McKINLEY v. DEPARTMENT OF EMPLOYMENT SERVS., 95-AA-1323

• Decision Date: 26 June 1997
• Docket Number: No. 95-AA-1323,95-AA-1323
• Citation: 696 A.2d 1377
• Parties: Robert McKINLEY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and WJLA TV: Albritton Companies, et al., Intervenors.
• Court: D.C. Court of Appeals

696 A.2d 1377

Robert McKINLEY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OFEMPLOYMENT SERVICES, Respondent, and WJLA TV: Albritton Companies, etal., Intervenors.

No. 95-AA-1323.

District of Columbia Court of Appeals.

Argued March 25, 1997.

Decided June 26, 1997.

Benjamin T. Boscolo, Greenbelt, MD, for petitioner.

Charles L. Reischel, Deputy Corporation Counsel, and Charles F.C. Ruff, Corporation Counsel, at the time the statement was filed, filed a statement in lieu of brief, for respondent.

Stuart L. Plotnick, Silver Spring, MD, for intervenors.

Before FERREN and REID, Associate Judges, and MACK, Senior Judge.

REID, Associate Judge:

On January 10, 1991, petitioner, Robert McKinley, suffered an attack of acute ventricular tachycardia which he contended arose out of and in the course of his employment as an operating engineer at WJLA Television. He claimed that his attack was precipitated by the interaction of employment-induced stress with his pre-existing cardiac condition, hypertrophic cardiomyopathy, a congenital condition. A hearing examiner for the Department of Employment Services ("the agency") denied his claim for temporary total disability under the District of Columbia Workers' Compensation Act of 1979, D.C.Code §§ 36-301 et. seq. (1993 Repl.) ("the Act"), on the ground that he did not sustain an injury which arose out of and in the course of his employment. We affirm.

FACTUAL SUMMARY

In Fall 1984, Mr. McKinley discovered that he had a congenital heart condition, diagnosed as hypertrophic cardiomyopathy/ventricular tachycardia. In Spring 1985, and again in June 1986, he underwent cardiac medication tests to determine the most effective medication for his condition. The 1986 tests took place at the National Institutes of Health (NIH) where ventricular tachycardia (V-tach) was induced. During the tests, he went into cardiac arrest and, as Mr. McKinley explained, the doctors "used the electro padels to bring me back." He described this incident as "a very difficult experience, very traumatic." In May 1990, Mr. McKinley experienced heart palpitations, and was monitored by way of a holter. The results of the holter monitor showed "[n]o couplets or tachycardia beats" but Mr. McKinley reported "some sensations of rapid heart beating." Eventually, the drug Norpace was prescribed (400 mg. per dose).

On January 6, 1991, Mr. McKinley was ordered by his supervisor, Mr. Robert Currence, to operate a television camera moments before a broadcast was scheduled to begin. Mr. Currence yelled at Mr. McKinley, telling him that the schedule had been changed, and questioned why he did not review his schedule. After the broadcast, Mr. Currence continued to reprimand Mr. McKinley who became fearful of a physical assault. The following day Mr. McKinley arrived late to work and Mr. Currence had already left for the evening. Therefore, there was no contact between the two men. However, co-workers advised Mr. McKinley that Mr. Currence was angered and irritated by his tardiness.

Mr. McKinley did not work on January 8, 1991, but called his office for an unrelatedmatter. He did not speak with Mr. Currence, but someone advised him that Mr. Currence's criticism continued. On January 9, 1991, Mr. McKinley filed a union grievance against Mr. Currence, and informed his employer that he did not intend to return to work until the matter was resolved. This was his first complaint against Mr. Currence. On January 10, 1991, Mr. McKinley received a call from Mr. Michael Maher, a member of the station's management, notifying him that the complaint was under investigation and that he was expected to return to work. Mr. McKinley did not speak with Mr. Currence before or after Mr. Maher's call. Some time after the phone call Mr. McKinley ate dinner, and attended church with his family.

Later that evening while en route to work via Interstate 270 in Maryland, Mr. McKinley experienced lightheadedness, palpitations and dizziness. He pulled over to the side of the road until the symptoms abated. As he resumed his trip, his lightheadedness and palpitations recurred. He stopped at a gas station. An ambulance was called, and he was transported to Frederick Memorial Hospital where he was evaluated and treated. At the time of his attack, Mr. McKinley said he believed that his death was imminent.

