Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 17-AA-0029                            05/03/2018

                  METRO FIRE PROTECTION, et al., PETITIONERS,

                                         V.

 DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

                                        and

                          MICHAEL GREEN, INTERVENOR.

                On Petition for Review of an Order of the District
                   of Columbia Compensation Review Board
                                 (CRB-117-16)

(Submitted December 12, 2017                                Decided May 3, 2018)

      Joseph C. Tarpine III was on the brief for petitioners.

      Karl A. Racine, Attorney General for the District of Columbia with whom
Todd S. Kim, Solicitor General at the time the statement was filed, and Loren L.
AliKhan, Deputy Solicitor General at the time the statement was filed, filed a
statement in lieu of brief, for respondent.

      David J. Kapson was on the brief for intervenor.

      Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY, Associate Judge,
and FERREN, Senior Judge.
                                        2

      FERREN, Senior Judge: In this workers‟ compensation case, the employer-

petitioner appeals a Decision and Order of the Compensation Review Board

(“CRB”) granting benefits for total temporary disability to an employee injured on

the job. The case concerns an employee on “light duty” work restrictions who

unsuccessfully claimed compensation after his employer went out of business, but

who was awarded compensation — the issue on appeal here — after being fired by

his next employer. For the reasons set forth below we affirm.




                               I. Factual Summary



      This case concerns a 2015 injury suffered by the employee-intervenor,

Michael Green, while he was working as a sprinkler fitter for the petitioner,

Metropolitan Fire Protection Services (“Metro Fire”).1            Before Green‟s

employment at Metro Fire, he had suffered a workplace injury in Maryland on

December 7, 2005, when he fell off a roof.         After the 2005 injury, Green

underwent three neck surgeries and was found to be capable of working only at a

“medium physical demand level.” Green‟s claimed compensation for this injury

      1
         The District of Columbia Department of Employment Services, which
houses the CRB, is named as the respondent but declined to file a brief, preferring
to “submit[] based on the [CRB‟s] order dated December 27, 2016.” Our factual
summary is derived from the ALJ‟s Compensation Order.
                                         3

was resolved by the Maryland Workers‟ Compensation Commission on December

12, 2013, after shepherding a $100,000 settlement.




      Over a year later, on March 6, 2015, more than nine years after his 2005

injury, Green was working for Metro Fire with light duty restrictions when he

slipped and fell, injuring his back, neck, and elbow. After receiving treatment,

Green was cleared for return to his “usual duties” at Metro Fire, which continued

to accommodate his light duty restrictions. When Metro Fire closed upon the

owner‟s retirement in early April 2015, Green began collecting unemployment

benefits. After leaving Metro Fire he was still able to work with light restrictions,

but he remained unemployed while searching for another union job. On May 18,

2015, Green began working for SS&C,2 again “within his work restrictions.” On

June 27, 2015, SS&C terminated Green‟s employment.3 He was out of work until

October 19, 2015, when he was employed by National Fire Protection.



      2
          Green was not aware of the exact name of this company.
      3
          Green initially testified that SS&C had terminated his employment
because he was “missing too much” work for physical therapy and doctors‟
appointments; however, Green also testified that his supervisor had told him that, if
he took a week‟s vacation, SS&C “might have to let [him] go.” The ALJ found
that Green had lost the job at SS&C because of the doctors‟ appointments, and the
CRB accepted that finding.
                                        4

      On March 4, 2015, two days before his injury at Metro Fire, Green had seen

Dr. Carey-Walter Closson, a pain management specialist at Concentra Medical

Center, who had addressed Green‟s chronic back pain following the 2005

Maryland accident.    Dr. Closson diagnosed Green‟s low back condition4 and

prescribed physical therapy and a surgical consult, among other medical options.

After his March 6 injury, Green continued to work with light duty restrictions

under the care of Concentra until August 6, 2015, when Dr. Benjamin Stein, an

orthopedist with Concentra, recommended a Functional Capacity Evaluation, as

well as an evaluation by either a neurosurgeon or an orthopedic specialist, because

Green was experiencing “persistent left sided radiculopathy.”      Dr. Stein also

prescribed light duty restrictions, precluding Green from “lifting over 20 pounds,

pushing or pulling objects more than 30 pounds, [or] standing for more than one

hour at a time.”




