Davis-Dodson v. Department of Employment

• Decision Date: 17 July 1997
• Docket Number: No. 96-AA-37.,96-AA-37.
• Citation: 697 A.2d 1214
• Parties: Ethyln W. DAVIS-DODSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Bureau of National Affairs and Royal Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

697 A.2d 1214

Ethyln W. DAVIS-DODSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Bureau of National Affairs and Royal Insurance Company, Intervenors.

No. 96-AA-37.

District of Columbia Court of Appeals.

Argued January 8, 1997.

Decided July 17, 1997.

Karen L. Tibbs, Omaha, NE, for petitioner.

Alfred F. Belcuore, Washington, DC, for intervenors.

David O. Godwin, Jr., Washington, DC, and Bruce A. Levine, Fairfax, VA, were on the brief for intervenors.

Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Before WAGNER, Chief Judge, STEADMAN, Associate Judge, and MACK, Senior Judge.

STEADMAN, Associate Judge:

In 1987, petitioner Ethyln W. Davis-Dodson suffered a work-related aggravation of a pre-existing but previously asymptomatic back condition. For about four years, she received partial compensation under the District of Columbia Worker's Compensation Act, D.C.Code §§ 36-301 to -345 (1982). She appeals a decision of the District of Columbia Department of Employment Services ("DOES") denying her claim for any benefits subsequent to December 2, 1991.

A DOES hearing examiner found (1) that the present condition of her back was due to the natural progression of a pre-existing degenerative lower back disease rather than from the 1987 aggravation of that pre-existing condition suffered in the course of employment, and (2) that, in any event, her condition is not now disabling in that she can work full-time.¹ On appeal, petitioner argues (1) that the hearing examiner failed to properly apply the statutory presumption of compensability for work-related injuries, and (2) that the decision was unsupported by substantial evidence. We agree with petitioner's first argument and in part with her second. Accordingly, we remand the case for further proceedings.

I. FACTUAL BACKGROUND

Petitioner was employed by the Bureau of National Affairs ("BNA") in a variety of sedentary positions, most recently as a research assistant, for approximately twenty years. It is not disputed that on May 22, 1987, she experienced a work-related injury when, after sitting for several hours, she developed severe pain in her lower back. Medical examinations revealed a pre-existing degenerative lumbar disc disease which had remained asymptomatic until aggravated on that particular occasion. Dr. Lewis Marshall, her treating physician at the time, released her to return to work on June 22, 1987, with a medically imposed restriction that she not work for longer than a half day. These work hours were later extended to five and then six hours per day by March of 1988. She returned to her usual employment by September of 1988 on a part-time basis, and continued as such to the time of her claim.²

Shortly after her disability benefits were terminated in mid-December of 1991, petitioner filed a claim under the Act with the DOES for benefits from December 16, 1991 to the present.³ In support of her claim she offered the deposition of Dr. Gary Dennis, who treated her from January of 1988 through 1992. Dr. Dennis testified that her degenerative disc problem was not symptomatic before the aggravating incident in 1987. He observed that since her symptoms originated, petitioner's condition occasionally improved or worsened in relation to stress with "intermittent severe episodes of pain." However, he opined that despite periods of exacerbation, her overall condition has remained constant. Dr. Dennis concluded that she could not work in her position for longer than six hours per day.

In rebuttal, BNA offered a report by Dr. John B. Cohen, an orthopedic surgeon who conducted an independent medical evaluation based on a review of the record and an examination conducted in March of 1992. The "Discussion" portion of that report read in its entirety as follows:

This lady's complaints of low back pain are subjective in nature, but are consistent with degenerative disc disease, complicated by her obesity. She has not had an aggressive work hardening program, and in light of her obesity, is not a really good candidate for one. She has not been treated with oral anti-inflammatories and, instead, takes Parafon Forte p.r.n. I see no reason why she cannot work 8 hours a day. She will have intermittent episodes of low back pain, which may require periods of rest and anti-inflammatory care.

