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Battle v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

January 4, 2018

Phillip O. Battle, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and Washington Metropolitan Area Transit Authority, Intervenor.

          Submitted November 22, 2017

         On Petition for Review of an Order of the District of Columbia Department of Employment Services Compensation Review Board (CRB-89-16)

          Krista N. DeSmyter was on the brief for appellant.

          Sarah O. Rollman and Mark H. Dho were on the brief for intervenor.

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

          Before Glickman, Easterly, and McLeese, Associate Judges.

         JUDGMENT

         This case was submitted to the court on the transcript of record, the briefs, and without presentation of oral argument. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the decision of the Compensation Review Board is reversed and the case is remanded for further proceedings consistent with this opinion. As Washington Metropolitan Area Transit Authority (WMATA) failed to present sufficient evidence to rebut the presumption of compensability, the issue of compensability is not subject to reconsideration on remand. However, at least one other issue - the timeliness of Mr. Battle's notice to WMATA - remains for consideration.

          Glickman, Associate Judge.

         Phillip Battle petitions for review of the order denying his workers' compensation claim for temporary total disability benefits and associated medical costs. The Compensation Review Board (the "CRB") affirmed the finding by an Administrative Law Judge (the "ALJ") that Mr. Battle's disabling back condition was not causally related to his employment. Because we hold that there was insufficient evidence in the record to rebut the presumption that Mr. Battle's injury was caused or aggravated by his working conditions, we reverse and remand for further proceedings consistent with this opinion.

         I.

         Mr. Battle worked for the Washington Metropolitan Area Transit Authority ("WMATA") for fourteen years as a bus driver. As he later testified and the ALJ found, he drove for eight to fourteen or fifteen hours per day, and while driving his feet and head were "constantly moving."[1] On January 7, 2015, Mr. Battle felt pain in his lower back. He told his primary care physician that "while driving [the bus], the bumps aggravate[d] his pain." His physician referred him to an orthopedic surgeon, Dr. Jerry Thomas, who treated Mr. Battle in 2015 for lower back and related left leg pain consistent with disc degeneration. Dr. Thomas recommended pain management and physical therapy. During this period, Dr. Thomas did not opine on the cause of the disc degeneration and pain that Mr. Battle was experiencing. The physical therapist's February 2015 "Assessment/Diagnosis" states that Mr. Battle's lower back pain was "consistent with lumbar strain probably due to prolonged work hours involving repetitive twisting while driving [a] bus."

         Mr. Battle's back and leg pain caused him to miss a number of days of work in 2015 in order to seek medical treatment and to recuperate. Mr. Battle filed for workers' compensation benefits in April 2015. He sought temporary total disability compensation for the days that he had to miss work to receive treatment for his disc degeneration and to recuperate, plus coverage of related medical treatment and authorization for continuing pain management. WMATA opposed the application primarily on the ground that Mr. Battle's back condition was not related to his employment.

         In October 2015, at WMATA's request for an independent medical examination ("IME"), orthopedic surgeon Mark Rosenthal examined Mr. Battle and reviewed his medical records, including the physical therapist's notes. In his IME report, Dr. Rosenthal found that Mr. Battle "appears to have some mild lumbar degenerative disease." Noting that Mr. Battle "described a slow gradual onset of back pain, " Dr. Rosenthal opined that "[t]here is no on-the-job incident which could have caused this pathology" and that Mr. Battle's condition "is simply not related to any accident that occurred on the job." Dr. Rosenthal did not address the possibility mentioned by Mr. Battle's physical therapist that Mr. ...


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