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District of Columbia Public Schools v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

September 13, 2018

District of Columbia Public Schools, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and Kimberly Tomlin, Intervenor.

          Argued June 6, 2018

          On Petition for Review of an Order of the District of Columbia Department of Employment Services (CRB-27-17)

          Irina M. Majumdar, Assistant Attorney General, for appellee.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed, and Mary L. Wilson, Senior Assistant Attorney General, were on the brief for petitioner.

          Tonya A. Robinson, General Counsel for the District of Columbia Department of Employment Services, filed a statement in lieu of brief in support of the respondent.

          Krista N. DeSmyter, with whom Kevin H. Stillman was on the brief, for intervenor.

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

          THOMPSON, ASSOCIATE JUDGE.

         Petitioner District of Columbia Public Schools ("DCPS") seeks review of a Compensation Review Board (the "CRB" or the "Board") decision affirming a February 17, 2017, compensation order (the "Compensation Order") that reinstated intervenor Kimberly Tomlin's temporary total disability (TTD) wage loss benefits and medical benefits related to a concussion Ms. Tomlin sustained in 2008. DCPS argues that the CRB erred in holding that DCPS's submission of medical evidence showing that Ms. Tomlin's concussion had resolved years before the hearing did not satisfy DCPS's initial burden of production because that evidence was not "current." For the reasons stated herein, we remand for clarification and reconsideration in light of this opinion.

         I.

         The record discloses that on September 4, 2008, Ms. Tomlin fell and struck her head on a concrete floor while working for DCPS as a dedicated aide for a student with special needs. That same month, Ms. Tomlin came under the care of neurologist Dr. Michael E. Batipps. Dr. Batipps diagnosed Ms. Tomlin with, inter alia, post-traumatic cervical, right shoulder, thoracic, lumbosacral, hip, and knee strain as well as a "head injury with mild concussion due to [fall at work]" and "[p]ost concussion syndrome." The Office of Risk Management (ORM) accepted Ms. Tomlin's claim for TTD and medical benefits based on a "concussion with strains and bruising of the cervical/lumbar spine" and related injuries.

         On December 29, 2008, at Dr. Batipps's request, Ms. Tomlin underwent an MRI scan on her brain, which returned normal results. Five months later, Dr. Batipps saw Ms. Tomlin again, noted the results of her brain scan, and reported that she "no longer has dizziness and other postconcussion symptoms." Dr. Batipps opined in his May 6, 2009, report of that visit that "[t]he symptoms of postconcussion syndrome . . . have now resolved." Dr. Batipps observed that Ms. Tomlin "continue[d] to have frequent headaches," but opined that the headaches "stemmed from occipital cervical pains" and were "a direct result of the [cervical injury and] cervical strain and disc herniation triggering posterior headaches and occipital tenderness." Although Dr. Batipps concluded in May 2009 that Ms. Tomlin had recovered from her concussion, he opined in a number of reports issued in 2010 that she continued to be totally disabled due to cervical, lumbosacral, and right shoulder pain.

         On May 6, 2014, Ms. Tomlin reported to Dr. Louis Levitt for an independent medical examination. Dr. Levitt concluded that Ms. Tomlin was at "maximum medical improvement" and that she was malingering, as there was "no evidence of [any] objective measure of pathology that would warrant care." Based on Dr. Levitt's opinion, ORM terminated Ms. Tomlin's TTD and medical benefits, effective August 7, 2014.

         Ms. Tomlin appealed the termination, and on November 25, 2014, an evidentiary hearing took place before a Department of Employment Services (DOES) Administrative Law Judge (ALJ). After the hearing, the ALJ determined that he lacked subject-matter jurisdiction over the claim. The CRB reversed that ruling and remanded the matter to the ALJ "to determine if [Ms. Tomlin] remains unable to return to work due to the injuries to her cervical and lumbar spine and the concussion she sustained on September 4, 2008, consistent with the prevailing case law in Mahon ...


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