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

August 27, 2009

REBECCA JACKSON, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND BAPTIST SENIOR ADULT MINISTRIES AND LIBERTY MUTUAL INSURANCE GROUP, INTERVENORS.



On Petition for Review of an Order of the District of Columbia Department of Employment Services. (CRB No. 07-71).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Submitted June 30, 2008

Before RUIZ and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.

The Compensation Review Board ("CRB") denied petitioner Rebecca Jackson's claim for worker's compensation benefits, thereby affirming the Administrative Law Judge's ("ALJ's") decision to deny benefits, based upon its conclusion that petitioner's claimed disability resulted from a pre-existing medical condition and was not causally connected to a work-related injury. On petition for review, petitioner contends that the CRB erred because the ALJ's findings were not supported by substantial evidence and were not in accordance with the law. We agree. Because we conclude on the particular facts of this case that the employer failed to rebut the presumption of compensability with substantial evidence, the petitioner's claim is compensable. Accordingly, we reverse.

I. Factual and Procedural Background

Petitioner worked as a registered nurse for Baptist Senior Adult Ministries ("Baptist") at the Thomas House. Her job required that she be mobile and able to climb six stories of a ten-story building, as well as be able to get on her knees to perform CPR. She had a history of severe stiffness in her knees and problems with her right knee in particular.Petitioner previously sought treatment from Drs. David C. Johnson and Clayton Straughn for pre-existing osteoarthritis in both of her knees and in her lumbar spine. Dr. Johnson prescribed a regimen of Hyalgan*fn1 injections in her knees. Despite her knee stiffness, petitioner never missed work prior to the November 19, 2003 work-related incident at issue.

On November 19, 2003, as petitioner walked to the nursing station at work, she caught her foot on the carpet and fell forward onto both knees. Thereafter, she began to experience pain in her back and knees, did not return to work, and was treated by Drs. Johnson and Straughn. In January 2004, petitioner underwent total right knee replacement surgery. On September 28, 2004 -- eight months after petitioner's surgery -- Dr. Louis Levitt, Baptist's Independent Medical Examiner ("IME"), examined petitioner. Petitioner received voluntary payments of temporary total disability benefits from November 20, 2003 until March 6, 2004.

Petitioner sought an award of temporary total disability benefits from March 7, 2004 until the present, as well as continuing causally-related medical expenses and interest on accrued benefits.*fn2 The ALJ determined that petitioner's injury was not medically causally-related to the November 19, 2003 incident and denied petitioner's claim. The ALJ concluded that petitioner "presented sufficient evidence to invoke the presumption of compensability from March 7, 2004 [forward]" with regard to petitioner's right knee. The evidence -- Dr. Johnson's November 24, 2003 report*fn3 -- indicated that Dr. Johnson presented petitioner with several treatment options; she elected total knee replacement, which occurred on January 6, 2004. The ALJ also reviewed the reports of Drs. Johnson and Straughn "for compensation related to [petitioner's] back injury." She indicated that Dr. Straughn's report noted the "Date of Loss" as January 5, 2003, which was different from the date of petitioner's on-thejob injury -- November 19, 2003 -- andaccordingly refused to consider this medical report as proof of compensability for the back injury.*fn4 The ALJ did, however, credit two of Dr. Johnson's reports concerning petitioner's lower back pain,*fn5 and accordingly found that they invoked the presumption of compensability. With regard to petitioner's left knee, the ALJ stated that there was "insufficient evidence of a disability related to [petitioner]'s left knee for the claimed period -- March 7, 2004 to the present and continuing."*fn6 Accordingly, she found that there was no presumption of compensability for petitioner's left knee.

Having found that petitioner had established the presumption of compensability for her right knee and back, the ALJ then examined the evidence to determine whether that presumption had been rebutted. Crediting Dr. Levitt's evaluation of petitioner, the ALJ noted that Dr. Levitt found that petitioner merely strained her back and temporarily exacerbated the pre-existing arthritis in her knees as a result of her on-the-job accident. According to the ALJ, Dr. Levitt's conclusion that petitioner's November 2003 fall "did not advance [petitioner]'s arthritis" rebutted the presumption of a causal connection between petitioner's on-the-job accident and her right knee condition. With regard to petitioner's lower back pain, Dr. Levitt opined that it was due to age-related back difficulties that may have been aggravated by the fall, but that these symptoms abated within a month after petitioner's fall. The ALJ found this evidence insufficient to sever the presumption of compensability for the back injury.