Dr. Edward Riuli saw Mr. McKinley at Frederick Memorial on January 10 after his experience on 1-2-70. He found a regular heart beat and heard a "systolic murmur . . . at right external border." His assessment in part was "[p]alpitations, need to rule out recurrent ventricular tachycardia." He noted that "[Mr. McKinley] is uncertain whether [his reported palpitations were] actually true arrhythmias as he has had in the past, versus stress related palpitations." When Mr. McKinley saw his treating physician, Dr. Jeffrey Cowen after the highway incident, Dr. Cowen noted no arrhythmias. Nonetheless, Dr. Cowen equipped Mr. McKinley with a holter monitor on January 17 and 18, 1991. According to Dr. Cowen, the results of the holter test were "extremely benign. He had occasional PVCs, nothing worse." Dr. Cowen referred Mr. McKinley to a psychiatrist, Dr. Jeffrey Mendell. Mr. McKinley also was examined by doctors at NIH on January 30 and 31, 1991. Notations on those days by NIH doctors indicate that Mr. McKinley was "concerned [about] recent episode of palpitations and near syncope" and that "while driving" he reported "episodes of palpitations with dizziness." There is no reference to his place of employment or Mr. Currence, On February 25, 1991, Dr. Anne B. Cetnarowski-Cropp of NIH's Cardiology Branch, wrote, "Robert B. McKinley is a patient of the National Institutes of Health. After his physical examination on January 30th, I recommended to Mr. McKinley that he should be admitted to the Clinical Center for evaluation of an investigational medication for his medical condition." Mr. McKinley was scheduled to be readmitted to NIH on March 17, 1991, for a two week period to participate in tests involving the medication.¹

Mr. McKinley did not work between January 10 and February 15, as scheduled. Beginning around February 15, 1991, he went on a scheduled paternity leave for three months in connection with the birth of his new child, and did not return to work until May 16, 1991. On May 13, 1991, Dr. Lameh Fananapazir, head of the Electrophysiology Laboratory, Cardiology Branch, at NIH responded to a letter from Mr. McKinley which apparently inquired about his return to work. She wrote, "[i]n response to your letter of May 10, addressed to Dr. Cropp, this is to confirm that we believe you should be able to return to your employment, provided that you avoid heavy physical exertion or extraordinary emotional stress."

Mr. McKinley went to work on May 16, 1991, and met with officials at the television station. Mr. Currence did not work on that day, and had previously given up his position as a supervisor. After his meeting with station officials, another employee, Mr. John Hanson, reportedly told Mr. McKinley that Mr. Currence said "he couldn't wait to see me so he could put the fear of God into me and hoped I would die."² The record doesnot reveal any medical treatment on May 16. On June 6, 1991, Dr. Cowen saw Mr. McKinley and noted, "[h]e has had no palpitations, dizziness, syncope, chest discomfort [or] shortness of breath. . . . Patient appears to be doing quite well." The record before us reveals no other visit to Dr. Cowen by Mr. McKinley.

Mr. McKinley filed a claim for benefits under the District of Columbia Workers Compensation Act, seeking an award for temporary total disability under the Act, from January 10, 1991 to April 1992. In his answers to interrogatories, he claimed as his injuries, "a run of ventricular tachycardia, a cardiac dysfunction" and "post traumatic stress, an emotional injury." A full evidentiary hearing was held by the agency on November 19, and December 2, 1991. The hearing examiner articulated the following issues:

1. Whether claimant sustained an injury which arose out of and in the course of his employment.

2. The nature and extent of claimant's current disability, if any.

3. Whether claimant's current disability is causally related to his employment.

4. Whether claimant voluntarily limited his income.

Mr. McKinley was the only witness to testify in his behalf at the hearing. He provided an account of his experiences with Mr. Currence, the episode of January 10, 1991, the history of his heart condition, his psychotherapy treatment, and other matters. The company presented testimony by Mr. James Gilmore, Jr., a supervisor and Mr. John Tollefson, Vice President for Operations & Engineering at WJLA-TV. Mr. Gilmore gave his impressions of Mr. McKinley, and described the interaction between Mr. Currence and Mr. McKinley. He indicated that Mr. Currence had a "harsh" management style and often was called "Little Hitler." Mr. Gilmore said he "may have once" witnessed a personal confrontation between Mr. Currence and Mr. McKinley when Mr. McKinley reported to work late. According to him, in that confrontation Mr. Currenee "just rode [Mr. McKinley] for about the best part of an hour or so." When asked whether Mr. McKinley was "a sensitive individual," Mr. Gilmore responded, "I think that was basically because of his condition. If something was going wrong, most of us would be able to handle that amount of stress; whereby with him, he wouldn't exactly go to pieces, but it would bother him as the day wore on."

Mr. Tollefson, the Vice President for Operations & Engineering at WJLA-TV investigated Mr. McKinley's accusations of harassment against Mr. Currence. These accusations were detailed in a letter dated January 10, 1991.³ According to Mr. Tollefson's testimony, workers described Mr. Currence as a "strong supervisor." One employee said "he tended to act at times like a little drill sergeant, trying to keep all the troops...