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Washington Post v. District of Columbia Department of Employment Services6/3/2004
burden shifted, the examiner ruled, to The Washington Post to present "substantial evidence, both specific and comprehensive enough, to sever the presumptive relationship" between Reynolds' disability and his injury at work.
To meet that burden, The Washington Post submitted the deposition testimony and written reports of Dr. Louis Levitt, a board certified orthopedic surgeon who had examined Reynolds and reviewed his pertinent medical records at the Post's behest. In his final report, Dr. Levitt noted initially that the evaluation of Reynolds' left knee pathology is "complicated. There are two injury events in question that contributed to his current knee pathology." These were the incidents in January 1994 and September 1995. After describing the two incidents, each of which involved a "twisting injury" that produced "mild pain and swelling," Dr. Levitt stated his firm opinion that neither one caused or contributed to Reynolds' disability. Rather, he said, Reynolds' disability was attributable solely to the natural progression of his pre-existing knee disease. Dr. Levitt explained his opinion as follows:
fter reviewing this case and evaluating Mr. Reynolds, there is no doubt that he has significant knee pathology. . . . t is my opinion that his knee complaints are not work related. If either of the work traumas in 1/94 and in 9/95 had caused a significant injury to his knee and had further advanced his osteochondritic pathology, the patient would have sought treatment within a reasonable period of time. The natural history of his osteochondritic dissecans is to become symptomatic, particularly when one appreciates the extent of his knee pathology that was identified at the time of his arthroscopic procedure in 9/96. It was the irregular cartilage surfaces over the medial femoral condyle and tibial plateaus that caused the meniscal injury that was treated at the time of his surgery and not any previous work trauma.
There is no question that Mr. Reynolds needed the surgery that was performed. The treatment provided and the extensive degenerative wear identified arthroscopically and radiographically is not the consequence of any previous work trauma. . . . Based on his examination today, Mr. Reynolds is fit to work, but given the extent of the arthritis to his left knee, it would be my recommendation that he avoid jobs that require frequent squatting and bending activities. The need to consider limiting any of his work responsibilities is not the result of any previous work trauma but represents the natural deterioration of a pre-existing knee disease.
In his deposition, Dr. Levitt reiterated these views. While the September 1995 incident resulted, he testified, in a "temporary irritation of the [knee] joint," the trauma did not "advance [Reynolds'] knee pathology or structurally change his knee in any manner." Dr. Levitt specifically discounted, "to a reasonable degree of medical certainty," the possibility (pressed by Reynolds' counsel) that Reynolds tore his medial meniscus in jumping off the forklift. Such a tear would have led, in Dr. Levitt's view, to more immediate symptoms than Reynolds experienced.
Unimpressed, the hearing examiner gave short shrift to what she dismissively characterized - without any explanation - as "Dr. Levitt's speculative and partial opinion." The opinion failed, the examiner concluded, to meet the employer's burden to present substantial evidence specific and comprehensive enough to dispel the statutory presumption of causation. Relying on that presumption, the examiner found Reynold's disability to be work-related and granted his claim for benefits.
In upholding the award, the Director of the Department of
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