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King v. District of Columbia Department of Employment Services12/16/1999
amendment of D.C. Code § 36-303. In Franklin v. Blake Realty Co., H&AS;No. 84-26, OWC No. 25856 (August 18, 1985), the claimant had sustained a cumulative traumatic injury to her shoulder and arm during June 1983, but that injury did not manifest itself in debilitating pain and discomfort until some time in July 1983. The employer had changed insurance carriers at the end of June, and so one of the issues in the case was which carrier was liable on the claim. That dispute turned on whether the date of injury was considered to be before or after the employer switched carriers. For this purpose the Director "conclude that the date of injury for a cumulative traumatic injury is the date on which the injury manifests itself. The date on which the injury manifests itself is (1) the date on which employee first sought medical attention for his painful symptoms, whether or not he ceased work or (2) the date of disability, whichever first occurred." Id. at 4.
A few years later, in a case involving an occupational disease (hearing loss) caused by long-term exposure to noisy machinery, this court held that where the exposure occurred before the effective date of the WCA, but the employee did not become aware of the injury and its job -relatedness until after that date, the injury is presumptively covered by the WCA rather than by the Longshore and Harbor Workers' Compensation Act ("LHWCA"). Railco Multi-Construction Co. v. Gardner, 564 A.2d 1167, 1168 (D.C. 1989). Thus, the court adopted a rule that the time of injury is normally deemed to be when the employee is first aware of the injury and its relationship to the employment. In its focus on the extent of the employee's awareness, this is a different "manifestation" rule from the rule that the Director announced in Franklin (which did not concern itself with the employee's state of mind). Our opinion in Railco cited Franklin as having previously adopted the manifestation rule for cumulative traumatic injury, without, however, remarking on the difference in the content of the Franklin rule. Railco, 564 A.2d at 1174 n. 21.
The Railco court adopted its version of a manifestion rule with a significant qualification. The court realized that (former) D.C. Code § 36-303 limited the jurisdiction of the WCA to cases in which, at the time of the injury , the employment was principally located in the District of Columbia. Some workers whose injuries did not become manifest until after the WCA took effect might be deprived of coverage entirely if the principal locus of their employment was outside the District at that time. To avoid a total loss of coverage, the court held that in such cases, if coverage would also be unavailable under any other state statute, the LHWCA would continue to apply. Railco, 564 A.2d at 1176.
Although Franklin and Railco adopted a manifestation rule in one form or another for the purposes of choosing between two insurers or two statutory schemes, we do not think they definitively resolve the question presented in this case of how to fix the time of a cumulative traumatic injury for purposes of determining under D.C. Code § 36-303 (a) whether the injury occurred in the District or outside the District. Neither Franklin nor Railco addressed that specific question. Both cases preceded the 1991 amendment of § 36-303 (a), and hence did not purport to construe the precise statutory language now before us. Moreover, the court did not explain in Railco why its formulation of the manifestation rule differed from the agency's formulation in Franklin. Indeed, the court took no notice of the difference. For these reasons alone we would hesitate to treat Franklin or Railco as having decided the time of injury issue that is presented in
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