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King v. District of Columbia Department of Employment Services12/16/1999
g examiner was required to make findings as to the time (and, consequently, the place) and manner of that injury. This was a mixed question of law and fact, implicating as it does the etiology of King's injury and the construction to be given the phrase "time of the injury" as it appears in § 36-303. As we explain below, on the record of this case, it was incumbent upon the hearing examiner (and the Director) to decide the matter as follows. Initially, the examiner should have determined (which he did not) whether King sustained a discrete work-related injury on April 11, 1994 (the date he stopped working) that aggravated a pre-existing back condition and thereby disabled him. If so, then there is no uncertainty about the time or place of injury, and, under settled law, King's claim was covered under subsection (a)(1) of § 36-303. If, however, King did not sustain an aggravating injury on April 11, it was necessary for the hearing examiner to determine explicitly (which he did not do) whether King's back injury resulted from cumulative, work-related trauma, either alone or as a substantial contributing cause. If so, then King's claim was potentially covered because cumulative traumatic injuries are compensable under the WCA. In that event, to determine whether King's claim was in fact covered, the hearing examiner would have had to construe § 36-303 (a) and articulate the rule for determining time of injury in a cumulative trauma case. Once the examiner answered that question, he would have had to apply the rule to the facts of this case to determine when (and where) King was injured and whether subsection (a)(1) or (a)(2) of § 36-303 governs coverage.
Aggravation and Cumulative Trauma Injuries
"Injury" is defined in the WCA to mean "accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of third persons directed against an employee because of his employment." D.C. Code § 36-301(12). It is well settled that "`an aggravation of a pre-existing condition may constitute a compensable accidental injury under the Act.'" Ferreira, 531 A.2d at 660 (quoting Wheatley, 132 U.S. App. D.C. at 182, 407 F.2d at 312). "The fact that other, non-employment related factors may also have contributed to, or additionally aggravated [claimant's] malady, does not affect his right to compensation under the `aggravation rule.'" Hensley v. Washington Metro. Area Transit Auth., 210 U.S. App. D.C. 151, 155, 655 F.2d 264, 268 (1981), cert. denied, 456 U.S. 904 (1982). "` he cases almost invariably decide that the fact that the injury would not have resulted but for the pre-existing disease, or might just as well have been caused by a similar strain at home or at recreation, are both immaterial.'" Id. (quoting Wheatley, 132 U.S. App. D.C. at 182 n. 11, 407 F.2d at 312 n. 11). The aggravation rule is embodied in D.C. Code § 36-308 (6)(A), which provides that " f an employee receives an injury, which combined with a previous occupational 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 . . ."; see also Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 704 A.2d 295, 297-99 (D.C. 1997) (discussing the policies underlying § 36-308 (6)); Daniel v. District of Columbia Dep't of Employment Servs., 673 A.2d 205, 207-08 (D.C. 1996).
The difference between the typical case of a discrete accident causing
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