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Young v. District of Columbia Dep't of Employment Services

January 6, 2005


Petition for Review of a Decision of the District of Columbia Department of Employment Services (DKT 49-03)

Before Reid, Associate Judge, and King and STEADMAN,*fn1 Senior Judges.

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

Submitted October 12, 2004

Petitioner, Raymond Young, filed a claim for workers' compensation benefits, pursuant to the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 32-1501 et seq., for a shoulder injury allegedly sustained on July 24, 2000 while he was working as a carpenter for Flippo Construction Company. Mr. Young appeals a decision by the director of the District of Columbia Department of Employment Services ("Director" or "DOES") reversing a compensation order awarding him all the causally related medical expenses from this incident. Because we agree with Mr. Young that the Director effectively substituted his findings of fact for those of the hearing examiner, we reverse the decision of the Director and direct the agency to affirm the decision of the hearing examiner.


The record shows that on July 24, 2000, while working as a carpenter for Flippo Construction Company ("Flippo"), Mr. Young suffered a sudden, severe injury to his right shoulder when he lifted a metal fence post that was anchored in cement.*fn2 After notifying Flippo of his injury, Mr. Young was taken to Flippo's medical facility in Virginia, where he underwent a urinalysis and was given a prescription for pain medication. Mr. Young never returned to work for Flippo, and was subsequently terminated by Flippo for reasons unrelated to his injury.*fn3

The following day, July 25, 2000, Mr. Young was instructed by Flippo to report for light duty work. However, Mr. Young informed Flippo that he was unable to report for work because he was seeking further medical attention for his shoulder injury. Mr. Young then contacted and visited the Veterans Administration Hospital, where he was given more pain medication. An X-ray examination of Mr. Young's shoulder taken by the medical staff at the Veterans Administration Hospital was negative for findings.

On August 15, 2000, Mr. Young sought further medical treatment for his shoulder from Dr. Edward Rabbitt, an orthopaedic surgeon, and the treating physician in this matter. Dr. Rabbitt's medical note of August 15, 2000, states in part: "Mr. Young was hurt lifting stumps on the 24th of July. He has hurt his right shoulder and low back . . . . The shoulder is very painful. Motrin 800 is not handling things." Dr. Rabbitt recommended that an MRI be taken of Mr. Young's shoulder due to his impression that Mr. Young had suffered a rotator cuff tear. Dr. Rabbitt issued a certificate of disability and ordered Mr. Young not to return to work from August 15 to August 29, 2000. Mr. Young underwent an MRI examination on August 23, 2000, at Magnetic Resonance Imaging of Maryland in Clinton, Maryland, the results of which showed that he had degenerative arthritis of the right acromioclavicular joint ("AC joint"), but no evidence of a tear in his rotator cuff.

On January 24, 2001, reporting no reduction in the level of pain experienced in his shoulder, Mr. Young requested that a second MRI examination of his shoulder be taken at the Veterans Administration Hospital.*fn4 Mr. Young was again referred to Dr. Rabbitt. On September 26, 2001, a second MRI examination was conducted at the Veterans Affairs Medical Center in the District of Columbia to determine the cause of Mr. Young's continuing pain. The examination confirmed the arthritic condition of Mr. Young's right shoulder, and also revealed a partial-thickness tear at or near the AC joint which was not apparent in the results of the first MRI examination.

In a letter dated January 24, 2002, Dr. Rabbitt recommended "surgical exploration" of the tear in Mr. Young's rotator cuff, and "possible repair as necessary." Dr. Rabbitt also recommended that Mr. Young undergo a subacromial decompression, and distal clavicular resection of the right shoulder. Dr. Rabbitt's recommendations were based on his examination of Mr. Young on August 15, 2000, and the results of the second MRI.

On April 16, 2002, Mr. Young submitted to an independent medical evaluation ("IME") of his shoulder by Flippo's physician, Dr. Steven Hughes. After reviewing the results of both of the MRI examinations, and Mr. Young's medical records, Dr. Hughes concluded that Mr. Young's "symptoms are related to degenerative changes of the shoulder and low back," and were not the result of the injury that he sustained while working for Flippo. Dr. Hughes reasoned that "there [was] no objective data that [could] correlate" his continuing shoulder pain "as being causally related" to the July 24, 2003 injury. However, Dr. Hughes does not set forth the July 24, 2000 injury under the section of his report labeled, "History of Injury." Rather, he states: "This 39 year-old right hand-dominant auto mechanic with no prior history of injury to the right shoulder or back relates that he had a confrontation with a supervisor at work and presented to Dr. Rabbitt in August of 2000 having stated that he hurt his shoulder and low back."

Mr. Young filed a claim for workers' compensation pursuant to the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 32-1501 et seq., and a full evidentiary hearing was held on April 29, 2002, before Administrative Law Judge Karen Calmeise of the District of Columbia Department of Employment Services. After considering Mr. Young's testimony and the medical evidence presented by both parties, including the conflicting medical diagnoses of Dr. Rabbitt and Dr. Hughes, Judge Calmeise issued a Compensation Order concluding that Mr. Young sustained an accidental shoulder injury on July 24, 2000 during the course of his employment with Flippo, and that he was therefore entitled to receive all medical expenses, including the recommended surgery, that were causally related to his injury.

Finding that Mr. Young had produced "sufficient evidence to invoke" the presumption of compensability, thereby raising the rebuttable presumption that his injury did in fact arise during the course of his employment, Judge Calmeise rejected Flippo's argument that Mr. Young's injury was caused by anything other than the July 24, 2000 work accident. Judge Calmeise reasoned that Mr. Young's "symptoms and complaints regarding his right shoulder and lower back[] have remained consistent since the July 24, 2000 accident." Moreover, Judge Calmeise stated the often repeated rule that "in cases of competing medical opinion, the opinions of the treating physician," here, Dr. Rabbitt, "are generally entitled to be accorded significant weight," and are more persuasive than the views of the IME physician, here, Dr. Hughes, "who is retained for the purpose of preparing for litigation."*fn5 Judge Calmeise clearly meant to reference the right shoulder and lower back, rather than a "cervical condition" in stating: "I found the medical opinion of treating physician to be most persuasive to resolve the issue of medical causation of claimant's cervical condition."

On April 18, 2003, Flippo filed an application for review of the Compensation Order of Judge Calmeise to the Director of the Department of Employment Services. The Director, after noting that the "sole issue on appeal . . . is whether the decision that [Mr. Young's] right shoulder condition is medically causally related to his July 24, 2000 work injury is supported by substantial evidence in the record," reversed Judge Calmeise's Compensation Order. The Director reasoned that while Judge Calmeise "did not make a finding that [Flippo] had rebutted the presumption [of compensability]," she must have reached this decision because she proceeded to "the next required analytical step when the presumption is rebutted."*fn6 Instead of remanding the case, however, the Director concluded that Mr. Young's medical evidence failed to demonstrate, by a preponderance of the evidence, that his "current shoulder complaints were [causally] related to the July 24, 2000 ...

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