Potomac Elec. Power Co. v. D.C. Dep't of Emp't Servs., 11–AA–1470.

• Decision Date: 03 October 2013
• Docket Number: No. 11–AA–1470.,11–AA–1470.
• Citation: 77 A.3d 351
• Parties: POTOMAC ELECTRIC POWER COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Michael A. Boone, Sr., Intervenor.
• Court: D.C. Court of Appeals

77 A.3d 351

POTOMAC ELECTRIC POWER COMPANY, Petitioner,

v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andMichael A. Boone, Sr., Intervenor.

No. 11–AA–1470.

District of Columbia Court of Appeals.

Argued Feb. 14, 2013.

Decided Oct. 3, 2013.

Shawn Nolen, with whom Kevin J. O'Connell, Washington, DC, was on the brief, for petitioner.

Irvin B. Nathan, Attorney General of the District of Attorney, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of a brief for respondent.

Michael J. Kitzman, Greenbelt, MD, for intervenor.

Before BECKWITH and McLEESE, Associate Judges, and RUIZ, Senior Judge.

BECKWITH, Associate Judge:

Potomac Electric Power Company (Pepco) petitions for review of a Compensation Review Board decision affirming a compensation order in favor of its employee, Michael A. Boone, Sr. The power company disputes that there was substantial evidence for the CRB to uphold an administrative law judge's conclusions (1) that Boone, who intervenes here, suffered from a lower back condition medically causally related to a workplace injury in May 1999 and (2) that surgery recommended by his doctor was reasonable and necessary to treat his condition. We disagree with Pepco and affirm.

Background

Michael Boone, a heavy equipment operator for Pepco, testified at a hearing in front of the ALJ that he hurt his lower back at work in November 1998,¹ took a few months off, and then returned to work the following year. Then, on May 25, 1999, Mr. Boone was lifting a 30– to 40–pound chain sling so that he could attach it to the hook of a crane when, according to him, “I felt something in my back, and that was all she wrote.” He said the May 1999 injury “aggravated” his injury from the year before, and after that he saw an orthopedic surgeon and a neurologist, was prescribed pain medication, was put in traction, and needed physical therapy for his lower back, including “dry needling” and transcutaneous electrical nerve stimulation (TENS) unit treatments. These treatments provided some relief but did not improve his condition, and the pain eventually spread to his left buttock. On cross-examination by Pepco's counsel, Mr. Boone acknowledged that he also later “aggravated” his back during lifting incidents in 2001 and 2008 that caused back spasms.² He agreed that the original November 1998 injury “initiated this whole thing.”

After years of treatment by his family practitioner, Dr. Adolph Johnson, Mr. Boone was referred to a new neurosurgeon, Dr. Fraser Henderson, who in 2010 diagnosed him with degenerative disc disease within the lumbar spine and bilateral L–5 radiculopathy. Dr. Henderson recommended surgery to decompress the L–5 nerve. Dr. Henderson said he made his diagnosis and surgical recommendation after injecting a “nerve root block” at the L–5 level “[t]o determine whether indeed these nerves were the cause of the pain he is experiencing in his back and legs.” The nerve block gave Mr. Boone “immediate relief though short lived,” the doctor said, showing that surgery would help.

Although Dr. Henderson testified in a deposition that “the back injury [Mr. Boone] suffered in 1999 resulted in a condition that led to his ... diagnosis and need for surgery,” it became clear on cross-examination that the doctor actually was referring to Mr. Boone's first injury in 1998. In fact, Dr. Henderson said, he did not “have a record” of the May 1999 injury, was not familiar with it, and did not consider it in formulating his opinion. He further testified, again probably referring to the 1998 injury, that “I suppose you have to consider that if his back was badly injured in 1999 that any lifting he did after that would have resulted in spasms and more pain and whatnot. It all goes back to the original injury.”

Pepco, while not contesting that the May 1999 injury occurred, argued to the ALJ and the CRB that the intervening lifting incidents and the fact that Mr. Boone's doctors did not consider the May 1999 injury showed there was no medical-causal relationship between that injury and his current condition. The company pointed to Dr. Johnson's records, which do not mention the May 1999 injury until 2003 and do not offer an opinion about medical causation. And they introduced an independent medical evaluation of Mr. Boone by Dr. John B. Cohen, in which Dr. Cohen determined that “[t]here is no indication that [Mr. Boone's multiple-level degenerative disc disease] is a direct result of his injuries.” Dr. Cohen concluded, after physically examining Mr. Boone and reviewing his medical records, that Mr. Boone “has no evidence of a lumbar radiculopathy,” “has not exhausted ... conservative nonoperative treatment of his low back pain,” and should “not undergo any surgery at this time and [instead] be treated more aggressively as needed[.]”

After finding that Mr. Boone had provided enough evidence to invoke the presumption of compensability,³ the ALJ concluded that Pepco had rebutted the presumption through the independent medical evaluation. The ALJ ultimately rejected Pepco's arguments, however, and disregarded Dr. Cohen's opinion because, while Dr. Cohen concluded Mr. Boone's back pain “was not directly caused by Claimant's work-related injury ... [t]he legal requirement is medical[lly] causally related and not direct result.” Finally, the ALJ rejected a third-party utilization review report, conducted pursuant to D.C.Code § 32–1507(b)(6) (2001), that found the surgery recommended by Dr. Henderson was not reasonable and necessary because of the “lack of convincing evidence of a symptomatic neurocompressive lesion.” While giving Dr. Henderson's opinion and the utilization review “equal weight,” the ALJ was “not persuaded” by the utilization review because “it recommends additional conservative treatment that Claimant has already undergone.... Given the length of Claimant's conservative treatment without long[-]lasting relief as reported by the Claimant, it is reasonable that he undergo the prescribed surgery [.]” The CRB determined that the ALJ's compensation order was supported by substantial evidence in the record and affirmed.

Analysis

The District's Administrative Procedure Act governs our review of a CRB decision, and “we will affirm the ruling unless it is arbitrary, capricious, or otherwise an abuse of discretion and not in accordance with the law.” Fluellyn v. District of Columbia Dep't of Emp't Servs., 54 A.3d 1156, 1159–60 (D.C.2012) (quoting Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., 992 A.2d 1276, 1280 (D.C.2010)). We determine whether “[t]he CRB's findings [are] supported by substantial evidence on the record and its conclusions ... rationally flow from these findings.” Id. (internal quotation marks omitted). “Substantial evidence is relevant evidence such as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Mills v. District of Columbia Dep't of Emp't Servs., 838 A.2d 325, 328 (D.C.2003)).

Our review here is “limited,” and “[w]here there is substantial evidence to support the [CRB's] findings ... then the mere existence of substantial evidence contrary to that finding does not allow this court to substitute its judgment for that of the [CRB].” Hisler v. District of Columbia Dep't of Emp't Servs., 950 A.2d 738, 743–44 (D.C.2008) (quoting McEvily v. District of Columbia Dep't of Emp't Servs., 500 A.2d 1022, 1024 n. 3 (D.C.1985)).

Pepco argues that “[t]here is simply no evidence that the Claimant's current condition was precipitated by lifting a chain sling twelve years prior” and thus the CRB should not have affirmed the ALJ's determination that Mr. Boone's lower back pain is medically causally related to his work-related injury. See Washington Hosp. Ctr. v. District of Columbia Dep't of Emp't Servs., 744 A.2d 992, 998 (D.C.2000) (noting that once rebutted, the presumption of compensability is dissolved and the burden is on the claimant to prove by a preponderance of the evidence that the injury is compensable).

Under our cases, however, Mr. Boone did not have to establish, as Pepco seems to claim, a direct “causal connection between his current lower back pain and the work injury of May 25, 1999.” It sufficed, as the ALJ noted, for him to have demonstrated that the work-related injury contributed to his condition—even if other factors, including a preexisting condition, contributed to it as well. Ferreira v. District of Columbia Dep't of Emp't Servs., 667 A.2d 310, 312–13 (D.C.1995) (“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.” (quoting Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 268 (D.C.Cir.1981))).

That Mr. Boone's condition in 2010 was worse than it was in 1999—even considering several intervening back spasms—did not preclude the possibility that the May 1999 lifting incident while...