Submitted May 10, 2017
for Review of an Order of the Compensation Review Board of
the District of Columbia Department of Employment Services
M. Burton was on the brief for petitioners.
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.
J. Kapson was on the brief for intervenor.
Thompson and McLeese, Associate Judges, and Reid, Senior
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.
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."
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." 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. 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."
Compensation Order ("CO"), the ALJ found that Mr.
Banks' lower back complaints were causally related to his
work injury. The ALJ also found that Mr. Banks'
neck complaints were not related to his work
injury. 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.
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." 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