      On October 2, 2015, Green began seeing Dr. Joel Fechter, an orthopedic

surgeon, complaining of pain in his neck, left arm, back, and legs. Dr. Fechter

reviewed Concentra‟s records, noting Green‟s 2005 injury and his three subsequent

      4
         According to the ALJ‟s Compensation Order, Dr. Closson diagnosed
Green‟s condition as “lumbar degenerative disease at LA-5, L5-Sl; cervical post-
laminectomy pain syndrome post C4-C7 ACDF; cervical and lumbar radiculitis;
lumbar facet and SI joint arthropathy; and myofascial pain.”
                                         5

surgeries. He also noted that Green‟s “residual complaints” from his 2005 accident

“had worsened since his March 6, 2015 accident.” Dr. Fechter then diagnosed

Green as having “cervical and lumbosacral spine strain injuries secondary to his

fall at work on March 6, 2015.” Dr. Fechter “gave [Green] a light duty work

release with no lifting over 10 pounds.” He also recommended a neurosurgical

consultation with a Dr. Ammerman.




      Four days later on October 6, 2015, at Metro Fire‟s request for an

independent medical evaluation (IME), Green was examined by an orthopedic

surgeon, Dr. Stuart Gordon, who examined Green and his “extensive medical

records.” In substantial disagreement with Dr. Fechter, Dr. Gordon concluded that

Green had “suffered cervical and lumbar strains on March 6, 2015; [Green‟s]

present complaints and medical treatment were unrelated to his work accident; and,

[Green] could resume working within his pre-existing restrictions of bending,

kneeling and a 30 pound lifting restriction.” Dr. Gordon further opined that Green

did not need “any further medical treatment related to his [Metro Fire] work injury

and that any further treatment would be related to [Green‟s] pre-existing trauma

and degenerative disease” dating back, apparently, to the 2005 injury.
                                         6

       Thereafter, in a letter of February 18, 2016, to Green‟s counsel, Dr. Fechter

confirmed his diagnosis that Green suffered from “cervical and lumbosacral spine

strain injuries.” Although Dr. Fechter acknowledged that Green‟s cervical spine

symptoms had “essentially resolved,” he opined that Green‟s March 6, 2015,

accident at Metro Fire had “caused the injuries and aggravated the pre-existing

degenerative changes [from 2005] as well as the pre-existent condition in the

neck.”     He continued Green on “light duty status with a ten pound lifting

restriction.”

                         II. Administrative Proceedings




       In an application for formal hearing filed on December 30, 2015, Green

claimed workers‟ compensation attributable to his March 6, 2015, injury. During

the proceeding before the ALJ, Green claimed temporary total disability from

April 10, 2015, to May 18, 2015 (the end of his employment by Metro Fire to the

date of employment by SS&C), and from June 27, 2015, to October 19, 2015 (the

end of Green‟s employment by SS&C to the date he began working for his next

employer.5 Green also claimed compensation for out-of-pocket expenses, interest


       5
         During Green‟s employment by National Fire Protection, he worked 48
hours a week subject to the work restrictions Dr. Fechter had prescribed.
                                         7

on accrued benefits, and authorization for a neurosurgical consultation with Dr.

Ammerman.




      After a formal hearing, the ALJ issued its Compensation Order on August

26, 2016, concluding that: (1) Green had met his burden to show that his disability

was “medically causally related to [the] March 6, 2015 work accident”; (2) Green

had failed to prove that “he was temporarily and totally disabled from April 10,

2015, through May 17, 2015,” as he had been laid off upon Metro Fire‟s closing;

thus, the period of unemployment was “economic in nature,” not a result of his

disability; (3) Green had proved that “he was temporarily and totally disabled from

June 27, 2015 through October 19, 2015 as a result of his March 6, 2016 accident,”

and thus was entitled to receive workers‟ compensation benefits for that period; (4)

Green was entitled to a neurological consultation with Dr. Ammerman, as

recommended by Dr. Fechter; (5) he was further entitled to mileage reimbursement

for related doctor and physical therapy appointments; and (6) Metro Fire was

entitled to a “credit for unemployment benefits received by [Green] from June 27,

2015 through October 19, 2015.”
                                        8

      Green did not cross-appeal from the denial of benefits for the period from

April 10, 2015, through May 17, 2015. In a Decision and Order of December 27,

2016, the CRB affirmed the ALJ‟s Compensation Order.



