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

March 15, 2007

MARGARET YOUNG, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND WASHINGTON HOSPITALCENTER ANDKEMPERINSURANCECOMPANY, INTERVENORS.



On Petition for Review of a Decision of the District of Columbia Department of Employment Services. (CRB 37-05).

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

Argued December 8, 2006

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

Petitioner Margaret Young challenges a decision of the Department of Employment Services ("DOES") Compensation Review Board ("the Board") that upheld a Compensation Order denying her claim for temporary total disability benefits and related medical expenses. DOES found that petitioner had not established that, during the period in issue, she had a disability that was causally related to exposure to mold at her place of employment, as she claimed. Because we find that DOES failed to consider possible "alternative work-related causes" of the adverse symptoms that underlie petitioner's disability claim, and also made no finding as to whether petitioner was able to return to her work during the period in issue, we reverse and remand.

Background

Administrative Law Judge ("ALJ") Linda Jory found the following in her December 27, 2004 Compensation Order. Petitioner Young is a registered nurse who worked as a charge nurse in the labor and delivery unit at Washington Hospital Center ("the Hospital"). In May 2002, contractors began a flood remediation project throughout parts of the Hospital. On the morning of July 6, 2002, project work was ongoing in a sealed-off area near the nurses' station where petitioner was working. At some point during the morning, the area near the nurses' station "began to get dusty and a large cloud-like burst of powder emitted into the nurses station area." Petitioner was exposed to "a cloud of fine particulate matter" that was "thick enough to affect visibility." By lunchtime, petitioner had developed a headache and cough. She notified her supervisors, who sent her to the emergency room, where doctors placed her on oxygen and gave her medication and nebulizers. Thereafter she sought treatment from her personal physician, Dr. Robert Davison, who referred her to a pulmonary specialist, Dr. Norton Elson. Petitioner told her personal physician and other physicians who examined her that the dust she had been exposed to at work was from a mold abatement project at the Hospital.

After staying off work for nearly a month, petitioner returned to work on August 3 at Dr. Elson's recommendation. After approximately ninety minutes on the job, she noticed a burning in her nose, tightness in her chest, fever-like warmth, coughing, a sore throat and voice changes. She again went to the emergency room and was sent home. When she saw Dr. Elson on August 28, he recommended that petitioner "avoid her offending work environment."

On March 21, 2003, Dr. Elson opined that petitioner had significant control of her symptoms, and advised that she could return to work if she avoided her previous work setting. Petitioner began working with a vocational rehabilitation counselor engaged by the Hospital. Because petitioner was home-schooling her children, it was difficult for her to schedule time for vocational services and interviews. Eventually she found work on her own as a registered nurse. She began work again at a different hospital on February 12, 2004.

The Hospital voluntarily paid petitioner's disability benefits from July 7, 2002, through March 12, 2003. She sought, in addition, an award of temporary total disability benefits for the period from March 14, 2003, through February 11, 2004, and payment of her medical expenses.

An ALJ conducted an evidentiary hearing on September 25, 2003, on the issues of whether petitioner's disability, if any, for that period was "causally related to an injury which arose out of and in the course of her employment on July 6, 2002;" the nature and extent of her disability, if any; and whether she had voluntarily limited her income.*fn1 In the resultant December 27, 2004 Compensation Order, ALJ Jory noted that the District of Columbia Workers' Compensation Act of 1979, D.C. Code § 32-1501, et seq., affords petitioner a presumption of a medical causal relationship between her claimed disability and a work-related event that had the potential of resulting in the disability.*fn2 Under that presumption, the Hospital had the burden of establishing, by "specific and comprehensive" evidence, that petitioner's disability did not arise out of and in the course of employment.*fn3

ALJ Jory found that, through the testimony of independent medical examiner ("IME") Dr. Ross Myerson, the Hospital "sharply sever[ed] or rebut[ted]" the presumptive relationship between petitioner's symptoms and her employment." Dr. Myerson saw petitioner on August 19, 2002, and thereafter reviewed her medical records as well as documentation provided by the Hospital about the remediation project. The ALJ specifically cited Dr. Myerson's observation, from petitioner's laboratory test records, that the only fungi as to which petitioner had any significant elevations "were not found when [petitioner's] work area was tested." The ALJ also cited Dr. Myerson's conclusion that "[t]here is no credible medical or scientific data which would link [petitioner's] multi-system complaints to the July 6, 2002 exposure to dust at the Washington Hospital Center." The ALJ reasoned that Dr. Myerson's report was "overwhelmingly specific and comprehensive," causing the presumption of causality to fall out of the case, and requiring petitioner to prove that her alleged disability was causally related to the July 6, 2002 incident.

The ALJ found that petitioner did not meet that burden even though she presented evaluations by several physicians to support her claim. The ALJ found that the physicians' opinions (other than Dr. Myerson's) were "unreliable" because they were based on the "exaggerated and incorrect history that claimant's work station was literally blanketed with mold" and that "mold was sprayed out into the area where she worked." The ALJ concluded that IME Dr. Myerson was the "only physician of record who had an understanding of the irritants [petitioner] was exposed to at her workplace." The ALJ also relied on the testimony of John Morosko, a supervisor for the Hospital's flood damage repair contractor. Morosko, who was on the job when the dust cloud was expelled on July 6, 2002, testified that workmen had been removing fireproofing material composed of processed paper (cellulose) and Styrofoam, that the "material had been tested for asbestos and mold or bacteria growth," and that "the area contained [behind polyethylene sheeting near petitioner's nurses' station] in July 2002 did not contained [sic] any mold growth." Finally, the ALJ cited the testimony of John Kerner, a certified industrial hygienist/aerosol scientist, who testified that in October 2001, his company had taken bulk samples of the material to be removed from the area near the nurses' station where petitioner was working, and that no mold was found at that time. He also testified that there was no water source that could have supported mold growth in that area and that the mold level was not a dangerous or health factor.

Although acknowledging the evidence that petitioner possessed antibodies to myelin and to several different toxigenic molds and other toxins, the ALJ found "no persuasive evidence that the work performed at claimant's work area caused any increased level of mold which could be causally linked to her ongoing disability." The ALJ also found that petitioner had not proffered any credible testimony to counter the testimony of the Hospital's contractor "that the material they were removing was fireproofing material which was . . . cellulose material or a paper like substance." The ALJ held that without the benefit of the statutory presumption, petitioner had not established that her alleged disability and wage loss were causally related to the exposure she experienced on July 6, 2002.

In an August 31, 2005 ruling, the Board found that the Compensation Order was supported by substantial evidence and therefore concluded that there was no reason to disturb the ALJ's findings even if the Board itself might have reached a different conclusion.*fn4 The Board ...


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