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Children's National Medical Center v. District of Columbia Dep't of Employment Services

April 8, 2010

CHILDREN'S NATIONAL MEDICAL CENTER AND FRANK GATES SERVICE COMPANY/AVIZENT, PETITIONERS,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, BEVERLY MCCORMICK, INTERVENOR.



Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB 09-016).

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

Argued February 25, 2010

Before RUIZ and FISHER, Associate Judges, and BELSON, Senior Judge.

In the workers' compensation system, utilization review ("UR") is a statutory procedure for determining "the necessity, character, or sufficiency of any medical care or service furnished or scheduled to be furnished" to an injured employee. D.C. Code § 32-1507 (b)(6)(A) (2001). In this case, the Department of Employment Services ("DOES") held that the UR process had been completed although the employee's physician had not sought reconsideration of an adverse opinion. Holding that the agency's decision was based on a permissible interpretation of the statute, we affirm.

I. Factual and Procedural History

In October 2007, Beverly McCormick, a housekeeper at Children's National Medical Center ("CNMC"), slipped on a wet floor and, although she did not fall, twisted her right knee. Following the accident, her knee was treated with rest, a steroid injection, and arthroscopic surgery. In July 2008, when the joint could no longer bear weight, she chose to have a total right knee replacement.

Prior to the accident, Ms. McCormick (sometimes referred to as "claimant") suffered from end-stage degenerative osteoarthritis in both knees. Dr. Samir Azer, an orthopaedic surgeon, began treating her in the fall of 2006, injecting a steroid first into her "more symptomatic" right knee, then into her left knee the following week. At that time he advised claimant that she would likely need to have both knees replaced in the "foreseeable future." In April 2007, he injected a steroid into her left knee after she complained of pain there, and then injected the right knee four weeks later. In August 2007, he began Synvisc*fn1 injections to both knees.

After claimant slipped and twisted her right knee in October 2007, Dr. Azer examined the joint and diagnosed a sprain or strain, noting that her right knee had been "doing better" following the Synvisc injections but before she slipped. When the knee did not improve with rest, he ordered an MRI, which showed advanced degenerative arthritis and what Dr. Azer believed was a degenerative tear of the medial meniscus. He injected the knee with a steroid and, after it did not improve,performed an arthroscopy in January 2008. Dr. Azer described the arthroscopy as "a palliative procedure with no cure [for]... the degenerative changes that she has." He did not find a torn medial meniscus during the surgery.

By May 2008, claimant reported constant and "excruciating" pain. When claimant declared in July that she could no longer put weight on the joint and wanted the operation, Dr. Azer scheduled her for a total right knee replacement.

The employer obtained the opinion of an independent medical examiner ("IME"), who recommended against knee replacement and found "no causal relationship between the work related injury and her current symptomatology[,]" stating "I don't think [the injury] hastened, exacerbated or made the arthritis progress in any way." The employer also initiated the UR process. Although the doctor conducting the utilization review agreed that replacement of the knee was medically necessary and appropriate, he determined that claimant was not an appropriate candidate for the surgery at that time because she weighed too much. Dr. Azer received a copy of the utilization report, but he did not request reconsideration, although he was entitled to do so under D.C. Code § 32-1507 (b)(6)(C).

Dr. Azer testified during his deposition (which took place after the UR report was issued) that "having treated both [knees] with Synvisc injections,... the fact that she has not complained of her left knee at all leads me to believe that the injury aggravated the pre-existing degenerative arthritis [of her right knee] enough to at least accelerate significant[ly] the need for her total [right] knee [replacement]." Dr. Azer disagreed with the utilization reviewer's opinion that Ms. McCormick was not an appropriate candidate for the surgery. Referring to a recent NIH study, he testified that obesity was not a contraindication to total knee replacement, and explained that expecting obese patients to lose weight prior to knee replacement is "totally unrealistic" because such patients cannot move, exercise, or be active.

After a formal hearing, an administrative law judge ("ALJ") issued a compensation order approving the knee replacement.Relying upon Dr. Azer's opinion that the accident accelerated the need for the knee replacement, the ALJ concluded that the surgery was causally related to the workplace injury. Noting Dr. Azer's reference to the NIH study, the ALJ also concluded that total right knee replacement was "medically necessary."After the Compensation Review Board ("the Board") affirmed the compensation order, McCormick v. Children's Nat'l Med. Ctr., CRB No. 09-016, 2009 WL 345799, 2009 DC Wrk. Comp. LEXIS 11 (Jan. 2, 2009), CNMC petitioned for review.

II. Standard of Review

We may reverse a Compensation Review Board decision "only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." McNeal v. District of Columbia Dep't of Employment Servs., 917 A.2d 652, 656 (D.C. 2007); see D.C. Code § 2-510 (a)(3)(A) (2001), formerly D.C. Code § 1-1510 (a)(3)(A) (1981). We will affirm the decision if "(1) the agency made findings of fact on each contested material factual issue, (2) substantial evidence supports each finding, and (3) the agency's conclusions of law flow rationally from its findings of fact." Georgetown Univ. v. District of Columbia Dep't of Employment Servs., 971 A.2d 909, 915 (D.C. 2009). As we have explained many times, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." King v. District of Columbia Dep't of Employment Servs., 560 A.2d 1067, 1072 (D.C. 1989) (quoting Consol. Edison ...


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