Howard Univ. Hosp. v. Dist. of Columbia Dep't of Emp't Servs. , 200 A.3d 1244 ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-AA-832
HOWARD UNIVERSITY HOSPITAL, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
JAMES M. LYLES, JR., INTERVENOR.
On Petition for Review of an Order of the
District of Columbia Department of Employment Services
Compensation Review Board
(CRB-36-17)
(Argued September 25, 2018 Decided January 31, 2019)
William H. Schladt for petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim,
Solicitor General at the time the statement was filed, and Loren L. AliKhan, Deputy
Solicitor General at the time the statement was filed, filed a statement in lieu of brief.
David J. Kapson, with whom Kevin H. Stillman was on the brief, for
intervenor.
Before THOMPSON and MCLEESE, Associate Judges, and PRYOR, Senior
Judge.
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MCLEESE, Associate Judge: Petitioner Howard University Hospital (HUH)
challenges an award of workers’ compensation to intervenor James M. Lyles, Jr. We
vacate and remand for further proceedings.
I.
Mr. Lyles worked for HUH as a radiological technician. In 2013, he felt pain
in his right shoulder while lifting a patient to prepare for an x-ray. Mr. Lyles
received medical treatment and eventually filed a workers’ compensation claim
seeking disability benefits pursuant to D.C. Code § 32-1508 (3)(A) and (S) (2012
Repl.), which provide for compensation for permanent partial loss of the use of an
arm. HUH did not dispute that Mr. Lyles had suffered a work-related injury and was
entitled to some compensation. HUH and Mr. Lyles presented conflicting evidence
about the extent of Mr. Lyles’s disability.
At a February 2017 hearing before an administrative law judge (ALJ), Mr.
Lyles testified that he still felt a burning and tearing sensation from his neck down
into his arm, which was aggravated by motions such as lifting, pulling, and pushing.
He further testified that his right arm was very weak and that he therefore did not
use his right arm as much as he used to. At the time of the hearing, Mr. Lyles was
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working for a new employer as a radiological technician/medical assistant. His
duties for his new employer did not include pulling or lifting of patients or
machinery. Mr. Lyles also testified that he was no longer able to bowl or lift heavy
weights at the gym. Mr. Lyles acknowledged that he had suffered a previous injury
to his right shoulder in 2011, while working for a different employer, and had
claimed disability benefits from his employer in connection with that injury. That
disability claim was settled.
Mr. Lyles introduced the results of an independent medical examination
conducted in 2016 by Dr. Matthew Menet. Dr. Menet concluded that Mr. Lyles still
had difficulty lifting, reaching, and pulling. In opining about the extent of Mr.
Lyles’s disability, Dr. Menet relied upon the Fourth Edition of the American Medical
Association Guides to the Evaluation of Permanent Impairment (AMA Guides). Dr.
Menet also considered pain, loss of function, weakness, and loss of endurance. Dr.
Menet concluded that Mr. Lyles had a 47% permanent impairment to his right upper
extremity. That figure rested on adding the following specific impairments: 3%
based on lack of full range of motion, 12% for pain, 10% for weakness, 12% for loss
of function, and 10% for loss of endurance. According to Dr. Menet, 20% of the
47% impairment was related to Mr. Lyles’s 2011 injury and 27% was related to Mr.
Lyles’s 2013 injury.
4
HUH introduced the results of an independent medical examination conducted
in 2016 by Dr. Mark Scheer. Dr. Scheer relied on the Sixth Edition of the AMA
Guides, as well as his assessment of Mr. Lyles’s pain, weakness, atrophy, loss of
function, and loss of endurance. Dr. Scheer concluded that Mr. Lyles had a 4%
permanent impairment to his right upper extremity. According to Dr. Scheer, 2% of
the 4% impairment was preexisting and 2% was related to Mr. Lyles’s 2013 injury.
The ALJ credited Mr. Lyles’s testimony and gave greater weight to Dr.
Menet’s opinion than to Dr. Scheer’s opinion. With one exception, the ALJ adopted
Dr. Menet’s calculations in determining the extent of Mr. Lyles’s disability. The
exception was that the ALJ did not accept the 10% impairment based on loss of
endurance, because Mr. Lyles had returned to full-time work as a radiological
technician/medical assistant. The ALJ therefore concluded that Mr. Lyles had
suffered a 37% permanent disability to his right upper extremity.
