Washington Metropolitan Area Transit Authority v. D.C. Department of Employment Services and Harold Spencer

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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 02-AA-707 W ASHINGTON M ETROPOLITAN A REA T RANSIT A UTHORITY, P ETITIONER, v. D ISTRICT OF C OLUMBIA D EPARTMENT OF E MPLOYMENT S ERVICES, R ESPONDENT. H AROLD S PENCER, INTERVENOR. On Petition for Review of a Decision of the District of C olumbia Department of Employment Services (DKT85-01) (Argued May 22, 2003 Decided June 26, 2003) Gerard J. Stief, Associate G eneral Co unsel, with whom Cheryl Burke, General Counse l, Robert J. Kniaz, Deputy General Counsel, and Donna J. Henderson, Assistant Gene ral Cou nsel, w ere on th e brief, fo r petition er. Mark L. Schaffer for intervenor. Arabell a W. Teal, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corpora tion Coun sel, filed a statem ent in lieu of b rief, for respon dent. Before W AGNER, Chief Judge, and SCHWELB and R EID, Associate Judges. R EID, Associate Judge: Petitioner W ashington Metrop olitan Area Transit A uthority ( WMATA ) filed a petition for review of a decision of the Director of the Department of Employment Services ( the Director ) affirming a compensation order in favor of intervenor Harold Spenc er ( M r. Spen cer ). We a ffirm th e decisio n of the Directo r. We hold that the Director and the Administrative Law Judge ( ALJ ) applied the correct legal standard governing the presumption of compensability; and that the employee satisfied his initial burden regarding the presumption of compensability. We also hold that the employer failed to present substantial evidence to rebut that presumption; and that based up on the reco rd in 2 this case, no additional medical evidence was nec essary to refute the sworn testimony of the employer s expert. The employee presented extensive medical reports from his treating physician and other d ocume ntary evide nce to satisfy his burden of proof, and the opinion of the employer s expert was based upon a flawed factual assumption. Finally, we conclude that the recor d in this case contained substan tial evidence to support the Director s and the ALJ s findings and determinations. FACTUAL SUMMARY According to the factual findings of the AL J in this case, on May 26, 2000, Mr. Spencer, an elevator and escalator technician for WMATA, had completed an inspection of an elevator shaft at the Van Ness station, where he found eight inches to a foot of water which [he] believed contained oil, and was in the process of climbing a ladder from the shaft whe n he slipped and fell, striking his back on a shut off valve and injuring his knees. After informing his supervisor of his fall, he sought medical treatment from the George Washington University Hospital. There, he filled out an incident report fo rm. He stated that he had injured his right and left knee as well as his right ankle and back in the incident. Although Mr. Spe ncer had a prior circula tory proble m with his right leg[, it] was corrected by . . . a vascu lar surge on. Mr. Spencer was no t treated for an y vascular p roblem w ith his left leg. Mr. Spencer was unable to work from May 27, 2000, through October 10, 2000. When he returned to work on October 11, 2000, [h]e began to feel a sharp pain in his left knee and thereafter his left knee would buckle when he walked. When he ascended stairs, 3 he noticed a clicking sound in his left knee. So, he again sought medical diagnosis and treatment on February 13, 2001 from the same doctor who had treated him after his accident on May 26, 2000, Dr. Craig Faulks. Dr. Faulks advised Mr. Spencer that he should get an MRI and that he might need an arthroscop ic procedure. condyle. The MRI revealed chondral damage to the medial femoral WMATA did not authorize the arthrosco pic procedure. Ne vertheless, Mr. Spencer proceeded with the arthroscopic surgery on August 3, 2001, by using his own insurance. During th e surgery, D r. Faulks fou nd a sm all radial tear of the me dial me niscus, as well as a complex degenerative tear of the m eniscus. He repaired the radial tear, debrided the complex degenerative tear, and prescribed six weeks of therapy. Mr. Spencer filed a wo rkers com pensation c laim for tem porary total d isability benefits from A pril 12, 2001 to April 21, 2001, from May 19, 2001 to the time of filing, and continuing. The ALJ found in favor of Mr. Spencer s claim, and awarded him temporary total disability payments for the specified time period, as well as all reasonably related medical expenses. WMATA filed a petition for review with the Director, and the Director