Significant District of Columbia Case Summaries
ONE YEAR LIMITATION ON REQUEST FOR MODIFICATION OF PRIOR AWARD DOES NOT BAR CLAIMANT’S TIMELY FILED NEW CLAIM EVEN WHERE BENEFITS PREVIOUSLY AWARDED FOR SAME WORK-RELATED ACCIDENT, BUT FOR A DIFFERENT INJURY
Millhouse v. WMATA, 2009 D.C.App. LEXIS 500 (October 1, 2009)
On July 14, 1993, Claimant injured her back in course of her employment. Claimant underwent surgery and was paid temporary total. Ten years later, on April 10, 2006, she filed a claim for a new injury she said was caused by her accident at work on July 14, 1993. Claimant was again awarded temporary total disability benefits, from March 9, 2006, to the present and continuing, in a compensation order. The Employer did not contest that claimant's current disability was caused by the 1993 work injury, but argued that the claim for additional benefits was barred by the one year limitation for modification of prior awards set forth in D.C. Code § 32-1524. The ALJ held that the claim for additional benefits was not barred because the Claimant had filed a claim for additional benefits within one year of when she became aware that she had an injury related to the work injury. The CRB affirmed, reasoning that the humanitarian purposes of the statute required a less restrictive reading of § 32-1524. On appeal, the sole issue before the Court was whether, under D.C. Code § 32-1501, a claimant may initiate a new claim for disability benefits for a new injury that arises from a work-related accident for which a claim had previously been filed, or whether a claimant is restricted to filing a claim for modification pursuant to D.C. Code § 32-1524, which imposes a one-year limitation from either the date of the last payment of compensation or the rejection of a claim. The Court of Appeals agreed with the CRB, that where a claimant files a new claim, he or she is not subject to the one-year limitation on requests for modification. Rather, pursuant to D.C. Code § 32-1514, a claimant may file a new claim so long as that claim is not barred by the doctrine of res judicata and otherwise complies with the general statue of limitations set forth in that section.
Any questions regarding this case can be directed to Jamie L. DeSisto or jdesisto@tthlaw.com.
ALJ MAY REJECT THE OPINION OF THE TREATING PHYSICIAN EVEN WHEN THE EMPLOYER HAS NOT PRESENTED AN IME OPINION WHERE MEDICAL RECORDS CALL INTO QUESTION THE BASIS AND RELIABILITY OF THE TREATING PHYSICIAN’S OPINION
Golding-Alleyne v. Washington Hospital Center, 2009 D.C. App. LEXIS 474 (September 24, 2009)
Claimant sustained injuries to her back arising out of and in the course of her employment. She underwent back surgery under the care of Dr. Ammerman. Claimant filed an application for Formal Hearing seeking an award of permanency partial disability benefits of 20% to her left leg, which she alleged resulted from radiculopathy stemming from her back condition. She submitted medical records from her treating physicians, and correspondence from Dr. Ammerman stating his opinion that she had sustained 20% permanency to her leg. Dr. Ammerman did not testify, and the Employer did not obtain an IME opinion to address the issue. The ALJ denied the claim for benefits on the basis that the Claimant failed to meet her burden of proof because there was no medical evidence that the Claimant was ever been diagnosed with or treated for any symptoms, complaints, condition or disability of the left leg, and no medical evidence to support the Claimant’s contentions that she experiences problems with her left leg of weakness, instability, giving way or buckling. In so doing, the ALJ rejected the opinion of Dr. Ammerman, the treating physician. The CRB affirmed. The D.C. Court of Appeals affirmed, holding that when the medical records call into question the basis and reliability of the treating physician’s opinion, the ALJ may reject the opinion without the necessity of the Employer presenting a medical expert of its own.
IME REPORT THAT IS BASED ON A MISTAKE OF FACT IS NOT SUFFICIENT AND COMPREHENSIVE EVIDENCE TO REBUT THE PRESUMPTION OF COMPENSABILITY
Georgetown University v. Ford, CRB No. 09031, CRB No. 001-08, 2009 D.C. App. LEXIS 175, (May 14, 2009)
While on duty as a security officer, on the way back from the restroom, Claimant fell backward, twisting his left knee. The Employer argued at the hearing that Claimant was not entitled to temporary total disability benefits because Claimant’s testimony that he slipped on water was not credible and his fall resulted from his knee's giving way due to an idiopathic injury. The evidence showed that Claimant had experienced a series of workplace injuries beginning in 1998, and had reported continuing knee and back pain since that time. The ALJ found the injury to be compensable because under either scenario, Claimant’s injury arose out of his work duties.
