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Mexicano v. District of Columbia Department of Employment Services9/5/2002
Petition for Review of a Decision of the Department of Employment Services
Argued June 18, 2002
Petitioner Lucio Mexicano seeks review of a hearing examiner's compensation order denying his claim for workers' compensation benefits. He contends that the hearing examiner failed to correctly apply the statutory presumption of compensability by improperly determining that his employer had produced evidence which severed the potential connection between petitioner's neck and shoulder injury incurred while working in May 1997 and his inability to work in construction after September 1998, despite the medically undisputed opinion of petitioner's treating physician that the May 1997 work injury had caused his disability in 1998. Because the hearing examiner made erroneous factual findings and failed to give proper credence to the essentially uncontested opinion of the treating physician - which was supported by independent evidence in the record - we conclude that the employer failed to produce evidence sufficient to overcome the presumption of compensability.
I.
A. Factual Background
Petitioner worked for Pessoa Construction Company as a construction laborer. On May 21, 1997, petitioner was in the District of Columbia operating a drill to dig a hole in the ground when the drill bit stuck, and upon his subsequent attempts to remove it, "kicked back" towards him, striking him in the head and shoulder. Thereafter, his head and neck bothered him to the point that he was unable to work for the next two days. Petitioner sought medical treatment on May 23, 1997, at Concentra Medical Center, where he was diagnosed with a concussion to the head, cervical neck strain, and left shoulder strain. He was referred to physical therapy for evaluation and treatment and was authorized to return to work, but was instructed not to engage in any lifting of more than fifteen pounds.
Contrary to these instructions, on May 26, 1997, petitioner returned to work at his usual heavy labor duties without restricting himself. He did not miss any further work until March 1998, with the exception of three days on which he returned to Concentra for follow-up consultations, on May 28, June 2, and June 3, 1997. At the time of petitioner's injury , Pessoa had a policy allowing employees who miss work due to a doctor's appointment to receive a full day's pay as long as they reported to work before or after the appointment, and also had a policy allowing medically-restricted employees to perform such light work as they were capable of in Pessoa's main yard at a rate of $8 an hour. Petitioner did not take advantage of either of these policies. Petitioner testified that he was not paid for the days on which he was absent from work, and that although he did not ask for less taxing work, his employer, Julio Pessoa, was aware that he was supposed to be restricted to light duty work. He also testified that he stopped going to Concentra because he could not afford to pay for the taxi fare to the clinic, and that he continued working full-time in his normal work duties despite continuing pain from his injuries in order to "pay rent, the telephone, the bills."
While working at a site in Maryland on February 23, 1998, petitioner slipped and fell from a wall, striking his lower back against the wall and suffering a new injury. He visited Concentra on March 4, 1998, complaining of pain on the left side of his lower back, and was diagnosed with a contusion to the lumbar area of his back. He was restricted to lifting no more than ten pounds. After follow-up visits on March 6 and 11, 1998, he was diagnosed as suffering from a back contusion and a hairline fracture to a rib. At none
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