The ALJ further concluded that HUH should be held responsible for all of the
impairment at issue, not solely the portion of the impairment that was caused by Mr.
Lyles’s most recent injury. The ALJ explained that apportionment of disability was
precluded by D.C. Code § 32-1508 (6)(A) (“If an employee receives an injury,
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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 . . . .”).
HUH argued to the ALJ that, in determining the amount of Mr. Lyles’s award
under § 32-1508 (3)(A) and (S), the ALJ should not consider the impairment to Mr.
Lyles’s shoulder, because the shoulder is not part of the arm. Relying on the decision
of the Compensation Review Board (CRB) in Lawson, CRB No. 14-056(R), 2017
WL 576074 (Jan 11, 2017), the ALJ concluded that the shoulder is part of the arm
for purposes of § 32-1508.
HUH sought review before the CRB, which affirmed the ALJ’s compensation
order. Among other things, HUH argued that, in calculating the amount of Mr.
Lyles’s disability, the ALJ had not explained the connection between Mr. Lyles’s
physical impairments and the extent of Mr. Lyles’s disability. The CRB
acknowledged that ALJs must specifically explain the nexus between physical-
impairment factors -- including pain, weakness, atrophy, loss of endurance, and loss
of function -- and a claimant’s “industrial capacity.” The CRB concluded, however,
that the ALJ had adequately explained his conclusions.
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Finally, the CRB concluded that § 32-1508 (6)(A), the provision the ALJ
relied upon as precluding apportionment, had not been repealed by § 2 (e)(2) of the
Workers’ Compensation Amendment Act (WCAA). D.C. Act 12-571, 46 D.C. Reg.
891, 893-94 (1999). We discuss the CRB’s reasoning on that point more fully later
in this opinion.
II.
We review a decision of the CRB to determine whether the decision was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Reyes v. District of Columbia Dep’t of Emp’t Servs., 48 A.3d 159, 164 (D.C.
2012) (internal quotation marks omitted). “Our principal function in reviewing
administrative action is to assure that the agency has given full and reasoned
consideration to all material facts and issues.” Georgetown Univ. Hosp. v. District
of Columbia Dep’t of Emp’t Servs., 916 A.2d 149, 151 (D.C. 2007) (internal
quotation marks omitted). We must defer to the CRB’s reasonable interpretation of
statutes that the CRB is charged with administering. See, e.g., Pierce v. District of
Columbia Police & Firefighters’ Ret. & Relief Bd., 882 A.2d 199, 205 (D.C. 2005).
7
A.
HUH argues that the award to Mr. Lyles should be reduced because some of
Mr. Lyles’s impairment was attributable to an earlier injury. HUH does not dispute
that § 32-1508 (6)(A) by its terms precludes apportionment of disability. Rather,
HUH argues that § 32-1508 (6)(A) was subsequently repealed, and an employer
therefore now must only compensate that portion of a claimant’s disability that is
attributable to a workplace injury that occurred during the claimant’s current
employment. We remand this issue for further consideration by the CRB.
As enacted in 1980, the Workers’ Compensation Act (WCA) permitted
apportionment of disability, requiring a claimant’s current employer to compensate
the claimant for only the new portion of a disability that arose in part from a prior
injury and in part from a new injury. D.C. Act 3-188, § 9 (f), 27 D.C. Reg. 2503,
2516 (1980). The WCA did provide for additional compensation in such
circumstances, but that compensation was paid by a special fund created for that
purpose. Id. Such funds, often called second-injury funds, have been a common
feature of modern workers’ compensation statutes. 8 Lex K. Larson & Thomas A.
Robinson, Larson’s Workers’ Compensation Law § 91.01 (2018).
8
The WCA was subsequently amended, however, in two pertinent respects.
First, in cases involving disability arising in part from prior injury and in part from
a subsequent injury, employers were made responsible “as if the subsequent injury
alone caused the subsequent amount of disability.” D.C. Code § 32-1508 (6)(A).
Thus, apportionment of disability was no longer permitted. Daniel v. District of
Columbia Dep’t of Emp’t Servs., 673 A.2d 205, 208 (D.C. 1996) (discussing
provision as previously codified at D.C. Code § 36-308 (6)(A) (1993 Repl.)).
Presumably to mitigate the effect of that change on employers, and to avoid creating
disincentives to the hiring of disabled workers, the WCA provided that the special
fund would reimburse employers for benefits paid after 104 weeks. D.C. Code § 32-
1508 (6)(A)(iii), (B).
