Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 00-43)
Before Schwelb and Farrell, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson, Senior Judge
This is not a typical workers' compensation case. In a reversal of usual roles, the petitioning employer seeks a holding that its employee's injury was compensable, while the employee asks that we uphold the decision that she was not entitled to compensation.
This role reversal is due to the exclusivity provision of the Workers' Compensation Act. *fn1 The employee would prefer to go forward with her pending Superior Court tort suit against the employer, while the employer prefers to pay compensation, and have its employee's tort action dismissed.
Petitioner Georgetown University (hospital) seeks review of the decision of the Department of Employment Services ("D OES") that the injured claimant, Lavern Bentt, M.D., is not entitled to compensation under the District of Columbia Workers' Compensation Act of 1979 (Act), D.C. Code §§ 36-301 et. seq. (1981, as am ended) (since recodified at § 32-1501) (2001). The hospital contends that DOES erred in, (1) failing to address the issue of whether the injections administered to Dr. Bentt by her supervising physician at the workplace while she was on the job to relieve her tendinitis brought about what constituted an accidental injury under the Act, (2) in failing to conclude that Dr. Bentt's initial tendinitis itself was an accidental injury under the Act, and (3) in affirming the hearing examiner's compensation order even though it failed to find that, even if the tendinitis w as not initially caused by an injury at work, it was aggravated by the physical requirements of the job or by the injections administered to her by her supervisor to alleviate it. We agree that the decision of the Director is inadequate as to the first and third issues raised by petitioner, and we therefore reverse and remand for further proceedings.
In 1994, claimant Lavern Bentt, M.D ., was employed as a fellow at the Georgetown University Hospital. She worked from 8:00 a.m. to 3:00 p.m. or 5:00 p.m. five days a week in the chronic pain clinic. On October 2, 1994, Dr. Bentt experienced some "difficulty" in her left lower ankle when she attended on her own time a banquet while wearing tight shoes. At the beginning of the following work week she "noticed [she] was having a new discomfort in her left ankle. . . ."
During the ensuing work days, Dr. Bentt's colleagues and her supervisor, Charles A. Buzzanell, M.D., noticed that she was limping throughout the day and he offered to treat her condition. She declined but, on or about October 6, 1994, when Dr. Buzzanell offered again to administer a nerve block to Dr. Bentt's left ankle area, she accepted. They went to a treatment room at a time they had agreed upon and, in the presence of the senior resident, Dr. Buzzanell administered the injection. The ankle then, "felt a lot better." S he "thanked him very much, and . . . continued on with [her] day." Although the injection provided temporary relief, the next day the pain returned. At Dr. Bentt's request, Dr. Buzzanell administered a second nerve block on October 7, 1994, which contained a lower level of steroids. The second nerve block did not reduce the level of pain for long, and after several days Dr. Bentt sought other medical attention. Over a period of time, Dr. Bentt's pain lessened. However, the skin in the area in which the nerve block injections were administered became ulcerous. Dr. Bentt had to have surgery to cover the ulcerated region.
The administrative agency ruling being reviewed here was precipitated by a medical malpractice lawsuit that was filed by Dr. Bentt against petitioner Georgetown University in the Superior Court of the District of Columbia. Before the matter was tried, the hospital moved for summary judgment on jurisdictional grounds, citing the exclusivity provision of the District of Columbia Workers' Compensation Act. Mindful of the holding of this court in Harrington v. Moss, 407 A.2d 658, 661-62 (D.C. 1979), the Superior Court stayed the civil matter in order to permit the Department of Employment Services to determine whether it has jurisdiction over the matter pursuant to the Workers' Compensation Act. Thus the trial court properly deferred to the administrative agency having primary jurisdiction over the issue of compensability under the Act. See Joyner v. Sibley Mem'l Hosp., No. 01-CV-124 (D.C. June 12, 2003) (stay, rather than dismissal, of tort action is appropriate to enable DOES to consider coverage of Workers' Compensation Act).
A claim for workers' compensation was filed in which Dr. Bentt was the claimant. An evidentiary hearing was held before a hearing and appeals examiner. The hearing focused on whether Dr. Bentt sustained an injury which arose out of and in the course of her employment. The hearing examiner issued a compensation order concluding that Dr. B entt did not sustain "an accidental injury arising out of and in the course of her employment on or about October 2, 199 4."
The hospital filed an application for review with the Office of the Director of the Department of Employment Services seeking a reversal of the hearing examiner's decision. Dr. Bentt filed a response. The Director issued a decision ...