                               III. Issues on Appeal




      Metro Fire argues that the CRB erred in affirming:

      1. The ALJ‟s exclusion of evidence regarding Green‟s December 2005

injury that resulted in a “documented permanent partial impairment” and

subsequent “lump sum” settlement with the Maryland Workers‟ Compensation

Commission;

      2. The ALJ‟s finding that Green‟s low back “condition [was] medically

causally related to the subject accident” (his work-related incident of March 6,

2015) while working for Metro Fire;

      3. The ALJ‟s authorization of medical treatment requiring Metro Fire and

its insurer to “present a Utilization Review to challenge the reasonableness and

necessity” of the recommended neurological examination; and
                                         9

      4. The ALJ‟s award of temporary total disability benefits to Green “for the

period of June 27, 2015 through October 19, 2015,” when Green should have been

found out of work “because of economic factors” rather than disability.




                             IV. Standard of Review




      This court‟s review is limited to the “decision of the CRB, not that of the

ALJ.”6 Although we review questions of law de novo, this court will overturn a

CRB‟s final order only if it is found to be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”7 “We will not disturb the

agency‟s decision if it flows rationally from the facts which are supported by

substantial evidence in the record.”8




      6
         Brown-Carson v. District of Columbia Dep’t of Emp’t Servs., 159 A.3d
303, 306 (D.C. 2017).
      7
        Clark Constr. Grp., LLC v. District of Columbia Dep’t of Emp’t Servs.,
163 A.3d 768, 773 (D.C. 2017) (quoting Reyes v. District of Columbia Dep’t of
Emp’t Servs., 48 A.3d 159, 164 (D.C. 2012)).
      8
         Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219, 1221
(D.C. 2012) (quoting Washington Metro Area Transit Auth. v. District of Columbia
Dep’t of Emp’t Servs., 683 A.2d 470, 472 (D.C. 1996)).
                                        10

                                   V. Analysis


      A. Maryland Workers’ Compensation Claim Evidence



      Metro Fire challenges the ALJ‟s decision to exclude from the record several

exhibits its counsel proffered showing Green‟s compensation for his 2005

workplace injury: a settlement for $100,000 before the Maryland Compensation

Commission in 2013. Counsel stresses the importance of determining whether

Green‟s “current condition is related to the work accident in this case” or instead

“to his prior injuries and prior conditions.” Thus, counsel sought admission of

Green‟s Maryland claim documents, two physicians‟ reports (without objection),

the hearing transcript, the “functional capacity evaluation” showing the “prior

restrictions” on Green‟s work activity, and the settlement (including disability

findings).




      Green‟s counsel objected that the exhibits would be “prejudicial and not

relevant,” stressing that Maryland‟s functional capacity evaluation showed that the

work restrictions imposed for the 2005 injury were “less restrictive” — merely a

“medium physical demand level” — compared with the period “he‟s currently

claiming disability for.” In reply, counsel for Metro Fire observed that Green‟s
                                          11

counsel appeared to acknowledge that the Maryland evidence actually supported

Green‟s position that since 2005 his “condition ha[d] worsened.” Counsel for

Metro Fire then emphasized the importance of having “all the evidence to consider

what his prior condition was,” especially because the Maryland evidence

“establish[ed] a permanent disability that Mr. Green had even prior to this

accident.”




      After this colloquy, the ALJ sustained Green‟s objections to admission of

some, but not all, of the exhibits pertaining to the Maryland claim. In ruling for

Green, the ALJ excluded the Maryland settlement documents (including disability

findings) as either “prejudicial” or not “particularly relevant.” On the other hand,

ruling for Metro Fire, the ALJ allowed in evidence the notice of Green‟s Maryland

claim, the entire transcript of the Maryland hearing (found relevant for Green‟s

testimony “concerning his complaints” at the time), and the proffered functional

capacity evaluation of the 2005 injury.




      The CRB perceived no basis for “disturb[ing] the ALJ‟s exclusion of the

evidence pertaining to . . . the settlement of [Green‟s] prior claim” in Maryland,

mindful of the ALJ‟s obligation (as the CRB put it) not to exercise its “broad
                                         12

discretion” in an “arbitrary or capricious fashion.”9 This court has observed that

the administrative factfinder has discretion to exclude evidence, among other

reasons, if it is “irrelevant” or its “probative value is substantially outweighed by

the danger of unfair prejudice”10 — reasons expressed by the ALJ, and confirmed

by the CRB, as to the discretion exercised over admission of Metro Fire‟s

proffered Maryland exhibits.




