Washington Hosp. Center v. DOES, No. 97-AA-1107.

• Decision Date: 20 January 2000
• Docket Number: No. 97-AA-1107.
• Citation: 744 A.2d 992
• Parties: WASHINGTON HOSPITAL CENTER, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Juanita O. Callier, Intervenor.
• Court: D.C. Court of Appeals

744 A.2d 992

WASHINGTON HOSPITAL CENTER, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Juanita O. Callier, Intervenor.

No. 97-AA-1107.

District of Columbia Court of Appeals.

Argued February 23, 1999.

Decided January 20, 2000.

William S. Sands, Jr., for petitioner.

Elizabeth F. Pignatello for intervenor. Allen J. Lowe, Washington, DC, was on the brief for intervenor.

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

Before TERRY, STEADMAN, and SCHWELB, Associate Judges.

TERRY, Associate Judge.

In this workers' compensation case, the Washington Hospital Center ("the Hospital") seeks review of a decision by the Department of Employment Services ("DOES") granting its employee, Juanita Callier, temporary total disability benefits. On May 13, 1990, Ms. Callier, a nurse in the Hospital's burn trauma unit, lifted an obese patient from a prone to a sitting position on the patient's bed. A few weeks later, during a routine physical examination, Ms. Callier was diagnosed with cystocele,¹ rectocele² and femoral hernias. Following her doctor's recommendation, Ms. Callier ceased working on July 30. She underwent a successful surgical repair of the hernias on October 9 and returned to work on January 12, 1991. A DOES hearing examiner found that Ms. Callier's condition was causally related to the May 13 lifting incident and awarded her temporary total disability benefits for the time that she was unable to work. The Director of DOES affirmed the examiner's decision, citing a lack of evidence "that heavy lifting could not aggravate [Ms. Callier's] condition." Before this court the Hospital claims (1) that the examiner misapplied the statutory presumption of compensability, (2) that there was substantial evidence introduced to rebut the presumption, and (3) that the examiner's finding of a causal relationship between Ms. Callier's condition and her employment was not supported by substantial evidence. The Hospital also contends that the Director applied the wrong standard of review with respect to the examiner's finding of causation. By requiring it to prove that Ms. Callier's condition "could not" have been caused by the work-related incident, the Hospital maintains, the Director imposed too heavy a burden on it to rebut the statutory presumption of compensability. We agree with the latter argument, and therefore we remand the case to the Director with instructions to reconsider the examiner's decision and, in doing so, to apply the correct standard of review.

I

On March 20, 1981, Ms. Callier began work as a registered nurse in the Hospital's burn trauma unit. Her duties required her regularly to engage in heavy lifting in order to move patients who were partially or totally immobilized as a result of their injuries. On May 13, 1990, Ms. Callier lifted a patient weighing more than 350 pounds from a prone to a sitting position on the patient's bed.³ Immediately afterwards, Ms. Callier began to experience pain and discomfort in her lower back and abdomen. At the DOES hearing, she said it felt "like something dropped in my lower abdomen that shook me." She reported the injury to her supervisor the next day.

During her annual physical a month or so later, Ms. Callier complained to her physician, Dr. Melvin Kordon, that she felt discomfort in her back and lower abdominal area. After examining her, Dr. Kordon diagnosed her as suffering from rectocele, cystocele, and femoral⁴ hernias. Dr. Kordon referred Ms. Callier to Dr. Kline Price, a gynecologist, who confirmed the diagnosis of multiple hernias and recommended surgical repair. Dr. Price told Ms. Callier that continuing to work would only make her condition worse, so she stopped working at the Hospital on July 30.

On October 9, 1990, Ms. Callier underwent surgery to repair her hernias. The surgery, performed by Drs. Thomas Goodridge,⁵ Eric Oristian, and Joseph Bloom, was completely successful. Ms. Callier resumed full-time employment at the Hospital on January 12, 1991, as soon as all three surgeons cleared her to return to work. Since then, she has been able to perform all of her employment duties without any restrictions.

At the compensation hearing before the DOES hearing examiner, the only issue was whether Ms. Callier's condition was causally related to the May 13 lifting incident at work. The parties stipulated that Ms. Callier had a pre-existing rectocele and cystocele at the time of that incident.⁶ Ms. Callier's theory was that her pre-existing condition was aggravated by repetitive heavy lifting over a period of nine years prior to May of 1990, and that the May 13 incident was "the straw that broke the camel's back," further aggravating the condition to the point that it required surgical correction.