affirmed the com pensation order. ANAL YSIS WMATA contends that the Director s [d]ecision is legally flawed and must be reverse d. It is flawed in the first instance, WMA TA argues, because of [t]he failure of the Director to consider the evidence submitted by [WMA TA] to rebut the presumption [of 4 comp ensabi lity]. That testimony ca me from the d eposition of WM ATA s expert, Dr. James Callan. WMATA claims that the Director s decision is also flaw ed because [M r. Spencer] submitted no expert medical evidence to prove by a prep onderan ce of the ev idence that h is left knee condition was causally related to the work injury. Therefore, WMATA argues that the Director s decision is not supported by substantial record evidence. Mr. Spencer supports the conclusions of the ALJ and the Director that, in essence, Dr. Callan s testimony was manifestly insufficient to rebu t the pres umpt ion of c ompe nsability . In addition, M r. Spencer a sserts that there is substantial rec ord eviden ce to support the determination of the ALJ, and the affirmation of the Director, that his left knee injury was causally related to his fa ll on May 26, 2000. That evidence includes his testimony which the ALJ credited, the medical reports of Dr. Faulks and other documents, and the crossexamination responses of Dr. C allan. In response to W MAT A s argume nt that expert testimony was required to rebut that of Dr. Callan, Mr. Spencer emphasizes that his is a workers compensation claim, and that a claimant is not required to meet the standards imposed in a negligence case. Generally, [w]e review the Director s legal rulings de novo, but otherw ise defer to the Director s determination so long as it rationally flows from the facts and is supported by substantial evidence on the record. Safeway Stores v. District of Columbia Dep t of Employment Servs., 806 A.2d 1214, 12 19 (D.C . 2002) (citatio ns omitted ). Specifically, in a case of this type, where the presumption of compensability has been challenged by the employer, our approach has been summarized partially in Brown v. District of C olumbia Dep t of Employment Servs., 700 A.2d 787 (D.C. 1997): 5 In the District of Columbia, there is a presumption of compe nsability under the [Wor kers C ompe nsation ] Act. D.C. Code § 36-321 (1) [now codified at § 32-1521 (1) (2001)]; Ferreira [v . District of Co lumbia Dep t of Employment Servs., 531 A.2d 651, 655 (D.C. 1987)]. Its purpose is to advance the human itarian goal of the statu te to provide compe nsation to employees for work-related disabilities reasonably expeditiously, even in arguab le cases , Id. at 654-55 (citations omitted). To com e within th e presumption, a claimant must make an initial showing of some evidence of a death or disability and a work-related event, activity, or requirement which has the potential of resulting in or contributing to the death or disability. Id. (citation omitted). Once that showing has been made, [t]he presumption then operates to establish a causal connectio n betwee n the disability and the work-related event, activity, or requirement. Id. (footnote and citation omitted). The claimant must provide some evidence that the disability is connected with the employment before the burden of produ ction is s hifted to the em ployer . Id. at n.5. Once shifted, the employer has the burden of producing substantial evidence demonstrating that the disability did not arise out of and in th e cours e of em ploym ent. Id. at 655. Id. at 791 (emphasis in origina l). We have defined substantial evidence as more than a mere scintilla. Washington Hosp. Ctr. (Anderson) v. District of Columbia Dep t of Employment Servs., 746 A.2d 278, 281 (D.C. 2000) (quoting Stewart v. District of Colum bia Dep t of Employment Servs., 606 A.2d 1350, 1352 (D.C. 1992)). It is such relevant evidence as a reason able mind might accept as adequate to support a conclusion, and it must be specific and comprehensive enough to sever the potential connection between the disability and the work-related event. Safeway Stores, supra, 806 A.2d at 1219 (citations and internal quotation marks omitted). The employ er is required, however, only to present substantial evidence to rebut the statutory presumption, not to disprove causality with an absolute certainty. Id. at 1220 (quoting Washington Hosp. Ctr. (Callier) v. District of Columbia Dep t of Employm ent Servs., 744 A .2d 992 , 1000 ( D.C. 2 000)). 