      We find no basis for upsetting the CRB‟s affirmance of the agency‟s

discretionary call here. Metro Fire achieved not only admission of the Maryland

claim and the entire hearing testimony from that proceeding, but also admission of

the functional capacity evaluation.     All that Metro Fire was precluded from

introducing, it would appear, was: (1) medical analysis of the 2005 injury, much

of which was reflected in the records reviewed by the doctors whose evidence was

taken in this case; and (2) the financial aspects of the Maryland settlement, not

obviously relevant here. In sum, we perceive no abuse of discretion in the CRB‟s


      9
         See Washington Hosp. Ctr. v. District of Columbia Dep’t of Emp’t Servs.,
983 A.2d 961, 965 (D.C. 2009) (noting that admission of evidence is “in the
discretion of the [ALJ]” and comparing the ALJ‟s “broad discretion in the
admission or exclusion of expert testimony” to that of a trial judge).
      10
         Dillon v. District of Columbia Dep’t of Emp’t Servs., 912 A.2d 556, 561
(D.C. 2006) (internal citations omitted).
                                         13

affirmance of the ALJ‟s judgment that partial, not total, admissibility of the

Maryland evidence was appropriate for this proceeding.




      B. Causation Finding


      Metro Fire next argues that the CRB erred in affirming the ALJ‟s finding

that Green‟s condition was “medically causally related” to his accident on March

6, 2015. There is a statutory presumption that a workers‟ compensation claim

“comes within the provisions of [the Workers‟ Compensation Act].”11 In order to

benefit from this presumption, however, the complainant must show: (1) “a death

or disability”; and (2) “a work-related event, activity, or requirement which has the

potential of resulting in or contributing to the death or disability.”12 Once the

complainant has produced “some evidence of a disability and work-related

event,”13 the employer must provide, to the contrary, “substantial evidence that the




      11
          D.C. Code § 32-1521 (1) (2012 Repl.); Ferreira v. District of Columbia
Dep’t of Emp’t Servs., 531 A.2d 651, 655 (D.C. 1987).
      12
           Ferreira, 531 A.2d at 655 (emphasis omitted).
      13
         Storey v. District of Columbia Dep’t of Emp’t Servs., 162 A.3d 793, 802
(D.C. 2017) (internal quotation marks omitted).
                                            14

disability did not arise out of and in the course of the employment.”14 When the

employer has produced substantial evidence, “the statutory presumption drops out

of the case entirely and the burden reverts to the injured worker” to show the

required causal connection “by a preponderance of the evidence.”15




      Here, the ALJ found that Green had met his burden to show the required

causal connection. In doing so the ALJ first found that Green had successfully

invoked the statutory presumption by presenting “some evidence” of the required

work-related event and potential contribution to the claimed disability.16 In fact,

the ALJ noted that Metro Fire itself “conceded” that Green had “invoked the

presumption,” meaning Metro Fire conceded that Green had “produced sufficient

evidence” to satisfy “the presumption of compensability with regard to his

accident.”17


      14
           Id. (internal quotation marks and emphasis omitted).
      15
        Id. at 803 (quoting Ramey v. District of Columbia Dep’t of Emp’t Servs.,
997 A.2d 694, 699-700 (D.C. 2010).
      16
           See Ferreira, 531 A.2d at 655.
      17
        In making this concession, Metro Fire apparently was acknowledging that
Dr. Fechter‟s findings, including his recommended 10-pound lifting restriction,
comprised “some evidence” — medical evidence — sufficient to invoke the
presumption of compensability, even though the IME physician, Dr. Gordon, had
                                                       (continued . . .)
                                          15

