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Sibley Memorial Hospital v. District of Columbia Department of Employment Services8/29/2002
examiner's finding that the November 10, 1996 injury was new and not work-related was not supported by substantial evidence, and remanded with directions that the hearing examiner make findings on whether Mr. Ghafoor's commute aggravated his 1995 work-related injury.
II. ANALYSIS
" t is the Director's final decision, not the examiner's, which may be reviewed by this court." St. Clair v. District of Columbia Dep't of Employment Servs., 658 A.2d 1040, 1044 (D.C. 1995) (per curiam). Under the District of Columbia Administrative Procedure Act, we review the Director's decision under the "substantial evidence" standard, see Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472 (D.C. 1996), and "will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record." Oubre v. District of Columbia Dep't of Employment Servs., 630 A.2d 699, 702 (D.C. 1993) (citations omitted). In this case, the Director determined that the hearing examiner's decision was not supported by substantial evidence that Mr. Ghafoor sustained a new injury unrelated to work, and remanded the case to the hearing examiner for consideration of the issue whether the commute to work aggravated his prior work injury. We agree that the hearing examiner's decision that Mr. Ghafoor's 1996 injury was new is not supported by substantial evidence, but disagree with the Director's remand order.
We consider first the question of our jurisdiction, which is not addressed by the parties. An order remanding the case to the hearing examiner is usually not a final appealable order. See Washington Hosp. Ctr. v. District of Columbia Dep't of Employment Servs., 712 A.2d 1018, 1020 (D.C. 1998). In the posture of this case, however, where the presumption of compensability was raised and the Director correctly determined there was no substantial evidence to support the hearing examiner's finding that Sibley overcame the presumption, there was no cause for a remand. Cf. id. (noting that agency decision could not be reviewed without factual findings). Thus, the matter was finally resolved in claimant's favor as a matter of law, and became appealable.
A claimant is entitled to a rebuttable presumption that his injury arose out of and in the course of his employment, if he produces credible evidence of an injury and of a work-related event which has the potential of causing the injury. See Whittaker v. District of Columbia Dep't of Employment Servs., 668 A.2d 844, 845 (D.C. 1995). The examiner must presume a causal relation between the present disability and the work-related injury, unless "the employer has rebutted the presumption by `evidence specific and comprehensive enough to sever the potential connection' between the two." Id. at 847 (emphasis added) (quoting Parodi v. District of Columbia Dep't of Employment Servs., 560 A.2d 524, 526 (D.C. 1989)); see also Brown v. District of Columbia Dep't of Employment Servs., 700 A.2d 787, 791 (D.C. 1997) (stating that burden shifts to employer to produce "substantial evidence" demonstrating that the disability did not arise out of and in the course of employment).
In this case, the hearing examiner invoked the presumption, noting that "there is sufficient evidence to invoke the presumption in the medical reports of Dr. Ventzek, claimant's treating physician," and that "Dr. Ventzek opined claimant suffered from lumbar discogenic disk disease causally related to the 1995 work related incident and claimant's long drive. . . ." In subsequently ruling against Mr. Ghafoor, the hearing examiner determined that Sibley provided adequate rebuttal evidence, and after we
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