Clark Constr. Grp., LLC v. D.C. Dep't of Emp't Servs.

Citation163 A.3d 768
Decision Date13 July 2017
Docket NumberNo. 16–AA–751,16–AA–751
Parties CLARK CONSTRUCTION GROUP, LLC, et al., Petitioners v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Darrell Banks, Intervenor.
CourtCourt of Appeals of Columbia District

163 A.3d 768

CLARK CONSTRUCTION GROUP, LLC, et al., Petitioners
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,
and
Darrell Banks, Intervenor.

No. 16–AA–751

District of Columbia Court of Appeals.

Submitted May 10, 2017
Decided July 13, 2017


Sarah M. Burton was on the brief for petitioners.

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

David J. Kapson was on the brief for intervenor.

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

Reid, Senior Judge:

Opinion by Associate Judge McLeese, concurring in part and dissenting part, at page 776.

Petitioners, Clark Construction Group, LLC, and Zurich North America ("Clark Construction"), seek review of the Decision and Order of the Compensation Review Board ("CRB") affirming the Administrative Law Judge's ("ALJ") Compensation Order on Remand; the order concerned the claim of Intervenor, Darrell Banks, who suffered an injury at work on March 7, 2013. Clark Construction, Mr. Banks' employer at the time of his injury, contests the CRB's determination that: 1) Mr. Banks' medical conditions, namely his lumbar spine (lower back) and cervical spine (neck) complaints, are causally related to the work accident, and 2) Mr. Banks is entitled to temporary total disability benefits from February 14, 2014, onward. For the reasons stated below, we affirm the decision of the CRB.

FACTUAL SUMMARY

A formal hearing regarding Mr. Banks' claim for workers' compensation benefits was held on January 15, 2015, before an ALJ. The ALJ issued a Compensation Order, dated March 31, 2015, following the hearing. These documents show the following. Mr. Banks worked for Clark Construction as a pile driver for approximately seven years. As a pile driver, Mr. Banks' expertise was "highly specialized" and his "usual work duties required walking, lifting

163 A.3d 772

and heavy labor." On March 7, 2013, he sustained an injury after slipping on wet clay and striking a "boulder-like dirt hump." He testified that he had a chainsaw in his hands, his "head snapped back and [he was] trying to hold the chainsaw so that it [did]n't cut [him]." His "feet went out from under" him. He hit the hump below his neck, in between his shoulder blades, and also hit his back "[r]ight above [his] belt." He was treated at Clark Construction's clinics in March and April 2013. His neck and upper back were hurting at the time but he did not mention his neck because the pain in that area was not as severe as his lower back pain, and he was "trying to go back to work." He was treated by Dr. Joshua Anderson in December 2013; Dr. Anderson ordered an MRI of the lumbar spine. Clark Construction informed Mr. Banks that they would still pay him if he showed up for work and refrained from filing a workers' compensation claim. While Mr. Banks continued to show up for work, the work required no physical exertion and he was eventually laid off in May 2013 due to "lack of work." Mr. Banks worked for another company, Berkel, intermittently from September 2013 to December 2013; that job required no physical exertion, but he was "periodically laid off due to lack of pile driver work" and to date "has not returned to the full duties of his pre-injury employment."

Between February and December 2014, Mr. Banks saw Dr. Godwin Darko at MedStar Washington Hospital Center Support Services; at that time Mr. Banks used a cane to ambulate because of severe leg pain. In June 2014, Mr. Banks saw Dr. Michael E. Batipps, a neurologist; he complained of neck pain and informed Dr. Batipps that upon falling on the day of the 2013 work accident, he "had immediate sensation of sharp shooting pain that radiated from his neck down his back."1 Dr. Batipps diagnosed Mr. Banks with a "lumbar disc herniation with nerve root impingement; he prescribed EMG and NCV studies, a cervical MRI, physical therapy and medication." Clark Construction ordered an independent medical evaluation by Dr. Clifford Hinkes. After mentioning Mr. Banks' treatment by Clark Construction's clinics, and Doctors Anderson, Darko, and Batipps, Dr. Hinkes disagreed with Dr. Batipps' diagnosis and thought that the cervical MRI was unnecessary.2 In November 2014, neurosurgeon Dr. Jason Garber, who prepared a Utilization Review report, reviewed record documents, and concluded that the study recommended by Dr. Batipps "would be helpful to evaluate [Mr. Banks'] current complaints of neck pain," but he did "NOT believe this study is care reasonably required to address the sequelae of the compensable event."

163 A.3d 773

In her Compensation Order ("CO"), the ALJ found that Mr. Banks' lower back complaints were causally related to his work injury.3 The ALJ also found that Mr. Banks' neck complaints were not related to his work injury.4 Further, the ALJ concluded that he was not entitled to temporary total disability benefits because he was laid off for economic reasons and had found other work that he could perform.

