COMPENSATION ORDER TIMOTHY BURROUGHS, ) Claimant, ) ) AHD No v. ) OWC No J & J MAINTENANCE, INC., ) and ) AIG CLAIMS SERVICES, )

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1 IN THE MATTER OF, TIMOTHY BURROUGHS, Claimant, AHD No v. OWC No J & J MAINTENANCE, INC., and AIG CLAIMS SERVICES, Employer/Carrier. Appearances REBEKAH ARCH MILLER, ESQUIRE For the Claimant JOSEPH C. TARPINE, ESQUIRE For the Employer/Carrier Before: BELVA D. NEWSOME Administrative Law Judge COMPENSATION ORDER STATEMENT OF THE CASE This proceeding arises out of a claim for workers compensation benefits filed pursuant to the provisions of the District of Columbia Workers Compensation Act of 1979, D.C. Code Ann et seq. (2001 (hereinafter, the Act. After timely notice, a full evidentiary hearing was held on April 20, 2006, before Fred D. Carney, Jr., 1 Administrative Law Judge (hereinafter, ALJ. Timothy J. Burroughs (hereinafter, Claimant appeared in person and by counsel. J & J Maintenance, Inc. 1 On April 3, 2007, Chief Administrative Law Judge Terri Thompson Mallet issued an Order to Show Cause why this case should not be reassigned to another ALJ. No timely objections have been received; therefore, this case has been reassigned to the undersigned ALJ.

2 TIMOTHY BURROUGHS PAGE 2 (hereinafter, Employer appeared by counsel. Claimant testified on his own behalf. Employer did not present any witnesses or submit any exhibits. Claimant Exhibit (hereinafter, CE Nos. 1-4, described in the Hearing Transcript (hereinafter, HT, were admitted into evidence. The record closed on May 22, 2006 upon receipt of the parties Proposed Findings of Fact and Conclusions of Law. BACKGROUND Claimant worked as a building maintenance/plumber for Employer. On February 2, 2004, Claimant suffered an onthe-job injury to his back. Claimant returned to work on or about May 18, 2004 performing his regular duties. Claimant sought light duty work with another employer on or about June 30, CLAIM FOR RELIEF Claimant seeks temporary partial disability benefits from June 30, 2004 through the present and continuing with access to continued causally related medical care ISSUE 1. The nature and extent of claimant s disability. 2. Whether the claimant voluntarily limited his income. FINDINGS OF FACT The parties have stipulated, and I accordingly find, there is an employer-employee relationship; jurisdiction is vested in the District of Columbia; Claimant sustained an accidental injury on February 2, 2004 that arose out of and in the course of his employment; notice of Claimant s injury was timely; and, a claim was timely filed. Claimant s average weekly wage for purposes of this claim is $ Employer made voluntary payments of compensation from February 3, 2004 to May 16, In addition, I make the following findings of fact: Claimant s testimony is credible based upon his level of education, the injury he has suffered, his testimony concerning his ability only to do light duty work, and the supporting medical documentation. Claimant was a building maintenance/plumber for the employer on November 2, 2004, when he suffered a workrelated injury to his back. Claimant left work immediately and sought treatment from Dr. Iris Bergstrom for a lumbar spine injury with severe spasm and tenderness and limited range of motion. Claimant complained of tingling sensation on the lateral side of his right leg. I find that Claimant s manual analogue scale of pain in his lumbar spine to be 10 and that he was diagnosed a lumbar strain based upon Dr. Bergstrom s medical examination. Claimant began a conservative course of treatment with Dr. Rafik D. Muawwad on February 9, Claimant complained of pain in the lower back region with some radiation down to the right hip area. Dr. Muawwad diagnosed the Claimant with acute lumbar strain from February 9, 2004 until March 29, I find that Dr. Muawwad would have released Claimant to light duty on March 8, 2004 had a position been available.