Employer appealed to the CRB, which affirmed. Employer then appealed to the Court of Appeals, and the Compensation Order was vacated and remanded with instructions for further findings. The appellate court held that it was unclear what an administrative law judge (ALJ) meant when she stated that the claimant's fall arose out his work duties, even if he did not slip on water. The statement might mean either that: (i) the claimant slipped on the floor or on some substance other than water, or more likely, that (ii) whether he slipped, or whether his knee gave out on account of a pre-existing knee condition, since he was walking or standing, his fall arose out of and in the course of his employment. The record supported findings that: (1) the claimant slipped and fell solely because he stepped in water on the floor, which was compensable; (2) the claimant fell because of a combination of his idiopathic pre-existing leg condition and the presence of water on the floor, which was compensable; or (3) the claimant fell because of his idiopathic condition, which was not compensable unless the positional risk doctrine applied. It was also unclear whether the ALJ appropriately placed the burden of persuasion on the claimant as the ALJ stated that the employer did not persuasively contradict a causal relationship.
BEFORE APPLYING THE RAMEY STANDARD TO MENTAL-HEALTH PSYCH CLAIM, THE ALJ MUST UTILIZE THE POSITIONAL RISK TEST TO DETERMINE WHETHER THE CLAIMANT'S INJURY AROSE OUT OF AND IN THE COURSE OF HER EMPLOYMENT
Jones v. DC Office of Unified Communications, CRB No. 09-049, AHD No. PBL 08-062, 2009 DC Wrk. Comp. LEXIS 78 (May 12, 2009)
Claimant, and emergency switch board operator, filed a claim alleging she had sustained psychiatric injuries after being yelled at by the Mayor in front of co-workers followed by being placed on administrative leave, and being forced to participate in a formal hearing on the personnel action. The Employer contested the alleged injury arguing that it did not arise out of and in the course of her employment. The ALJ agreed, reasoning that the incidents which caused Plaintiff to suffer psychiatric injuries were not part of her job duties as a switchboard operator.
The Claimant appealed. On appeal the CRB reversed. The CRB noted that when analyzing whether the Claimant’s injury arose out of and in the course of her employment, the ALJ should have applied the positional risk test, which holds that an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in a position where she was injured. The CRB went on to hold that the facts and circumstances in question clearly satisfied the positional risk test. The CRB remanded the case with the instructions that the ALJ apply the standard set forth in Ramey, i.e. examine whether the incidents as alleged by the Claimant were in reality part of the work place environment, as opposed to fabrications or imaginings of the Claimant.
CRB HOLDS THAT D.C. CODE § 32-1503 (D) “WILLFUL SELF-INFLICTED INJURY” IS NOT A VALID DEFENSE TO INJURIES OCCURING WHILE ON LIGHT DUTY THAT RESULT FROM A MERE FAILURE TO ADHERE TO A DOCTOR'S INSTRUCTION OR TO AVAIL ONESELF OF AN EMPLOYER'S WILLINGNESS TO ACCOMMODATE
Ogden v. Bon Appetit Management Co., et al., CRB No. 09031, CRB No. 09-031, AHD No. 08-349, OWC No. 642864, 2009 DC Wrk. Comp. LEXIS 22, (March 2, 2009)
Claimant alleged entitlement to temporary total disability. The ALJ agreed, finding that the light duty job position offered by the Employer exceeded the Claimant’s work restrictions. On appeal, the Employer/Carrier argued that the ALJ erred because the substantial evidence in the record established that the job duties of the light duty position offered by the Employer did not exceed the physical restrictions imposed by Claimant’s physician and were within his physical capacity. Employer also alleged that the ALJ erred by failing to consider the argument that to the extent that Respondent's work activities following his return to work on light duty status exceeded his medical restrictions and caused additional disability thereafter, his claim is foreclosed because the additional disability resulted from his own decision to exceed those limits, rendering the additional disability "intentional and self-inflicted".