Both parties appealed the order to the CRB. The CRB issued a Decision and Remand Order ("DRO"), affirming that Mr. Banks' lumbar condition was causally related to his work injury, but vacating the CO on the issues of Mr. Banks' neck complaints and the denial of temporary total disability benefits. After reviewing and referencing this court's case law regarding the presumption of compensability, the CRB concluded that "the mere statement of a physician's opinion in opposition to the presumption is not sufficient to overcome the presumption," and that "Dr. Hinkes's opinion ... is so spare a discussion as to fairly be characterized as being ‘unaccompanied by a discussion of the reasoning upon which it is based.’ " Furthermore, the CRB declared: Dr. Hinkes' "opinion ... is ambiguous. It is not clear whether Dr. Hinkes feels the cervical MRI is not necessary medically, or that it is not related to the accident."5 On December 31, 2015, the ALJ issued a Compensation Order on Remand ("COR"), finding that Mr. Banks' injuries to the neck and lower back were both causally related to the work injury; after reviewing the record evidence, the ALJ awarded Mr. Banks temporary total disability benefits from February 4, 2014, "through the present and continuing." On June 28, 2016, the CRB affirmed the COR in its Decision and Order. Clark Construction filed a timely appeal to this court.

ANALYSIS

The review of the CRB's final order is limited to the determination of whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Reyes v. District of Columbia Dep't of Emp't Servs. , 48 A.3d 159, 164 (D.C. 2012) (internal quotation marks omitted). While our review looks at the final order of the CRB, "we cannot ignore the compensation order [of the ALJ] which is the subject of the Board's review." Georgetown Univ. Hosp. v. District of Columbia Dep't of Emp't Servs. , 916 A.2d 149, 151 (D.C. 2007). "We will affirm the CRB's decision if (1) the agency made findings of fact on each contested material factual issue, (2) substantial evidence supports each finding, and (3) the agency's conclusions of law flow rationally from its findings of fact."

163 A.3d 774

Reyes , supra , 48 A.3d at 164 (internal quotation marks omitted). Substantial evidence consists of "relevant evidence such as a reasonable mind might accept as adequate to support a conclusion." Fluellyn v. District of Columbia Dep't of Emp't Servs. , 54 A.3d 1156, 1160 (D.C. 2012) (internal quotation marks omitted). "Our review ... is limited, and [w]here there is substantial evidence to support the [CRB's] findings ... then the mere existence of substantial evidence contrary to that finding does not allow this court to substitute its judgment for that of the [CRB]." Potomac Elec. Power Co. v. District of Columbia Dep't of Emp't Servs. , 77 A.3d 351, 354 (D.C. 2013) (internal quotation marks omitted).

Causal Relation to Work–Related Event

A. Presumption of Compensability for Neck Complaints

Clark Construction first argues that Dr. Hinkes' evaluation was sufficient to rebut the presumption of compensability, and that the CRB erred in finding that it failed to rebut the presumption of compensability for Mr. Banks' neck injury based on the evaluation of Dr. Hinkes. Under the District of Columbia Workers' Compensation Act, where the claimant presents some evidence of a work-related event that has the potential to contribute to his disability, "the statutory presumption operates to establish a causal connection between the disability and the work-related event, activity, or requirement, such that the disability is compensable." Washington Post v. District of Columbia Dep't of Emp't Servs. , 852 A.2d 909, 911 (D.C. 2004) (internal quotation marks omitted). "This presumption serves to effectuate the humanitarian purpose of the statute [and] reflects a strong policy favoring awards in arguable cases."...

To continue reading

Request your trial
3 cases
  • Farmer-Celey v. State Farm Ins. Co., 14–CV–793
    • United States
    • D.C. Court of Appeals
    • 13 Julio 2017
    ... ... Bank of Wash. v. Allied Consulting Servs. , 571 A.2d 1166, 1167–68 (D.C. 1990) ... Washington, DC 20032 ... Mailing address: ... 1829 Oak ... ...
  • Hughes-Turner v. Dist. of Columbia Dep't of Emp't Servs.
    • United States
    • D.C. Court of Appeals
    • 14 Julio 2022
    ...from engaging in the only type of gainful employment for which [the claimant] is qualified." Clark Constr. Grp., LLC v. District of Columbia Dep't of Emp. Servs. , 163 A.3d 768, 776 (D.C. 2017) (emphasis and internal quotation marks omitted). Temporary partial benefits are capped at five ye......
  • Metro Fire Prot. v. D.C. Dep't of Emp't Servs.
    • United States
    • D.C. Court of Appeals
    • 3 Mayo 2018
    ...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 ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT