Ferreira v. DC DEPT. OF EMPL. SERVICES

• Citation: 531 A.2d 651
• Decision Date: 30 September 1987
• Docket Number: No. 85-1585.,85-1585.
• Court: D.C. Court of Appeals
• Parties: Maria FERREIRA, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES (WORKERS' COMPENSATION), Respondent. B & B Caterers, et al., Intervenors.

531 A.2d 651

Maria FERREIRA, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES (WORKERS' COMPENSATION), Respondent.

B & B Caterers, et al., Intervenors.

No. 85-1585.

District of Columbia Court of Appeals.

Argued February 5, 1987.

Decided September 30, 1987.

Edward L. Norwind, with whom Lynn Suzanne Spradley, Washington, D.C., was on brief, for petitioner.

Russell E. Bond, with whom Denise Jakabcin Tassi, Washington, D.C., was on brief, for respondent-intervenors B & B Caterers and Firemans Fund Ins. Co.

Before MACK, NEWMAN and FERREN, Associate Judges.

MACK, Associate Judge:

By order dated October 29, 1985, the Department of Employment Services ("DOES") denied petitioner's claim for compensation under the District of Columbia Workers' Compensation Act. D.C.Code §§ 36-301 to -345 (1981 & 1987 Supp.) (the "Act"). DOES determined that petitioner failed to establish by credible evidence that a "specific traumatic injury" at B & B Caterers ("B & B") resulted in her severe cervical spine disability. Since the Act does not require proof of a "specific traumatic injury" as the basis for compensation and since DOES improperly disregarded the statutory presumption of causality, D.C.Code § 36-321 (1981), we reverse and remand.

I.

Petitioner enjoyed a reputation as a conscientious and cooperative worker for B & B Caterers where she was first employed as a waitress. Her duties included setting up tables and chairs for parties, serving as a waitress during functions, and cleaning up. In preparation for the functions, petitioner was also required to lift heavy chafing dishes, wood boxes, and glass punch bowls. In the summer of 1982, petitioner was promoted to assistant equipment manager. Petitioner's supervisor indicated that her promotion was in part motivated by his desire to enable her to direct other workers to help her lift heavy objects. Despite the promotion, petitioner was still compelled to lift objects "all the time."

In the fall of 1982, petitioner began experiencing pain in the right side of her neck, her right shoulder and arm. Petitioner's supervisor recalled that petitioner complained of discomfort in those areas sometime in the last quarter of 1982 or early 1983. After attempting to alleviate the pain through home remedies, petitioner went to a Doctor Ford on December 28, 1982. Doctor Ford's records indicate that petitioner pinpointed the start of the pain at some two to three months before the December office visit.

Although petitioner was treated with anti-inflammatory agents, her condition continued to deteriorate. On February 21, 1983, petitioner terminated her employment at B & B, and was admitted to the Washington Adventist Hospital the following day. While in the hospital, petitioner's supervisor recommended that petitioner file a workers' compensation claim, recognizing the possible employment basis of petitioner's injuries. A myelogram and cervical laminectomy were subsequently performed by a Doctor Polanco. During surgery, a ruptured disc from petitioner's cervical spine was removed.

After recovery from the surgery, petitioner was employed as a security guard for Pinkerton Detective Service. Petitioner terminated her work with Pinkerton in April, 1984, after falling and injuring her knee. Throughout her year of employment with Pinkerton, petitioner was treated for spinal difficulties. At the time of her resignation from Pinkerton, she suffered persistent pain radiating from her neck to both shoulders and arms. Further surgery was performed in May and June, 1984, and petitioner was then diagnosed as having degenerative cervical and lumbar disk disease. Her physicians instructed her not to return to work.

Sometime in 1983, petitioner filed a claim with the Department of Employment Services alleging that she sustained a disabling injury caused by "a severe lifting requirement while performing as an assistant manager in the equipment department of B & B Caterers." Petitioner sought temporary total disability benefits for the period between February 21, 1983, and May 1, 1984, and permanent total disability benefits subsequent to May 1, 1984.

At the start of the July 10, 1985 hearing, the hearing examiner isolated five disputed issues. The first issue was "whether claimant suffered a work injury on October 28, 1982," and the fifth issue was "whether claimant suffered an accidental injury within the meaning of the Act." Petitioner testified that her neck injuries were precipitated by lifting a 70-80 pound chafing dish while working at B & B on October 28, 1982.¹ A fellow employee testified that petitioner never complained to him of any specific lifting episode resulting in her injuries. B & B's record keeper testified that petitioner filed no report of an injury in October or November of 1982.

