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Safeway Stores9/26/2002
s age; Dr. Dorn sought to put off the surgery until Watson was at least fifty years old so that a knee replacement would last through Watson's lifetime. Even medical evidence submitted by Safeway in the form of Dr. Danzinger's reports expressly concedes that Watson has reached maximum medical improvement.
The examiner adopted Dr. Dorn's estimate that Watson's left knee was eighty percent impaired (two thirds resulting from the work injury at issue), over the differing medical opinions of Dr. Fechter, who estimated a sixty-nine percent impairment to the lower left extremity (approximately half resulting from the work injury), and Dr. Danzinger, who estimated a thirty percent impairment (one fourth resulting from the work injury). An examiner need not specify why it credits one opinion over another, but "when a party questions the fundamental factual bases for an expert opinion, the Hearing Examiner must offer some explanation for why the expert's conclusions are nonetheless credible." Spartin v. District of Columbia Dep't of Employment Servs., 584 A.2d 564, 571 (D.C. 1990). Before the hearing examiner Safeway never questioned the factual foundation of Dr. Dorn's opinion or suggested that he was somehow unaware of the extent of Watson's prior medical history. It is not entirely clear from the record whether Dr. Dorn was fully aware of Watson's entire medical history, but the examiner relied on this doctor's opinion in light of the preference given to a treating physician, see Pro-Football, Inc. v. District of Columbia Dep't of Employment Servs., 782 A.2d 735, 740 (D.C. 2001), and on Dr. Dorn's extensive treatment of Watson over a period of more than a year. In the absence of a challenge to the factual basis of Dr. Dorn's opinion, we conclude that the hearing examiner's decision to credit Dr. Dorn's determination is supported by substantial evidence.
Finally, we are not persuaded by Safeway's argument that either the Director erred in failing to give it credit for that percentage of the permanent impairment caused by Watson's prior work injury in 1990, or that some sort of unjust enrichment theory applies to discount Watson's claim. The examiner's award of benefits based on the full eighty percent disability, even if one-third of his disability was due to an earlier injury, is consistent with the relevant provisions of the Workers' Compensation Act, which provide that:
If an employee receives an injury , which combined with a previous occupational injury or nonoccupational disability or physical impairment causes substantially greater disability or death, the liability of the employer shall be as if the subsequent injury alone caused the subsequent amount of disability and shall be the payment of:
(i) All medical expenses;
(ii) All monetary benefits for temporary total or partial injuries; and;
(iii) Monetary benefits for permanent total or partial injuries up to 104 weeks. D.C. Code § 36-308 (6)(A) (1998), recodified at D.C. Code § 32-1508 (2001).
The statute further provides that in cases of disability awards for successive injuries, a "special fund shall reimburse the employer solely for the monetary benefits paid for permanent total or partial injuries after 104 weeks." D.C. Code § 36-308(6)(B). Under District law, therefore, there is no apportionment or "credit" for pre-existing injury . Instead, the "special fund" provides reimbursement to an employer to limit its exposure while affording the injured employee full coverage for the combined effect of successive injuries. See Washington Metropolitan Area Transit Authority (WMATA) v. District of Columbia Dep't of Employment Servs., 704 A.2d 295, 297 (D.C. 1997).
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