3 TIMOTHY BURROUGHS PAGE 3 Due to transportation and other personal issues, Claimant did not attend physical therapy during the period March 8, 2004 and May 17, Dr. Muawwad released Claimant from care to come back only as needed on March 17, I find that Dr. Muawwad stated only that Claimant seems to have recovered from his injury, and made no findings on Claimant s ability to return to his pre-injury job. I find the record does not contain objective data on the exact date or the exact amount of time that Claimant attempted to fulfill his regular pre-injury job duties at Employer. Claimant s regular pre-injury job duties required frequent heavy lifting of plumbing fixtures as well as tools, and/or a toolbelt; and, crawling, stooping, and climbing with the weight of tools and/or a toolbelt on him. Claimant voluntarily left Employer and took a light duty job with Lowes on June 30, 2004 for a lesser wage after moving from the Washington, DC area to Chester Gap, VA. After voluntarily leaving position with Lowes, Claimant worked by the job for a painter, and was unemployed at the time of the hearing. I find that, during the period he lived in Chester Gap, VA, the Claimant was not under the care of any physician and did not have any work releases from any doctor. Claimant last s visit with Dr. Muawwad was on September 14, 2004, when a MRI was recommended to determine why there would be any difficulty with his back and any difficulty with heavy lifting. Claimant, on his own behalf, had an Independent Medical Evaluation (hereinafter, IME on October 12, Dr. Raymond D. Drapkin opined that Claimant sustained a chronic severe lumbosacral strain with possibly a disc injury as a result of the work related injury on February 2, Claimant complained that, during the three weeks that he performed his pre-injury regular duties, pain would radiate down both legs every day. The physical examination found pain with straight leg raising both on the left and right as well as with double leg holding. Without an MRI, Dr. Drapkin could not diagnose a specific disc injury. Based upon the requirement of significant bending and lifting, Dr. Drapkin further opined that the Claimant could not return to his previous job as a plumber, but could work in light duty as a driver. DISCUSSION Following a thorough review of the parties' arguments, I have determined, to the extent an argument is consistent with the findings and conclusions herein, the argument is accepted; to the extent an argument is inconsistent therewith, it is rejected. 2 The first issue is the nature and extent of disability. The Courts in interpreting the Act have found, and it is widely acknowledged, that there is no presumption of the nature and extent of a claimant s disability. A claimant has the affirmative duty to present substantial evidence of the level of benefits sought. See, Dunston v. District of Columbia Department of Employment Services, 509 A.2d 109 (D.C [T]he presumption [of the 2 While each documentary exhibit received in evidence is not specifically referenced in the discussion, all evidence of record was reviewed as part of this deliberation.

4 TIMOTHY BURROUGHS PAGE 4 compensability of a claim] has no application to a determination of the nature and extent of [a claimant s] injury. [Claimant] is entitled to a presumption that his claim is compensable, i.e, that his injury arises out of employment. He is not entitled to a presumption that his injury has left him totally and permanently disabled. Id. at 111. Claimant is seeking temporary partial disability benefits from June 30, 2004 through the present and continuing. The only medical evidence in the record is that submitted by Claimant. The nature of Claimant s injury, a low back strain, as a stretching or pulling injury to muscle, is not conducive to being observed on objective medical tests such as X- rays. Without a Magnetic Resonance Imaging (MRI, neither Claimant s treating physician nor Claimant s IME doctor could determine whether Claimant has a disc injury to his lumbar spine. The Act defines disability as physical... incapacity because of injury which results in the loss of wages. D.C. Official Code (8. Claimant has the burden of producing substantial credible evidence that his wage loss results from his work injury. Since disability is an economic concept whose existence depends on the realities of the marketplace, claimant must prove that the injury prevented him from engaging in the only type of gainful employment for which he is qualified. See The Washington Post v. District of Columbia Department of Employment Services (hereinafter, Mukhtar, 675 A.2d 37 (D.C. App Employer, on the other hand, has the burden of proving work for which the claimant is qualified is, in fact, available. See Joyner v. District of Columbia Department of Employment Services, 502 A.2d 1027 (D.C In Mukhtar, the Court citing American Mutual Insurance Company v. Jones, 426 F.2d 1263, 1266 (1270, 3 [t]he degree of disability in any case cannot be measured by physical condition alone, but there must be taken into consideration the injured man s age, his industrial history and the availability of the type of work which he can do. Even a relatively minor injury must lead to a finding of total disability if it prevents the employee from engaging in the only type of gainful employment for which he is qualified... Conversely, a continuing injury that does not result in any loss of wage-earning capacity cannot be the foundation for a finding for disability. (Citations, footnotes and internal quotation marks omitted. Unlike the claimant in Joyner v. District of 3 The claim for benefits in American Mutual was brought under the Longshoremen and Harbor Workers Act, 33 U.S.C. 901 et seq. (1964, the predecessor Act to the instant statute; however, the definition of disability as contained therein is not materially different from the act, and precedent illuminating such a provision has been found to be persuasive. See Robert L. Hughes v. District of Columbia Department of Employment Services, 498 A.2d 567, 571 (D.C.App. 1985

