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Waugh v. District Columbia Department of Employment Services

December 13, 2001

BARBARA WAUGH, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, GREATER SOUTHEAST COMMUNITY HOSPITAL, INTERVENOR



Petition for Review of a Decision of the District of Columbia Department of Employment Services DIR.DKT 93-95

Before Schwelb, Farrell, and Ruiz, Associate Judges.

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

Argued October 24, 2001

In this worker's compensation case, which is now more than eleven and one half years old, a DCDOES *fn1 Hearing and Appeals Examiner denied petitioner Barbara Waugh's claim for benefits for a back condition that Ms. Waugh allegedly sustained, or aggravated, while employed by intervenor Greater Southeast Community Hospital. The examiner found that Ms. Waugh's back problems were not causally related to an injury to her neck that Ms. Waugh had suffered while working at the hospital on March 13, 1990. The examiner also rejected Ms. Waugh's alternative claim that the condition complained of was the result of cumulative trauma sustained on the job.

In an administrative appeal to the Director of DCDOES, Ms. Waugh asserted that the examiner had failed to apply the statutory presumption of compensability to Ms. Waugh's cumulative trauma claim. *fn2 On February 27, 1997, more than three years after Ms. Waugh filed her appeal, the Director affirmed the examiner's decision. Ms. Waugh then filed a petition for review in this court. We vacate the Director's decision and remand for further proceedings.

I. THE AGENCY PROCEEDINGS

The examiner found that on March 13, 1990, Ms. Waugh, who was then employed by the hospital as a housekeeper, was mopping the floor when she experienced a sharp pain in her neck radiating down into her left shoulder and arm. Ms. Waugh sought medical assistance, and it was determined that she had sustained a cervical disc injury. As a result, Ms. Waugh was unable to return to full-time work for more than ten months. It is undisputed that Ms. Waugh was entitled to compensation for this injury, and her employer voluntarily made appropriate temporary total and partial disability payments.

On January 22, 1991, Ms. Waugh returned to work at the hospital and was assigned to a "light duty" position. Ms. Waugh's new job entailed placing supplies on hospital carts and taking the carts up to the various floors of the institution. On September 25, 1991, while performing her job on "light duty," Ms. Waugh experienced severe and disabling pain in her lower back. She sought medical treatment, and it was determined that she was suffering from degenerative disc disease of the lumbosacral spine. Ms. Waugh has not worked at the hospital since September 25, 1991, and she has applied for worker's compensation for her lower back condition, claiming that the disability arose out of her employment. The employer takes the position that unlike the earlier injury to Ms. Waugh's neck, her back condition is not work-related.

On October 27, 1993, following an evidentiary hearing on April 15 of that year, the examiner denied compensation in an eight-page Compensation Order. According to the examiner's findings, Ms. Waugh's primary treating physician opined that his patient's back condition may be "indirectly related" to her March 13, 1990 neck injury. Ms. Waugh's neurologist, on the other hand, was of the opinion that her symptoms did not reflect any causal connection between her neck injury and the condition of her back. A consulting orthopedic surgeon diagnosed Ms. Waugh's back problem as attributable to pre-existing degenerative disc disease, and he opined that this problem was not causally related to her neck injury. Finding that Ms. Waugh had "testified credibly that she had not been involved in any accidents or incidents after [March 13, 1990]," the examiner found that her back condition was "not causally related to her March 13, 1990 work injury."

The examiner next turned to Ms. Waugh's alternative claim, namely, that her back condition was the result of cumulative trauma sustained while working at the hospital. Ms. Waugh testified that, even in her "light duty" job, she had to do a "lot of bending, pushing, and pulling," as well as loading a large cart. The examiner rejected Ms. Waugh's cumulative trauma claim because, in his view, "[t]he medical evidence indicates that it is more likely that claimant's current back condition is due to degenerative changes of the lumbar spine rather than to any incident at work." The examiner made no finding as to whether the pre-existing condition was aggravated by cumulative trauma.

At all times relevant to this proceeding, our worker's compensation statute has provided:

In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of evidence to the contrary:

(1) That the claim comes within the provisions of this chapter. D.C. Code § 32-1521 (1) (2001). *fn3

During the course of his extensive analysis of the record with respect to Ms. Waugh's back condition, the examiner made no reference to this statutory presumption of compensability or to the case law construing it. *fn4 In her ...


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