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

October 25, 2007

ANTHONY SMITH, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, FEDERAL DATA CORPORATION AND AIG CLAIM SERVICES, INTERVENORS.



Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB 03-155).

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

Argued September 21, 2006

Before KRAMER and FISHER, Associate Judges, and NEWMAN, Senior Judge.

Petitioner is appealing from a decision and order of the Compensation Review Board (the Board) affirming a compensation order by an Administrative Law Judge denying petitioner's claim for workers' compensation benefits under the District of Columbia's Workers' Compensation Act, D.C. Code §§ 32-1501--1545 (2001) (the WCA).

Petitioner contends that the Board's chosen "manifestation rule" for determining when cumulative traumatic injuries are compensable under the WCA conflicts with the Act's presumption of compensability and that the Board's decision should therefore be reversed and his claim granted. We affirm.

I.

The relevant facts of this case are essentially undisputed. Petitioner, a Maryland resident throughout the time period pertinent to this case, began working as a computer help-desk representative for various companies in the late 1980s. This work involved taking telephone calls from those experiencing problems with computer hardware or software, and for each call, recording its nature, using on- and off-line resources and manuals to troubleshoot problems, guiding the caller through a solution, and typing in a summary of the call upon completion.These duties required considerable, although not continuous, typing.

From January 2000 to November 2001, petitioner worked as a help desk assistant for Federal Data Corporation (FDC), a Maryland Corporation headquartered in Maryland. FDC had no office in the District of Columbia. Its help desk employees, however, often worked off-site at the offices of the company's clients. Thus, during the approximately twenty-two months petitioner was employed by FDC, he worked approximately three and one-half months in the District, three to four weeks in Pennsylvania, and the remainder of his tenure in Maryland. His first assignment in the District was at the Internal Revenue Service (IRS) building, where he worked from January to April of 2000; this comprised the entirety of his work in the District on behalf of FDC.

Petitioner testified that during his assignment at the IRS building, he first began to experience numbness and tingling in his hands, symptoms he initially attributed to poor circulation. He did not report these symptoms to anyone at FDC or seek any accommodation while he was in the company's employ, however, because he did not consider the symptoms serious at the time.

Petitioner first consulted a doctor about the symptoms in his hands and wrists on January 9, 2001, approximately eight months after he last worked for FDC in the District, when he mentioned them to a primary care physician during a visit prompted by sinus problems. According to the examining physician's notes, the doctor attributed the pain to "possibl[e] carpal tunnel," prescribed Vioxx, and advised the petitioner on the use of a wrist brace.

On November 9, 2001, petitioner's employment with FDC ended when he was laid off at the conclusion of the contract on which he was working. Petitioner was not employed again until approximately June 2002, when he started a janitorial business. The work required, according to a subsequent medical report, "strenuous use of the hands, to include the use of mops, brooms, pressure washers and buffers." In the meantime, the symptoms in petitioner's hands and wrists had intensified. Thus, on August 14, 2002, petitioner consulted an orthopedic surgeon and was diagnosed with bilateral carpal tunnel syndrome. Subsequent nerve conduction studies and electromyography confirmed that petitioner's carpal tunnel syndrome was "severe" in his right hand and "moderate" in his left.

On October 28, 2002, petitioner filed a claim seeking past and prospective medical expenses with the District of Columbia Department of Employment Services (DOES), claiming injury from repetitive data entry and citing the date of injury as January 9, 2001. He then amended this filing on December 18, 2002, changing the date of injury to December 8, 1999. A formal hearing was held before Administrative Law Judge Anand K. Verma, who denied petitioner's claim on the basis that the District of Columbia lacked jurisdiction over the matter. Petitioner appealed this decision to the Board, which, in its decision and order, essentially adopted the factual and legal findings of Judge Verma in their entirety. This appealed followed.

II.

Although several issues were raised in petitioner's appeal to the Board, the agency treated the jurisdictional question as dispositive, and that holding is the basis of petitioner's appeal. The essence of petitioner's argument is that the WCA contains a statutory presumption of compensability and that this presumption should underlie determinations of jurisdiction, as well as causation. While petitioner concedes that some version of the manifestation rule should govern the determination of when, and therefore where, a cumulative traumatic injury such as carpal tunnel syndrome "occurs" for statutory purposes, see D.C. Code § 32-1503 (2001), he argues that the statutory presumption of compensability requires DOES to apply whatever version of the rule "encourages coverage for injured workers." As in matters of causation, "[t]he burden then shifts to the employer to rebut the presumption."

The resolution of petitioner's claim requires an explication of this court's limited oversight of the administrative process, analysis of the relevant portions of the WCA, and an understanding of the difficulties cumulative traumatic injury presents in ...


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