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Lincoln Hockey, LLC v. District of Columbia Department of Employment Services

September 11, 2003


On Petition for Review of a Decision of the District of Columbia Department of Employment Services (DKT-59-01)

Before Steadman and Glickman, Associate Judges, and Nebeker, Senior Judge.

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

Argued May 29, 2003

Lincoln Hockey, LLC and its insurance carrier (hereinafter "the Capitals") appeal an award of workers' compensation benefits to Jeffrey Brown, a professional hockey player. Brown, who played for the Washington Capitals hockey team, was struck in the head and neck during a game. After a hearing at which conflicting medical evidence was introduced, the hearing examiner found that "chronic recurrent post-traumatic headaches" resulting from this impact prevented Brown from continuing to play professional hockey. This ruling was affirmed by the Director of the Department of Employment Services.

On appeal, the Capitals argue that the hearing examiner incorrectly gave "treating physician" preference to the testimony of Brown's chief medical witness, Kenneth M. Carnes, M.D., and that, in any event, there was no substantial basis for deferring to his testimony as controlling. The hearing examiner accepted Dr. Carnes as a treating physician without explanation. Furthermore, the hearing examiner, as we read the compensation order, rejected Dr. Carnes' medical conclusion that Brown suffered damage to his cervical discs which caused muscle spasms that led in turn to the headaches, and yet accepted Dr. Carnes' testimony that a medical causal relationship existed between the work injury and his present physical condition. We think the record requires further consideration and clarification in both respects and, accordingly, the compensation order and the Director's affirmance are vacated and the case is remanded to the agency for further proceedings not inconsistent with this opinion.


On April 6, 1998, while playing professional hockey for the Capitals in a game against the Montreal Canadiens, Brown's neck and head were struck by another player. He experienced pain in his head, neck, and arms and left the game. He asserted that since that date, he had experienced chronic and recurrent headaches that prevented him from skating at the extreme level required of him as a professional hockey player. He sought an award for total temporary disability from October 1, 1998 to the present and continuing. He also sought benefits for permanent partial disability for a fifteen percent loss of use and function of his left arm. The hearing examiner granted the claim for temporary total disability but denied the permanent disability claim. The Director in a brief order sustained this ruling. The Capitals filed a petition for review in this court.

The record before the hearing examiner contained a great deal of conflicting medical evidence. Brown consulted an unusually large number of medical experts following his injury in an apparent effort to identify the cause of and to find alleviation for his asserted problems. Following the incident on the hockey rink, Brown received emergency medical care and treatment from the employer's trainer and team doctor in the locker room after the game. On April 13, 1998, he was seen by Dr. Frank H. Anderson at his employer's request. Dr. Anderson stated that Brown's headaches were due to the April 6 trauma and should resolve in the near future. On May 7, 1998, after attempting to return to playing hockey, Brown returned to Dr. Anderson complaining of intense head pain, which was increased by activity. On July 23, 1998, Brown saw Dr. L. D. Sitwell in Ottawa (upon the referral of a Dr. Kissick), complaining of significant head pain, which increased with activity, namely attempts to return to playing hockey, as well as an episode of disorientation. Brown next saw Dr. George Cybulski, in connection with an inquiry from the Chicago Blackhawks regarding employment with that team. Brown complained of headaches for the five months following the episode. Dr. Cybulski opined that Brown was status post concussion on April 1, [sic] 1998, *fn1 that he had a normal MRI, and could return to his hockey career.

Brown then returned to his home in Raleigh, North Carolina, where he pursued treatment. He was first seen by Dr. David Cook, on November 3, 1998. Dr. Cook opined in a letter to a Dr. G. Hadley Callaway, apparently a referring physician, that Brown suffered from a "chronic post-traumatic headache, with minor trauma and no confirmatory signs" and that the headaches appeared to be tension type, but Dr. Cook did not rule out cervicogenic components, TMJ, and idiopathic intracranial hypotension.

Brown, still at home in North Carolina, then visited Dr. Kenneth M. Carnes, a board-certified neurologist and team physician for the Carolina Hurricanes hockey team, on February 16, 1999. Dr. Carnes was aware that Brown had undergone several normal MRI's and Brown told him about the hockey incident, to which Brown attributed his symptoms. Brown complained to Dr. Carnes of a headache that increased with activity, neck pain, and numbness in his arms. Dr. Carnes noted that Brown's head pain and numbness in the arms increased with neck movement and referred Brown for MRI and EMB/NCV studies. These showed evidence of a disc herniation at the C5/6 level with another small central disc herniation at the C6/7 level. Dr. Carnes attempted treatment with steroid injections, physical therapy, and drugs and referred Brown to a neurosurgeon, Dr. Robin Koeleveld, who advised against surgery. Dr. Carnes saw Brown a second time on May 10, 1999, and informed him that his chronic headaches and neck pain were related to his underlying injury to the C6 nerve root. With the exception of a prelitigation examination on December 18, 2000, this was the only other visit of Brown to Dr. Carnes.

In the meantime, Brown had relocated to St. Louis, where, on the referral of Dr. Carnes, he saw Dr. Ralph Dacey, who performed examinations on September 10 and October 5, 1999. Dr. Dacey noted that there was minimal bulging of Brown's cervical discs and stated that the symptoms were consistent with either post-concussion syndrome or cervical strain syndrome.

Brown also saw two doctors selected by the Capitals as independent medical examiners. On October 7, 1999, Dr. Neal Kurzrok examined Brown, noting his chronic headaches and indicated that he suspected "stress/tension headaches or headaches related to cervical spine pathology though cannot absolutely rule out chronic posttraumatic headaches." Brown also saw Dr. Steven Scherping on October 8, 1999, who noted Brown's persistent headaches, which increased with vigorous exercise. He stated Brown had mild to moderate diffuse tenderness over his paraspinal musculature, but not centered on his cervical elements and had a mild pain with cervical flexion in his trapezial region bilaterally. Dr. Scherping said that it would be difficult to explain the type of headaches Brown had based on a cervical spine injury and would defer a further evaluation to a neurologist on the potential causes.


Before the hearing examiner, Brown's principal witness was Dr. Carnes, who testified through deposition. In particular, Dr. Carnes testified that Brown had a diagnosis of chronic daily headache and chronic neck pain, both secondary to underlying left C6 radiculopathy. He explained, in lay terms, that cervical nerve injury can produce local pain and muscle spasms in the neck, which then radiates to the skull and produces headaches. *fn2 Dr. Carnes expressed the view that Brown did not suffer from post-concussive syndrome, but rather his symptoms were caused by the injury to his spine. Carnes stated that, in his opinion, the hockey incident of April 6, 1998, caused the spine injury which in turn was responsible for his present physical condition that prevented him from engaging in professional hockey. The hearing examiner found that this testimony was ...

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