The CRB affirmed the ALJ’s decision holding that there is substantial evidence to support the ALJ's finding that Respondent's job duties as a sous chef exceeded his limitations as caused by the work injury. The CRB further held that the statutory exclusion of intentionally self-inflicted injuries from coverage set forth in described in D.C. Code § 32-1503 (d) does not encompass injuries that result from a mere failure to adhere to a doctor's instruction or to avail oneself of an employer's willingness to attempt to accommodate a physical impairment. The CRB reasoned that there is no evidence whatsoever to support the notion that Respondent intended to injure himself by working, and the record demonstrates at most a worker who might have exercised greater caution in the degree of physical exertion undertaken while under doctor's orders.
FULL AND FINAL SETTLEMENT AGREEMENT BETWEEN THE PARTIES CONTAINED UNAMBIGUOUS LANGUAGE WHICH PRECLUDED AN AWARD OF ATTORNEYS FEES POST-SETTLEMENT
Byrnes v. Grand Hyatt Washington, et al., CRB No. 07-030, AHD No. 03-171A, OWC No. 569630, DCCA No. 07-AA-374, 2009 DC Wrk. Comp. LEXIS 15 (February 25, 2009)
Claimant prevailed at the AHD and the CRB on enforcing an award on a petition for attorney fees despite the fact that the parties had entered into a full and final settlement prior to the award of attorneys fees being rendered by the AHD. The Employer/Insurer appealed the Decision and Order of the CRB to the District of Columbia Court of Appeals (DCCA), which rendered a decision on December 23, 2008. Grand Hyatt Hotel v. District of Columbia Department of Employment Services, No. 07-AA-374, 2008 D.C. App. LEXIS 498 (2008). In that decision, the DCCA reversed the Decision and Order of the CRB, finding that the CRB had failed to adequately address the language in the Act which renders settlement agreements approved pursuant to D.C. Code § 32-1508 (8) "complete and final dispositions of a case and shall be a final compensation order" and failed to address language in the approved release, particularly in paragraph 9 in which the settlement agreement is stated to "discharge the employer…from any further liability in this case [and that it is] the full statement of the rights and obligations of the parties hereto." The DCCA further noted that "the general rule is that a compromise and settlement operates as a merger of and bars the right to recovery on any claim included therein", citing McGee v. Marbury, 83 A.2d 157 (D.C. 1951), at 159, and reminded the CRB that "this jurisdiction follows an 'objective law' of contracts which means that the written language will govern the parties' rights, unless it is not susceptible to clear meaning", citing Patterson v. District of Columbia, 795 A.2d 681 (D.C 2002).
On remand, the CRB held that the award of attorney’s fee under review was not in accordance with the law. The CRB reasoned that the express language of the settlement agreement is not ambiguous, and it describes the settlement as being the "full statement of the rights and obligations of the parties hereto." The CRB also reasoned that the lack of any exclusion from the agreement of the prior pending fee petition, when considering the "merger and bar" principles enunciated by the DCCA, and the "objective law of contracts" principle, militates against any consideration of the facts outside the agreement, such as the relatively small amount of the fee included therein, in order to discern the intent of the parties. Finally, the CRB reasoned that settlement agreements entered into pursuant to D.C. Code § 32-1508 (8) , represent the "complete and final disposition" of the case, and is a "final binding compensation order".
WHEN DETERMINING SCHEDULED MEMBER PERMANENCY, TESTIMONY REGARDING THE CLAIMANT’S ABILITY TO FUNCTION IN THE WORKPLACE IS APPROPRIATE, THE DEGREE OF ACTUAL LOSS IN WAGES IS NOT
Cook v. Schindler Elevator Corp., CRB No. 09-029, AHD No. 07-330, OWC No. 601834, 2009 DC Wrk. Comp. LEXIS 16 (February 23, 2009)
Claimant sought an award of schedule member permanency benefits in both legs. The AHD awarded Claimant 0%. On appeal, the Claimant argued that the ALJ erred in considering testimony regarding the Claimant’s post-injury ability to function in the workplace elicited by the Employer. The CRB affirmed the decision of the ALJ, citing Corrigan v. Georgetown University, CRB No. 06-094 (September 14, 2007), and the inherent discretion of an ALJ to consider the non-medical, industrial effects an injury has upon a worker in considering schedule loss claims as discussed by the District of Columbia Court of Appeals (DCCA) in Negussie v. District of Columbia Department of Employment Services, 915 A.2d 391 (D.C. 2007). The CRB explained that Corrigan does prohibit consideration of the degree of any actual loss in wages as a factor in considering awards under the schedule, Corrigan does not prohibit consideration of the effect of the injury upon the actual ability to function in the workplace. The CRB went on to state that one of the specific reasons for the majority's decision in Corrigan, that schedule awards are not based upon actual wage loss amounts, was that "loss of function" is one of the five statutory factors referenced by the legislature in the 1999 amendments to the Act, and that such factors are certainly within the universe of factors that the DCCA referred to in Negussie.
