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Poole v. District of Columbia Dept. of Employment Services

Court of Appeals of Columbia District

October 10, 2013

Donald POOLE, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Benedict Metal Works, et al., Intervenors.

Submitted April 23, 2013.

Page 461

[Copyrighted Material Omitted]

Page 462

[Copyrighted Material Omitted]

Page 463

Mark L. Schaffer, Washington, DC, for petitioner.

Irvin B. Nathan, Attorney General for the District of Columbia, with whom Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of a brief, for respondent, standing on the decision of the Compensation Review Board.

Joel E. Ogden, Baltimore, MD, for intervenors.

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

RUIZ, Senior Judge:

On May 10, 2010, petitioner, Donald Poole, injured his right shoulder during the course of his employment with intervenor, Benedict Metal Works (" employer" ). Petitioner did not seek immediate medical attention, but as his pain increased over the course of two months, he sought professional treatment. Upon being told that he had a serious injury traceable to the work accident, petitioner promptly notified his employer of the work injury on July 13, 2010. Petitioner filed a claim for total temporary disability benefits from December 30, 2010, when his employment was terminated, to the present and continuing, and causally related medical expenses, which the employer challenged. After a formal hearing, Administrative Law Judge (" ALJ" ) Nata K. Brown granted petitioner's claim in its entirety. The employer appealed, and on July 25, 2012, the Compensation Review Board (" CRB" ) affirmed the award of causally related medical expenses, but vacated the award of temporary total disability on the ground that petitioner had not timely notified the employer of his injury. On August 7, 2012, petitioner filed a petition for judicial review. We reverse the decision of the CRB and re-instate the ALJ's award of temporary total disability.

I.

On May 10, 2010, petitioner, who worked as a project manager, and a colleague were at a customer site to install a sheet metal " feature wall." They used a 32-foot extension ladder that weighed approximately 80 pounds. While they were moving the ladder down two steps, petitioner's colleague lost his balance, nearly falling off the steps, and petitioner reached out to prevent the ladder from toppling. Petitioner's " whole body was pulled" in making this effort, and he instantly felt " a burning pain" and " a pulling sensation" in his right shoulder and neck. After a short break, however, the two resumed working and finished the installation.

Petitioner did not seek immediate medical attention, and he continued to work as before. But as the pain in his right shoulder increased in the weeks following the accident, on July 6, 2010, petitioner saw Dr. Andrew L. Tislau, a chiropractor. Dr. Tislau ordered an X-ray, which showed nothing was broken, and physical therapy. When petitioner's condition did not improve with the physical therapy, Dr. Tislau told petitioner that his pain was likely from an injury, and ordered an MRI. The MRI showed a tear in the right rotator cuff, and Dr. Tislau referred petitioner to Dr. Thomas Brandon, an orthopedic surgeon and ...


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