FERREIRA v. DIST. OF COL. DEPT. OF EMP., 94-AA-26

CourtCourt of Appeals of Columbia District
Citation667 A.2d 310
Docket NumberNo. 94-AA-26,94-AA-26
PartiesMaria FERREIRA, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and B & B Caterers and Firemans Fund Insurance Company, Intervenors.
Decision Date05 October 1995

APPEAL FROM THE COURT OF APPEALS, MACK, J.

Edward L. Norwind, Washington, DC, for petitioner.

Erias A. Hyman, Acting Corporation Counsel at the time the statement in lieu of brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, and Donna M. Murasky, Assistant Corporation Counsel, were on the statement in lieu of brief for respondent.

William P. Dale with whom Charles F. Fuller, Bowie, MD, was on the brief, for intervenors.

Before WAGNER, Chief Judge, and KING, Associate Judge, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

Petitioner, Maria Ferreira, a waitress and assistant equipment manager at B & B Caterers, filed a workers' compensation claim under the District of Columbia Workers' Compensation Act, D.C.Code §§ 36-301 et seq. (1993 Repl.), claiming that she sustained a disabling injury in the course of her employment with B & B Caterers. The Department of Employment Services ("DOES") denied her claim for workers' compensation and found that the worsening of her degenerative cervical and lumbar disk disease was due to the natural progression of a degenerative disease rather than from the aggravation of a preexisting condition in the course of employment. Because DOES' decision is supported by substantial evidence, we affirm.

I.

Petitioner worked as a waitress for B & B Caterers ("B & B") from 1980 to early 1983. Her job initially consisted of waiting on tables and lifting heavy dishes, boxes, and glass punch bowls. B & B promoted her in 1982 to assistant equipment manager. This job enabled her to direct other workers to lift the heavy objects. Petitioner asserted, however, that she still lifted heavy objects frequently. According to petitioner, she began experiencing discomfort in her neck and the right side of her shoulder and arm in the fall of 1982; and her condition deteriorated and she subsequently terminated her employment at B & B. In 1983, petitioner had surgery to remove a ruptured disk in her spine. She then obtained a job as a security guard for Pinkerton Detective Services. She stated she continued to have spinal difficulties, which required further surgery and, in June 1984, her doctors advised her not to return to work.

In 1983, petitioner filed a workers' compensation claim against B & B for total temporary disability benefits from February 21, 1983 through May 1, 1984, and permanent disability benefits beginning May 1, 1984. She asserted that the heavy lifting associated with her position at B & B caused her spinal disability. DOES denied her claim for benefits finding from the evidence which the hearing examiner credited, that petitioner did not suffer traumatic injury on October 28, 1982, and that this was the sole basis of her claim.

In her findings of fact, the hearing examiner declined to credit petitioner's testimony that she injured her neck while lifting a silver chafing dish weighing approximately 75 pounds. The hearing examiner stated that petitioner's statements "regarding previous symptoms, the incident, whom she advised of the incident and how she felt afterwards," were inconsistent. Furthermore, the hearing examiner credited the testimony of four witnesses who stated that petitioner had not related to them that she had suffered a specific work injury. It was further found that there was no credible evidence to support her claim that she had suffered a specific traumatic injury.

This court reversed the DOES finding because the agency failed to provide petitioner with the statutory presumption of compensability, erroneously required petitioner to point to a "specific traumatic injury" as the cause of her disability, and failed to consider alternative work-related causes of petitioner's disability. Ferreira v. District of Columbia Dep't of Employment Serv., 531 A.2d 651, 655-57 (D.C. 1987) (Ferreira I). This court directed DOES to conduct further proceedings on the question of "whether the employer can establish by substantial evidencethe non-employment basis of petitioner's disability" keeping in mind that " 'an aggravation of a preexisting condition may constitute a compensable accidental injury under the [Workers' Compensation] Act' . . . [even] if petitioner's disability 'arose even in part out of and in the course of [her] employment.' " Id. at 660.

On October 19, 1988, a hearing examiner for DOES issued a Compensation Order on Remand which found that petitioner was diagnosed with degenerative cervical and lumbar disk disease in 1976. From the time of the diagnosis to the hearing, she had consistently complained of neck, shoulder and arm pain with stiffness, and her condition had gradually worsened. The hearing examiner found that petitioner failed to proffer any credible evidence that her disability was work-related, other than the October 28, 1982 incident.1 The hearing examiner concluded that petitioner's disability was "the result of a natural progression of her degenerative cervical and lumbar disease." In rejecting petitioner's argument that the 1982 lifting incident caused her asymptomatic condition to become symptomatic, and thus aggravated a preexisting condition, the hearing examiner found that the weight of the evidence, which consisted of continuous medical visits to correct her condition since 1976, demonstrated that her condition had been deteriorating since the original diagnosis in 1976. Thus, the hearing examiner concluded that an alleged employment injury did not contribute to her degenerative cervical disability. See Ferreira I, supra, 531 A.2d at 660 (noting that if petitioner's condition " 'arose even in part out of the course of [her] employment' compensation is appropriate").

Petitioner appealed the compensation order to the Office of the Director of DOES. On December 20, 1993, the Director affirmed the hearing examiner's denial of compensation and agreed that "[d]espite [petitioner's] insistence that she remained asymptomatic until October 1982, record evidence reflects a natural progression of a deteriorating disease. Furthermore, any residual discomfort is also attributed to the natural progression of the disease."

II.

When reviewing an agency decision on appeal, this court inquires:

(1) whether the agency has made a finding of fact on each material contested issue of fact; (2) whether substantial evidence of record supports each finding; and (3) whether conclusions legally sufficient to support the decision flow rationally from the findings.

Cruz v. District of Columbia Dep't of Employment Serv., 633 A.2d 66, 70 (D.C. 1993) (citations omitted). Substantial evidence is defined as " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " James v. District of Columbia Dep't of Employment Serv., 632 A.2d 395, 397 (D.C. 1993) (citations omitted). We will affirm the agency's findings of fact and conclusions of law as long as they are supported by "substantial evidence" notwithstanding that there may be contrary evidence in the record (as there usually is). D.C.Code § 1-1509(e) (1992 Repl.); see Cruz, supra, 633 A.2d at 70. Moreover, an agency need not explain why it credited one witness over another. Spartin v. District of Columbia Dep't of Employment Serv., 584 A.2d 564, 571 (D.C. 1990).

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) (1993 Repl.). "To rebut the presumption the employer must show by substantial evidence that the disability did not arise out of and in the course of the employment." Baker v. District of Columbia Dep't of Employment Serv., 611 A.2d 548, 550 (D.C. 1992) (citing Ferreira I, supra, 531 A.2d at 655). This court has also held that "an aggravation of a preexisting condition may constitute a compensable accidental injury under the [Workers' Compensation] Act."Ferreira I, supra, 531 A.2d at 660 (citation omitted). "The fact that other, nonemployment related factors may also have contributed to, or additionally aggravated [petitioner's] malady, does not affect [the] right to compensation under the aggravation rule." Id. (internal quotations omitted) (quoting Hensley v. Washington Metro. Area Transit Auth., 210 U.S.App.D.C. 151, 155,...

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