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

January 25, 2007

CASSANDRA CALDWELL, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
HOWARD UNIVERSITY HOSPITAL, ET AL., INTERVENORS.



Petition for Review of a Decision of the District of Columbia Department of Employment Services.

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

Argued October 31, 2006

Before RUIZ and FISHER, Associate Judges, and SCHWELB, Senior Judge.

On September 30, 2005, an Administrative Law Judge (ALJ) of the District of Columbia Department of Employment Services (DC DOES) issued a Compensation Order awarding Cassandra Caldwell, a former employee of Howard University Hospital (HUH), workers' compensation benefits for medical problems and expenses resulting from Ms. Caldwell's contact with certain chemical agents while she was employed by HUH. The ALJ ruled, however, that Ms. Caldwell's condition, insofar as it related to her employment at HUH, had resolved on June 23, 2004, and that she therefore was not entitled to benefits after that date. Ms. Caldwell appealed to the Compensation Review Board (CRB) of the agency's Office of Hearings and Adjudication (OHA), and on January 10, 2006, the CRB affirmed the ALJ's decision. Ms. Caldwell has now filed a petition for review in this court, contending that the ALJ's finding that her condition had resolved by June 23, 2004 was not supported by substantial evidence in the record and that the CRB erred in affirming that finding. Because there is no substantial evidence that as of June 23, 2004, Ms. Caldwell had fully recovered from all (as distinguished from most) of the medical problems resulting from her employment at HUH, we reverse the CRB's decision and remand for further proceedings.

I.

Ms. Caldwell was employed as a histo-technologist in HUH's Anatomic Pathology Laboratory (APL) from June 2001 to September 2003. The ALJ found that the laboratory had an inadequate ventilation system,*fn1 and Ms. Caldwell soon developed difficulties in breathing, tightening in the chest, a burning sensation in her eyes, and other complaints as a result of her contact with various chemicals. On July 28, 2003, Ms. Caldwell complained to her supervisor, noting at this point that she suffered frequent headaches, memory loss, diarrhea, and a skin disorder, and she was evaluated at HUH's Health Unit. On September 11, 2003, Ms. Caldwell was assigned to an adjacent room, where she worked for approximately 40% of the time, but she continued to experience many of her prior symptoms.

In the months that followed, Ms. Caldwell was examined by several physicians and diagnosed as suffering from a number of disorders. In February 2004, she was relocated to a cubicle inside HUH's Office of Pathology. Thereafter, in the words of the ALJ, Ms. Caldwell experienced considerable improvement in her symptoms in that her headaches diminished, her complained of skin recouped most of its color, and her memory became much sharper.

On February 21, 2004, Ms. Caldwell was examined by Ann-Marie Gordon, M.D., an internist at Washington Hospital Center. Dr. Gordon was of the opinion that there was a causal connection between Ms. Caldwell's exposure to chemical agents in the APL and her symptoms, and she recommended that Ms. Caldwell be removed from the environment that caused her difficulties. This finding of causation was essentially confirmed two months later by Robert D. Bunning, M.D., a rheumatologist at the National Rehabilitation Hospital. Dr. Bunning wrote that prior to her exposure to a concentration of chemicals and diminished ventilation, Ms. Caldwell "was an extremely healthy, happily employed woman."

Meanwhile, in January 2004, Ms. Caldwell began to work part-time at Washington Adventist Hospital (WAH). On June 23, 2004, Dr. Gordon examined Ms. Caldwell once again. According to Dr. Gordon, Ms. Caldwell stated that she has experienced complete resolution of headache, insomnia and memory loss. However, she complained of increased sensitivity to odors. She indicated that she is unable to tolerate sweet smelling and stinging odors as well as cigarettes (she was able to tolerate cigarettes up until 01/04). She also complained of an intermittent cold sensation in her fingers every day and associated numbness in the fingertips when it is cold. These symptoms are triggered when she touches hot or cold surfaces. Occasionally her hands get flushed and hot. She complained of a painful right 3rd digit.

Dr. Gordon also noted that a "recent rheumatologist examination," presumably by Dr. Bunning, had disclosed the possible existence of a "scleroderma-type*fn2 illness or connective tissue disorder." Dr. Gordon concluded that Ms. Caldwell developed her symptoms several months after commencing her job at HUH, that she "continues to have resolution of most of the initial symptoms that she has experienced," that this improvement "is attributed to her removal from the laboratory environment into an office setting," but that she had developed additional disorders as described above.

Subsequently, on June 1, 2005, at the request of counsel for HUH, Ms. Caldwell was examined by Joel R. Schulman, M.D. Dr. Schulman summarized his findings as follows:

At this time she has what is essentially a normal exam with clear lungs and no related current immediate symptomatology. Her pulmonary functions are entirely normal. She lists multiple continued symetic complaints, which are enumerated. At this time I feel several but not necessarily all of her current symptoms are consistent [with] a chronic low-level exposure to volatile organic compounds and picture [sic] of chemicals. That would include her development of positive ANA, her development of an irritable bowel syndrome and possibly the skin changes that she enumerated. More immediate symptomatology related to direct exposure might explain the episodes of sensation of heaviness in the chest and the headache. As to any specific temporal etiology I feel this is more related to a prolonged and continued exposure at varying levels in association with her current and past employment.

II.

After reviewing the evidence, the ALJ found that at WAH, Ms. Caldwell did not experience any of the earlier symptoms she had complained of while working with Howard University Hospital [because] this job site was equipped with an adequate ...


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