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Brown-Carson v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

May 4, 2017

Sylvia Brown-Carson, Petitioner,
District of Columbia Department of Employment Services, Respondent.

          Argued December 15, 2016

         On Petition for Review of a Final Order of the Compensation Review Board (CRB-10-15)

          Jonathan H. Levy, Legal Aid Society, with whom Becket Marum, Legal Aid Society, was on the brief, for petitioner.

          Jason Lederstein, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

          Before Thompson and McLeese, Associate Judges, and Ferren, Senior Judge.

          Ferren, Senior Judge.

         Petitioner appeals from a decision of the Compensation Review Board (CRB) vacating a compensation order by an administrative law judge (ALJ), who ruled that notice of petitioner's workers' compensation claim (as well as the claim itself) had been timely and awarded her compensation for temporary total disability (carpal tunnel syndrome). We reverse and remand to the CRB for a decision consistent with this opinion.


         Petitioner worked for the District of Columbia for twenty-five years before filing a claim for workers' compensation. From 1987 to 1993, she fielded 911 calls for the Metropolitan Police Department (MPD) - a position in which she answered a high volume of emergency calls and typed information into a dispatch system for police, fire, and emergency services.

         During a "routine checkup" through her health plan in 1992, petitioner was diagnosed with carpal tunnel syndrome and was advised to wear a wrist splint. The following year, she was detailed to a payroll position that required less typing. Petitioner continued to suffer from intermittent pain in her left wrist, a condition she treated herself with over-the-counter pain medication in addition to the recommended wrist splint. She remained in the payroll position through 2004, when she resumed her work as a 911 call operator.

         After eight more years of processing emergency calls, petitioner felt extreme pain in her left wrist while typing on March 28, 2012. On April 3, 2012, she notified her supervisor and filed a claim for worker's compensation benefits under the Comprehensive Merit Personnel Act (CMPA).[1] Three days later, her employer sent her to an urgent care center, where Dr. Anthony McCarthy noted her history of carpal tunnel syndrome, and advised her to cease use of her left hand. Because of this restriction, petitioner's employer informed her that she could no longer work. Prescription medication and a wrist injection did not cure the numbness, tingling, and pain.

         On May 17, 2012, a medical exam by Dr. Steven Friedman, an orthopedist designated by petitioner's employer, appeared to confirm petitioner's earlier carpal tunnel diagnosis, [2] although he noted that her condition was primarily due to diabetes, initially diagnosed in 1998, and that she could return to work with less typing and frequent breaks. Another physical exam by rheumatologist Dr. Nora Taylor, to whom petitioner was referred at the request of her employer, suggested that petitioner was "suffering from an inflammatory arthritis of some kind." Based on this report, but without access to the full panel of blood test results, Dr. Friedman noted in an addendum his "concern[]" that petitioner's condition was not work-related but rather the result of an underlying inflammatory condition. Accordingly, the Public Sector Workers' Compensation Program denied petitioner's claim on September 21, 2012.

         Petitioner requested an administrative hearing, which took place on February 6, 2013, before ALJ Joan E. Knight. Petitioner maintained that her disability was work-related and that notice to her employer had been timely. Her employer answered that petitioner had failed to show by a preponderance of the evidence that her carpal tunnel syndrome was related to her work. The agency further argued that petitioner's injury had occurred at the latest in 1993, after she had been diagnosed with carpal tunnel syndrome and realized it was causally related to her work - meaning that petitioner had missed the statutory thirty-day period required for notice of the injury to her employer.[3] Knight reviewed the evidence of petitioner's medical history, including an assessment by Dr. Rida Azer, petitioner's treating physician. First, crediting Dr. Azer's assessment of causality over Dr. Friedman's, who had stated that petitioner's "left carpal tunnel [was] primarily non-occupational in nature, " ALJ Knight concluded that petitioner "has met her burden to establish her left carpal tunnel condition is causally related to her employment." Second, as to timeliness, the ALJ found that petitioner's "left carpal tunnel syndrome worsened over the years and became a disabling condition on March 28, 2012"; that petitioner "suffered an aggravation of a cumulative trauma work injury, " which "manifested on March 28, 2012, " after a "debilitating left wrist pain"; and that petitioner timely notified her employer of "her aggravation [of a] cumulative trauma injury." ALJ Knight accordingly awarded temporary total disability benefits to petitioner on September 27, 2013.