In light of all the evidence, the ALJ was not persuaded that petitioner's right knee condition was compensable. She specifically noted that Dr. Johnson's X-rays of petitioner's knee demonstrated that she suffered from bone-on-bone apposition*fn7 with arthritic changes. However, the ALJ found no reason to believe that petitioner's condition -- as demonstrated by the x-rays -- was causally related to her November 2003 fall. Further, she found that Dr. Johnson's report that petitioner "significantly aggravated" her prior symptoms was lacking because he failed to "provide [any] qualitative or quantitative distinction between [petitioner]'s pre-existing condition and her work-related injury."

On appeal, the CRB affirmed the finding that there was sufficient evidence to rebut the presumption of compensability with respect to the right knee, but reversed and remanded because it held that in weighing the evidence as a whole, the ALJ had erred in not giving appropriate weight to the treating physicians' evaluations. In finding sufficient evidence to rebut, the CRB noted that petitioner had failed to address why the IME's report was deficient under the standard set forth in Washington Post v. District of Columbia Department of Employment Services, 852 A.2d 909 (D.C. 2004), which holds that an employer meets its burden to rebut the presumption of causation when it proffers a qualified IME who, after examining the employee and reviewing her medical records, unambiguously opines that the work injury did not contribute to the disability. Further, the CRB detected no infirmity in the IME's report under that standard.

Moving to the question of the appropriate weight to be accorded the treating physicians' opinions, the CRB concluded that the ALJ erred in not addressing the substance of Dr. Straughn's report due to her conclusion that Dr. Straughn meant "Date of Injury" where he noted the "Date of Loss" as January 5, 2003, instead of November 19,2003. The CRB noted that in light of the rest of his reports, nothing other than the "Date of Loss" date suggested that Dr. Straughn was addressing anything other than the November 19, 2003 work-related incident. Furthermore, during the hearing, petitioner was neither cross-examined about some other similar incident nor confronted with the "Date of Loss" report, and opposing counsel did not object to these reports for lack of relevance. Thus, the CRB held that the factual finding that Dr. Straughn's opinion referred to some other incident was not supported by substantial evidence, and the decision not to consider the opinion was error. Accordingly, the CRB remanded, stating that Dr. Straughn's opinion must be considered.

Moreover, the CRB noted that the ALJ neither reconciled the opinions of Dr. Levitt vis-à-vis Dr. Johnson nor explained why she accorded more weight to the former. The CRB noted that while an ALJ can choose to credit the opinion of an IME over that of a treating physician, she must indicate the reasons both for crediting the IME's opinion and for discrediting the treating physician's. See Canlas v. D.C. Dep't of Employment Servs., 723 A.2d 1210, 1211-12 (D.C. 1999) (holding that there would be "little force" to the preference for the opinions of treating physicians if agencies could ignore those opinions without explanation). The CRB noted that by failing to articulate her reasons for departing from the preference for treating physician opinions, the ALJ appeared to be "substituting her own medical judgment for that of the physician." Citing this court's prohibition of the usurpation of the role of expert witnesses by administrative law judges,*fn8 the CRB remanded the case.

On remand, the ALJ again rejected the opinions of Drs. Straughn and Johnson and denied the claim. Again, the ALJ indicated that petitioner met her burden to invoke the presumption of compensability with regard to her right knee and lower back. She further held that notwithstanding the treating physician preference, the IME's report may be accorded greater weight. Citing Erickson v. Wash. Metro. Area Transit Auth., H&AS No. 92-63, OWC No. 181489 (Oct. 28, 1993), aff'd Dir. Dkt. No. 93-82 (June 5, 1997), the ALJ noted that the treating physicians' reports may be rejected where they are sketchy, vague, and imprecise. She stated that IME opinions, on the other hand, may be accorded greater weight in cases where the IME personally ...


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