      The burden then shifted to Metro Fire, which rebutted Green‟s showing by

referencing the IME physician, Dr. Gordon, who opined in his written report that

Green was capable of performing his “pre-injury work with a 30 pound lifting

restriction,” not the “10-pound lifting restriction” imposed by Dr. Fechter. “Based

on the unambiguous opinion of Dr. Gordon,” the ALJ found that Metro Fire had

“rebutted the statutory presumption” of compensability.18



      The ALJ then weighed the evidence “without benefit of the presumption,”

leaving the burden on Green to show “by a preponderance of the evidence[] that

his current low back condition [was] causally related to his March 6, 2015 work

accident.” In evaluating the parties‟ respective showings, the ALJ gave “more

_____________________
(. . . continued)
opined that the March 6, 2015, accident did not medically cause his current
disability, and that a 30-pound lifting restriction was sufficient to treat Green‟s pre-
existing 2005 injury.
      18
            In evaluating the opinion of Dr. Gordon to rebut the statutory
presumption, see supra note 17, the ALJ was relying on “substantial [medical]
evidence of non-causation.” Storey, 162 A.3d at 797. Thus, neither in determining
applicability of the presumption of compensability nor in assessing the sufficiency
of the employer‟s rebuttal did the ALJ rely on “credibility determinations.” See id.
(An ALJ may not use “credibility determinations” to decide whether the claimant
is entitled to “the statutory presumption of compensability” or whether the
employer has rebutted the presumption with the required “substantial evidence of
non-causation.” Only when the employer “rebut[s] the presumption and the
burden returns to the claimant is the ALJ entitled to make credibility
determinations.”).
                                        16

weight to the well documented and well substantiated records of Green‟s treating

physician, Dr. Fechter,” who had provided Green with continuing care, compared

with the single examination and records review by Dr. Gordon. Quoting case law,

the ALJ observed that “attending physicians are ordinarily preferred as witnesses

rather than those doctors who have been retained to examine injured workers

solely for purposes of litigation.”19 In sum, the ALJ premised its ultimate finding

of medical causality on the overall quality and weight of the evidence submitted by

each party.



      Citing our Lincoln Hockey decision,20 however, Metro Fire stresses that

“opinions of the treating physician are not absolute,” noting that the employer must

have the opportunity to present evidence to suggest, among other things, that the

treating physician “is unaware of the employee‟s medical history” or otherwise



      19
          See Stewart v. District of Columbia Dep’t of Emp’t Servs., 606 A.2d
1350, 1353 (D.C. 1992) (“[I]n assessing the weight of competing medical
testimony in worker compensation cases, attending physicians are ordinarily
preferred as witnesses to those doctors who have been retained to examine the
claimant solely for purposes of litigation.”)
      20
           Lincoln Hockey, LLC v. District of Columbia Dep’t of Emp’t Servs., 831
A.2d 913, 920 (D.C. 2003) (treating physician “admittedly did not know
[claimant‟s] full history of head trauma, prior headaches and related symptoms, nor
that [claimant] engaged in a variety of leisure sports activities following the
injury.”).
                                        17

lacks “the factual basis” for its opinion.”21 While that is true, we also said in

Lincoln Hockey that a “hearing examiner may not reject the testimony of a treating

physician without explicitly addressing that testimony and explaining why it is

being rejected.”22



      In any event, Metro Fire had a full opportunity to argue the merits of Dr.

Gordon‟s opinion over that of Dr. Fechter. In the ALJ‟s discretionary judgment,

however, Metro Fire‟s presentation did not undermine the primacy of Dr. Fechter‟s

opinion that Green “was not capable of returning to his pre-injury, albeit, light

duty, job after his accident of March 6, 2015, during the periods for which benefits

are claimed.” The ALJ found more credible than Dr. Gordon‟s opinion (1) Green‟s

own testimony that he had not been “experiencing constant pain” before the 2015

accident, coupled with (2) Dr. Fechter‟s opinion that Green‟s 2015 injury had

worsened his preexisting condition — an opinion informed by Dr. Closson‟s report

of March 4, 2015 (two days before the accident at issue here) and by Green‟s own

candor in “honestly” telling Dr. Fechter about his chronic back pain before the

March 6 accident.        Altogether the ALJ emphasized Dr. Fechter‟s consistent

opinion that Green “had a 10 pound lifting restriction”; the doctor‟s

      21
           Id.
      22
           Id. at 919.
                                        18

acknowledgment of Green‟s earlier 2005 accident “and three previous neck

surgeries”; and his persuasive opinion that Green‟s “March 6, 2015 accident

resulted in a worsening of [Green‟s] low back condition.” We do not gainsay the

ALJ‟s deference to Dr. Fechter. The “proper judge of credibility is the hearing

examiner[,] and an appellate court cannot substitute its judgment as to credibility

for that of the hearing examiner.”23



      In sum, the ALJ made the following clear finding, confirmed by the CRB,

on this contested material issue of fact:24 Based on “substantial evidence” of

record, Green satisfied “his burden of producing by a preponderance of the

evidence that his current low back problems [were] causally related to the March 6,

2015 work injury.” After reviewing the testimonies of both Dr. Gordon and Dr.

