Georgetown University v. Dist. of Columbia Dept. of Employment Services, No. 07-AA-1258.

• Decision Date: 14 May 2009
• Docket Number: No. 07-AA-1258.
• Citation: 971 A.2d 909
• Parties: GEORGETOWN UNIVERSITY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Bernie Ford, Intervenor.
• Court: D.C. Court of Appeals

971 A.2d 909

GEORGETOWN UNIVERSITY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Bernie Ford, Intervenor.

No. 07-AA-1258.

District of Columbia Court of Appeals.

Argued January 28, 2009.

Decided May 14, 2009.

Jeffrey W. Ochsman, with whom Todd S. Sapiro, Washington, DC, was on the brief, for petitioner.

Pastell Vann, Senior Assistant Attorney General, and Peter J. Nickles, Interim Attorney General for the District of Columbia at the time the statement was filed, and Todd S. Kim, Solicitor General, and

Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of brief, for respondent.

Matthew J. Peffer, Greenbelt, MD, argued for intervenor.

Heather C. Leslie, was on the brief, for intervenor.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and BELSON, Senior Judge.

BELSON, Senior Judge:

In this petition for review of a decision and order of the Compensation Review Board ("CRB") of the District of Columbia Department of Employment Services ("DOES"), petitioner Georgetown University ("Georgetown") asks this court to vacate the agency's order granting intervenor Bernie Ford ("Ford") temporary total disability benefits and remand the case for reconsideration. We hold that the CRB has not adequately explained its rationale for granting temporary total disability benefits. We discuss the portions of the compensation order we deem inadequate in order to assist the agency in clarifying its decision upon remand. We vacate the compensation order, and remand the case to DOES for further proceedings consistent with this opinion.

I.

Georgetown employed intervenor Ford as a communications and dispatch patrol officer. On August 7, 2005, while on duty in the security and communications office at the Georgetown University Law Center, Ford left the office to use the restroom. On the way back from the restroom, he fell backward, twisting his left knee, hitting his head, and causing the handcuffs he was carrying to cut into his lower back.

Ford was promptly taken to the emergency room at the Georgetown University Hospital, received inpatient treatment at the Virginia Hospital Center one week later, and also underwent an MRI scan on August 15, 2005, that revealed a strain of the left knee. Ford sought treatment in late August 2005 from Dr. Fredric Salter, who diagnosed Ford with an acute lumbosacral strain and left knee contusion, prescribed physical therapy and restricted Ford from returning to work. Dr. Salter also referred Ford to a neurosurgeon, Dr. Bruce Ammerman, who concluded that Ford showed "posttraumatic cervical and lumbar radiculopathy secondary to the 08-07-05 fall."

Dr. Salter released Ford to light-duty employment beginning on February 20, 2006, but Ford instead returned to full duty on that date. Georgetown paid temporary total disability benefits through February 3, 2006, but refused to pay benefits for the two weeks thereafter. Ford filed a claim with DOES for temporary total disability benefits from February 4 to February 19, 2006, as well as the cost of a myelogram, and continuing medical treatment related to his injury.

The parties participated in a full evidentiary hearing before an Administrative Law Judge ("ALJ") on April 11, 2007. Ford testified that as he was coming back from the bathroom, "somebody opened the door" and there was "water on the floor" which he then slipped on. Ford further testified that prior to slipping he felt no unsteadiness in his left leg. Ford testified that he radioed for someone to "come mop the floor and put a wet floor sign," which, Ford said, Georgetown subsequently did.

Georgetown argued at the hearing that Ford was not entitled to temporary total disability benefits from February 4 through February 19, 2006, because (I) Ford's testimony that he slipped on water was not credible, and (ii) his fall resulted from his knee's giving way due to an idiopathic injury.¹ The evidence showed that Ford had experienced a series of workplace injuries beginning in 1998, and had reported continuing knee and back pain since that time. Ford had surgery on his left knee in 1998, and again on June 15, 2005. Ford had also sought treatment in 2004 for what he described as upper back pain.

