Olson v. DC DEPT. OF EMPLOYMENT SERVICES

• Decision Date: 02 September 1999
• Docket Number: No. 98-AA-41.,98-AA-41.
• Parties: Katherine L. OLSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Georgetown University Hospital and Fireman's Fund Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

736 A.2d 1032

Katherine L. OLSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Georgetown University Hospital and Fireman's Fund Insurance Company, Intervenors.

No. 98-AA-41.

District of Columbia Court of Appeals.

Argued February 16, 1999.

Decided September 2, 1999.

Laura V. Berthiaume, Rockville, MD, for petitioner.

Michael D. Dobbs for intervenors.

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

Before FARRELL and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.

RUIZ, Associate Judge:

The sole issue presented by this appeal is whether petitioner, Katherine L. Olson, is entitled to temporary total disability benefits from September 16, 1996 to the present and continuing, as well as payment for all causally-related medical expenses, as a result of a June 14, 1993 hip injury she suffered while working as an intensive care nurse.¹ The Department of Employment Services (DOES) denied Olson's claim for benefits on the ground that her "current disability" was not causally related to her work injury.² Olson contends on appeal that the agency failed to make basic findings of fact on all material issues and to consider all of the evidence in the record. Upon review of the record, we affirm the agency's denial of petitioner's claim for temporary total disability benefits stemming from the Achilles tendinitis, but remand to the agency with instructions to conduct a more thorough evidentiary review on the issue of whether and to what extent Olson is entitled to disability benefits as a result of her ongoing S1 radiculopathy.

I.

On June 14, 1993, Olson, an intensive care nurse at Georgetown University Hospital, injured her left hip when she struck the corner of a wall while transporting a patient by stretcher to a CT scan. Following the accident, Olson's hip was bruised, but she did not immediately feel any pain in her left leg. Within a few days, however, she began to feel shooting pains radiating from her left hip to her left leg with numbness in the left leg. Olson did not report to work the day after she started experiencing pain and numbness in her left leg and was unable to return to her job as an intensive care nurse thereafter.³

Olson first saw Dr. Rosenberg, a rheumatologist, who diagnosed a left L5/S1 radiculopathy⁴ due to the work-related injury.⁵ In his treatment notes, Dr. Rosenberg stated that Olson had a history of tendinitis and low back pain. Additionally, he referred to Olson's intermittent left lumbar radiculopathy and indicated that, following an incident fifteen years earlier when Olson fell down steps and suffered a coccyx fracture, she also has had intermittent sciatic symptoms bilaterally. Further, he noted that two months prior to the incident alleged to have caused the disability in this case, Olson had noticed the return of the bilateral sciatic symptoms. Olson was a patient of Dr. Rosenberg⁶ until she was referred by her insurance company to Dr. Spiegel, an osteopath, for follow-up care.⁷ At the initial consultation on November 12, 1993, Olson did not inform Dr. Spiegel that she had had prior back and sciatica problems or that she had received treatment for her Achilles tendon from Dr. Rosenberg.⁸ Dr. Spiegel diagnosed "left sacroiliac joint dysfunction" resulting from the work injury and monitored Olson while she participated in a rehabilitation program which included work-hardening, physical therapy and vocational rehabilitation.⁹ Dr. Spiegel also administered numerous sacroiliac injections in the S1 joint.

On March 5, 1994, Olson began vocational rehabilitation after Dr. Spiegel determined that she would be physically unable to return to her job as an intensive care nurse. On May 11, 1994, she obtained a part-time job auditing medical records in several Maryland counties.¹⁰ Olson held this part-time job until September 16, 1996, when she developed acute Achilles tendinitis and was unable to continue working. Although Dr. Spiegel determined that the Achilles tendinitis resulted from an altered gait caused by the S1 radiculopathy, Georgetown terminated all worker's compensation benefits as of September 16, 1996.

