June 6, 2018
Petition for Review of an Order of the District of Columbia
Department of Employment Services (CRB-27-17)
M. Majumdar, Assistant Attorney General, for appellee.
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.
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.
N. DeSmyter, with whom Kevin H. Stillman was on the brief,
Thompson and McLeese, Associate Judges, and Farrell, Senior
THOMPSON, ASSOCIATE JUDGE.
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.
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.
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
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
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 ...