6 If the employer is able to rebut the presumption [of compensability through the presentation of substantial evidence, then the claimant must] prove by a preponderance of the evidence that [the] . . . injury was caused by [his] job requirements. . . . Washington Hosp. Ctr. (Anderson), supra, 746 A.2d at 281 (citing Stewart, supra, 606 A.2d at 1352-53). And, the agency s task then is to weigh[] the evidence presented at the hearing to determine if a causal relatio nship existed betwe en [the c laiman t s] job re quirem ents an d [his] in jury. Id. at 282. [I]n assessing the weight of competing medical testimony in worker compensation cases, attending physicians are ordinarily preferred as witnesses to those doctors who have been retained to examine the claimant solely for purposes of litigation. Stewart v. District of Colum bia Dep t of Emplo yment S ervs., 606 A.2d 1350, 1353 (D.C. 1992) (citation omitted). While mo re weight may be given to the view s of a non-treating physician, the re would be little force to the preference in favor of a treating doctor s opinion if the agency could ignore that opinion without explanation. Canlas v. District of Columbia Dep t of Employment Servs., 723 A.2d 1210, 1212 (D.C. 1999). Thus, the agency must explain any decision to credit a non-treating physician s opinion over that of the tre ating ph ysician . Id. Contrary to WMATA s argument, our review satisfies us that neither the Director s decision nor that of the ALJ is legally flaw ed. We have stated previously that a compensation order [nee d not] con tain certain m agic wor ds in order to demon strate that the examiner [or the Director] followed the statutory procedures. Washington Hosp. Ctr. (Callier), supra, 744 A.2d at 997. The relevant question is not whether the examiner [or the 7 Director] said [she or he] applied the [procedure governing] the statutory presumption, but whether in fact, [she or] he properly did so. Id. Here, the Director recognized that the first step in the analysis of Mr. Spencer s case was to ascertain whether he ma[d]e an initial show ing of so me ev idence of a . . . disability and work-related event . . . which has the potential of resulting in or contributing to the . . . disability . Brown, supra, 700 A.2d at 791 (internal quotation marks and citation omitted) (empha sis in original). In light of Mr. Spencer s testimony at his compensation hearing, which was credited by the ALJ; his completion of the Employee on the Job Injury and Occupational Illness R eport form on Ma y 26, 200 0, while he was still in the hospital; the medical reports of Dr. Faulks, the treating physician whose opinion is ordinarily preferred over that of a non-treating doctor , see Stewart, supra, 606 A.2d at 1353 (citation omitted); and other docume ntary evidence presented by Mr. Spencer, the Director correctly affirmed the ALJ s conclusion that the evidence submitted by the Claimant was sufficient to invoke the presumption of compensability that his disability is causally related to the injury. Mr. Spencer established that he slipped and fell off of a ladder1 while he was performing monthly maintenance work on the platform elevator at the Van Ness station, he landed on the shut-off valve which has a straight handle. His back hit [the shut-off valve] so hard [th at] it ben t the han dle on it. . . . When asked [w]hat was hurting when he went to the George Washington University Hospital, he testified: Well, at that point the knot on the head was hurting pretty good, and the back pain was like somebody punched me 1 Mr. Spe ncer expla ined that [the re [was] a m akeshift ladd er . . . mounte d on the w all. . . . [I]t s not a true lad der, it s made of more or less scrap m etal parts, like a p iece of ang le iron. 8 hard in the back. And m y knee s were weak . . . . In the section of the Employee on the Job Injury form that Mr. Spencer filled out on May 26, 2000, and which asks for part(s) of the body injured, Mr. Spencer checked: head, upper back, knees and right ankle. The emergency room record for Mr. Spencer s May 26, 2000, visit to the hospital contains the notation, knee pain. And, beginning on June 26, 2000, the medical reports of Dr. Faulks, Mr. Spencer s treating physician, show that he suffered injuries to his knees when he fell on May 26, 2000, and that he was una ble to work for a period of time. Consequently, there was substantial evidence in the record to support the Director s affirmation of the ALJ s finding that Mr. Spe ncer me t his burden of an initial showing of some evidence of a work-related injury with the po tential of resulting in a disability. In short, M r. Spencer s uccessfully invoked the presumption of compensability, and consequently, [t]he presumption then operate[d] to establish a causal connection between the disability and the work -related even t. . . . Brown, supra, 700 A.2d at 791 (citation