5 TIMOTHY BURROUGHS PAGE 5 Columbia Department of Employment Services, 562 A.2d 1027 (D.C. 1986, 4 Claimant here was not afforded vocational rehabilitation 5 to determine if he was qualified for gainful employment other than being a commercial building maintenance/plumber. Claimant testified that he told Employer about the pain in performing his pre-injury job, and attempted to contact the Carrier to get the MRI approved as well as purchasing different types of shoes to continue to do the pre-injury job. (HT at At that point, Claimant found his own light duty job. The IME indicates Claimant worked for about 3 weeks after he returned to Employer, and the Employer did not provide the exact period of time. (CE1 & HT at 34. Claimant began working at the light duty job as an estimator who drove to customer s home to take measurements for installations on June 30, According to both Claimant s treating physician and Claimant s IME, he suffered a strain of the lower back. Since doctors do not define terms, I found that an acute lower back strain should heal. 6 When Claimant returned 4 The claimant in that matter moved five times, remained unemployed, and did not return to the District of Columbia to take advantage of three job opportunities after her treating physician stated that she could work with certain restrictions. Therefore, the Court affirmed the Director s denial of benefits as a reasonable construction of the statute. 5 See D.C. Official Code (c provides for vocational rehabilitation to return the employee to employment at a wage as close as possible to the wage that the employee earned at the time of the injury. 7 DCMR 229 sets forth the administrative process for the provision of vocational rehabilitation services. to his treating physician on September 14, 2004 concerned about permanent disability when doing his regular job with continued symptoms, Dr. Muawwad stated, [w]e will need to establish the reason why he should be having difficulty with his back and difficulty doing any heavy employment. Based on that, Dr. Muawwad stated that a MRI would need to be performed. Here, Claimant saw a treating physician and an IME paid for by Claimant. The IME agreed with the treating physician that an MRI was needed to determine whether Claimant had disc damage as well as a chronic severe lumbosacral strain. On March 8, 2004, Dr. Muawwad would have released Claimant to light duty work had such work been available. Dr. Muawwad did not define what duties the Claimant could perform as light duty. Given that the Claimant was only released to light duty, the Claimant was not able to perform his preinjury duties on March 8, When he returned to work on May 18, 2004, he returned to the full duties of his pre-injury job and found that he was not able to do that. Under Joyner, supra, the burden was on the employer to find Claimant a light duty job. Employer did not do that. Therefore, Claimant is entitled to temporary partial disability benefits. In the absence of affirmative evidence that there actually was work available or that Employer had work available commensurate with Claimant s abilities, I reject the Employer s argument that Claimant has voluntarily limited his income by failing to work to his physical abilities. 6 Attorney s Textbook of Medicine: Manual of Traumatic Injury, vol. 2, 34.07[1][c].

6 TIMOTHY BURROUGHS PAGE 6 CONCLUSION OF LAW I hereby find and conclude that Claimant is temporarily partially disabled from June 30, 2004 present and continuing.

7 TIMOTHY BURROUGHS PAGE 7 ORDER It is hereby ORDERED claimant s claim for relief be, and hereby is, GRANTED. BELVA D. NEWSOME ADMINISTRATIVE LAW JUDGE Date