Phillip O. Battle, Petitioner,
District of Columbia Department of Employment Services, Respondent, and Washington Metropolitan Area Transit Authority, Intervenor.
Submitted November 22, 2017
Petition for Review of an Order of the District of Columbia
Department of Employment Services Compensation Review Board
N. DeSmyter was on the brief for appellant.
O. Rollman and Mark H. Dho were on the brief for intervenor.
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.
Glickman, Easterly, and McLeese, Associate Judges.
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
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.
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.
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." 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."
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.
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.