omitted). In addition, his evidence established that the disability rela ting to his kn ees that prev ented him from eng aging in his normal wo rk at WMATA was connected with [his] employment. Id.2 After Mr. Spe ncer succe ssfully me t his initial burden, the burden of production [then] shifted to the employer, and WMA TA was required to present substantial evidence demonstrating that the disability did not arise out of and in the course of [Mr. Spencer s] emplo ymen t. Id. The Director obviously considered this second step in the process because he focused o n Dr. Ca llan s testimony on behalf o f WM ATA . Dr. Callan stated that his examination of [Mr. Spencer] revealed arthritis of the knee(s) and further [asserted] tha t there 2 WM ATA d oes not contest the fact that M r. Spencer presented s ufficient evidenc e to trigger the presumption of compensability in the first step of the analysis. 9 was no indication of bruising or swelling in the hospital records from the date of injury which would substantiate [Mr. Spencer s] position that the knee injury was the re sult of the fall in the elevator shaft. The Director also expressed his awareness of WM ATA s assertions that the ALJ failed to con sider all evidence [that it] presented, applied the w rong standard for overcoming the causal presumption, and [that] therefore, the conclusion of comp ensability is not su pporte d by su bstantia l eviden ce in the record . Important to reiterate is a lon gstanding principle in th is jurisdiction: It is w ellestablished . . . that a disability resulting from the aggravation of a pre-existing c ondition is compe nsable under the [Workers Compensation Act]. Washington Hosp. Ctr. (Callier), supra, 744 A.2d at 997 (citation omitted). Moreo ver, it is immaterial that other factors unrelated to the employee s work duties, may have contributed in some way to the aggravation of [the employee s] condition. [C]ompensation is warranted so long as [the emplo yee s] disability arose, in part, from [his] work-related activities. Id. Thus, even though Mr. Spencer may have had an arthritic condition in his knee(s), aggravation of that condition as a result of his May 26, 2000, work-related fall and injury would be comp ensabl e. The Director implicitly recognized that the ALJ applied the correct legal s tandard w ith respect to WMA TA s burden of production. As the ALJ declared: [The] [e]mployer must . . . submit substantial evidence both specific and comprehensive on the question of a causal relationship between the disability alleged and the injury. This is consistent with what we said in Safeway Stores, supra, 806 A.2d at 1219 (the employer s evidence must be specific and comprehensive enough to sever the potential connection between the disability and the 10 work-related event. ). The ALJ and the Director further understood that substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion. Id. This understanding is reflected in the ALJ s critical com ment that Dr. Callan did not review pertinent m edical reports of the treating physician, provided no reasoning for his opinion that [Mr. Spencer] did not injure his left knee on May 26, 2000 ; and that his vague opinion as to causality, rendered admittedly without full review of claimant s medical records, is not specific or comprehensive enough to rebut the presumption. In addition, the Director rejected a basic premise of Dr. Callan s opinion, that the lack of documentation showing Mr. Spencer s imm ediate complaints about [his] knee, is obvious evidence of the fact that there was no in jury to that are a as a result of the fall at work . Our review o f Dr. Callan s testimony convince s us that the Director c orrectly concluded that WMATA presented insufficient evidence to rebut the presumption of compensability; and that its evidence w as neither specific and compre hensive en ough to sever the con nection betwe en [M r. Spen cer s] d isability a nd [his] work -related [fall], Safeway Stores, supra, 806 A.2d at 1219, nor could it be considered such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, id. Dr. Callan s deposition testimony shows that he examined Mr. Spencer only once, on August 2000. He stated that, at that time, he had reviewed only Mr. Spen cer s emergency room records from George Washington University Hospital, and some office records from Dr. Faulks dated June 5th, Jun e 15th [ 2000] and M ay 31s t I believ e. 3 When ask ed, [w]hat questions w ere 3 Dr. Callan admitted that not until the day of his depo sition testimony did he see D r. Faulks medical reports dated June 26, 2 000, indica ting that M r. Spencer injured his knees (continued...) 