The Hospital agreed that the statutory presumption of compensability had been satisfied, but sought to rebut the presumption through the testimony of Dr. Donald Sewell. On the basis of his physical examination of Ms. Callier in September 1991, as well as his review of her entire medical history, Dr. Sewell concluded in his written report "with a reasonable degree of medical certainty that a single lifting episode on May 13, 1990 was not the cause of this patient's cystocele, rectocele, or femoral hernia" (emphasis in original). Dr. Sewell testified at the hearing that Ms. Callier's condition could have been caused by various factors, including the natural weakness of her tissue, trauma during childbirth, or anything that might have increased the pressure inside her abdomen, such as chronic coughing, constipation, or regular heavy lifting. After reviewing her medical records, Dr. Sewell stated that Ms. Callier's condition appeared to have developed gradually over the course of a nine-year period beginning in 1981. He found no evidence, either in the medical records or in his examination, of "an acute laceration or tear of supporting tissues" which would indicate that the hernias were caused by a single traumatic incident. He also noted that Ms. Callier had a history of chronic constipation, and speculated that this might have been a contributing factor to the gradual aggravation of her condition. In conclusion, Dr. Sewell stated that "since the cystocele [was] there as of May 12, 1989 [sic], I can't say that an acute lifting episode on May 13, 1990, caused it. It was already there."

On cross-examination, Dr. Sewell conceded that repetitive heavy lifting over time would aggravate a condition such as Ms. Callier's to the point that it would eventually require surgery. The doctor also admitted that he had no knowledge of the severity of Ms. Callier's condition in May of 1990, before she lifted the heavy patient, as compared with June of 1990, after the lifting incident. He continued to insist, nevertheless, that the acute lifting episode on May 13 "did not cause [Ms. Callier's] condition to become symptomatic to the nature that it was causation on that day. . . ."

When asked about the possibility that the lifting incident might have incrementally aggravated Ms. Callier's pre-existing condition to the point that it required surgery, Dr. Sewell replied:

No, this would go on gradually, that is, as the condition became more aggravated, the cystocele became at a [sic] much greater degree than it was, and the rectocele increased, and she would have increasing problems with urination, she would start urinating on herself, and as it eventually became more aggravated, that condition would become worse. The same thing with the stool evacuation, that would gradually increase and increase, and these people with this condition tolerate it for a point . . . but it doesn't get better, it just continues on, and at some point in the symptom process they get tired of it, and they go to someone and say, can you help me, and that's when it gets corrected. [Emphasis added.]

Dr. Sewell explained that the exact point at which a condition such as Ms. Callier's might require surgery would depend on the individual patient: "however far it goes would depend on how far it's allowed to go." When Ms. Callier's attorney pressed Dr. Sewell for further explanation, he finally stated, "I'm telling you that heavy lifting can aggravate this condition. Now, whether she goes to see a doctor is based upon the patient."

The hearing examiner found that Dr. Sewell's testimony supplied "the only definitive medical opinion" of the causal relationship between Ms. Callier's condition and the work-related incident.⁷ The examiner noted that, while Dr. Sewell stated that "claimant's herniations were not caused by the May 13, 1990, work incident," he also testified that "heavy lifting or straining could aggravate these conditions to a point of requiring surgical correction." The examiner concluded, "As claimant's aggravation resulted from [her] work activities, the aggravation arose out of and in the course of her employment." Further, citing Ms. Callier's testimony that she "felt something drop" in her abdomen upon lifting the patient, as well as the absence of any evidence of an inguinal hernia before May 13, 1990, the examiner concluded that the inguinal hernia was also work-related.

The Director of DOES affirmed the decision of the hearing examiner, emphasizing that "there is no evidence, in the record, from any physician that heavy lifting could not aggravate claimant's condition" (emphasis in original). The Director also cited Dr. Goodridge's opinion that Ms. Callier's condition was apparently caused by the May 13 lifting incident,⁸ as well as Dr. Sewell's testimony that "a hernia could be caused by a heavy lifting episode, because that is a tissue tearing."

II

A. The Presumption of Compensability

Under the District of Columbia Workers' Compensation Act ("WCA"), once an employee offers evidence demonstrating that an injury was potentially caused or...