Fechter, we perceive no basis for overturning the CRB‟s ruling.25


      23
           Id. at 918.
      24
         The ALJ must make “a finding of fact on each material contested issue of
fact.” Battle v. District of Columbia Dep’t of Emp’t Servs., 176 A.3d 129, 133
(D.C. 2018).
      25
          Metro Fire‟s other arguments warrant passing reference. (1) We cannot
agree with its contention that Dr. Fechter‟s opinions are “not supported by the
objective medical evidence” — a contention supported only by the employer‟s
view, rejected above, that Dr. Gordon‟s evidence must be viewed as superior —
coupled with an argument (we find unpersuasive) that evidence from the Maryland
proceeding should tip the balance in Metro Fire‟s favor. (2) Nor can we agree that
                                                         (continued . . .)
                                         19

      C. Utilization Review


      In connection with its finding that Green‟s disability was “medically

causally related to the March 6, 2015 work injury,” the ALJ found that Green was

entitled to a “neurological consultation with Dr. Ammerman, as recommended by

his treating physician, Dr. Fechter.”     Metro Fire appears to believe that, in

evaluating medical causation, the ALJ faulted the employer for failing to proffer a

“utilization review”26 that would have helped determine the relevance of a

neurological consultation and thus, ultimately, causation. Metro Fire, however, did

not present that argument to the CRB, and “[i]n the absence of exceptional




_____________________
(. . . continued)
the evidence from the written reports of Dr. Closson and Dr. Stein manifestly
undermine Dr. Fechter‟s submitted opinion. The record shows that Green saw Dr.
Closson only once after the March accident, and Metro Fire‟s brief on appeal
appears to accept Green‟s testimony that he did not tell Dr. Closson about his
accident. Furthermore, although Dr. Stein initially imposed a work restriction
limiting Green to lifting 30 pounds, Dr. Fechter later modified that downward to a
10-pound restriction. While Dr. Stein‟s 30-pound judgment was similar early on to
that of Dr. Gordon, Dr. Stein‟s determination provides no sound basis for rejecting
the ALJ‟s discretionary call in favor of Dr. Fechter‟s overall assessment described
above, including his judgment calling for a 10-pound limitation.
      26
          “„Utilization review‟ means the evaluation of the necessity, character, and
sufficiency of both the level and quality of medically related services provided an
injured employee based upon medically related standards.” D.C. Code § 32-1501
(18A) (2012 Repl.).
                                        20

circumstances, we will not entertain a claim that was not raised before the

agency.”27 No exceptional circumstance exists here.



      Utilization reviews are commonly conducted when “there is a dispute about

the necessity of proposed medical treatment.”28 In this case, however, no medical

professional disputed the necessity of a neurosurgical consultation; all three

physicians — Drs. Stein, Fechter, and Gordon — agreed that a neurological

consultation was “recommended” (or in Dr. Gordon‟s case, “reasonable”). Thus, it

appears that a utilization review to evaluate the need for such consultation would

likely have been superfluous.




      In any event, Metro Fire is wrong when arguing in its brief that the ALJ

required the “Employer and Insurer . . . to present a Utilization Review to contest

the medical causal relationship of the neurosurgical consultation.” The ALJ‟s

comment that Metro Fire had not proffered a utilization review meant only that the

employer had elected not to exercise that option, not that the employer had an


      27
         Straughn v. District of Columbia Dep’t of Emp’t Servs., 176 A.3d 125,
127 (D.C. 2017) (citations omitted).
      28
        Children’s Nat’l Med. Ctr. v. District of Columbia Dep’t of Emp’t Servs.,
992 A.2d 403, 409-10 (D.C. 2010).
                                         21

obligation to do so to contest causation.29 And given the testimony of the IME

physician, Dr. Gordon, as well as the treating physicians, Drs. Stein and Fechter, it

appears that Metro Fire‟s failure to order a utilization review may have been a

judicious decision not to incur the expense.




