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Pro-Football, Inc. v. District of Columbia Department of Employment Services

October 04, 2001


Before Wagner, Chief Judge, and Reid and Glickman, Associate Judges.

The opinion of the court was delivered by: Wagner, Chief Judge

Petition for Review of Decision of the District of Columbia Department of Employment Services

Argued December 3, 1999

Petitioners, Pro-Football, Inc. (d/b/a Washington Redskins) and Reliance National Insurance Company (collectively referred to as employer), appeal from a decision of the Department of Employment Services (DOES) awarding disability benefits to intervenor, Richard G. Graf. While employed as a football player with the Washington Redskins, Graf was injured during a pre-season game. Graf filed a claim for benefits under the provisions of the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 36-301 et seq. (1991) (Act). After a hearing, a compensation order was entered awarding Graf both temporary total and permanent partial disability benefits. The employer argues for reversal of the compensation order on the grounds that:

(1) the decision was not based on substantial evidence in the record as a whole;

(2) the hearing examiner failed to accord proper weight to the opinions of Graf's treating physician;

(3) the hearing examiner failed to resolve issues concerning the factual basis for the expert's opinion; and

(4) Graf failed to sustain his burden of proving that he suffered a career-ending injury.

We conclude that the hearing examiner failed to explain his reasons for rejecting the opinion of the treating physician over that of a non-treating physician, and therefore, a remand is required under our case law. We also conclude that, upon remand, the hearing examiner must address explicitly the employer's claim that Graf was terminated for reasons other than a work-related injury and the impact, if any, of the limited projected work-life for one in Graf's profession at the time of injury upon a determination of wage loss under the Act.


A. Factual Background

Graf, a defensive linebacker with the Redskins, sustained an injury to his neck and right arm during a pre-season game against the Pittsburgh Steelers on August 26, 1994. While still on the sideline, Graf reported his condition to his team's physician, Dr. Charles Jackson, an orthopedic surgeon. The parties stipulated that Graf sustained an accidental injury at that time, but they disagreed as to the nature and extent of the injury and whether it precluded Graf from continuing his career as a professional football player. The employer challenges on appeal the sufficiency of the evidence supporting the compensation order and the adequacy of the agency's rationale for rejecting the opinion of Graf's treating physician and for accepting the opinion of a non-treating physician in rendering the decision. Therefore, we outline in some detail the evidence related to these issues.

Dr. Jackson testified that

[a]t the time of injury, [Graf] had pain not only in his neck, but he had pain radiating from his neck down into his shoulder and down into the deltoid part of his arm, which is the muscle that sets out on the side of the shoulder.

He testified that the injury was more substantial than a burner, a transient episode. Dr. Jackson reviewed x-rays taken a few days after the injury and found that they were negative for fractures. Although Dr. Jackson did not think that Graf had sustained a career-ending injury at that time, he thought that Graf should stop playing football temporarily. Dr. Jackson diagnosed radiculitis, which he explained referred to nerve root irritation. Within a few days, a Magnetic Resonance Imaging (MRI) was obtained through Dr. John A. Long. Dr. Long concluded that "there was osteophyte and disk material encroaching the C5-6 right foramen, and there was shallow disk herniation in the C6-7 right foramen." It was Dr. Jackson's opinion that Graf had a bulging disk, as opposed to a herniated disk, for which surgical intervention would not be required. *fn1 Dr. Jackson stated that his interpretation of disk bulging was exactly the same as Dr. Long's, but they stated it differently.

Between August and November 17, 1994, Dr. Jackson treated Graf for his injuries, with a conservative approach consisting of cortisone to shrink the nerve and alleviate the pain, muscle relaxants, physical therapy and pain medication. On August 30, 1994, he prescribed a very strong drug, percocet, which he said he would not have done if Graf were not experiencing severe pain. According to Dr. Jackson, Graf continued to have considerable pain in the neck radiating into the deltoid area of the arm, which is indicative that the nerve has irritation. The arm pain resolved almost completely, but Graf continued to have distressing symptoms of the neck. At that time, Dr. Jackson felt that there was a very good chance that this symptom would resolve. For the post-season physical on December 21, 1994, Dr. Jackson reported that Graf "had not completely recovered from his neck injury" and that "[h]e still had restriction of motion, particularly lateral bending of his neck."

Dr. Frederick C. Kriss, a neurosurgeon, examined Graf on September 5, 1995. He also reviewed his medical records, including Dr. Jackson's notes, the physical therapist's notes, the MRI scan and notes from Dr. Steven Blood, a doctor of osteopathy. At that time, Dr. Kriss noted that Graf's symptoms had greatly improved and that Graf no longer had numbness and pain down the arm, although he experienced shoulder pain when throwing a ball. Graf also experienced neck spasms lasting four to five days, three to four times over the year. Dr. Kriss found that Graf had two ruptured disks in the neck (i.e., moderate sized tears in the cartilage), which correlated to his physical symptoms and x-rays. He testified that the symptoms down the arm and shoulder were related primarily to the pressure and irritation on the specific nerve roots. He testified that the disc tears at the C5-6 and C6-7 bulged into the space around the spinal cord. Based on the MRI, he made a diagnosis of cervical stenosis, which he explained is a narrowing of the spinal canal, leaving a minimal margin around the spinal cord. Dr. Kriss testified that he was of the opinion that:

(1) the injury Graf sustained on August 26, 1994 caused his disc herniations and the risk of ...

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