On Petition for Review of a Decision of the District of Columbia Department of Employment Services.
Before Steadman and Schwelb, Associate Judges, and Newman, Senior Judge.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Eugene M. Harris has asked this court to review a decision of a Hearing and Appeals Examiner of the Department of Employment Services (DOES or the agency) holding that an injury which Harris allegedly suffered after the effective date of the Worker's Compensation Act of 1979, D.C. Code §§ 36-301, et seq. (1993) (the WCA or 1979 Act), was not a new injury but merely a "recurrence" of a pre-Act injury, and therefore non-compensable under the WCA. *fn1 We conclude, on the basis of the examiner's evidentiary findings, that Harris suffered a post-Act aggravation of a pre-existing injury, and that such aggravation is compensable under the 1979 Act. Accordingly, we reverse the decision under review and remand the case to the agency for further proceedings.
THE AGENCY PROCEEDINGS *fn2
This case is of somewhat ancient vintage. *fn3 Harris has been employed by intervenor Bell Atlantic and its predecessor, C&P Telephone Co., since 1969. In March 1977, while Harris was on company business, the automobile in which he was riding was "rear-ended" by another vehicle, and Harris suffered an acute sprain of the lumbar spine. He was "physically restricted from the performance of his usual employment duties" for approximately six months.
Upon his return to work in the fall of 1977, Harris was placed in a "medically restricted capacity, i.e., light duty." He was not allowed to drive a company car, climb poles or ladders, pull cable, or engage in lifting. Although Harris ceased active medical treatment in or about 1979, his lumbar condition became chronic. With some relatively minor changes, the restrictions on Harris' activities remained in effect for more than five years following his return to work.
In 1983, Harris was employed in a supervisory capacity as an engineer. The examiner described this position as "sedentary in nature." In August of that year, C&P's employees went on strike, and Harris was reassigned "to perform the non-sedentary function of a frame attendant." The examiner found that Harris was required, among other things,
to lift and carry test sets weighing from ten (10) to forty pounds (40 lbs.); move and climb ladders; pull jumper wire and cables from reels; and, use of a soldering iron. I find that claimant performed said functions for the month of August 1983, and that claimant began to suffer from increasing lumbar complaints.
After the strike ended in September 1983, Harris returned to his "sedentary supervisory position." The examiner found, however, that "claimant's lumbar symptoms, which had begun in August, began to increase in intensity." Further, according to the examiner,
claimant has credibly testified that from September 1983 through March 1985 he attempted self-medication for back pain, and that thereafter, he sought medical intervention for pain in his lumbo-sacral area. Employer has introduced no evidence to contradict claimant's credible testimony that he began to experience consistent symptoms of pain in his low back in or about August/September 1983, nor any evidence that claimant does not presently suffer from chronic lumbral strain, and therefore, it was found that claimant sustained an injury in or about said period.
Harris did not seek medical assistance for the 1983 injury until March 1985. In 1986, he filed a notice of accidental injury with the Office of Workers' Compensation. Harris II, 648 A.2d 672 at 673. In 1988, he filed a claim for benefits with DOES. Harris I, 592 A.2d at 1016. There was extensive litigation before the agency and in this court regarding the timeliness of his claims. Harris II, 648 A.2d at 673; Harris I, 592 A.2d at 1015-19. The issue was ultimately resolved in his favor. Harris II, 648 A.2d at 673-74.
On May 20, 1994, the examiner issued a Final Compensation Order. Notwithstanding his evidentiary findings, summarized above, and in spite of his recognition that "the aggravation of a pre-existing condition is an 'injury' under the Act," the examiner concluded that Harris was not entitled to any recovery. ...