The provision currently at issue is § 2 (e)(2) of the WCAA, which provides
that “Section 9 (D.C. Code § 36-308) [of the WCA] is amended as follows: . . . A
new subsection (f)(3) is added to read as follows: ‘(3) The requirements of this
subsection shall apply to injuries occurring prior to the effective date of the Workers’
Compensation Amendment Act of 1998.’” 46 D.C. Reg. 893-94. Interpreting this
provision requires a brief detour into the terminology and practices of statutory
drafting and codification.
9
In drafting legislation, the D.C. Council, like the United States Congress,
“ordinarily adheres to a hierarchical scheme in subdividing statutory sections,” using
subsections starting with (a); paragraphs starting with (1); subparagraphs starting
with (A), and clauses starting with (i). Koons Buick Pontiac GMC, Inc. v. Nigh, 543
U.S. 50, 60-61 (2004). Applying that convention to the WCA as enacted,
subdivision (f) of § 9 of the WCA is a subsection. The provision of the WCAA at
issue, § 2 (e)(2), by its terms makes the requirements of § 9 (f) inapplicable to
injuries that occur after the effective date of the WCAA. Thus, as the CRB
acknowledged, § 2 (e)(2) of the WCAA by its terms appears to apply to the entire
subsection of the WCA that addressed apportionment. Cf., e.g., NLRB v. SW Gen.,
Inc., 137 S. Ct. 929, 938-39 (2017) (statutory cross-reference to section included all
subsections of section). That would seemingly include the provision (now codified
at D.C. Code § 32-1508 (6)(A)) that the ALJ relied upon as precluding
apportionment.
We pause to note a complication created by the way in which the WCA has
been codified. As currently codified, § 32-1508 is unconventionally labelled.
Rather than having subsections labelled with lower-case letters starting with (a),
§ 32-1508 is initially subdivided using Arabic numerals starting with (1). D.C. Code
§ 32-1508. The codifier thus appears to have codified § 32-1508 as having no
10
subsections, making § 32-1508 (6) a paragraph. Presumably for that reason, the
codifier changed the word “subsection” in § 2 (e)(2) of the WCCA to “paragraph”
when codifying § 2 (e)(2). D.C. Code § 32-1508 (6)(C). It is a standard practice for
codifiers to make conforming changes, including changes to cross-references. See
generally Linda W. Cropp & Charlotte Brookins-Hudson, Preface to the 2001
Edition of the D.C. Official Code vi (2012 Repl.) (D.C. Council’s Office of General
Counsel codifies enactments of D.C. Council, including “interpret[ing] any
discrepancies in the drafting of the laws[,] using commonly recognized rules of
statutory construction”); 2 U.S.C. § 285b(4) (2017) (duties of federal Office of the
Law Revision Counsel include “classify[ing] newly enacted provisions of law to
their proper positions in the Code”). That appears to be what the codifier did in
codifying § 2(e)(2) of the WCAA. As codified, that provision is a subparagraph,
§ 32-1508 (6)(C), that by its terms prospectively repealed the requirements in the
rest of paragraph (6), including § 32-1508 (6)(A) and (B).
As noted, the CRB acknowledged that § 32-1508 (6)(C) by its terms could be
read to have prospectively repealed all of § 32-1508 (6). Nevertheless, relying
primarily on the WCAA’s lengthy title (which the CRB referred to as a preamble),
the CRB concluded that the D.C. Council had intended only to repeal the special
fund that provided reimbursement to employers in cases involving disability that
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arose in part from a prior injury and in part from a new injury, and that the D.C.
Council had not intended to “[b]ring[] apportionment into the picture.” See 46 D.C.
Reg. 891 (1999) (WCAA’s title refers in pertinent part “to repeal [of] the subsequent
injury fund provisions with respect to injuries occurring after the effective date of
this act”; no mention of apportionment of disability). By itself, however, the title of
the WCAA is not a sufficient basis upon which to decline to give effect to the plain
language of the text of § 2 (e)(2). See, e.g., Mitchell v. United States, 64 A.3d 154,
156 (D.C. 2013) (title of provision “cannot limit the plain meaning of the text”)
(internal quotation marks omitted); see also, e.g., District of Columbia v. Heller, 554
U.S. 570, 578 n.3 (2008) (“[I]n America the settled principle of law is that the
preamble cannot control the enacting part of the statute in cases where the enacting
part is expressed in clear, unambiguous terms.”) (internal quotation marks omitted).
