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Perini v. District of Columbia Department of Employment Services

November 27, 2002

MERGENTIME PERINI, ET AL., PETITIONERS,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.



On Petition for Review of a Decision of the District of Columbia Department of Employment Services (DKT40-98)

Before Schwelb, Farrell, and Reid, Associate Judges.

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

Argued October 10, 2002

After paying workers' compensation benefits to an employee injured on the job, Mergentime Perini and its insurer, Lumbermens Mutual Casualty Company, sought special fund relief under the District of Columbia Workers' Compensation Act, arguing that the employee's injury had combined with a previous physical impairment to cause a substantially greater disability than the employee would have suffered absent the prior impairment.

A hearing examiner of the Department of Employment Services (DOES) agreed, but denied relief because the petitioners had failed to prove that (1) the employee's prior physical impairment was manifest to the employer and (2) the employer had paid 104 weeks of disability compensation benefits to the employee. The Director of DOES affirmed on both grounds. Asserting that DOES was in error as to both issues, Mergentime Perini and Lumbermens have petitioned this court for review.

We affirm. The mere existence of medical records documenting an employee's previous disability or physical impairment, without a showing of their availability to the employer, is not sufficient to put an employer on notice of a worker's previous condition. Because we affirm the decision of the Director on this ground, we do not reach the agency's alternative ground for affirmance.

I.

FACTS

Adolph Notel, a local laborer, injured his left ankle on the job three times - in 1977, 1982, and 1990.

On May 2, 1977, Notel twisted and fractured his left ankle while working for Mergentime Corporation, a construction company related to, but legally distinct from, petitioner Mergentime Perini. Medical records from North Arundel Hospital document the injury.

On March 16, 1982, while still employed by Mergentime Corporation, Notel twisted and fractured his left ankle a second time. Medical records from Maryland General Hospital describe the second injury and note evidence of the first.

On January 24, 1990, Notel injured his left ankle once again. This time, however, Notel was working for petitioner Mergentime Perini, a joint venture formed between the Mergentime and Perini corporations in 1988 to build a Metro subway station at 7th and U Streets, N.W. Unlike the previous two injuries, the third injury resulted in a permanent partial disability of 22%, 60% of which was due to the 1990 injury alone, and 40% of which was due to a combination of the 1977 injury, the 1982 injury, and degenerative arthritis.

Notel applied for workers' compensation benefits, and Mergentime Perini paid him $34,940.50 in permanent partial disability benefits and $1890 for medical expenses. Because Notel's disability was caused to some extent by his pre-existing impairments, Mergentime Perini petitioned DOES for partial reimbursement under the statutory special fund for second or successive injuries. See D.C. Code § 32-1508(6) (2001). *fn1

II.

SPECIAL FUND FOR SECOND OR ...


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