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

November 25, 2009

DAVID H. COMBS, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.



The opinion of the court was delivered by: Schwelb, Senior Judge

Petition for Review of a Decision of the District of Columbia Department of Employment Services.

Argued October 8, 2009

Before THOMPSON, Associate Judge, and STEADMAN and SCHWELB, Senior Judges.

On May 5, 2008, following an evidentiary hearing, an Administrative Law Judge (ALJ) of the District of Columbia Department of Employment Services (DOES) issued a Compensation Order in which she held that claimant David H. Combs, formerly a bus driver for WMATA, had sustained only a 1% disability to his right arm as a result of an on-duty accident that occurred on August 24, 1991. Combs appealed from the ALJ's decision to the Compensation Review Board, which unanimously affirmed the Compensation Order on November 3, 2008.

Combs has asked this court to review the Board's decision. He contends that the ALJ erred with respect to the facts and the law, and he maintains that he has sustained a 32% disability. Although we are troubled by some aspects of the Compensation Order, we conclude that the ALJ's dispositive findings are supported by substantial evidence. Accordingly, we affirm.

I.

Combs, who is now 73 years old, began his employment with WMATA in 1980. He remained with WMATA until his "Normal Retirement" (as distinguished from "Disability Retirement") twenty years later.

Combs testified at the hearing before the ALJ that on August 24, 1991, while he was driving a Metrobus on P Street near Delaware Avenue, S.W., a car ran into the side of his bus, pushing it towards a tree. Combs suffered an injury to his right shoulder and arm. He applied for workers' compensation, and he received temporary total disability (TTD) payments from August 25, 1991 to September 17, 1991, and temporary partial disability payments (TPD) from April 30, 1992 to May 12, 1992. Combs made no further application for benefits for more than ten years.

Combs further testified that he was involved in a second accident in 1996. He asserted that on this occasion, he was "rear-ended" by a Cadillac. Combs stated that this accident occurred on Georgia Avenue. Combs asserted, however, that the August 24, 1991 collision on P Street, S.W. was the only accident during his employment with WMATA in which he suffered an injury to his right arm or shoulder.

On February 24, 2003, Combs filed a new "Employee's Claim Application" for workers' compensation. In his application, he asserted that he suffered injury to his right shoulder on "09/03/96 at Delaware Avenue, S.W." He further stated that "[t]he bus I was driving was hit by another vehicle." Delaware Avenue is in the immediate vicinity of P Street, S.W. It is not near Georgia Avenue.

Combs testified that from 1991 he suffered pain and other difficulties with his right arm and shoulder. In 2003 and 2004, and on February 2, 2005, Combs was examined or treated by, inter alia, Sankara R. Kothakota, M.D.,*fn1 V.P. Chandar, M.D., and Michael A. Franchetti, M.D. The reports by all of these physicians specify the year of Combs' injury as 1996, not 1991.*fn2

On May 18, 2005, a DOES Claims Examiner held an informal conference with Combs and with counsel for the parties with respect to Combs' claim that he injured his right arm and shoulder on September 3, 1996. The Claims Examiner concluded, in pertinent part:

Based upon the testimony of the claimant, and my review of the record submitted at the conference, I believe that the claimant sustained job-related right shoulder injury in 1991 (which was not discussed), and in 1996, which is the main claim; however, the claimant did not submit any evidence to support the claim. Moreover, claimant failed to file for workers' compensation until 2/2/2003 ...


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