In this court, HUH argues among other things that repealing the special-injury
fund while still precluding apportionment is bad policy and requires subsequent
employers to bear the expense of excessive disability payments to workers. HUH
also argues that the CRB treated § 2 (e)(2) as prospectively repealing only § 32-
1508 (6)(B), which addresses the special-fund reimbursement, without considering
whether § 2 (e)(2) also prospectively repealed § 32-1508 (6)(A)(iii). As previously
noted, in cases in which a claimant’s current disability rests in part on a prior
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disability, the latter provision appears to limit the extent of the current employer’s
obligation to pay monetary benefits to 104 weeks. D.C. Code § 32-1508 (6)(A)(iii).
Thus, HUH argues, if only § 32-1508 (6)(B) was repealed, claimants in such cases
would be limited to 104 weeks’ compensation and thus might not receive full
compensation. The CRB did not explicitly address whether § 2 (e)(2) of the WCAA
also repealed § 32-1508 (6)(A)(iii).
We conclude that the matter must be remanded for the CRB to further consider
the proper interpretation of § 2(e)(2) of the WCAA and its implications for
apportionment under the WCA. As we have noted, the CRB in this case relied
primarily on the title to the WCAA, which by itself cannot provide a basis for
disregarding clear textual language. In a subsequent decision, the CRB discussed
the issue somewhat more fully, taking into account the legislative history of the
WCAA and discussing underlying considerations of policy. Brown, CRB No. 16-
020(R), 2018 WL 4854481, at *4-6 (Sept. 5, 2018). Nevertheless, neither in this
case nor in Brown did the CRB address the questions posed by the interaction of
§ 2 (e)(2) of the WCAA and D.C. Code § 32-1508 (6)(A)(iii). “[A]cknowledging
the CRB’s expertise and responsibility for administering the [WCA],” we “remand[]
the case to enable the CRB to consider [that issue] in the first instance.” Levy v.
District of Columbia Dep’t of Emp’t Servs., 84 A.3d 518, 521 (D.C. 2014) (brackets
13
and internal quotation marks omitted). We express no view on the proper resolution
of that issue.
B.
HUH also challenges the CRB’s conclusion that the shoulder is part of the
arm for purposes of D.C. Code § 32-1508 (3)(A) and (S). We agree with HUH’s
challenge.
By way of background,
The Workers’ Compensation Act divides permanent
partial disabilities into two categories, “schedule” and
“non-schedule.” Schedule disabilities are those involving
the loss or impairment of certain specified body parts, e.g.,
the loss of an arm, leg, or eye. For each such injury, a
worker is entitled to receive 66 2/3% of his or her average
weekly wages for a fixed number of weeks that varies
depending on the particular body part injured . . . ,
regardless of the actual wage loss the worker sustains as a
result of the injury.
Brown v. District of Columbia Dep’t of Emp’t Servs., 83 A.3d 739, 743 n.6 (D.C.
2014). If a claimant loses partial use of a specified body part, the claimant is entitled
to compensation in proportion to the degree of loss of use. D.C. Code § 32-
1508 (3)(S). In determining the degree of loss of use of a schedule body part, the
following factors may be considered: the most recent edition of the AMA Guides,
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pain, weakness, atrophy, loss of endurance, and loss of function. D.C. Code § 32-
1508 (3)(U-i). “In contrast, for other partially disabling injuries (i.e., to parts of the
body not listed in the ‘schedule,’ such as the back or neck), the worker’s disability
compensation is measured by his or her actual or imputed wage loss attributable to
the injuries. See D.C. Code § 32–1508 (3)(V).” Brown, 83 A.3d at 743 n.6.
In the present case, Mr. Lyles sought a schedule award under D.C. Code § 32-
1508 (3)(A) and (S), which govern the partial loss of use of an arm. Some of the
impairments upon which Mr. Lyles relied were to Mr. Lyles’s shoulder. To
determine the degree to which Mr. Lyles lost the use of his arm, it thus was necessary
to decide whether the shoulder is properly understood to be part of the arm for the
purpose of determining a schedule award.
