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Potomac Elec. Power Co. v. District of Columbia Dept. of Employment Services

Court of Appeals of Columbia District

October 3, 2013


Argued Feb. 14, 2013.

Page 352

Shawn Nolen, with whom Kevin J. O'Connell, Washington, DC, was on the brief, for petitioner.

Irvin B. Nathan, Attorney General of the District of Attorney, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of a brief for respondent.

Michael J. Kitzman, Greenbelt, MD, for intervenor.

Before BECKWITH and McLEESE, Associate Judges, and RUIZ, Senior Judge.

BECKWITH, Associate Judge:

Potomac Electric Power Company (Pepco) petitions for review of a Compensation Review Board decision affirming a compensation order in favor of its employee, Michael A. Boone, Sr. The power company disputes that there was substantial evidence for the CRB to uphold an administrative law judge's conclusions (1) that Boone, who intervenes here, suffered from a lower back condition medically causally related to a workplace injury in May 1999 and (2) that surgery recommended by his doctor was reasonable and necessary to treat his condition. We disagree with Pepco and affirm.


Michael Boone, a heavy equipment operator for Pepco, testified at a hearing in front of the ALJ that he hurt his lower back at work in November 1998,[1] took a few months off, and then returned to work the following year. Then, on May 25, 1999, Mr. Boone was lifting a 30- to 40-pound chain sling so that he could attach it to the hook of a crane when, according to him, " I felt something in my back, and that was all she wrote." He said the May 1999

Page 353

injury " aggravated" his injury from the year before, and after that he saw an orthopedic surgeon and a neurologist, was prescribed pain medication, was put in traction, and needed physical therapy for his lower back, including " dry needling" and transcutaneous electrical nerve stimulation (TENS) unit treatments. These treatments provided some relief but did not improve his condition, and the pain eventually spread to his left buttock. On cross-examination by Pepco's counsel, Mr. Boone acknowledged that he also later " aggravated" his back during lifting incidents in 2001 and 2008 that caused back spasms.[2] He agreed that the original November 1998 injury " initiated this whole thing."

After years of treatment by his family practitioner, Dr. Adolph Johnson, Mr. Boone was referred to a new neurosurgeon, Dr. Fraser Henderson, who in 2010 diagnosed him with degenerative disc disease within the lumbar spine and bilateral L-5 radiculopathy. Dr. Henderson recommended surgery to decompress the L-5 nerve. Dr. Henderson said he made his diagnosis and surgical recommendation after injecting a " nerve root block" at the L-5 level " [t]o determine whether indeed these nerves were the cause of the pain he is experiencing in his back and legs." The nerve block gave Mr. Boone " immediate relief though short lived," the doctor said, showing that surgery would help.

Although Dr. Henderson testified in a deposition that " the back injury [Mr. Boone] suffered in 1999 resulted in a condition that led to his ... diagnosis and need for surgery," it became clear on cross-examination that the doctor actually was referring to Mr. Boone's first injury in 1998. In fact, Dr. Henderson said, he did not " have a record" of the May 1999 injury, was not familiar with it, and did not consider it in formulating his opinion. He further testified, again probably referring to the 1998 injury, that " I suppose you have to consider that if his back was badly injured in 1999 that any lifting he did after that would have resulted in spasms and more pain and whatnot. It all goes back to the original injury."

Pepco, while not contesting that the May 1999 injury occurred, argued to the ALJ and the CRB that the intervening lifting incidents and the fact that Mr. Boone's doctors did not consider the May 1999 injury showed there was no medical-causal relationship between that injury and his current condition. The company pointed to Dr. Johnson's records, which do not mention the May 1999 injury until 2003 and do not offer an opinion about medical causation. And they introduced an independent medical evaluation of Mr. Boone by Dr. John B. Cohen, in which Dr. Cohen determined that " [t]here is no indication that [Mr. Boone's multiple-level degenerative disc disease] is a direct result of his injuries." Dr. Cohen concluded, after physically examining Mr. Boone and reviewing his medical records, that Mr. Boone " has no evidence of a ...

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