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Clark Construction Group, LLC v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

July 13, 2017

Clark Construction Group, LLC, et al., Petitioners,
v.
District of Columbia Department of Employment Services, Respondent, and Darrell Banks, Intervenor.

          Submitted May 10, 2017

         Petition for Review of an Order of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-11-16)

          Sarah M. Burton was on the brief for petitioners.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, filed a statement in lieu of brief in support of respondent.

          David J. Kapson was on the brief for intervenor.

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

          OPINION

          REID, SENIOR JUDGE.

         Petitioners, Clark Construction Group, LLC, and Zurich North America ("Clark Construction"), seek review of the Decision and Order of the Compensation Review Board ("CRB") affirming the Administrative Law Judge's ("ALJ") Compensation Order on Remand; the order concerned the claim of Intervenor, Darrell Banks, who suffered an injury at work on March 7, 2013. Clark Construction, Mr. Banks' employer at the time of his injury, contests the CRB's determination that: 1) Mr. Banks' medical conditions, namely his lumbar spine (lower back) and cervical spine (neck) complaints, are causally related to the work accident, and 2) Mr. Banks is entitled to temporary total disability benefits from February 14, 2014, onward. For the reasons stated below, we affirm the decision of the CRB.

         FACTUAL SUMMARY

         A formal hearing regarding Mr. Banks' claim for workers' compensation benefits was held on January 15, 2015, before an ALJ. The ALJ issued a Compensation Order, dated March 31, 2015, following the hearing. These documents show the following. Mr. Banks worked for Clark Construction as a pile driver for approximately seven years. As a pile driver, Mr. Banks' expertise was "highly specialized" and his "usual work duties required walking, lifting and heavy labor." On March 7, 2013, he sustained an injury after slipping on wet clay and striking a "boulder-like dirt hump." He testified that he had a chainsaw in his hands, his "head snapped back and [he was] trying to hold the chainsaw so that it [did]n't cut [him]." His "feet went out from under" him. He hit the hump below his neck, in between his shoulder blades, and also hit his back "[r]ight above [his] belt." He was treated at Clark Construction's clinics in March and April 2013. His neck and upper back were hurting at the time but he did not mention his neck because the pain in that area was not as severe as his lower back pain, and he was "trying to go back to work." He was treated by Dr. Joshua Anderson in December 2013; Dr. Anderson ordered an MRI of the lumbar spine. Clark Construction informed Mr. Banks that they would still pay him if he showed up for work and refrained from filing a workers' compensation claim. While Mr. Banks continued to show up for work, the work required no physical exertion and he was eventually laid off in May 2013 due to "lack of work." Mr. Banks worked for another company, Berkel, intermittently from September 2013 to December 2013; that job required no physical exertion, but he was "periodically laid off due to lack of pile driver work" and to date "has not returned to the full duties of his pre-injury employment."

         Between February and December 2014, Mr. Banks saw Dr. Godwin Darko at MedStar Washington Hospital Center Support Services; at that time Mr. Banks used a cane to ambulate because of severe leg pain. In June 2014, Mr. Banks saw Dr. Michael E. Batipps, a neurologist; he complained of neck pain and informed Dr. Batipps that upon falling on the day of the 2013 work accident, he "had immediate sensation of sharp shooting pain that radiated from his neck down his back."[1] Dr. Batipps diagnosed Mr. Banks with a "lumbar disc herniation with nerve root impingement; he prescribed EMG and NCV studies, a cervical MRI, physical therapy and medication." Clark Construction ordered an independent medical evaluation by Dr. Clifford Hinkes. After mentioning Mr. Banks' treatment by Clark Construction's clinics, and Doctors Anderson, Darko, and Batipps, Dr. Hinkes disagreed with Dr. Batipps' diagnosis and thought that the cervical MRI was unnecessary.[2] In November 2014, neurosurgeon Dr. Jason Garber, who prepared a Utilization Review report, reviewed record documents, and concluded that the study recommended by Dr. Batipps "would be helpful to evaluate [Mr. Banks'] current complaints of neck pain, " but he did "NOT believe this study is care reasonably required to address the sequelae of the compensable event."

         In her Compensation Order ("CO"), the ALJ found that Mr. Banks' lower back complaints were causally related to his work injury.[3] The ALJ also found that Mr. Banks' neck complaints were not related to his work injury.[4] Further, the ALJ concluded that he was not entitled to temporary total disability benefits because he was laid off for economic reasons and had found other work that he could perform.

         Both parties appealed the order to the CRB. The CRB issued a Decision and Remand Order ("DRO"), affirming that Mr. Banks' lumbar condition was causally related to his work injury, but vacating the CO on the issues of Mr. Banks' neck complaints and the denial of temporary total disability benefits. After reviewing and referencing this court's case law regarding the presumption of compensability, the CRB concluded that "the mere statement of a physician's opinion in opposition to the presumption is not sufficient to overcome the presumption, " and that "Dr. Hinkes's opinion . . . is so spare a discussion as to fairly be characterized as being 'unaccompanied by a discussion of the reasoning upon which it is based.'" Furthermore, the CRB declared: Dr. Hinkes' "opinion . . . is ambiguous. It is not clear whether Dr. Hinkes feels the cervical MRI is not necessary medically, or that it is not related to the accident."[5] On December 31, 2015, the ALJ issued a Compensation Order on Remand ("COR"), finding that Mr. Banks' injuries to the neck and lower back were both causally related to the work injury; after reviewing the record ...


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