11 you asked t o give y our op inion o n, Dr. Callan initially did n ot mentio n causality with respect to Mr. Spencer s knee injuries. He responded: His diagnosis and prognosis; whether or not he was capable of returning to full duty or a light duty job; if he had any restrictions in his work and for how long; was his current treatment plan me dically necessary and appropriate; did he require further medical treatment as a result of his accident and what kind and for how long; had he reached maximum medical improve ment. 3 (...continued) when he fell in the elevator shaft at work on 5-26-00 ; July 10, 2000, show ing that Mr. Spencer suffered from continued pain in his knees, especially the left ; and July 24, 2000, specifying continued bilateral knee pain especially with stair climbing. Apparently, he also did not have these and other reports prepared by Dr. Faulks when he reviewed the results of Mr. Spencer s March 21, 2001, MRI procedure, showing in part a 2cm area of marrow edema in the femoral condyle which may represent bone contusion. Significantly also, prior to his deposition testimony on September 10, 2001, Dr. Callan never saw Dr . Faulks O ctober 26, 2 000, repor t stating, in part, tha t Mr. Spe ncer injure d his back and knees when he fell in an elevator shaft. His major complaint now is of left knee pain. His knees will give way. Nor had he seen the February 13, 2001, report of Dr. Faulks indicating that Mr. Spencer returns with continued giving way of the left knee. It has been more severe in the las t few w eeks. There were additional reports that Dr. Callan did not see prior to his deposition. These included reports leading u ltimately to Dr. Faulks de cision to proceed with surgery: April 5, 2001 ( [ Mr. Spe ncer] contin ues to hav e catching p ain in the kn ee that both ers him at least weekly when the knee will lock and make it difficult for him to walk ); April 12, 2001 ( M r. Spencer re turns with d ebilitating pain in the left knee . He gets a c atching pa in along the medial side. ); May 16, 2001 ( Mr. Spencer[ s] . . . left knee pain . . . . has been worse recently and it clicks and cau ses pain going up a nd down stairs. ); June 1 8, 2001 ( It is my IMPRESSION that Mr. Spe ncer sustain ed an injury to his left knee from a fall in an elevator shaft while on the job 5-26-00. T his likely created the chondral injury to the femoral condyle as well as the injury to the tibial plateau. I believe he would benefit from arthroscop ic surgery to treat this damage from the on the job injury and we are awaiting approval to proceed . ); July 23, 2001 ( Mr. Sp encer con tinues to get catching pain in the left knee especially with stair climbing. It keeps him from performing his job. ). After reading the reports that he had not seen previously, however, Dr. Callan adhered to his original opinion. 12 Moreover, Dr. Callan testified that Mr. Spencer stated that he was having pain in the knees with going up and dow n steps and that his back felt good at that time and he was having no proble ms. The doctor acknowledged that the emergency room records of May 26, 2000, the day of Mr. Sp encer s injury, specified motor strength in the lower extremities was slightly inhibited by known knee pain, and that Mr. Spencer had a contusion of his back and chronic kn ee pain. He attributed the p ain and the grinding k ind of sensa tion to normal wear and tear arthritis of his knees. He expressed the opinion that Mr. Spencer s sympto ms in his knees were not in any w ay causally related to [his injury on M ay 26, 200 0] based p rimarily on the fact that there was no complaint of the knees at the time that he was examined early on, either by the emergency room or Dr. Faulks, except for this chronic knee pain, and there was no evidence of any knee injury early on and the fact that it s symmetrical and . . . is consistent with the normal degenerative arthritis of the knees. In rendering this opinion, Dr. Callan clearly did not take into account the May 26, 2000, Employee on the Job Injury report form completed by Mr. Spencer showing that he complained of pain in his knees. Nor had he reviewed m edical reports concerning M r. Spencer s vascular problem with his right leg, not his left leg. In fact, he had not seen the majority of Dr. Faulks medical reports prior to his deposition, and these reports extended from June 26, 2 000, to August 16, 2001. They also showed persistent left knee pain, giving way of the left knee or locking of that knee, as well as clicking and catching pain in the left knee especially with stair climbing. Those reports undoubtedly would have been helpful as Dr. Callan opined on Mr. Spencer