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King v. District of Columbia Department of Employment Services12/16/1999
885 P.2d at 1267-68). See also Oscar Mayer & Co. v. Industrial Comm'n, 531 N.E.2d 174, 176 (Ill. App. 1988) ("By their very nature, repetitive-trauma injuries may take years to develop to a point of severity precluding the employee from performing in the workplace. An employee who discovers the onset of symptoms and their relationship to the employment, but continues to work faithfully for a number of years without significant medical complications or lost working time, may well be prejudiced if the actual breakdown of the physical structure occurs beyond the period of limitation set by statute.").
Adoption of a manifestation rule may have other drawbacks that might be weighed against its undoubted benefits. The rule that this court approved in Railco requires an evidentiary inquiry to determine when the employee first knew (or perhaps should have known - a point not clearly addressed in Railco) of the work-relatedness of her injury . For example, on remand in this case, if the hearing examiner finds that King sustained a work-related, cumulative traumatic injury to his back, adoption of a Railco manifestation rule will require the examiner to determine when King first knew (or should have known) that his job was causing him back pain. The need to pursue such a potentially time consuming and difficult factual inquiry might well be thought a disadvantage of the manifestation rule.
We make no judgment about the wisdom of adopting any particular time of injury rule with respect to the issue in this case. The choice of rule implicates many considerations bearing on the implementation of the WCA. The agency charged with administering the Act should make that choice in the first instance, after carefully analyzing the precedents discussed above - which, in this jurisdiction, plainly support, if they do not compel, adoption of some version of a manifestation rule - and the language, structure and purpose of the statute. See Mushroom Transp., 698 A.2d at 433.
IV.
On remand, the Department of Employment Services should make the necessary findings of fact and conclusions of law consistent with the foregoing discussion. To summarize, the agency might approach its analysis through consideration of the following questions (though the agency is not confined to or bound by this framework):
(1) Did King sustain a discrete injury on April 11, 1994, which aggravated his pre-existing condition?
(2) If King did not sustain a discrete injury on April 11, 1994, did King's disability result from cumulative or gradual trauma related to his work?
(3) In a case of a cumulative injury , how is the time of injury determined for purposes of D.C. Code § 36-303 (a)? In other words, what rule should the agency and courts follow in finding a time of injury?
(4) What was the time of injury in King's case? For example, if the time of injury was when King first became aware that his back pain was related to his job , when did that happen?
(5) Based on the time of injury , where did King's injury occur? Is coverage determined under subsection (a)(1) of D.C. Code § 36-303 (because the injury occurred in the District of Columbia) or under subsection (a)(2) (because the injury occurred outside the District)?
(6) If coverage is determined under subsection (a)(2), where was King's employment principally localized at the time of injury ? As to this last question, we note that King has not challenged the examiner's application of the three-part Hughes test to the facts of his employment, except for the examiner's failure to determine the principal locus of his employment specifically with respect to the time of injury.
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