In October 1996, Olson began using a cane for persistent left leg numbness.¹¹ The Achilles tendon improved by December 19, 1996, but Olson continued to experience radicular pain and sacroiliac joint dysfunction. Dr. Spiegel ordered electro-diagnostic studies and advised Olson not to return to work. On December 31, 1996, Dr. Ammerman reexamined Olson and found that she had "evidence of residual left S1 radiculopathy," but did not appear "disabled from returning to her medical auditing activity." Dr. Ammerman also informed Olson's insurance company that her recent bout with Achilles tendinitis was not related to the June 1993 work injury. Following the electrodiagnostic studies which revealed left S1 radiculopathy, Dr. Spiegel recommended several S1 nerve blocks and again advised Olson not to return to work. After the nerve blocks failed to alleviate the pain, Dr. Spiegel referred Olson to Dr. Michaels, an orthopedic surgeon, for a surgery consultation.¹²

On March 4, 1997, Dr. Michaels recommended a lumbar myelogram and a post-myelogram CT scan which revealed some degenerative disease, but no evidence of disc herniation. On May 12, 1997, Dr. Michaels reevaluated Olson and decided against surgical fusion, but suggested an implantable stimulator to manage her persistent lower back pain and intermittent leg pain. Dr. Michaels also stated that there was "no question" that Olson was unable to work as an intensive care nurse. Following Dr. Michael's surgery consultation, Dr. Ammerman reevaluated Olson and determined that, while she still had "residuals" of S1 radiculopathy, she was not disabled from nonarduous employment.¹³

At the July 21, 1997 hearing, the parties stipulated that Olson sustained a work-related injury and gave timely notice to her employer, and that Georgetown made voluntary temporary total and temporary partial disability payments to Olson during the period of June 14, 1993 to September 16, 1996. Olson also testified that, prior to her hip injury, she had not experienced any symptoms similar to the numbness and constant pain she has experienced since the injury.¹⁴ After the hearing, the record remained open until August 18, 1997, during which time both parties submitted additional medical records. Olson submitted a letter from Dr. Michaels in which he reported "within a reasonable degree of medical certainty" that Olson's symptoms were directly related to her June 1993 work injury.¹⁵ He further recommended "sedentary work" as long as driving time was restricted and lifting charts and sitting for long periods of time could be avoided.¹⁶ Georgetown submitted a letter from Dr. Ammerman stating that he had been unaware of Olson's prior history of lower extremity symptoms which suggested that her lumbar radiculopathy long pre-dated the June 1993 work incident.¹⁷ He also stated that Olson's past history of such symptoms raised questions "regarding any contribution of the 6/19/93 event and the patient's lumbar radiculopathy."

In denying Olson's benefits claim, the agency framed the issue as "whether [Olson's] Achilles tendinitis is medically causally related to the work injury of June 14, 1993." While recognizing the presumption of compensability, see D.C.Code § 36-321(1), the agency concluded that Georgetown had offered evidence sufficient to rebut the presumption that Olson's Achilles tendinitis was triggered by her 1993 work injury and denied her claim for relief. Although the compensation order also suggests that Olson's "current disability" is not causally related to the 1993 work injury, the order does not define "current disability," nor does it explicitly address Olson's claim that her ongoing S1 radiculopathy can be traced to the 1993 work injury.

II.

Under our "limited" review of agency decisions, we must affirm unless we conclude that the agency's ruling was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. D.C.Code § 1-1510(a)(3) (1999); Charles P. Young Co. v. District of Columbia Dep't of Employment Servs., 681 A.2d 451, 455-56 (D.C.1996). If there is substantial evidence in the record as a whole to support the decision of the Department, then "`our consideration of the case is at an end.'" Id. at 456 (quoting Shepherd v. District of Columbia Dep't of Employment Servs., 514 A.2d 1184, 1186 (D.C.1986)). "Substantial evidence means `more than a mere scintilla' and such that reasonable minds might accept [] as adequate to support a conclusion." Dominique v. District of Columbia Dep't of Employment Servs., 574 A.2d 862, 866 n. 3 (D.C.1990) (quoting Vestry of Grace Parish v. D.C. Alcoholic Beverage Control Bd., 366 A.2d 1110 (D.C. 1976)).

A. Achilles Tendinitis.

Olson challenges the agency's conclusion that the Achilles tendinitis she suffered between September 16, 1996 and December 19, 1996, was not causally related to her work injury. Petitioner asserts that this conclusion is based on an incorrect reading of the facts and is not supported by substantial evidence in the record. In denying Olson's claim for benefits, the agency relied on the fact that she suffered Achilles tendinitis prior to her 1993 work injury.¹⁸ After determining that neither the physical therapist nor Dr. Spiegel were aware of Olson's pre-1993 history of tendinitis, the agency discredited Dr. Spiegel's opinion that Olson's Achilles tendinitis was related to the 1993 work injury. The hearing examiner reached the conclusion that Dr. Spiegel was not aware of Olson's pre-1993 Achilles tendinitis from the fact that it was not mentioned in the August 30, 1995 physical therapy report, signed by the physical therapist and written on Dr. Spiegel's letterhead, which stated that prior to 1993,...