In M.C. Dean, Inc. v. District of Columbia Department of Employment
Services, 146 A.3d 67, 70-75 (D.C. 2016), this court addressed a case in which the
CRB appeared to have treated the shoulder as part of the arm for the purpose of
determining a schedule award. The court noted, however, that “the Department of
Employment Services has previously interpreted the [WCA] to exclude the neck and
shoulder from schedule arm awards.” Id at 73. We therefore remanded the case for
the CRB to “clarify the definition[] of ‘arm.’” Id. at 75.
 15
On remand in the Dean case, the CRB concluded that the arm includes the
shoulder for the purpose of determining a schedule award. Lawson, 2017 WL
576074, at *8. In the present case, the CRB relied upon in its earlier conclusion in
Lawson, so our focus is on the CRB’s analysis in Lawson. In Lawson, the CRB
noted that the WCA provides that the AMA Guides may be considered in
“determining disability.” Id. at *5 (quoting D.C. Code § 32-1508 (3)(U-i)). For
purposes of analyzing impairment, the AMA Guides use the term “upper
extremit[y]” rather than “arm,” and they define the upper extremity to include four
regions: the shoulder region, the elbow region, the wrist region, and the digit/hand
region. Id. at *6. Thus, the CRB concluded, “it is reasonable to infer that by making
the [AMA] Guides an appropriate benchmark for assessing objective medical
impairment, [the D.C.] Council intended that the anatomical description of the
relevant body parts referenced in the [AMA] Guides would correspond to the
anatomical body parts listed in the schedule.” Id. at *8. The principal difficulty with
this line of reasoning is that the body parts referenced in the AMA Guides do not
correspond to the body parts listed in the schedule in D.C. Code § 32-1508 (3)(A)-
(Q). Specifically, the AMA Guides include the hand and fingers as part of the upper
extremity, Lawson, 2017 WL 576074, at *6, but the hand and fingers are treated
separately from the arm under the statutory schedule, D.C. Code § 32-1508 (3)(A),
16
(C), (F), (G), (I), (J), (L) (separate provisions specifying amounts of compensation
for loss of arm, hand, and fingers). The D.C. Council thus could not reasonably be
understood to have intended for the anatomical divisions used in the AMA Guides
to determine the interpretation of the anatomical terms used in the statutory schedule.
Rather, the D.C. Council appears to have intended that the AMA Guides would be
used in determining the degree of disability. We therefore are not persuaded by the
CRB’s reason for concluding that the shoulder should be treated as part of the arm.
Mr. Lyles advances an additional argument in support of the CRB’s
conclusion. According to Mr. Lyles, “[t]he CRB concluded that sound public policy
supports finding the shoulder is part of the arm, because the CRB has focused more
and more on the place of functional disability, rather than the situs of injury, to assign
disability under the [WCA].” Mr. Lyles’s argument rests on a misunderstanding of
the CRB’s ruling in Lawson. In the passage from Lawson on which Mr. Lyles relies,
the CRB described the competing arguments of the parties, without adopting those
arguments. 2017 WL 576074, at *7. In general, an administrative order cannot be
affirmed on grounds not relied upon by the agency. E.g., Douglas-Slade v. U.S.
Dep’t of Transp., 959 A.2d 698, 702 (D.C. 2008). In any event, the argument
presented by the employer in Lawson conflates two distinct issues. It is well settled
under our law that a claimant who suffers an injury to a part of the anatomy that is
17
not listed in the statutory schedule may nevertheless seek recovery under the
schedule if the consequence of that injury is the total or partial loss of use of a part
of the anatomy that is listed in the statutory schedule. See, e.g., M.C. Dean, Inc.,
146 A.3d at 73 (“[I]t is not the situs of the injury which determines whether a
schedule award is payable; it is the situs of the disability resulting from the injury
which is controlling.”) (internal quotation marks omitted). Thus, even if the
shoulder is not considered part of the arm, injury to the shoulder might provide a
basis for a schedule award based on total or partial loss of use of the arm. Moreover,
if the shoulder is not part of the arm, then a claimant who suffers injury to the
shoulder would also have the option of seeking an unscheduled award by showing
actual or imputed wage loss attributable to that injury. D.C. Code § 32-1508 (3)(V).
In light of these considerations, we do not perceive a clear public-policy rationale
that would necessitate treating the shoulder as part of the arm.