      D. Award of Temporary Total Disability Benefits


      When, as in this case, a complainant establishes a causal connection between

a workplace accident and the complainant‟s injury, the complainant next must

establish the nature and extent of the disability.30      According to our Logan

decision, in order to prove temporary total disability, the claimant must show (1)

“an inability to return to his [or her] usual employment.”31 Once the claimant has

done so, (2) “the burden shifts to the employer to establish suitable alternate

employment opportunities available to claimant considering his age, education and




      29
        Utilization reviews may be requested “by an employer, the employee, or
the Mayor.” Id. at 409.
      30
         See Clark Constr. Grp., LLC, 163 A.3d at 776 (“the claimant bears the
burden of showing that his [or her] disability is temporary and total.”).
      31
         Logan v. District of Columbia Dep’t of Emp’t Servs., 805 A.2d 237, 242
(D.C. 2002) (internal quotation marks omitted).
                                        22

work experience”32 — meaning “available in the community.”33 Finally, (3) “[i]f

the employer meets that evidentiary burden, the claimant may refute 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.”34




      The CRB concluded that Green had not satisfied Logan’s first step, and thus

he was not entitled to workers‟ compensation for the period between April 10,

2015 (when Metro Fire closed down), and May 17, 2015 (when SS&C hired

Green). More specifically, said the CRB, Green had “not established entitlement”

to temporary total disability benefits because Metro Fire, until it closed, had

“continued to accommodate all of his restrictions,” enabling him, after his injury,

“to perform his usual duties” (in Logan’s words, “his usual employment”).35




      32
           Id.
      33
           Id. at 243.
      34
           Id. at 243.
      35
           Id. at 242.
                                          23

Green‟s loss of employment, therefore, was strictly “economic in nature,” 36 not at

all due to his medical condition. Green does not contest this ruling.




       This CRB denial of benefits after Green left, Metro Fire serves as

background for its award of benefits for the period from his termination of

employment by SS&C to the time he found work at National Fire (June 27 to

October 19, 2015). Metro Fire contests Green‟s eligibility during this period

because the record, it says, conclusively demonstrates (as the CRB found for the


      36
           The ALJ reached the same result through more convoluted reasoning,
purporting to apply Logan. According to the ALJ, Dr. Fechter‟s “10 pound lifting
restriction,” which was more severe than any restriction “prior to the March 6,
2015 accident,” meant that Green was “incapable of returning to his pre-injury
duties.” Accordingly, said the ALJ, Green had taken Logan’s first step and the
burden shifted to Metro Fire, which then rebutted Green‟s showing by referencing
Dr. Gordon‟s opinion that Green was “capable of performing his pre-injury job.”
The burden then shifted back to Green, who reestablished, through the testimony
of his treating physician, Dr. Fechter, that “he was not capable of returning to his
pre-injury, . . . light duty job after his accident of March 6, 2015, during the
periods for which benefits are claimed.” Nonetheless, the ALJ rejected the
benefits Green claimed for April 10, 2015, to May 17, 2015, because his “wage
loss for this period was economic in nature, and thus not related to [his] disability.”

       Actually, while relying on burden-shifting between Drs. Gordon and
Fechter, the ALJ, like the CRB, resolved only Logan’s first step; the second step
— the availability of alternate employment — begins only after a first-step finding
that termination was attributable to the claimant‟s disabled medical condition. In
finding Logan’s first step dispositive for the same reason that the ALJ gave after
navigating through three steps, the CRB concluded that the ALJ‟s analysis was
harmless error.
                                         24

earlier period) that Green was let go not for disability but for “economic

reasons,”37 this time for taking an unauthorized vacation.




      The ALJ concluded, to the contrary — by selecting from ostensibly

conflicting testimony — that Green had been unable “to return to his usual

employment”38 because of his claimed disability.        Green had testified at the

hearing before the ALJ that his employment ended “because of [his] having to do

the physical therapy and the doctor‟s appointment[;] they felt I was missing too

much time on the job, and they needed me there.” Almost immediately thereafter,

however, when asked when he “got released” by SS&C, Green replied that “it was

the 27th[;] . . . he came to me, because I was getting ready to go on my vacation,

and said, „Well, you know, if you have to take this week off, I might have to let

you go.‟” The ALJ premised his finding of disability on Green‟s first reason,

equating his medical appointments with sufficient evidence of continuing

temporary total disability “related to the March 6, 2015 accident.” The CRB




      37
           See text accompanying supra note 34 (ALJ finds “loss of employment”
for this period was “economic in nature”).
      38
           Logan, 805 A.2d at 244.
                                          25

deferred to that finding,39 albeit dubitante, stating that “one or more of this panel‟s

[three] member[s] may have found otherwise” (presumably based on the second,

“vacation” reason Green offered for losing his job).