In addition to that testimony, DOES had the benefit of hundreds of pages of documentary evidence from the numerous physicians who attended petitioner and from two consulting physicians hired by B & B's insurer. That evidence revealed that, in 1976, petitioner underwent neck surgery to alleviate lower back pain. In the two years that followed, petitioner was treated for further spinal difficulties. All four physicians who treated petitioner acknowledged that her past history of spinal impairment was a factor in her current disability. Nevertheless, all four indicated that heavy lifting at B & B at least aggravated the previous injury.² One of the physicians hired by the insurer indicated that half of petitioner's disability could be attributed to the 1976 injury and half to the work at B & B.³ A Dr. Feffer, who testified on behalf of the insurer at the hearing, gave his opinion that petitioner's condition was a gradual degenerative process and that the deterioration petitioner experienced was the natural result of the 1976 surgical intervention.

In its order, DOES discredited petitioner's testimony that a specific lifting incident occurred on October 28, 1982. DOES' analysis focused almost entirely on the discrepancies between the statements petitioner made at the hearing, and those she made in the months immediately following the onset of the pain, when she stated she could not remember the exact date or precise trauma resulting in the injury. Finding that petitioner failed to specify an employment-related basis other than a specific traumatic injury occurring on October 28, 1982, DOES denied petitioner's request for compensation.

II.

The District of Columbia Workers' Compensation Act of 1979, like its 1928 predecessor, was enacted to provide a reasonably quick and efficient manner to compensate employees for disabilities resulting from employment-bred injuries.⁴ Employees and employers were both thought to gain by a system in which common law tort remedies were discarded for assured compensation regardless of negligence or fault. While it can hardly be gainsaid that in this day and age of complex medical disorders and tremendous job mobility, the fair adjudication of claims is sometimes slow and technical, the smooth operation of the system can only be ensured by some procedural informality, an ad hoc consideration of each set of facts, and a strict attention to the focus of a workers' compensation inquiry. The decision on review here suffers from several fatal deficiencies.

A.

The first flaw in the decision on review is its failure to provide petitioner with the benefit of the statutory presumption of compensability. In this jurisdiction, there is a presumption that a "claim comes within the provisions of this the Workers' Compensation chapter." D.C.Code § 36-321(1) (1981); Dunston v. District of Columbia Dep't of Employment Services, 509 A.2d 109, 111 (D.C. 1986). This sound presumption, designed to effectuate the humanitarian purposes of the statute, reflects a "strong legislative policy favoring awards in arguable cases." Wheatley v. Adler, 132 U.S.App.D.C. 177, 183, 407 F.2d 307, 313 (1968) (en banc), cited in Dunston, supra, 509 A.2d at 111; see Hensley v. Washington Metropolitan Area Transit Authority, 210 U.S.App.D.C. 151, 154, 655 F.2d 264, 267 (1981) (the presumption is "but one indication of the `humanitarian nature' of the Act generally"), cert. denied, 456 U.S. 904, 102 S.Ct. 1749, 72 L.Ed.2d 160 (1982). The Act "is to be construed liberally for the benefit of employees and their dependents." J.V. Vozzolo, Inc. v. Britton, 126 U.S.App.D.C. 259, 262, 377 F.2d 144, 147 (1967); see Champion v. S & M Traylor Bros., 223 U.S.App.D.C. 172, 174, 690 F.2d 285, 287 (1982) (Act is to be liberally construed in accordance with its purpose).

While the purpose and origin of the presumption make its scope somewhat obscure, some points are generally accepted. In order to benefit from the presumption, a claimant needs to make some "initial demonstration" of the employment-connection of the disability. 1 A. LARSON, WORKMEN'S COMPENSATION LAW § 10.33 at 3-138 (1986) (hereinafter "Larson"). The initial demonstration consists in providing some evidence of the existence of two "basic facts": a death or disability and a work-related event, activity, or requirement which has the potential of resulting in or contributing to the death or disability. See Naylor v. Grove Construction Company, H & AS No. 83-163, DOES Final Order at 8 (DOES, August 1, 1984). The presumption then operates to establish a causal connection between the disability and the work-related event, activity, or requirement.⁵ Swinton v. J. Frank Kelly, Inc., 180 U.S.App.D.C. 216, 223, 554 F.2d 1075, 1082 (the "presumption applies as much to the nexus between an employee's malady and his employment activities as it does to any other aspect of a claim"), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976).

Once the presumption is triggered, the burden is upon the employer to bring forth "substantial evidence" showing that death or disability did not arise out of and in the course of employment. Hensley, sup...