s March 21, 2001 MRI results showing a possible bone contusion. In fact, despite his insistence that Mr. Spencer s knee pain was attributable to degenerative arthritis, he acknowledged that in a person with arthritis [t]he 13 articular cartilage softens and thins . . . [and] become[s] more susceptible to tearing. He also admitted th at if Mr. Spencer twisted his left kn ee durin g the co urse of h is injury , . . . [it could] cause further wear and tear on the knee. Moreover, he agreed that one of the indicators or sources of a knee giving away is a meniscal tear, one of the conditions Dr. Faulks found during his surgery on Mr. Spencer s left knee. When asked w hat his recom menda tion wou ld be if som eone cam e to him w ith compla ints mirroring those of M r. Spencer that is, several months of complaints of the leg giving away, of catching pain, of locking, clicking, joint line tenderness. . . ., Dr. Callan responded that he might recommend a diagnostic arthroscopy, and although he would not expect necessarily to find anything e lse, he would look for other things, such as a torn meniscus. . . . In short, he might follow the recommendation of Dr. Faulks and look for the torn meniscus, as Dr. Faulks did. He also conceded that a sm all radial tear of the medial meniscus and a degenerative tear of the lateral meniscus . . . . don t always show up in the MRI. . . . Yet, on redirect examination by counsel for W MAT A, and after reviewing Dr. Faulks report of Mr. Spen cer s surgery show ing the finding of the small radial tear of the meniscus and the complex degenerative tear of the lateral portion of the meniscus, Dr. Callan stated that the post-operative report [did] not change [his] opinion at all. He explained: [T]hat s based primarily on the lack of initial co mplaints of an acute trauma to the knees, e specially the left knee, and the lack of any phy sical exam ination early o n with regards to the left knee that indicated any trauma to it and the fact that these findings are consistent with degenerative changes also. 14 Based upon this review of the record, w e cannot agree w ith WMA TA that Dr. Callan s testimony satisfied the requirement that the employer . . . produce[] substantial evidence demonstrating that the disability did not arise out of and in the course of emplo ymen t. Brown, supra, 700 A.2d at 791. Significantly, both the Director and the ALJ found Dr. Callan s testimony insufficient because he had not read and considered most of the medical reports prepared by Dr. Faulks, Mr. Spencer s treating physician. We conclude that Dr. Callan s testimony did not rise to the level of substantial evidence and did not adequate ly rebut the presumption of compensability (1) in the absence of his consideration of most of the treating physician s medical reports extending over more than a year; (2) in light of his insistence that there were no initial complaints of left knee pain ev en though M r. Spencer s report of his injury on May 26, 2000, identified such pain, and the May 26, 2000, emergency room records of the George Washington University Hospital stated knee pain ; and (3) giv en his adm ission that an a rthritic knee is su sceptible to tearing and aggravation. Under the circumstances, Dr. Callan s testimony does not amount to such relevant evidence as a reasonable mind might accept as ad equate to support a conclusio n ; and is no t specific and comprehensive enough to sever the potential connection between [Mr. Spencer s] disability and [his] work-related [fall on May 26, 2000]. Safeway Stores, supra, 806 A.2d at 1219 (internal quotation m arks and citations omitted). 4 4 At oral argu ment, cou nsel for W MAT A conten ded that in determining whether the presumption of compe nsability has b een rebutte d, the agen cy may not consid er the credib ility of the employer s physician or the believability of his or her testimony. Counsel cited Safeway Stores, Inc., supra, and Washington Hosp. Ctr. (Anderson), supra. We have considered these decisions, and we conclude that neither stands for such a proposition. Counsel also cites St. Mary s Hosp. Ctr. v. Hicks, 509 U.S. 502 (1993), an employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In that case, the Court stated that after the plaintiff has established a prima facie case of discrimina tion, the em ployer, in ord er to rebut tha t prima facie case, must set forth, through the production of admissible ev idence , reason s for its ac tions w hich, if (continued...) 