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

September 4, 2008


On Petition for Review of a Decision of the Compensation Review Board (CRB No. 03-143).

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

Argued February 23, 2007

Before RUIZ and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.*fn1

Concurring opinion by Senior Judge NEBEKER, at p. 12.

Petitioner, Linda D. Jackson, seeks our review of the Compensation Review Board's ("CRB") affirmance of the Administrative Law Judge's ("ALJ") denial of her claim for medical treatment and payment of medical expenses for the treatment of an injury to her left knee that she claims is the natural consequence of a work-related injury to her right knee, suffered in 2001, or, in the alternative, arose from the aggravation of a previously diagnosed medical condition triggered by the same injury at work. Because the ALJ overlooked evidence that would offer substantial support to petitioner's claim, we reverse the CRB's decision, and remand the case for further proceedings.

Factual Summary

Petitioner, who as of the 2003 hearing before the ALJ had worked as a Washington Metropolitan Area Transit Authority ("WMATA") bus driver for over 20 years, has a long-standing history of pain in both knees. In May 1993, her then-treating physician at Group Health Association suspected that she suffered symptoms of crepitus in both knees.*fn2 Petitioner had pain and swelling after she hit her left knee against the steering column while driving intervenor's bus in February 1997, for which she filed a claim. On July 2, 1997, Dr. David C. Johnson diagnosed petitioner as having a significant amount of crepitus in both knees, as well as persistent pain associated with chondromalacia of the patella (knee cap) in the left knee.*fn3 Later that same year, on November 18, 1997, petitioner was again diagnosed at Kaiser Permanente as having bilateral knee pain.

On December 2, 1998, Dr. Tobin A. Finizio made similar findings of degenerative changes in the patella consistent with chondromalacia in both knees. Two days later, petitioner reported continuing bilateral anterior knee pain. On December 9, petitioner sought medical treatment at Southern Maryland Physical Therapy Services for her knees, whereupon an X-ray examination revealed arthritis in both knees.

On July 27, 1999, petitioner sought treatment from Dr. J. Michael Joly, who diagnosed her knee condition as "[s]evere symptomatic bilateral patellofemoral pain syndrome." Up until this point petitioner's pain had been more acute in her left knee, but she told Dr. Joly that the right knee was "catching up." Dr. Joly opined that 80 percent of petitioner's condition was attributable to her excessive body weight.

On February 17, 2001, petitioner again struck her knee -- this time the right knee -- hitting the fare box while she was on the job in the bus.*fn4 She attempted to continue working that day, but, due to significant pain in the knee, she had to stop a few hours later. Within a few days of the incident, petitioner saw her primary care physician at Kaiser, who diagnosed her with a knee contusion, and prescribed anti-inflammatory medication, putting ice on the knee, and rest (without work) for about eight days. When petitioner reported to work at her usual position as a bus driver, she was instead given modified employment as a parking lot attendant, which required her to watch the parking lot -- a position entailing only minimal walking. Petitioner worked as a parking lot attendant until approximately July 2001, when she resumed her duties as a bus driver.

Due to the worsening condition of her right knee, petitioner was referred to an orthopedic surgeon, Dr. Shaheer Yousaf, whom she first saw on August 16, 2001. Petitioner did not disclose her past history of knee problems to Dr. Yousaf. After an examination, Dr. Yousaf diagnosed petitioner's condition as patellar contusion and recommended physical therapy. When her pain was not alleviated by that course of treatment, petitioner discussed surgical options with Dr. Yousaf.

Based on a magnetic resonance imaging test ("MRI") performed on October 8, 2001, which showed mild to moderate chondromalacia of the patella in petitioner's right knee, petitioner underwent arthroscopic surgery of the right knee on January 22, 2002. The surgery revealed that the chondromalacia was at an advanced stage, and Dr. Yousaf debrided the patella.*fn5 Petitioner recuperated for several months, during which she initially walked with crutches, received injections, and participated in a rehabilitation program for strength and flexibility. By March 14, 2002, petitioner had improved by 70 to 75 percent but still had difficulty getting up from a seated position.

On May 13, 2002, approximately four months after surgery, and for the first time since she had injured her right knee on the bus in February 2001, petitioner reported left knee pain. Although there had been no specific incident or trauma that precipitated said pain, Dr. Yousaf's examination found tenderness in the back of petitioner's left knee and along the kneecap, fluid in the knee joint, and patellofemoral crepitation (knee noise upon flexion and extension, see note 1, supra). Dr. Yousaf immediately ordered X-rays of the left knee joint, which revealed patellofemoral degeneration. On July 1, 2002, an examination of petitioner's left knee revealed continued tenderness, effusion, and patellofemoral crepitations. Dr. Yousaf recommended a non-invasive course of treatment (physical therapy) for petitioner's left knee as he had originally prescribed for the right knee, with the possibility of arthroscopic surgery in the future.

On July 29, 2002, after examining petitioner's right knee, Dr. Yousaf determined that operating the foot controls and repetitive knee bending required in driving a bus rendered petitioner incapable of working as a bus driver because it would entail too much pushing and/or pulling on her right leg. Following Dr. Yousaf's determination, petitioner returned to her position as a parking lot attendant ...

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