Brown-Carson v. D.C. Dep't of Emp't Servs., No. 15–AA–700

Docket NºNo. 15–AA–700
Citation159 A.3d 303
Case DateMay 04, 2017
CourtCourt of Appeals of Columbia District

159 A.3d 303

Sylvia BROWN–CARSON, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 15–AA–700

District of Columbia Court of Appeals.

Argued December 15, 2016
Decided May 4, 2017


Jonathan H. Levy, Legal Aid Society, with whom Becket Marum, Legal Aid Society, was on the brief, for petitioner.

Jason Lederstein, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

Before Thompson and McLeese, Associate Judges, and Ferren, Senior Judge.

Ferren, Senior Judge:

Petitioner appeals from a decision of the Compensation Review Board (CRB) vacating a compensation order by an administrative law judge (ALJ), who ruled that notice of petitioner's workers' compensation claim (as well as the claim itself) had been timely and awarded her compensation for temporary total disability (carpal tunnel syndrome ). We reverse and remand to the CRB for a decision consistent with this opinion.

I.

Petitioner worked for the District of Columbia for twenty-five years before filing a claim for workers' compensation. From 1987 to 1993, she fielded 911 calls for the Metropolitan Police Department (MPD)—a position in which she answered a high volume of emergency calls and typed information into a dispatch system for police, fire, and emergency services.

During a "routine checkup" through her health plan in 1992, petitioner was diagnosed with carpal tunnel syndrome and was advised to wear a wrist splint. The

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following year, she was detailed to a payroll position that required less typing. Petitioner continued to suffer from intermittent pain in her left wrist, a condition she treated herself with over-the-counter pain medication in addition to the recommended wrist splint. She remained in the payroll position through 2004, when she resumed her work as a 911 call operator.

After eight more years of processing emergency calls, petitioner felt extreme pain in her left wrist while typing on March 28, 2012. On April 3, 2012, she notified her supervisor and filed a claim for worker's compensation benefits under the Comprehensive Merit Personnel Act (CMPA).1 Three days later, her employer sent her to an urgent care center, where Dr. Anthony McCarthy noted her history of carpal tunnel syndrome, and advised her to cease use of her left hand. Because of this restriction, petitioner's employer informed her that she could no longer work. Prescription medication and a wrist injection did not cure the numbness, tingling, and pain.

On May 17, 2012, a medical exam by Dr. Steven Friedman, an orthopedist designated by petitioner's employer, appeared to confirm petitioner's earlier carpal tunnel diagnosis,2 although he noted that her condition was primarily due to diabetes, initially diagnosed in 1998, and that she could return to work with less typing and frequent breaks. Another physical exam by rheumatologist Dr. Nora Taylor, to whom petitioner was referred at the request of her employer, suggested that petitioner was "suffering from an inflammatory arthritis of some kind." Based on this report, but without access to the full panel of blood test results, Dr. Friedman noted in an addendum his "concern[ ]" that petitioner's condition was not work-related but rather the result of an underlying inflammatory condition. Accordingly, the Public Sector Workers' Compensation Program denied petitioner's claim on September 21, 2012.

Petitioner requested an administrative hearing, which took place on February 6, 2013, before ALJ Joan E. Knight. Petitioner maintained that her disability was work-related and that notice to her employer had been timely. Her employer answered that petitioner had failed to show by a preponderance of the evidence that her carpal tunnel syndrome was related to her work. The agency further argued that petitioner's injury had occurred at the latest in 1993, after she had been diagnosed with carpal tunnel syndrome and realized it was causally related to her work—meaning that petitioner had missed the statutory thirty-day period required for notice of the injury to her employer.3 Knight reviewed the evidence of petitioner's medical history, including an assessment by Dr. Rida Azer, petitioner's treating physician. First, crediting Dr. Azer's assessment of causality over Dr. Friedman's, who had stated that petitioner's "left carpal tunnel [was] primarily non-occupational in nature," ALJ Knight concluded that petitioner "has met her burden to establish her left carpal tunnel condition is causally related to her

159 A.3d 306

employment." Second, as to timeliness, the ALJ found that petitioner's "left carpal tunnel syndrome worsened over the years and became a disabling condition on March 28, 2012"; that petitioner "suffered an aggravation of a cumulative trauma work injury," which "manifested on March 28, 2012," after a "debilitating left wrist pain"; and that petitioner timely notified her employer of "her aggravation [of a] cumulative trauma injury." ALJ Knight accordingly awarded temporary total disability benefits to petitioner on September 27, 2013.

Petitioner's employer appealed to the CRB, which agreed that ALJ Knight had erred in determining that petitioner had "provided timely notice of her injury." More specifically, the CRB concluded that ALJ Knight had misapplied the "manifestation rule," which the CRB had adopted not under the CMPA but under a parallel provision of the Workers' Compensation Act (WCA),4 applicable to private sector employees. According to the CRB's formulation in VanHoose v. Respicare Home Respiratory Care5 —announced in response to this court's decision in King v. District of Columbia Dep't of Emp't Servs .,6 —the date of injury under the WCA is "the date the employee first seeks medical treatment for his/her symptoms or the date the employee stops working due to his/her symptoms, whichever first occurs."7 Applying that rule in this CMPA case, the CRB concluded that ALJ Knight had erred in finding that petitioner's injury occurred on "March 28, 2012," "when her left wrist condition became disabling," rather than much earlier, at the time of her "1992 diagnosis of carpal tunnel and [her] contemporaneous realization that it was work related."

The CRB accordingly vacated ALJ Knight's timeliness determination, and remanded the case to the ALJ for issuance of an order denying petitioner's claim. On remand, ALJ Knight issued revised findings and the required order denying the claim because of untimely notice. Petitioner again appealed to the CRB, whereupon the CRB struck the ALJ's "new" findings (as "beyond the scope of the remand") and again denied petitioner's claim in a second decision and order. This petition for review followed.

II.

We note, first, that this court reviews the decision of the CRB, not that of the ALJ.8 And, although we review questions of law de novo9 "because it is

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emphatically the province and the duty of the judicial department to say what the law is,"10 "[a]n agency's interpretation of its own regulations or of the statute which it administers is generally entitled to great deference from this court."11 "However, when it appears that the agency ... did not conduct 'any analysis of the language, structure, or purpose of the statutory provision,' '[i]t would be incongruous to accord substantial weight to [the] agency's interpretation.' "12 Similarly, "[w]hen the agency's decision is inconsistent with the applicable statute ... we owe it far less deference, if indeed we owe it any deference at all."13

Because the CRB imported the WCA manifestation rule into this case claiming CMPA benefits, we note that this court has emphasized the similarity of these statutes. We have "considered case law under one act to be informative as to the other."14 Moreover, we have explained that "in light of their similar humanitarian purpose," "[w]e interpret these ... statutes to be consistent with each other, even where the statutes' language is not identical."15 More specifically, we have read an "aggravation rule" (relevant here, as we shall see) into the CMPA16 by analogy to the WCA and the Federal Employees' Compensation Act.17 Accordingly, we shall reference here both WCA and CMPA decisions.18 This is not to imply, however, that differences in statutory language are never relevant to construction of the several compensation statutes.19

Finally, in recognizing a difference between cases with a discrete injury and cases with cumulative trauma, this court

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has never held that all aggravations must be discrete injuries.20

III.

With these preliminary clarifications in mind, we turn to the central questions presented:

1. Whether the CRB erred in considering petitioner's injury to be, exclusively, a cumulative trauma and not an aggravation of a non-disabling preexisting condition; and, in any event,

2. Whether the CRB erred when applying the "manifestation rule" to determine the date...

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