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McNeal v. Dist. of Columbia Dep't of Employment Services

February 22, 2007

WALTER L. MCNEAL, JR., PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
WASHINGTON METROPOLITAN AREATRANSITAUTHORITY, INTERVENOR.



Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB133-03).

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

Argued December 8, 2006

Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.

This case arises from the denial of petitioner's claim for workers' compensation benefits. Concluding that the Department of Employment Services "misapprehended the statutory presumption favoring causation," Whittaker v. District of Columbia Dep't of Employment Servs., 668 A.2d 844, 844 (D.C. 1995), we reverse and remand for further proceedings.

I. The Factual and Procedural Background

The evidence establishes that Walter McNeal, Jr., was struck or at least "lightly contacted" by a bus, but there are significantly different versions of what happened. McNeal testified that he was working in WMATA's bus garage on December 3, 2002. He was talking with his co-worker, Felton Lowery, when a bus drove past "real fast" and hit him as it turned. McNeal explained: "It was the rear right, rear right. When he swung out, that's when it hit me. When he went left, the bus went right, and that's when I got hit." The bus hit the back of his head down through his back. According to McNeal, the contact pushed him "into the left side of another bus," causing him to hit his wrist. McNeal testified that he fell to one knee before Mr. Lowery came to his aid, helping him stand. After making an initial report, Mr. McNeal went to the emergency room at Providence Hospital.

This was the first of many examinations, by several specialists, over the course of the next few months.Beginning with the trip to the emergency room, McNeal consistently complained of neck pain. Several of the resulting reports indicated that McNeal had a limited range of motion in his neck and was experiencing muscle tenderness and spasm. An MRI conducted in February indicated that McNeal suffered from a herniated disc of the cervical spine, and an EMG performed the same month showed bilateral radiculopathy. At least three of the physicians attributed these injuries to the work incident described by McNeal. McNeal underwent surgery on his neck on July 11, 2003, and since that time he has been unable to return to work. Based on McNeal's testimony and the medical reports he submitted, Administrative Law Judge Jeffrey Russell determined that there was sufficient evidence to invoke the presumption of compensability established in the Workers' Compensation Act, D.C. Code § 32-1521 (1) (2001). However, for reasons we explain below, the ALJ concluded that the presumption ultimately fell from the case.

After considering the evidence offered by WMATA, including the testimony of Mr. Lowery, the eyewitness, the ALJ found that "the incident in the garage was as Mr. Lowery described it, and not as described by [Mr. McNeal]." ALJ Russell concluded that the incident "was not forceful enough to cause [McNeal] to have struck the stationary bus, to lurch forward to any significant degree, to fall or slip to one knee, or to lose consciousness."He summarized Mr. Lowery's testimony as follows:

[McNeal] and he were standing in the garage talking, when a bus making a turn behind [McNeal] "lightly contacted" [McNeal's] upper back and shoulder area. According to [Mr. Lowery], the force of the contact was not sufficient to cause a "lunge" or a fall; he testified that [McNeal] did not get pushed into the bus next to which they were standing; he stated that [McNeal] did not fall in any fashion, including falling to one knee, and that [Mr. Lowery] did not assist [McNeal] to his feet; he denied that [McNeal] looked or stated that he was "dazed"; and he testified that [McNeal] made no expression of or sounds suggesting injury.

McNeal's supervisor, Ms. Mills, stated that McNeal did not appear to have been injured when she saw him shortly after the accident. She also contradicted McNeal's claim that she had helped him down the stairs.

In addition to the testimony of its employees, WMATA offered various medical reports. However, the ALJ's Compensation Order does not refer to, and WMATA has not cited, any medical reports or testimony opining that the injuries McNeal complained of were not caused by, or could not have been caused by, the light contact of the moving bus against his upper back and shoulders.

The ALJ determined that McNeal's "medical evidence is totally undermined because all of it, even the IME [independent medical examiner] opinions, [is] based upon a false and significantly misleading premise, to wit, that [McNeal] suffered a severe and significant trauma." He held that the statutory presumption was rebutted "because there is no evidence in this record that such an inconsequential brushing of [McNeal's] shoulder has the potential to cause the complained of injuries." After weighing the evidence without considering the presumption, the ALJ concluded that McNeal "did not sustain an accidental injury arising out of and in the course of his employment with [WMATA]."

The Compensation Review Board decided that there was "nothing lacking in the ALJ's analysis of [WMATA's] rebuttal evidence" and that there was "substantial evidence of record" to support his conclusion that WMATA "ha[d] met its burden of producing circumstantial ...


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