Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 03-55).
Before Farrell and Ruiz, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor, Senior Judge
This appeal arises out of a claim for workers' compensation benefits filed by Anita Jones (claimant) pursuant to the District of Columbia Workers Compensation Act of 1979, as amended, D.C. Code §§ 32-1501, et seq. (2001) (the Compensation Act).*fn2 The Washington Hospital Center (WHC or Employer) appeals from an adverse final order of the Department of Employment Services (DOES or Director) declaring claimant eligible to receive workers' compensation. WHC contends that claimant did not provide it with timely notice that her illness was workplace related, and is therefore ineligible to receive workers' compensation benefits. We affirm.
Claimant was a custodial employee of WHC from February 1972 through February 1979, and from January 1983 through July 1999. Claimant's duties included cleaning WHC's Physicians' Office Building and Main Building, and although she later reached a supervisory position, she continued to perform intermittent cleaning duties throughout the duration of her employment with WHC. Claimant's cleaning duties in these buildings included sweeping and dusting debris that accumulated as a result of maintenance department employees' work in the area located between the ceiling tiles and the underside of the floor above. Claimant proved, and WHC does not dispute, that the underside of the floors in both the Physicians' Office Building and the Main Building were treated with asbestos fireproofing and that, during the time claimant worked at the hospital, the asbestos material had deteriorated and resulted in elevated levels of airborne asbestos fibers and asbestos dust contamination of the top of the ceiling tiles.
In July 1999, claimant was diagnosed with a hernia and WHC granted her a medical leave of absence from July 21 through September 5 of that year. A tissue sample taken during the operation to repair the hernia resulted in claimant's surgeon, Dr. Joel Stevens, diagnosing her with peritoneal mesothelioma, a type of cancer. Dr. Stevens referred claimant to Dr. John M. McKnight, an oncologist, for treatment.
Dr. McKnight first met with claimant on September 3, 1999. In that initial meeting, he discussed her medical history with her, as well as the nature of her illness. Dr. McKnight informed claimant that there is a known causal relationship between mesothelioma and exposure to asbestos or heightened exposure to tobacco substances. In discussing her work place and home environment, claimant described her duties at the hospital and also that her spouse of many years regularly smoked two and a half packs of cigarettes daily. In a report written the same day by Dr. McKnight to Dr. Bell, with a copy to Dr. Mark A. Steves, the doctor who would operate on claimant's mesothelioma, Dr. McKnight wrote that claimant "[gave] me a very long and very clear history of chronic lung disease, long-term asbestos exposure from a work basis, and long-term pulmonary symptomatology."
Claimant was scheduled for surgery with Dr. Steves in late September to excise the mesothelioma. On the same day that she conferred with Dr. McKnight, she requested and was granted a medical leave of absence for abdominal surgery through November 10, 1999. Claimant did not answer the leave of absence form's question whether the leave request was a result of a work-related injury or illness.
On September 24, claimant saw a television advertisement aired on behalf of attorney Peter T. Enslein which mentioned mesothelioma. Claimant telephoned Enslein, and the two met on September 26. Claimant subsequently retained Enslein to investigate whether she had been exposed to asbestos at WHC and to file for workers' compensation.*fn3 On October 19, 1999, claimant's counsel filed an Employee's Notice of Accidental Injury or Occupational Disease and an Employee's Claim Application, which provided WHC with notice of claimant's request for compensation arising specifically from her mesothelioma. On February 14, 2000, in response to a subpoena, WHC produced documentation of reports prepared for it in 1984, 1986, 1987, and 1993 by different companies that identified the existence of asbestos materials in the buildings in question and the potential health threat they posed to employees.
At a compensation hearing before the ALJ in August 2000, the parties, after presenting the evidence, addressed the question whether claimant had given Employer timely notice of a work-related injury as required by the statute. The ALJ issued an order in favor of the claimant and Employer appealed to the Director. The Director affirmed the hearing order, concluding that claimant was entitled to compensation. On the basis of Employer's appeal to this court, we review the Director's resolution of the question.
DOES concluded that claimant's notice of her work-related condition was timely. In reaching its conclusion, DOES found that claimant was not aware of the relationship between mesothelioma and her employment until February 14, 2000 when, through the discovery process, she learned of the presence of asbestos at Washington Hospital Center. DOES concluded that claimant could not have been aware, through the exercise of reasonable diligence, of the relationship until February 14, 2000, because that is ...