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Kralick v. District of Columbia Department of Employment Services2/26/2004
Argued January 7, 2004
As a result of the back injury petitioner Shelda Kralick sustained in a slip-and-fall accident outside her workplace in 1979, petitioner received temporary total disability benefits from the District of Columbia until 1990, when those benefits were terminated. After petitioner sought review of the decision to terminate her benefits, the decision was affirmed by the Director of the Department of Employment Services ("DOES"). On appeal from that decision, petitioner advances two related arguments: (1) that the Director's findings were not supported by substantial evidence, and (2) that both the Hearing Officer and the Director improperly failed to give deference to the testimony of her treating physician over that of two doctors retained by the District for litigation purposes. Because the decision to reject the testimony of petitioner's treating physician was based on an error of fact, we reverse and remand this case to the Director for further consideration.
Factual Background
Petitioner was hired by the District of Columbia in 1974 to work as a computer programmer for the District of Columbia Superior Court. On February 21, 1979, petitioner slipped on the ice and snow in front of her job site and fell, injuring her lower back. On the basis of this injury, petitioner was granted temporary total disability compensation benefits, and, to this date, she has not returned to work. At the time of her injury, petitioner was twenty-eight years old, 5'5" tall and weighed more than 240 pounds.
The record reflects that petitioner visited a number of doctors in the years following her injury. On the day of her fall, orthopedic surgeon Dr. Robert Collins diagnosed petitioner with an acute lumbar strain and directed her to rest at home for the remainder of the week. Because she continued to complain of severe back pain, Dr. Collins admitted petitioner to Washington Hospital Center on March 5, 1979, where she was placed in traction until March 30. While in the hospital, petitioner was examined by neurosurgeon Dr. Arthur P. Hustead who opined that she had sustained a possible ruptured disc from the fall and recommended that she undergo a myelogram to determine whether surgery was necessary. When the results of the myelogram came back negative for signs of disc damage, Dr. Hustead concluded that petitioner had a lumbar strain and that surgery was unnecessary. A second myelogram was performed in September 1981, again yielding normal results.
Although Petitioner was treated primarily by Dr. Collins during the early 1980's, she underwent diagnostic procedures with a number of other specialists. Orthopedist Dr. Jack Nichols examined petitioner on two occasions in November 1979 and concluded, after taking a number of x-rays (which appeared normal), performing other diagnostic tests, and reviewing her medical history, that petitioner had "the residuals of a low back strain which apparently began in 1974 and has continued for the past five years." He recommended that she continue with a low back exercise program, lose weight, and walk up to two miles a day.
Meanwhile, in October 1979, District Medical Director Robert S. Smith referred petitioner to Dr. Everett Gordon for an independent medical examination to determine the nature and extent of petitioner's disability, apparently to assess her eligibility for benefits. Dr. Gordon, an orthopedic surgeon, reviewed her medical records and, after examining petitioner in January 1980, diagnosed her with "probable anxiety state, pre-disposing to subjective back complaints chronic obesity." Dr. Gordon advised petitioner that returning to work on a part-time basis "may be helpful in dissipating h
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