Petition for Review of a Decision of the Department of Employment Services,
Before Farrell, Ruiz and Glickman, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Safeway Stores, Inc. petitions for review of a decision by the Director of the D.C. Department of Employment Services (DOES), which affirmed a compensation order awarding workers' compensation benefits to Jeffrey Watson. Safeway contends that the hearing examiner and the Director erred in concluding that Safeway had failed to produce sufficient evidence to overcome the presumption of compensability, where it had presented two doctors' medical reports which disputed the causal relationship between a September 1998 work-related injury to Watson's left knee and a later secondary disability to his right knee. Additionally, Safeway argues that the hearing examiner's determination that Watson suffered an eighty percent permanent partial impairment of his left lower extremity as a result of the work-related injury to his left knee was not supported by substantial evidence and, in addition, should be discounted by a "credit" reflecting Watson's prior permanent impairment. We conclude that the Director and the hearing examiner erred in placing too high a burden upon the employer to rebut the presumption of compensability with respect to the injury to the right knee and remand to the agency on that ground, but we affirm the agency's decision with respect to the disability resulting from his left knee injury.
Watson first injured his left knee in 1990 while working for a different employer when stairs he was climbing gave way. He had arthroscopic surgery on the left knee, and later, an anterior cruciate ligament reconstruction procedure on the same knee. In August of 1997, Watson injured both his left and right knees while playing basketball. *fn1 Dr. Hamid Quraishi, who treated him for these injuries, noted tenderness in Watson's right knee and opined that a "McMurray's sign for a torn meniscus [was] positive." Dr. Quraishi informed Watson that he was "developing moderate degenerative changes in the left knee and things will progress," and that nothing could be done to prevent this progression. After an MRI of Watson's left knee, Dr. Quraishi performed a second arthroscopic procedure and then prescribed physical therapy rehabilitation. He released Watson back to work full-time on December 15, 1997.
On September 24, 1998, while working as a seafood deli clerk at the Safeway store in Georgetown, Watson again injured his left knee, as well as his lower back, while removing boxes of frozen salmon from a freezer shelf as several of the boxes toppled and struck his knee. This time, Watson was treated by Dr. William Dorn, who performed a third arthroscopic surgery on Watson's left knee in March of 1999, and informed him that he could continue to expect symptoms and that he would eventually require a complete knee replacement. *fn2
Watson claimed temporary total disability benefits from October 16, 1998 through May 1999 for the left knee and back injuries. Safeway contested the compensability of the left knee injury, claiming that it resulted entirely from a pre-existing condition. On June 25, 1999, after a hearing, a DOES hearing examiner issued a compensation order awarding Watson the benefits he had sought. Safeway did not appeal from this order.
Sometime thereafter, Watson filed a second claim for temporary total disability benefits from July 28, 1999, through September 3, 1999, for problems with his right knee stemming from overuse of his right leg to compensate for the injured left knee. He also sought permanent partial disability benefits for the substantial impairment of his left knee. Safeway again contested compensation, this time on the grounds that any disability to the right knee resulted entirely from a pre-existing condition, and that the impairment of Watson's left knee was not as great as he claimed. At the hearing on his claim, Watson testified that in March or April of 1999, he began having problems with his right knee swelling and locking up on him. He also presented medical reports from his treating physician, Dr. Dorn, who observed that Watson was "experiencing secondary trauma to the right knee as a result of placing additional pressure on the right knee to protect the injured left knee." More specifically, Dr. Dorn opined that Watson suffered from "internal derangement of the right knee with tears of the medial meniscus, effusion, strain of the medial collateral ligament and degenerative changes," and concluded that he had secondary strains to his right knee resulting from the work-related injury to his left knee. Dr. Dorn also conducted several subsequent examinations in which he consistently diagnosed a secondary strain to the right knee. With respect to the left knee, he concluded that Watson had "extensive degenerative/traumatic arthritis of the left knee and will require total joint replacement," and that he had an "80 percent impairment of the lower left extremity" based on the American Medical Association Guidelines for the Evaluation of Permanent Impairment.
In rebuttal, Safeway produced documentation of Watson's extensive past medical history, *fn3 testimony from Watson's work supervisor that Watson was able to perform his duties during the period in question, and medical reports by Dr. Marc Danzinger, who had conducted an independent medical evaluation on Safeway's behalf. After reciting Watson's significant past medical history, Dr. Danzinger's report opined:
At this time, the diagnosis for his right knee is a patellofemoral syndrome. He also has a questionable medial meniscal tear seen on the MRI. I find absolutely no evidence of causal relationship between the symptoms he is having to his right knee and the 9/24/98 work injury. I can even go a step further and explain that I find no causal relationship between his current symptomology and osteoarthritis in the left knee and the 9/24/98 accident . . . . Any claims by Dr. Dorn that this transfer of weight to the right knee causing his current symptoms in no way can be correlated to just the incident of 9/24/98 and predispose him. I find it quite a stretch to claim that a medial meniscal tear could have occurred in the right knee without an antecedent injury just because of transfer of weight and stress to the right knee. The current patellofemoral syndrome could be caused by transfer of weight, but I find this in no way related to the 9/24/98 accident and find it much more related to any symptoms he may have from his long-standing osteoarthristis which is part of the degenerative process and related way back to his original injury of 1990. Thus I believe the current right knee problems the patient is having would have developed regardless of the 9/24 left knee injury because of his previous history.
After conducting a second examination Dr. Danzinger again found "no correlation between the claim by Dr. Dorn that transferring weight caused his [right knee] problems and the findings on the MRI . . . ." Although Dr. Danzinger agreed with Dr. Dorn that Watson had reached maximum medical improvement of his left knee, he apportioned seventy-five percent of the disability to pre-September 1998 injuries and only twenty-five percent to the September 1998 injury.
Watson was given leave by the hearing examiner to file supplemental medical treatment information, including an evaluation by Dr. Joel Fechter, who concluded that "as a result of the alteration in the patient's gait due to his [September 1998] work injury, he subsequently developed right knee pain with an MRI SCAN revealing evidence of meniscal tear." Based on his examination, Dr. Fechter determined that Watson had a sixty-nine percent impairment to the lower left extremity.
In the compensation order granting Watson's claim for benefits, the examiner first noted that the issue of whether Watson's left knee injury arose out of and in the course of employment had been resolved by the previous (1999) compensation order, which Safeway had not appealed. Addressing the right knee injury, the examiner concluded that the threshold requirement to raise the statutory presumption of compensability was met by Watson's testimony that he had no symptoms in his right knee before September 24, 1998, and the medical reports of Dr. Dorn. The examiner then considered whether Safeway had presented evidence sufficient to rebut the presumption and determined that it had failed to do so, because Dr. Danzinger acknowledged that the "current patellofemoral syndrome could be caused by a transfer of weight." Because Dr. Danzinger also opined that he found "no evidence of causal relationship between the symptoms he is having to his ...