         Petitioner's employer appealed to the CRB, which agreed that ALJ Knight had erred in determining that petitioner had "provided timely notice of her injury." More specifically, the CRB concluded that ALJ Knight had misapplied the "manifestation rule, " which the CRB had adopted not under the CMPA but under a parallel provision of the Workers' Compensation Act (WCA), [4] applicable to private sector employees. According to the CRB's formulation in VanHoose v. Respicare Home Respiratory Care[5] - announced in response to this court's decision in King v. District of Columbia Dep't of Emp't Servs., [6] - the date of injury under the WCA is "the date the employee first seeks medical treatment for his/her symptoms or the date the employee stops working due to his/her symptoms, whichever first occurs."[7] Applying that rule in this CMPA case, the CRB concluded that ALJ Knight had erred in finding that petitioner's injury occurred on "March 28, 2012, " "when her left wrist condition became disabling, " rather than much earlier, at the time of her "1992 diagnosis of carpal tunnel and [her] contemporaneous realization that it was work related."

         The CRB accordingly vacated ALJ Knight's timeliness determination, and remanded the case to the ALJ for issuance of an order denying petitioner's claim. On remand, ALJ Knight issued revised findings and the required order denying the claim because of untimely notice. Petitioner again appealed to the CRB, whereupon the CRB struck the ALJ's "new" findings (as "beyond the scope of the remand") and again denied petitioner's claim in a second decision and order. This petition for review followed.


         We note, first, that this court reviews the decision of the CRB, not that of the ALJ.[8] And, although we review questions of law de novo[9] "because it is emphatically the province and the duty of the judicial department to say what the law is, "[10] "[a]n agency's interpretation of its own regulations or of the statute which it administers is generally entitled to great deference from this court."[11]"However, when it appears that the agency . . . did not conduct 'any analysis of the language, structure, or purpose of the statutory provision, ' '[i]t would be incongruous to accord substantial weight to [the] agency's interpretation.'"[12]Similarly, "[w]hen the agency's decision is inconsistent with the applicable statute . . . we owe it far less deference, if indeed we owe it any deference at all."[13]

         Because the CRB imported the WCA manifestation rule into this case claiming CMPA benefits, we note that this court has emphasized the similarity of these statutes. We have "considered case law under one act to be informative as to the other."[14] Moreover, we have explained that "in light of their similar humanitarian purpose, " "[w]e interpret these . . . statutes to be consistent with each other, even where the statutes' language is not identical."[15] More specifically, we have read an "aggravation rule" (relevant here, as we shall see) into the CMPA[16]by analogy to the WCA and the Federal Employees' Compensation Act.[17]Accordingly, we shall reference here both WCA and CMPA decisions.[18] This is not to imply, however, that differences in statutory language are never relevant to construction of the several compensation statutes.[19]

         Finally, in recognizing a difference between cases with a discrete injury and cases with cumulative trauma, this court has never held that all aggravations must be discrete injuries.[20]


         With these preliminary clarifications in mind, we turn to the central questions presented:

1. Whether the CRB erred in considering petitioner's injury to be, exclusively, a cumulative trauma and not an aggravation of a non-disabling preexisting condition; and, in any event,
2. Whether the CRB erred when applying the "manifestation rule" to determine the date of "injury" from which the 30-day notice requirement of D.C. Code § 1-623.19 (a)(1) began to run.[21]



         As to the first question, petitioner argues that, in accordance with the ALJ's compensation order, the CRB should have considered petitioner's carpal tunnel syndrome to be an aggravation of a non-disabling pre-existing condition, rather than a cumulative trauma. To be sure, the ALJ's order at issue here was not as clear cut as petitioner makes it out to be.[22] Indeed, the CRB understood the ALJ to have "conflated the legal concepts of a discrete accident causing an injury and a cumulative trauma" - a criticism the CRB had leveled on at least one prior occasion.[23] Nonetheless, after separating these concepts, the CRB characterized petitioner's carpal tunnel injury - a condition whose "symptoms appear and worsen over an extended period of time, " and "may be episodic and may subside when the employee's job is altered"[24] - as exclusively a cumulative trauma case. This reading of the ALJ's order is arguably inferable, [25] although not assuredly so.[26]But, however, the order ultimately should be interpreted, after acknowledging the ALJ's conflation of "legal concepts" in characterizing petitioner's injury, the CRB itself erred by "simply ignor[ing]"[27] other plausible interpretations of the ALJ's order and, even more importantly, ignoring other plausible interpretations of the facts.