15 Furthermore, we reject WMATA s argument, raised for the first time in this court, that the ALJ and the Director were required to move to the third step of the presumption of compe nsability analysis and place the burden on Mr. Spencer to prove by a preponderance of the evidence that [his] . . . inju ry was caused by [his] job req uirem ents. . . . 5 Washington Hosp. Ctr. (Anderson), supra, 746 A.2d at 281 (citation omitted). WMA TA contends that the Director (and the ALJ) erred by not requiring Mr. Spencer to present sworn expert testimony to rebut the sworn deposition testimony of Dr. Callan. Our cases do not impose such a burden on a claimant in a workers compensation case. As Mr. Spencer maintains, this is not a negligence case. This is a workers compensation claim c ase, filed under o ur Wo rkers C ompe nsation Act. As we have reiterated consistently and persiste ntly in our workers compensation cases, the purpose [of the Act] is to ad vance the human itarian goal . . . to provide compensation to employees for work-related disabilities reaso nably expeditiously, even in arguable cases. Brown, supra, 700 A.2d at 791. To ask a c laimant, w ho already has produ ced substa ntial medic al reports from the treating physician, and othe r relevant documentary evidence of causally related 4 (...continued) believed by the trier of fa ct, would support a finding that unlawful discrimination was not the cause of the employment action. Id. at 507 (citation om itted) (emp hasis in original). The claim based on Title VII was not mentioned in WMATA s brief and is not properly before us. See, e.g., In re S hearin, 764 A.2d 774, 778 (D.C. 2000). Under these circumstances, without briefing of the issue or even notice to oppo sing counsel, we de cline to take the farreaching step of drawing the proposed analogy between our worker s compe nsation law , with its statutory presumption of compensability, and the federal employment discrimination statute. 5 Even assuming that WMATA had presented substantial evidence to rebut the presumption of compensability, there is no doubt that Mr. Spencer prove[d] by a preponderance of the evidence that [his left knee] injury was caused by [his] job requirements. . . . 16 injury arising out of and in the cours e of emp loymen t, to provide sworn testimony to rebut an employ er s med ical expert, no matter how insufficient that testimony may be with respect to the presumption of compensability, would im pose too h igh a burd en and on e which is inconsistent with the purposes of the Workers Compensation Act. We decline to do so. In summary, on this record we hold that the Director and the ALJ applied the correct legal standard governing the pres umption of com pensability; and that the em ployee, Mr. Spencer, satisfied his initial burden regarding the presumption of compensability. We also hold that the employer, failed to present substantial evidence to rebut that presumption; and that based up on the reco rd in this case, n o additiona l medical e vidence w as necessa ry to refute the sworn deposition testimony of the employer s expert. T he employee presented extensive medical reports from his treating ph ysician and other docu mentary evidence to satisfy his burden of proof, and the opinion of the employer s expert was based upon a flawed factual assumption, that Mr. Spencer did not injure his knee because he did not compla in about it initially, an assumption w hich was rejected by the fact finder. 6 As the Director stated: [Mr. Spencer] has offered substantial, credible evide nce of a work related injury which necessitated time off from work, and ultimately required surgery. The fact that [Mr. Sp encer] had a pre-existing arthritic condition does not change the fact that the work injury aggravated, or exacerbated his condition, thus requiring additional medical tre atment, surgery, convalescence, and therapy. 6 Washington Hosp. Ctr. ( Anderson), supra, relied on by WMATA, is not controlling. In that case, the opinion of the employer s expert was not based upon a flawed factual assumption. 17 The Administrative Law Judge s finding that [Mr. Spencer s] disability arose out of and in the course of employm ent is supported by sub stantial evidence in the record considered as a whole, an d is in accord ance with applicable law. In essence, the Director resolved the issue presented to him by determining that the injury to Mr. Spencer s knees and his subsequent disability, is causally related to the injury sustained in the May 26, 2000 work related accident. In short, there is substantial evidence in the record showing that Mr. Spencer suffered a work related injury that aggravated the condition of his knees. For the foregoing reasons, we affirm the Director s decision. So ordered. 18 19

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