      In any event, we have a CRB-confirmed finding of the ALJ that Green lost

his job at SS&C because of this “disability,” and we can see no basis for setting

that finding aside.40 Moreover, given a sustainable finding that Green satisfied


      39
          We are in no position to second-guess the CRB‟s deference here based (in
its words) on the “ALJ‟s opportunity to observe the nature and character of a
witness‟s demeanor,” citing Dell v. Department of Emp’t Servs., 499 A.2d 102,
106 (D.C. 1985) (“a hearing examiner‟s decision [is] entitled to greater
consideration if the examiner, as in this case, has heard live testimony and
observed the demeanor of the witnesses.”) and Georgetown Univ. v. District of
Columbia Dep’t of Emp’t Servs., 830 A.2d 865, 870 (D.C. 2003) (“[c]redibility
determinations of a hearing examiner are accorded special deference by this
Court.”) (citations omitted).
      40
            “Disability” is not merely a medical condition; it is an “economic
concept,” meaning a loss of wage-earning capacity attributable to a medical
condition. See D.C. Code § 32-1501 (8) (“„Disability‟ means physical or mental
incapacity because of injury which results in the loss of wages.”); Upchurch v.
District of Columbia Dep’t of Emp’t Servs., 783 A.2d 623, 627 (D.C. 2001)
(“Disability is an economic and not a medical concept, and any injury that does not
result in loss of wage-earning capacity cannot be the foundation for a finding of
disability.”). Green‟s post-injury work at Metro Fire and SS&C may have
provided evidence sufficient to prove that he was physically capable of continuing
with light-duty work after he left those employments. However, at least with
respect to the second claim period, the ALJ (confirmed by the CRB) concluded
that Green‟s ongoing number of doctors‟ appointments, reflecting a disabling
                                                         (continued . . .)
                                        26

Logan’s first step, we note that neither the ALJ nor the CRB made a finding as to

whether Metro Fire had addressed Logan step two, namely whether Metro Fire had

satisfied the employer‟s burden to show that there were “suitable alternate

employment opportunities available to [Green]” when he left SS&C that would

have vitiated the compensation claim.41 The CRB simply affirmed the ALJ‟s

decision that Green‟s “wage loss,” in contrast with the first claim period, “was due

to Claimant‟s disability” without reaching Logan’s burden-shifting opportunity

ignored by Metro Fire.




      The agency‟s failure to address the possibility of alternate employment,

however, must be assigned to the employer, for in opposing benefits for the second

claim period, Metro Fire limited its contention before the CRB to insisting —

contrary to the ALJ‟s finding — that SS&C had terminated Green‟s employment

for economic reasons, not disability. At the hearing, Metro Fire did not proffer the

existence of alternate employment opportunities to rebut Green‟s claim in the event



_____________________
(. . . continued)
medical condition, was substantial enough to preclude meaningful employment
(satisfying Logan’s first step), absent rebuttal by Metro Fire proffering realistic
employment alternatives.
      41
           Logan, 805 A.2d at 242.
                                       27

that the ALJ would interpret Green‟s testimony, as it did, to reflect termination

based on disability.




      Logan’s shifting burdens were evident to the parties and both tribunals from

Green‟s cross-appeal to the CRB (not renewed on appeal to this court). The ALJ

commented, as to the first claim period, that Metro Fire “did not present any

evidence under Logan . . . establishing the availability of other jobs which Mr.

Green could perform.” Nor did Metro Fire present such evidence with respect to

the second claim period. We are, therefore, left with the finding that SS&C

terminated Green‟s employment because of his disability, not economic reasons.

As a result, we are not in a position to overrule the CRB‟s compensation award for

June 27, 2015, through October 19, 2015.



      For the foregoing reasons, we affirm the CRB‟s Decision and Order.

                                                  So ordered.