         Depending on the circumstances, for example, courts have held that a carpal tunnel injury may be (1) a cumulative trauma, [28] or, as petitioner contends, (2) an aggravation[29] of a non-disabling pre-existing condition.[30] Apparently, however, the CRB, by relying on King, VanHoose, and Franklin, concluded that every option except cumulative trauma (governed by the manifestation rule) was foreclosed categorically. If so, and to merit this court's deference, [31] the CRB should have articulated with greater precision a rationale for that conclusion directed at the ALJ's aggravation gloss on the manifestation rule analysis, especially in light of diverging judicial decisions that embrace the foregoing alternatives.[32] The CRB acknowledged that "[i]t is possible for a discrete accident to aggravate a preexisting condition that was caused by repeated on-the-job trauma." Why cannot a non-traumatic development short of a "discrete accident" aggravate a pre-existing, yet non-disabling, condition? The answer, of course, will affect whether, and if so when, the employer must be notified of the pre-existing condition, the issue to which we now turn.


         Relevant here is our decision in Poole, [33] where the claimant did not suffer from a cumulative trauma. Rather, he tore his right rotator cuff in preventing a thirty-two-foot ladder from toppling, and did not understand that "his shoulder had been seriously injured and its likely cause" until well after thirty days from the accident.[34] There, we said, the notification period began to run "within thirty days of when [the claimant] reasonably became aware of [the injury's] severity, its consequent capacity to affect [the claimant's] work performance, and its link to the workplace accident."[35] Poole, of course, arose under the WCA, which states specifically that the notice period begins to run either (1) within thirty days of the injury or (2) within "30 days after the employee . . . is aware or in the exercise of reasonable diligence should have been aware of a relationship between the injury . . . and the employment."[36] The CMPA's parallel provision, [37] applicable here, does not track this WCA, awareness-based language in clause two. Accordingly, it might seem that reading clause two into the CMPA would find support mainly in the two statutes' "similar humanitarian purpose."[38]

         For the subset of cases relevant here, however, another provision of the CMPA clearly supplements, and very well may remedy, the discrepancy between the notice provisions of the two statutes. According to the CMPA, "In a case of latent disability, . . . the time for giving notice of injury begins to run when the employee is aware or, by the exercise of reasonable diligence, should have been aware that his or her condition is causally related to his or her employment."[39]Accordingly, unless the CRB were to conclude, on remand, that carpal tunnel syndrome cannot be a "latent" disability, [40] there may well be a compelling statutory basis for applying Poole's awareness-based notification test[41] to petitioner's claim here. Doing so, whether the case concerns cumulative trauma or aggravation, would eclipse the need for petitioner to have notified her employer within thirty days of the date she first sought medical treatment, the first prong of the manifestation rule.[42]



         This leads to the second question presented: whether, under the cumulative trauma theory the CRB applied here, the agency erred in setting the date of injury for notice purposes. It is undisputed that our King decision is the text from which our understanding of the CRB's position here must proceed.

         In King, we discussed provisions of the WCA governing "time of injury" for purposes of determining whether, in order to justify recovery, the claimant's "cumulative traumatic injury" had been "principally localized" in the District of Columbia.[43] Without deciding how the "time of injury" is to be fixed, the King court, reversing dismissal for lack of jurisdiction, remanded the case to DOES because the agency had failed to make necessary factual findings.[44] At the same time, we "recognize[d] that a specific time of injury may be difficult to pinpoint for a cumulative trauma injury, " and that "it [was] necessary to develop a consistent approach to that issue."[45] Following a thorough review, [46] we closed the discussion by stating that "[t]he agency charged with administering the [WCA] should make [the choice of which rule to adopt] in the first instance, after carefully analyzing [both] the [applicable] precedents . . . [, ] which, in this jurisdiction, plainly support, if they do not compel, adoption of some version of a manifestation rule, " and the "language, structure and purpose of the statute."[47] Before DOES could make this determination, however, the King case settled, [48] but, as noted earlier, the CRB took up application of the manifestation rule in VanHoose, [49] another cumulative trauma case under the WCA. In VanHoose, discussing neither the precedents mentioned by this court in King nor the language, structure, or purpose of the statute, the CRB instructed the ALJ to apply the manifestation rule adopted by DOES in Franklin, [50]which the CRB revised to read as follows: (1) "the date the employee first seeks medical treatment for his/her symptoms" or (2) "the date the employee stops working due to his/her symptoms, whichever occurs first."[51] ...

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