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WASHINGTON VISTA HOTEL v. DOES

December 3, 1998

WASHINGTON VISTA HOTEL, ET AL., PETITIONERS,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. HOSSEIN ZAHEDI, INTERVENOR.



Before Terry, Steadman, and Reid, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge:

The Washington Vista Hotel ("Vista") and its insurance carrier seek review of a decision by the District of Columbia Department of Employment Services ("DOES") awarding workers' compensation benefits to Hossein Zahedi, one of Vista's employees. Mr. Zahedi claimed that he was unable to perform his job after sustaining an injury at work. Vista voluntarily paid him workers' compensation benefits from April 25 through August 7, 1991, but he sought additional benefits from August 8, 1991, to the present and continuing. After a hearing on his claim, a DOES hearing examiner found that any work-related injury which Mr. Zahedi might have suffered had resolved by July 18, 1991. The examiner therefore issued a compensation order denying Mr. Zahedi's request for additional benefits beyond that date.

Mr. Zahedi appealed to the Director of DOES, asserting that the finding that any work-related disability had resolved by July 18, 1991, was not supported by substantial evidence, and that the hearing examiner had erroneously failed to consider aggravation of a pre-existing injury. The Director reversed the examiner's order and granted Mr. Zahedi temporary total disability benefits from August 8, 1991, to the present and continuing, as well as all related medical expenses. Vista and its insurance carrier seek review of the Director's decision. We hold that the Director erred when she rejected the hearing examiner's factual findings and credibility determinations and ruled that the examiner's decision was not based on substantial evidence. We therefore reverse the Director's decision and remand this case to DOES with directions to reinstate the original compensation order.

I

Mr. Zahedi began working for Vista as a banquet waiter in 1984. His duties included setting tables, serving meals, and cleaning up after breakfast, lunch, and dinner banquets. The physical requirements of the job included lifting and carrying heavy trays and climbing stairs.

On April 25, 1991, while at work, Mr. Zahedi slipped on a wet floor and fell backwards. Although co-workers caught him before he hit the floor, he complained of dizziness and pain in his neck and back. His brother, who also worked at the hotel, took Mr. Zahedi to the emergency room at George Washington University Hospital, where doctors examined him and took x-rays of his spine. The x-rays were negative, and the hospital sent him home the same day. Thus began a series of visits to numerous doctors in an apparently fruitless effort to seek relief from neck and back pain. Mr. Zahedi never returned to work at Vista.

The day after his fall, Mr. Zahedi went to Dr. Tamberlain Connelly, a chiropractor, complaining of pain in his neck and back and a headache. *fn1 Dr. Connelly referred him to [721 A2d Page 576]

Dr. Kenneth W. Eckmann, a neurologist with the Neurology Center. Dr. Eckmann performed both a magnetic resonance imaging (MRI) examination and a nerve conduction test. The MRI revealed some disc disease, but it also showed a normal spinal cord and craniocervical junction and no significant soft tissue abnormalities. The nerve conduction study indicated normal nerve responses and no muscular denervation or reinnervation.

Because Dr. Eckmann was unable to find a physical cause for the type of pain of which Mr. Zahedi complained, Dr. Connelly suggested that Mr. Zahedi consult Dr. Kent A. Peterson, an orthopedic surgeon. *fn2 At Dr. Connelly's request, Dr. Peterson examined Mr. Zahedi on May 24, 1991, placed him in a soft cervical collar, and advised him to begin physical therapy. Mr. Zahedi returned to Dr. Peterson three weeks later, on June 14, complaining of dizziness after his most recent physical therapy session, pain on the left side of his head, and fatigue. Dr. Peterson then diagnosed him as suffering from a herniated cervical disk and instructed him to discontinue physical therapy.

In July 1991 Vista's insurance company requested that Dr. Robert E. Collins, an orthopedic surgeon, examine Mr. Zahedi in order to determine whether he was physically able to return to work. After examining him and administering some tests, Dr. Collins concluded that Mr. Zahedi had "minimal degenerative arthritis of the neck with back and neck pain out of proportion to any physical findings." *fn3 Dr. Collins opined that during his examination Mr. Zahedi had purposely limited his range of motion and had not fully participated in the strength tests, and observed that Zahedi was "now over three months post-injury of a relatively minor strain in which he did not even fall. . . ." Because Dr. Collins could not find a medical reason for Mr. Zahedi's continued pain, he recommended that Zahedi immediately return to work with a temporary twenty-pound lifting restriction.

On August 8, 1991, Vista sent Mr. Zahedi a letter notifying him that Dr. Collins' report indicated he was able to return to work, and that he would therefore be scheduled for banquet functions as of August 17. When Mr. Zahedi failed to respond, Vista sent him two more letters on September 4 and 16. After receiving no response to either of those letters, Vista terminated his employment. *fn4 However, in December 1991 Vista offered to rehire him with the twenty-pound lifting restriction, and again in February 1992 Vista said it was still willing to employ him as a banquet waiter.

Meanwhile, Mr. Zahedi continued on his odyssey seeking a diagnosis and treatment for his neck and back pain. Dr. Peterson referred him to Dr. John W. Barrett, a neurologist, who examined him on October 28, 1991. Dr. Barrett noted that Mr. Zahedi complained of almost constant headaches and neck pain which occasionally radiated into his upper extremities. Dr. Barrett conducted his own examination and concluded that Mr. Zahedi had hyperextended his spine when he fell in April 1991, causing an injury that was "superimposed upon some pre-existing cervical spinal problems which were, for the most part, asymptomatic at the time of this injury on 25 April 1991." He recommended that Mr. Zahedi continue conservative treatment and undergo an evaluation by a physiatrist. Although Dr. Barrett surmised that a preexisting spinal problem might have exaggerated the pain from the hyperextension, he expressed no opinion on whether Mr. [721 A2d Page 577]

Zahedi's April 1991 fall had aggravated such a pre-existing problem.

Dr. Barrett referred Mr. Zahedi to Dr. Andrew V. Panagos, a specialist in physical medicine and rehabilitation. After examining Mr. Zahedi on November 15, 1991, and finding "guarding of motion" and "no acute distress," Dr. Panagos concluded that "his pain complaints appear to be greatly out of proportion to the amount of pathology present." Nevertheless, Dr. Panagos made a last-ditch effort to treat any existing acute injury and placed Mr. Zahedi on Prednisone, an anti-inflammatory drug. When Mr. Zahedi showed no improvement after the ten-day course of Prednisone and Dr. Panagos was still unable to find a physical cause for his complaints, Dr. Panagos resorted to simply treating Mr. Zahedi's chronic pain and prescribed Pamelor, a pain medication. After four additional visits extending ...


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