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Georgetown University Hospital v. Dist. of Columbia Dep't of Employment Services

August 2, 2007

GEORGETOWN UNIVERSITY HOSPITAL, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND JULIETFISCIAN, INTERVENOR.



On Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-03-136).

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

Argued June 28, 2007

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

This case arises out of a claim for workers' compensation benefits filed by Juliet Fiscian, pursuant to the provisions of the District of Columbia Workers' Compensation Act of 1979, as amended, D.C. Code §32-1501 et seq. (2001). Petitioner, Georgetown University Hospital, argues that the award of temporary total disability benefits to Ms. Fiscian, for the period of September 9, 2002, through and including October 2, 2002, and the finding by the Administrative Law Judge (ALJ) that the claimant's lower-back pain was causally related to a work-related injury are both unsupported by substantial evidence. Although we conclude the record supports the finding of a causal connection with respect to the lower-back pain, we agree that there is no evidentiary support for disability benefits beyond September 9, 2002, and vacate that portion of the award. We remand to the Compensation Review Board with instructions that the ALJ enter the proper compensation award.

I. Factual Summary

The claim at issue stems from a work-related injury sustained by Ms. Fiscian on July 4, 2002, while she was a clinical technician at Georgetown University Hospital working a twelve-hour shift in the postpartum unit. On that day, Ms. Fiscian opened a closet door to reach for some sterile linens in a hospital room and was knocked in the forehead by the closet door, which had fallen off its hinges. She sought medical attention for the first time the next day at the emergency room of Georgetown University Hospital, and afterwards she sought the care of a doctor through her health insurance. She saw her treating physician, Dr. Nancy Rivera-King, six times between July 5 and October 2, 2002.

Immediately following the injury, Ms. Fiscian complained of and was treated for a forehead contusion and neck/cervical pain. At her visit to the doctor on August 7, 2002, she also noted lower-back (lumbosacral) pain, which Ms. Fiscian stated in her testimony before the ALJ was caused by the physical therapy that had been prescribed by Dr. Rivera-King to alleviate her cervical pain.*fn1 Ms. Fiscian was released to return to work on August 12, 2002, but only for a four-hour shift (instead of the regular twelve-hour shift) and with the further limitation that she not lift more than fifteen pounds.

Prior to that visit, on August 1, Ms. Fiscian had been examined by Dr. James E. Callan at the request of petitioner. Dr. Callan found that she had already reached "maximum medical improvement" and could return to work as of August 5, 2002, "with no job restrictions."

Following her treating physician's advice, Ms. Fiscian returned to work on August 12, 2002 (a date agreed upon between her and her supervisor at Georgetown University Hospital, Ms. Lynne Philip), and she was told by Ms. Philip to see one of the nurse practitioners, Ms. Paula Sullivan, who worked for petitioner's Employee Health Service Division, to be "cleared" for her shift. Ms. Sullivan examined Ms. Fiscian and determined that she was able to return to full duty on that day. Ms. Sullivan testified that before commencing the examination, she was aware of the advice given by Ms. Fiscian's treating physician that claimant should return to work on a limited basis, but that she was responsible under the hospital's policy for making a separate determination whether the employee was able to return to work.

Ms. Fiscian refused to follow the direction given to her by Dr. Callan and Ms. Sullivan and, instead, left her job after completing four hours as her treating physician had advised. She did not seek her supervisor's consent and she was reprimanded by Ms. Philip in a letter dated the following day, August 13, for her failure to complete the full twelve-hour shift. Ms. Philip sent a second letter, dated August 16, 2002, advising Ms. Fiscian that her employment had been terminated effective midnight on August 16, due to her failure to show up for work for three consecutive days, which under the hospital's policy constituted a de facto resignation by the employee. Before the ALJ, Ms. Fiscian maintained that if she had been offered an opportunity to work four-hour shifts consistent with the medical advice she received from her treating physician, she would have returned to work after August 12, 2002, but that she received no indication that the hospital was willing to provide her that option, and Ms. Philip had told her that the hospital could not offer her any four-hour shifts.*fn2 In her testimony, Ms. Philip stated that she would have tried to "accommodate" Ms. Fiscian, but only depending on how Ms. Fiscian was feeling on a given day. She also testified that she never attempted to contact Ms. Fiscian after seeing her briefly at the hospital the morning of August 12, 2002.

Ms. Fiscian continued her treatment with Dr. Rivera-King. At the visit on September 5, Dr. Rivera-King released her for full-time work without restriction as of September 9, 2002.

Procedural History

After a timely filing of a claim for workers' compensation benefits, a full evidentiary hearing was held before ALJ Karen R. Calmiese on August 19, 2003. The ALJ issued a Compensation Order on September 30, 2003, in which she found that claimant sustained an injury arising out of and in the course of her employment on July 4, 2002, and that she was unable to perform her usual work duties due to this injury from July 4, 2002 until October 2, 2002. In addition, the ALJ found that the claimant's lower-back pain was causally related to the work injury,*fn3 but that the "low back condition, forehead contusion and cervical strain resolved as of October 2, 2002," and that the employer was not responsible for further medical care or treatment for claimant's work-related injuries. Petitioner was ordered to pay Ms. Fiscian temporary total disability compensation benefits from August 12, 2002, to October 2, 2002,*fn4 along with interest on accrued benefits.

Petitioner appealed the decision to the Compensation Review Board (CRB) of the District of Columbia Department of Employment Services. It claimed that the ALJ should not have applied the presumption to conclude that the lower-back injury was causally related to the July 4 work incident and that, in any event, claimant should not have been awarded disability benefits past September 9, 2002, the date as of which the treating physician had released her to work without restrictions.*fn5 While the CRB questioned the ALJ's application of the "direct and natural consequence rule" and the presumption to establish a causal connection to the lower-back injury, it concluded that, the record does contain sufficient evidence to establish Respondent's low back problems . . . were a consequence of the injury ...


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