ALJ also did not consider that petitioner may have been able to respond to

      7
         Petitioner testified that his supervisors would provide him with the English
instructions “[a]nd I would try and translate them at my house for the night.” He
further clarified that “I would translate it at home and with the dictionary I would
translate it. And I would have it ready.”
                                         14

questions in English during the hearing because of the language assistance he was

receiving from the interpreter.



      We do not, on appeal, make credibility determinations. However, we review

such determinations to see whether they are supported by substantial evidence on

consideration of the entire record. See Dent v. District of Columbia Dep’t of Emp’t

Servs., 158 A.3d 886, 905 (D.C. 2017). An ALJ’s assessment of credibility should

consider the testimony “in [] light of its rationality, internal consistency, and the

manner in which it hangs together with evidence of the record.” Russell v. Wash.

Metro Area Transit Auth., CRB No. 03-241, 2005 WL 3440463, at *2 (Sept. 28,

2005).   The record in this case, viewed as a whole, does not support that

petitioner’s request for an interpreter at the hearing was a sham. It is for the ALJ

to assess petitioner’s credibility anew on remand, without improperly relying on

petitioner’s request for and use of an interpreter, and taking into account all the

evidence of record bearing on petitioner’s English proficiency.



                                    C. Remand



      As the case is being remanded for further consideration, we make several

observations about problematic aspects of the reasoning in the underlying
                                         15

compensation order that are likely to arise upon further consideration.



      1. The Relevant Time-Frame

      Petitioner’s claim was for total permanent disability from April 2013. He

contends that his brief return to work more than two years earlier, in late 2010, was

largely irrelevant to determining whether he currently suffers from permanent total

disability. Yet the ALJ appears to have been focused on that earlier period,

possibly because that is when petitioner had returned to work before he was

terminated.8 For example, in considering the medical evidence presented, the ALJ


      8
          In finding that petitioner had not made a prima facie case of permanent
total disability, the ALJ placed significant weight on the employer’s testimony that
petitioner would not have been terminated in February of 2011, and would
therefore still be working for Haris Design, but for its review of personnel records
that revealed insufficient documentation of petitioner’s work authorization. The
CRB approved of this reasoning. Neither the ALJ’s Compensation Order nor the
CRB’s Order explains in detail how this testimony factored into their analysis. If
all that is meant is that there was no inability to work resulting from the work
accident that impeded petitioner’s employment, it would be a valid analysis for
purposes of worker’s compensation. It would be improper, however, to identify
petitioner’s termination in February 2011 as the relevant time to assess petitioner’s
disability claim on the ground that lack of documentation impeded petitioner’s
continued employment. The law is clear that undocumented workers are eligible
for worker’s compensation benefits in the District of Columbia. See Asylum Co. v.
District of Columbia Dep’t of Emp’t Servs., 10 A.3d 619, 628 (D.C. 2010). It is
equally clear that “the fact that an employee may be unable to work for reasons
beyond his injury [such as lack of documentation] does not affect his entitlement to
benefits, as long as the injury independently causes that disability.” Id. at 630 &
n.16 (quoting definition of “disability,” D.C. Code § 32-1501(8) (2012 Repl.)).
                                                                     (continued . . .)
                                         16

relied primarily on two outdated medical reports and to have dismissed (or

overlooked) numerous other medical reports and a vocational assessment that were

closer in time to the claimed onset of permanent total disability.



      In her factual findings, the ALJ listed a series of medical reports,

highlighting the December 13, 2010, report by Dr. Ross S. Myerson, an

independent medical examiner, and the April 6, 2012, report by one of petitioner’s

treating physicians, Dr. Fredric L. Salter, both of whom stated that petitioner was

fit for light duty work.9 The ALJ notes, but does not discuss, numerous reports

during the period from May 2011 to September 2013, by petitioner’s treating

physicians at Phillips & Green in which multiple doctors (including Dr. Salter)

state that petitioner was unable to work.10 The most recent report of Dr. Myerson

________________
(. . . continued)
Therefore, even if petitioner was undocumented in 2011 (a matter on which we
express no opinion), that fact would be of no consequence to the question before
the agency: whether the evidence presented supports that petitioner was
permanently and totally disabled in 2013 as a result of the work-place injury he
sustained in 2010. See notes 10-11 infra.
      9
           In a medical report dated November 19, 2010, Dr. Salter changed
petitioner’s work status from unfit to return to work to light-duty employment, but
noted that this was done “at the [petitioner’s] request” and “because of
[petitioner’s] financial concerns.”
      10
           Petitioner’s medical evidence included close to 30 progress reports,
                                                                     (continued . . .)
                                         17

(the IME), dated May 20, 2013, concurred, stating: “I do not believe that Mr.

