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Argued December 2, 2009

Before FISHER and THOMPSON, Associate Judges, and BELSON, Senior Judge.

In this case, petitioner Washington Metropolitan Area Transit Authority (“WMATA”) has asked us to review a decision of the Compensation Review Board (“the Board”), upholding a determination by a Department of Employment Services Administrative Law Judge (“ALJ”) awarding workers’ compensation benefits to intervenor Hughey Payne, Jr. We have no difficulty affirming the Board’s decision upholding the ALJ’s finding that Payne was rendered temporarily totally disabled when the air conditioning at the Metro Station where he worked malfunctioned, exacerbating the symptoms of his pre-existing asthma. The Board’s decision on this issue is supported by substantial evidence in the record and is neither unreasonable nor contrary to law. However, we are constrained to reverse the portion of the Board’s decision upholding the ALJ’s determination that Payne has an ongoing compensable disability. As we explain, (1) by looking only to whether Payne presented “substantial evidence” of current disability, the ALJ applied an erroneous standard of proof; (2) in reviewing the ALJ’s decision, the Board utilized a standard that was appropriate only if the burden of proof had been WMATA’s (which it was not); and (3) Payne’s evidence was not so strong as to enable this court to conclude as a matter of law that Payne met the applicable burden of proof (preponderance of the evidence). We therefore remand for further proceedings.

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