Before Terry, Farrell and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Argued September 16, 1999
Petitioner, Michael T. King, was temporarily disabled by acute back pain, which he suffered while working as an electrician at a job site in the District of Columbia. He filed a claim for benefits under the District of Columbia Workers' Compensation Act of 1979, as amended, D.C. Code §§ 36-301 et seq. (1997) (hereinafter, the "Act" or the "WCA"). His claim was dismissed for lack of subject matter jurisdiction on the ground that his employment was not "principally localized" in the District.
King's petition for review of that decision calls upon us to analyze the coverage provision of the Act, D.C. Code § 36-303, as it was amended effective March 6, 1991. We are asked to decide how that statute applies to a case of cumulative traumatic injury arising out of employment that is carried on both inside and outside the District of Columbia. The answer to that question depends on how the "time of injury" is fixed in a cumulative trauma case. We do not decide that legal question, however, because we find that respondent District of Columbia Department of Employment Services failed to make findings of material fact, while misapprehending and failing to construe the applicable law. We are therefore constrained to reverse the dismissal of King's claim and to remand for further proceedings. On remand, the Department needs to make a clear finding as to whether King's disability was in fact caused by his employment. If the Department does find that King sustained a job-related, cumulative traumatic injury to his back, then it must construe § 36-303 in order to articulate the rule under that statute for fixing the "time of injury" in cumulative trauma cases. The Department must then apply that rule to the facts of King's case in order to determine whether his injury is covered by the WCA.
Petitioner King began working for intervenor Moonlighting Electric Company ("Moonlighting") in July 1986 as a foreman and service electrician. King was hired in Maryland, where Moonlighting is headquartered, and he resided in that state at the time of the hearing. Most of King's jobs as an employee of Moonlighting were in Maryland, but he also worked from time to time at sites in other jurisdictions, including the District of Columbia.
On April 11, 1994, King was performing work on the second day of a job in the District of Columbia when he experienced back pain severe enough that he had to stop working. He did not return to work until August 31, 1994. King subsequently filed a claim under the WCA for temporary total disability benefits from April 11 through August 31, 1994, as well as for medical expenses. Moonlighting and its insurer, intervenor ITT Hartford, contested this claim. A hearing was held on April 12, 1996.
The evidence before the hearing examiner established that King had a history of back problems and raised the issue of the relationship of those back problems to King's employment. The examiner found that the electrician position that King held with Moonlighting for some eight years did involve a degree of physical exertion, requiring King to lift at least sixty pounds, bend, climb ladders, carry material, stoop, crawl, and get into awkward positions. King testified that he first experienced back pain on the job in December 1993 while working in an electrical closet and that his symptoms progressively worsened over the next few months. He also testified that in the early 1980s he had seen a doctor for back pain, which medical records indicated was related to a tennis injury, and again in1992 for back pain that lasted a couple of weeks. In his decision, the hearing examiner noted that King "first sought treatment for back pain in 1984," approximately two years before he commenced his employment with Moonlighting. One of King's treating physicians classified King's problem as a degenerative disk disease with bulging disks that might at some future date require surgical intervention.
King claimed that on April 11, 1994, when his back pain made it impossible for him to continue working, he sustained an accidental, work-related injury which aggravated his pre-existing back condition. He based this claim on his testimony that "I was working, and the pain and irritation of lifting cable and stuff finally just had got to be too much for me to take." King offered no further evidence as to what (if any) activity or event on April 11 triggered the increased back pain that he experienced, or as to the nature of the work he was performing when he became disabled. In the absence of such evidence, King relied upon the presumption embodied in D.C. Code § 36-321 (1) of a causal connection between his disability and a work-related event. *fn1
In opposition to King's claim, Moonlighting and ITT Hartford denied that King sustained an injury at work on April 11 and denied that his disability was work-related at all. They argued that the medical evidence showed that King had back problems that pre-dated his employment, and that he became disabled simply because his back condition degenerated naturally to the point where he was no longer able to work.
In his decision denying King's claim, the hearing examiner made no finding as to whether King's back injury and disability were, in fact, work-related, either because King sustained an aggravating injury on April 11 or because over time the physical exertion of his job subjected his back to cumulative trauma and consequent gradual injury. The examiner likewise made no finding as to the time of any work-related back injury that King may have sustained. Nor did the examiner make a finding as to when, if ever, King knew or should have known that his back pain was related to his work.
The hearing examiner found it unnecessary to resolve these and similar questions because he concluded as a threshold matter that King's claim was outside the coverage of the WCA. Ignoring King's claim that he suffered an aggravating injury on April 11, and assuming (without deciding) that King's disability resulted from a "cumulative trauma," the examiner said that there was "no definitive date of injury which would bring this matter within the ambit" of the coverage provisions of D.C. Code § 36-303 (a). The examiner did not explain how he arrived at this conclusion, but he apparently considered § 36-303 (a) to be inapplicable because it provides that coverage partially depends on the time of the injury and whether the injury occurred inside or outside the District of Columbia. *fn2
The examiner thereupon stated (again, without explanation) that "the jurisdictional question herein is resolved pursuant to the pre-March 6, 1991 law," i.e., the law in effect prior to the effective date of the last amendment of § 36-303. Under former § 36-303 (a), an injury was covered by the WCA only if, "at the time" of the injury, the employment was "principally localized in the District of Columbia," regardless of whether the injury occurred inside or outside the District. *fn3 Applying the three-prong Hughes *fn4 test, the examiner found that "the geographical contacts between claimant's employment relationship and the state of Maryland are more substantial, qualitatively and quantitatively, than those same contacts between claimant's employment relationship and any other jurisdiction." Accordingly, the examiner concluded that King was excluded from the coverage of the Act, inasmuch as his employment was not principally localized in the District of Columbia.
On review, the Director of the Department of Employment Services affirmed the hearing examiner's decision. Specifically approving the examiner's analysis of the coverage question, the Director stated:
Claimant testified at the hearing that he had experienced back pain before April 11, 1994. Specifically, Claimant testified that his back pain began in December of 1993 but did not become disabling until April 11, 1994. This in the Director's opinion, and as correctly concluded by the Hearing Examiner, would make Claimant's injury a cumulative one in which there is no definitive date of injury. There being no definitive date of injury, the 1991 amendment to the Act would not [be] applicable in this matter. Therefore, the Hearing Examiner was correct in utilizing pre-existing legislation as well as the interpretation established in the Hughes case in order to determine whether jurisdiction was conferred upon Claimant's injury.
On appeal, King argues that (1) he sustained an aggravating injury on April 11, 1994, in the District of Columbia, a factual issue which the hearing examiner failed to resolve, and (2) even if there was no identifiable injury on April 11 and his injury reasonably could be termed "cumulative," the hearing examiner erred as a matter of law in failing to determine a "time of injury," which is a prerequisite to applying D.C. Code § 36-303 (a). King argues that, for purposes of that statute, the hearing examiner and the Director should have ruled that he sustained his injury while at work in the District of Columbia, and therefore that his claim was covered by the WCA pursuant to subsection (a)(1). (King does not contend that his employment was principally localized within the District; rather, he contends that the locus of his employment was immaterial given that his injury occurred when he was in the District.) Moonlighting and ITT Hartford, on the other hand, ask us to affirm the denial of King's claim on the grounds that (1) King was not injured on April 11, and (2) medical testimony established that his disability was attributable to a natural progression of his longstanding back ailments that was unrelated to his employment.
For an administrative agency decision to "pass muster" under the District of Columbia Administrative Procedure Act ("DCAPA"), D.C. Code ...