Georgetown impeached Ford in an attempt to show that he did not slip on water, but rather fell because his knee gave out due to a pre-existing knee condition. Georgetown introduced Ford's treatment notes from his stay at the Virginia Hospital Center. Those treatment notes, dated August 14, 2005, state that Ford reported recently having left-knee surgery and, referring to his fall at issue of August 7, 2005, that he fell on his back due to "unsteadiness on knee." Georgetown introduced medical records which indicated that Ford's left knee had given way on previous occasions, and also gave way again in November 2005, approximately three months after his fall at Georgetown. Georgetown introduced a July 19, 2000, treatment record in which Ford had reported that he "fell when his left knee gave way." Ford testified at the hearing that the July 2000 and November 2005 incidents concerned his right knee. Georgetown also presented a document from April 2004 in which Ford reported that he had been experiencing pain in the "low back and legs ... with some giving way of the leg since that time." Ford denied that his leg gave way in April 2004, and generally denied having problems with his knee giving way.

The ALJ also heard expert medical evidence as to whether Ford's leg, back and headache symptoms following his August 7, 2005, fall were causally related to that fall or to his pre-existing medical problems. Ford introduced treatment reports showing that his lumbar pain was causally related to the fall. Georgetown introduced the report of an independent medical examiner indicating that the fall caused Ford "no additional internal derangement," and thus that his disability was not a product of his fall.²

The ALJ issued her compensation order on August 31, 2007. In her findings of fact, the ALJ found that Ford "slipped and fell on his way back to his duty station after visiting the restroom ... twisting his left knee" and suffering a "deep cut in his low back." The ALJ then acknowledged Ford's history of falls due to "back/leg weakness," and considered Georgetown's position that Ford's "predisposition to falling negates ... [its] liability for the consequences of the fall at work." The ALJ then assessed whether Ford's accident arose out of and in the course of employment. The ALJ concluded as follows:

In this case, there is evidence to invoke the presumption [of compensability] in the record testimony and medical evidence. Claimant's testimony describes slipping on water at work. Even if he did not slip on water, he was in the process of walking back to his duty station from the restroom; walking, standing, climbing, etc. are required activities for a campus police officer, and any of those activities has the potential to result in injury from a fall.

(Emphasis added.) The ALJ found that Ford had "adduced evidence ... to show that his described employment activities (specifically, walking back to his duty post from the restroom) either caused or significantly contributed to his fall ...." (emphasis added). On the basis of this evidence, the ALJ concluded that Ford was entitled to a rebuttable presumption that his injury arose out of and in the course of employment and was compensable.

The ALJ next examined whether there existed a medical causal relationship between Ford's fall and his knee and back conditions. The ALJ concluded that Georgetown had presented evidence that Ford's disability was unrelated to his August 2005 fall sufficient to rebut the presumption of medical causation. The ALJ then weighed the medical evidence without the benefit of the presumption. The ALJ concluded that Georgetown's evidence did not "persuasively contradict the existence of a causal connection between claimant's fall at work and his left knee and low back condition, which worsened after the fall." Accordingly, the ALJ granted Ford temporary total disability benefits for the period in question.

Georgetown thereafter appealed the ALJ's compensation order to the CRB. Georgetown maintained that, because Ford's testimony that he slipped and fell on water was not credible, substantial evidence supported the contrary finding that Ford's pre-existing knee condition (and its tendency to cause Ford's knee to give out), rather than any aspect of his employment, caused the fall. The CRB found that the ALJ properly concluded that Ford had invoked the presumption of compensability because Ford's "employment activities `specifically walking back to his duty post from the restroom' either caused or significantly contributed to the fall. ..." The CRB found no error in the ALJ's determination that Georgetown had rebutted the statutory presumption of a causal relationship between Ford's fall and his knee and back condition, but agreed with the ALJ that the medical evidence supported such a causal link. The CRB then voiced its disagreement with Georgetown's position that "idiopathic falls are generally not compensable," but in its holding parried that issue, stating that "an employee's disability is compensable if it arose `even in part' out of the course of his employment."

II.

In its petition for review, Georgetown argues that there is not substantial evidence that supports the agency's finding that Ford slipped and fell on water at the workplace, and that the ALJ erred in failing to explain why she credited Ford's account of his accident. Rather, Georgetown contends, the evidence showed that Ford fell when his left knee gave out, an idiopathic, non-compensable fall unrelated to a workplace event or condition.

Although Georgetown urges us to examine whether the ALJ erred in failing to explain why she credited Ford's version of events over his apparently conflicting medical...