Rocha-Guzman could return to work in any capacity.” In this conclusion, the IME

and the treating physician were in accord after both examined petitioner in 2013.11

________________
(. . . continued)
beginning in 2010, from his doctors at Phillips & Green detailing his condition.
From November 2010 to February 2011, the reports state that petitioner is able to
perform light duty work. However, beginning on May 26, 2011, petitioner is
found to be unfit for any work. All subsequent reports reiterate the same finding
with the exception of one report, by Dr. Salter, on April 6, 2012. This is the report
the ALJ focused on. Following Dr. Salter’s April 2012 report, all progress reports
— including a report by Dr. Salter himself five months later on September 6, 2012
— until the final report on September 4, 2013, find petitioner unfit to return to
work. These reports list the tests that have been performed, including MRIs of the
back and right hip (2011), electromyogram and nerve conduction study of the
lower back (2010), and current physical observations and examinations, as well as
petitioner’s reports of pain. The report that was closest in time to the hearing on
November 19, 2013, was the report dated September 4, 2013, signed by Dr. Jeffrey
H. Phillips. After speaking to petitioner and examining him, Dr. Phillips opined
that petitioner’s right hip pain is “post-traumatic and caused by the accident of 8-9-
10.” He also stated that petitioner has been “experiencing left upper extremity
pain, which I believe within a reasonable degree of medical certainty, is absolutely
related to his original injury of 8-9-10.” Dr. Phillips concluded by saying: “I do
not see how this patient can be working and do not anticipate his returning to work
in the foreseeable future.”
      11
           Although, the IME and treating physician agreed that petitioner was
permanently totally disabled in 2013, they differed in their opinions as to whether
petitioner’s disability resulted from the injuries petitioner sustained while
employed at Haris Design. These differing opinions would usually require the ALJ
to evaluate and credit one over the other and, if the treating physician’s opinion is
discredited, to explain why. See White v. District of Columbia Dep’t of Emp’t
Servs., 793 A.2d 1255, 1258 (D.C. 2002) (“In evaluating the evidence of record . . .
[DOES] must take into account the testimony of a treating physician, which is
ordinarily preferred over that of a physician retained solely for litigation purposes.
                                                                      (continued . . .)
                                          18

Despite the unanimity of reports finding petitioner unable to return to work in

2013, the ALJ highlighted, without explanation, the outliers — an April 6, 2012,

progress report by Dr. Salter, even though it was superseded by Dr. Salter’s later

reports on September 6, 2012, and January 2, 2013, and an outdated (2010) and

subsequently revised opinion by the IME — in support of her conclusion that

petitioner did not present a prima facie case of total permanent disability. The ALJ

also made no mention of the vocational assessment prepared in April 2013 by

Trudy Koslow, finding that petitioner was unable to return to work.12 On remand,

the ALJ should consider all evidence presented that pertains to the relevant time-

________________
(. . . continued)
Though a hearing examiner may reject the testimony of a treating physician and
decide to credit the testimony of another physician when there is conflicting
medical evidence . . . the agency must give reasons for such a rejection.”). In this
case there is no need for such a comparative analysis and explanation, however, as
the employer stipulated that petitioner’s “alleged disability is causally related to the
work injury on August 9, 2010.” As set out in the Compensation Order, the only
issue before the ALJ was the “nature and extent” of that disability.
      12
           The vocational assessment, dated April 2013, is based on a review of
petitioner’s medical records and an in-person interview with petitioner on February
20, 2013. Ms. Koslow concludes that “[i]t is [her] professional opinion, within a
reasonable degree of certainty as a vocational rehabilitation counselor, that Mr.
Rocha-Guzman is unable to obtain and/or sustain gainful competitive employment
at this time.” She notes that petitioner was able to return to work in 2010 in a
light-duty position but “due to orthopedic complaints, dizziness, and balance
issues, Mr. Rocha-Guzman was unable to perform the tasks of his position.” He
had since “made several attempts to return to work between 2010 and 2012,
without success.”
                                          19

frame of the claimed permanent total disability and make necessary credibility

determinations and findings with respect to the medical reports (giving due regard

to the treating physicians) and vocational assessment report.



      2. Substantial Evidence

      We discern a similar failure to consider all the evidence relevant to what the

ALJ labeled as “inconsistencies” in petitioner’s description of the fall that led to

his injuries and in his complaints of pain to his doctors. The ALJ noted that during

the hearing, petitioner testified that he fell “towards the left side and hurt the left

side of his face” and later testified that he felt “heat” in his right knee and hip. The

ALJ indicated that when treated by Dr. Mayer in September 2010, petitioner said

he struck the right side of his head, which led to headaches, and complained of

pain radiating down his right side, after he had told Dr. Phillips two weeks earlier

that he had pain in his neck and lower back as well as pain radiating down his left

leg. Even if there was some discrepancy between petitioner’s testimony at the

hearing and his report to Dr. Mayer three years earlier as to which side of the face

was hit as petitioner fell through the roof at the construction site, it cannot be

viewed in isolation.      The record shows that petitioner was referred for a

neurological consultation by his orthopedic doctors.         Dr. Vandana Sharma, a

neurologist, treated petitioner from September 2010 to April 2012. Dr. Sharma
                                         20

ordered a brain MRI in 2011, and diagnosed petitioner with post-concussion

syndrome with persistent headaches, dizziness, blurred vision and difficulty

concentrating; post-traumatic cervical, thoracic and lumbar sacral strain syndrome;

and pain and paresthesia of the lower extremities. In his report dated September 4,

2013, Dr. Phillips attributed petitioner’s pain in the left upper extremity and the

right hip to the 2010 work injury. On this record, reports of pain in different parts

of the body are not necessarily inconsistent or implausible as the sequelae of an

injury that had neurological implications.     Further fact finding, grounded on

medical evidence, is required before testimony can be discredited as

“inconsistent.”

                                       * * *



      The decision on review is hereby reversed and the case is remanded for

further proceedings consistent with this opinion.



                                                    So ordered.
