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Mexicano v. District of Columbia Department of Employment Services

September 05, 2002


Before Terry, Ruiz and Washington, Associate Judges.

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

Petition for Review of a Decision of the Department of Employment Services

Argued June 18, 2002

Petitioner Lucio Mexicano seeks review of a hearing examiner's compensation order denying his claim for workers' compensation benefits. *fn1 He contends that the hearing examiner failed to correctly apply the statutory presumption of compensability by improperly determining that his employer had produced evidence which severed the potential connection between petitioner's neck and shoulder injury incurred while working in May 1997 and his inability to work in construction after September 1998, despite the medically undisputed opinion of petitioner's treating physician that the May 1997 work injury had caused his disability in 1998. Because the hearing examiner made erroneous factual findings and failed to give proper credence to the essentially uncontested opinion of the treating physician - which was supported by independent evidence in the record - we conclude that the employer failed to produce evidence sufficient to overcome the presumption of compensability.


A. Factual Background

Petitioner worked for Pessoa Construction Company as a construction laborer. On May 21, 1997, petitioner was in the District of Columbia operating a drill to dig a hole in the ground when the drill bit stuck, and upon his subsequent attempts to remove it, "kicked back" towards him, striking him in the head and shoulder. Thereafter, his head and neck bothered him to the point that he was unable to work for the next two days. Petitioner sought medical treatment on May 23, 1997, at Concentra Medical Center, where he was diagnosed with a concussion to the head, cervical neck strain, and left shoulder strain. He was referred to physical therapy for evaluation and treatment and was authorized to return to work, but was instructed not to engage in any lifting of more than fifteen pounds.

Contrary to these instructions, on May 26, 1997, petitioner returned to work at his usual heavy labor duties without restricting himself. He did not miss any further work until March 1998, with the exception of three days on which he returned to Concentra for follow-up consultations, on May 28, June 2, and June 3, 1997. At the time of petitioner's injury, Pessoa had a policy allowing employees who miss work due to a doctor's appointment to receive a full day's pay as long as they reported to work before or after the appointment, and also had a policy allowing medically-restricted employees to perform such light work as they were capable of in Pessoa's main yard at a rate of $8 an hour. Petitioner did not take advantage of either of these policies. Petitioner testified that he was not paid for the days on which he was absent from work, and that although he did not ask for less taxing work, his employer, Julio Pessoa, was aware that he was supposed to be restricted to light duty work. He also testified that he stopped going to Concentra because he could not afford to pay for the taxi fare to the clinic, and that he continued working full-time in his normal work duties despite continuing pain from his injuries in order to "pay rent, the telephone, the bills."

While working at a site in Maryland on February 23, 1998, petitioner slipped and fell from a wall, striking his lower back against the wall and suffering a new injury. He visited Concentra on March 4, 1998, complaining of pain on the left side of his lower back, and was diagnosed with a contusion to the lumbar area of his back. He was restricted to lifting no more than ten pounds. After follow-up visits on March 6 and 11, 1998, he was diagnosed as suffering from a back contusion and a hairline fracture to a rib. *fn2 At none of these visits did petitioner mention neck or shoulder pain. It is unclear whether he received any additional treatment, but it appears from the record that these were the only days he did not work before returning to his job full-time - again seemingly without complying with his medical restrictions - until September 1998. Petitioner's employer testified at the administrative hearing that petitioner was offered light duty work in the yard but refused because of the difference in pay between light duty and regular duty work.

On September 25, 1998, petitioner stopped working for Pessoa because of "problems with [his] head" including memory loss and problems with his vision. Two initial medical evaluations were conducted by doctors of Physicians Plus, Inc. On September 28, 1998, Dr. Maruthi Manney recorded that petitioner's chief complaint that day concerned "[b]ack pain and left abdominal wall pain," but noted that "[n]eck pain is constant with activity." The second doctor, Dr. Kumaresan Sankaran, also described petitioner's chief complaint as back pain and lower abdominal wall pain, but did not mention any problems with petitioner's neck, stating only that "[h]ead and neck exam [were] normal." Petitioner returned to Physicians Plus for a medical re-evaluation on October 5, 1998, when Dr. Olakitan Akin observed that petitioner complained of back pain and noted that "[h]e claim[ed] to have had some improvement in pain localized over the neck and mid-back." On October 14, 1998, petitioner was examined again by Dr. Akin, who wrote that petitioner "was seen today complaining of neck pain and back pain."

On October 20, 1998, petitioner visited Dr. Rosita H. Dee for an initial consultation. *fn3 In reviewing his medical history, Dr. Dee indicated that "although [petitioner] had slight relief [at the time he was being treated for his back injury in March 1998] the symptoms from the first accident were never resolved." Her diagnosis was that petitioner had a severe cervical and shoulder strain as well as a cerebral concussion, all due to the May 21, 1997 injury, and she observed that petitioner was suffering from severe neck and shoulder pain. Dr. Dee conducted several follow-up examinations and referred petitioner for MRIs of his cervical and thoracic spine. One of the MRIs detected a "central protrusion of disc material at the C3/4 level associated with posterior osteoarthritic spurring" and "mild bilateral outlet stenosis," in addition to a "central protrusion of disc material at the C4/5 level." Dr. Dee continued treating petitioner through February 11, 1999. She later sent two letters to petitioner's attorney, stating her opinion that the neck injury sustained in May of 1997 prevented him from returning to his construction duties. *fn4

B. The Compensation Order

Petitioner filed a claim pursuant to the Workers' Compensation Act, D.C. Code § 36-301, et seq. (1997), recodified as D.C. Code § 32-1501, et seq. (2001), seeking temporary total disability benefits for "intermittent" days of work which he missed due to his clinic visits from May 22, 1997 through June 3, 1997, and from October 20, 1998 to the present, including related medical expenses. In a compensation order dated October 30, 2000, the hearing examiner found that petitioner's testimony that he had continuous neck, head, and shoulder pain which prevented him from working sufficed to invoke the presumption of compensability provided for by D.C. Code § 36-321 (1) (1997), recodified at D.C. Code § 32-1521 (1) (2001). Despite this initial showing, the hearing examiner concluded that the employer had presented evidence sufficient to overcome the presumption of a causal relationship between the injury and the disability, relying on the absence of any mention of petitioner's neck pain in five medical examinations preceding the October 14, 1998, examination, and petitioner's testimony that he returned to full duty as a laborer for the period between the May 1997 injury and the February 1998 back injury without seeking medical treatment. The hearing examiner dismissed Dr. Dee's medical opinion, reasoning that the

long period between the work injury and Dr. Dee's first examination, and its reliance on the claimant's report of only slight relief from symptoms following the injury, cause me to reject the causal relationship opinion expressed therein. The claimant's acknowledgment that he returned to work not only between May 1997 and February 1998, but then again from February 1998 until September 199[8], to the heavy, laborious activities that he described, without missing any time from work and without seeking any medical treatment for his ...

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