I think the real question here is did she suffer a back injury as a result of sitting for 3-1/2 hours. Sitting does not cause lumbar disc disease. There is no history of a traumatic injury and this lady's body habitus is undoubtedly a contributing factor to her degenerative disc disease. Her prognosis is fair, in light of her chronic complaints of pain, but I should note that she has been working 5 hours a day for a long period of time and I see no reason why she cannot increase it to 8 hours a day.

The hearing examiner found that the disability resulting from "the May 22, 1987 aggravation of claimant's pre-existing degenerative disc disease resolved on or before December 2, 1991," and that "claimant's present condition is causally related to the progress of her degenerative disease," rather than to the 1987 aggravating incident. As a result, petitioner's current condition was found to be noncompensable. Alternatively, the hearing examiner found that even if petitioner's current back pain were causally related to the 1987 aggravation, her present condition was not disabling because she was capable of performing her duties on a full-time basis.

Petitioner filed an Application for Review with the Office of the Director of DOES on April 29, 1994. The Compensation order was affirmed by the Director on December 21, 1995. He observed that the medical record was devoid of substantial evidence showing a causal link between the aggravation and petitioner's present symptomatologies of chronic back pain, and that the flexibility in her sedentary position bolstered the finding that she could work full-time. Petitioner now seeks review in this court pursuant to D.C.Code § 36-322(b)(3).

II. THE PRESUMPTION

A.

We begin our review with an examination of the hearing examiner's ruling that petitioner's present condition is unrelated to the 1987 work event, because if and to the extent that ruling is correct, petitioner has no present or future rights to any benefits subsequent to December 1991. Petitioner's attack upon that ruling focuses upon an asserted nonapplication of the presumption of compensability.

Under the Workers' Compensation Act, once a claimant demonstrates a work-related event and a subsequent disability, there is a presumption that the claim comes within the provisions of the Act. D.C.Code § 36-321(1). As this court has explained, "the statutory presumption operates to establish a causal connection between the disability and the work-related event." Baker v. District of Columbia Dep't of Employment Services, 611 A.2d 548, 550 (D.C.1992). "In order to invoke the presumption, a claimant must provide `some evidence of the existence of two "basic facts": (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.'" Parodi v. District of Columbia Dep't of Employment Services, 560 A.2d 524, 526 (D.C.1989).⁴

To rebut the presumption of work-relatedness "the employer must show by substantial evidence that the disability did not arise out of and in the course of the employment." Baker, supra, 611 A.2d at 550. "Absent employer evidence `specific and comprehensive enough to sever the potential connection between a particular injury and a job-related event,' the compensation claim will be deemed to fall within the purview of the statute." Parodi, supra, 560 A.2d at 526 (quoting Ferreira, 531 A.2d at 655).

Petitioner contends that the hearing examiner failed to apply the presumption to her medical condition as it existed after December 2, 1991. She refers to a portion of the order which stated that "notwithstanding the finding that claimant's preexisting condition was aggravated by her employment on or about May 22, 1987, claimant must also establish by substantial evidence the continuing nature of said aggravation." Petitioner is correct that this statement is not in accord with the applicable law.

Once a causal connection is shown between a disability and a work-related event, a claimant is entitled to a continuing presumption that the ongoing manifestation of such a disability remains the result of the prior job-related injury until rebutted by substantial evidence presented by the employer. We so held in Whittaker v. District of Columbia Dep't of Employment Services, 668 A.2d 844, 846-47 (D.C.1995). In that case, petitioner had been injured in a job site accident which aggravated a pre-existing degenerative arthritis in his right knee, a condition which had until then remained asymptomatic. His benefits were terminated after three years, at which time he filed a claim with DOES for the continuation of temporary total disability benefits. The agency denied his claim because he failed to show "that his continuing loss of wages was the result of the exacerbation of his pre-existent condition rather than . . . a result of the natural progression of the arthritic condition." Id. at 845. We reversed, holding that the presumption applied to the causal relationship not just between the original injury and the employment but between the current disabling condition and the employment. Id. at 846. See also Baker, supra, 611 A.2d at 550 (requiring a presumption that claimant's lower back disability was causally related to an earlier job-related accident rather than solely to his pre-existing osteoarthritis). The examiner is thus required "to view the causal relation between a present disability and a job-related injury through the lens, as it were, of the statutory presumption, unless the employer...