AN ORDER OF DEFAULT MAY BE ISSUED FOR FAILURE TO PAY MEDICAL EXPENSES WHERE THE MEDICAL EXPENSES ARE THE SUBJECT OF A COMPENSATION ORDER
Tagoe v. Howard University Hospital, et al., CRB No. 08-187, AHD No. 03-287, OWC No. 568310 2009 DC Wrk. Comp. LEXIS 20 (February 13, 2009)
A compensation order entered on or about August 29, 2003 awarded Claimant medical expenses. When the Employer/Carrier refused to pay, the Claimant incurred the costs for the medical expenses herself, and petitioned the AHD for and Order of Default and penalties to be awarded against the Employer/Carrier for failure to pay the ordered medical expenses. The ALJ ruled against the Claimant, reasoning that payment of medical expenses does not qualify as compensation under the Act which would entitled Claimant to an Order of default under Section 32-1519.
On appeal, the CRB reversed the ALJ’s decision. The CRB noted that Section 32-1519 of the Act provides for the issuance of an order declaring a default when an employer has failed to pay a compensation award. The CRB held that although this section does not specifically articulate the default order to be an available remedy for non-payment of medical expenses, based upon the determinations made by the Courts in Marshall and Lazarus, medical expenses constitute compensation when employer refuses to pay such expenses and is thereafter required to reimburse employee pursuant to an award.
Any questions regarding these cases can be directed to Jamie L. DeSisto at (410)752-0075 or jdesisto@tthlaw.com.
COURT OF APPEALS REMANDS CASE TO CRB TO ADDRESS WHETHER AN IDIOPATHIC FALL RESULTING IN INJURY IS A COMPENSABLE INJURY ARISING OUT OF THE EMPLOYMENT
Jackson v. DOES, CRB No. 07-71, 2009 D.C. App. LEXIS 362 (August 27, 2009).The Claimant slipped and fell at work, allegedly sustaining injuries to her back and both knees. The Claimant had preexisting conditions in her back and knees for which she had been under active medical treatment for several years, although she had never missed time from work for the conditions. Claimant alleged that these conditions were aggravated by the work injury, and obtained opinions from her treating physicians that she had sustained an aggravation. Shortly after the alleged work injury, the Claimant elected to undergo total knee replacement surgery on her right knee. The injuries were contested based on causal relationship by the Employer/Insurer, who obtained an IME from Dr. Levitt. Dr. Levitt opined that Claimant sustained a temporary aggravation of her preexisting conditions, but that the total knee replacement surgery was entirely related to preexisting conditions.
The ALJ held that the Claimant had presented sufficient evidence to invoke the presumption, but that the Employer’s report from Dr. Levitt was substantial evidence that was sufficient to rebut the presumption of compensability. The ALJ then rejected the opinion of the treating physician in favor of that of Dr. Levitt, providing several reasons for her rejection of the treating physician’s opinions. The CRB affirmed. The Court of Appeals reversed holding that the ALJ erred in finding that the Employer/Insurer had rebutted the presumption of compensability through the IME report of Dr. Levitt, as Dr. Levitt’s opinion did not constitute substantial evidence that could rebut the presumption. Specifically, the Court found that Dr. Levitt’s opinion was based on the erroneous assumption that Claimant was scheduled for total knee replacement surgery prior to the date of the work injury. That mistake of fact led Dr. Levitt to conclude that the fall at work did not significantly alter petitioner's condition or the predetermined treatment, and therefore no compensable aggravation of her pre-existing knee injury occurred. This was insufficient to rebut the presumption, which was supported by the treating physician’s opinion, that the fall aggravated petitioner's existing knee condition, necessitating her knee replacement surgery, which had been discussed, but not deemed necessary for petitioner until the injuries she sustained from the fall at work.