Two other considerations bear on the CRB’s conclusion that the shoulder
should be considered part of the arm. First, dictionary definitions of “arm” often
refer somewhat ambiguously to the upper limb of the human body, but when they
are anatomically specific they often exclude the shoulder. See, e.g., Webster’s Third
New International Dictionary, Unabridged 118 (2002) (defining “arm” as “(1) a
human upper limb; (2) the part of an arm between the shoulder and the wrist”);
18
American Heritage Dictionary of the English Language 100 (3d ed. 1992) (“An
upper limb of the human body, connecting the hand and wrist to the shoulder.”). Cf.
generally, e.g., O’Rourke v. District of Columbia Police & Firefighters’ Ret. &
Relief Bd., 46 A.3d 378, 383 (D.C. 2012) (“The first step in construing a statute is to
read the language of the statute and construe its words according to their ordinary
sense and plain meaning.”) (internal quotation marks omitted).
Second, the substantial weight of authority appears to support treating the
shoulder as distinct from the arm for the purpose of determining a schedule award
of workers’ compensation benefits. See, e.g., Keenan v. Dir. for Benefits Review
Bd., 392 F.3d 1041, 1045 (9th Cir. 2004) (shoulder is not part of arm); Taylor v.
Goodyear Tire & Rubber Co., 37 So. 3d 813, 820 (Ala. Civ. App. 2009) (“the
shoulder is not part of the arm”) (internal quotation marks omitted); Safeway Stores,
Inc. v. Indus. Comm’n, 558 P.2d 971, 974 (Ariz. Ct. App. 1976) (“the shoulder is a
distinct anatomical entity, not part of the arm”) (citing cases); Safford v. Owens
Brockway, 816 A.2d 556, 561 (Conn. 2003) (shoulders are “an unscheduled body
part”); Jewell v. Wood, 130 So. 2d 277, 278 (Fla. 1961) (injury to shoulder is not
injury to arm); Gentry v. Ga. Cas. & Sur. Co., 131 S.E.2d 788, 790 (Ga. Ct. App.
1963) (“The shoulder, as we construe the law, is not a part of the arm.”); Will Cty.
Forest Preserve Dist. v. Ill. Workers’ Comp. Comm’n, 970 N.E.2d 16, 24 (Ill. App.
19
Ct. 2012) (“the shoulder is not part of the arm”) (citing cases); Second Injury Fund
v. Nelson, 544 N.W.2d 258, 269-70 (Iowa 1995) (injury to shoulder is not schedule
injury); Getson v. WM Bancorp, 694 A.2d 961, 964-69 (Md. 1997) (“shoulder
injuries are unscheduled”) (citing cases); Foster v. State Accident Ins. Fund, 485
P.2d 407, 408-09 (Or. 1971) (treating shoulder as unscheduled body part); Cont’l
Ins. Cos. v. Pruitt, 541 S.W.2d 594, 595-96 (Tenn. 1976) (shoulder is not part of
arm). We note that workers’ compensation law in some of the cited jurisdictions
differs in important respects from the law in this jurisdiction. By citing the foregoing
cases for the specific principle at issue in this case, we do not mean to imply
endorsement of the holdings of those cases on other issues.
We are aware of three jurisdictions that treat the shoulder as a schedule body
part, but in each of those jurisdictions the statutory schedule specifically refers to the
shoulder. Strauch v. PSL Swedish Healthcare Sys., 917 P.2d 366, 367 (Colo. App.
1996) (“loss of an arm at the shoulder”); Mitchell v. Petsmart, Inc., 239 P.3d 51, 60
(Kan. 2010) (“loss of an arm, including the shoulder joint, shoulder girdle, shoulder
musculature or any other shoulder structures”); Hagen v. Labor & Indus. Review
Comm’n, 563 N.W.2d 454, 457 (Wis. 1997) (“loss of an arm at the shoulder”).
20
For the foregoing reasons, we are not persuaded that the CRB has articulated
a reasonable basis for treating the shoulder as part of the arm when determining a
schedule award. To the contrary, we conclude that the CRB’s decision to treat the
shoulder as part of the arm was unreasonable as a matter of law. Cf. generally, e.g.,
District of Columbia Office of Human Rights v. District of Columbia Dep’t of Corr.,
40 A.3d 917, 923 (D.C. 2012) (concluding that agency interpretation of statute was
unreasonable as matter of law). We therefore vacate the order of the CRB and
remand for further proceedings focused on the degree to which Mr. Lyles has lost
the use of his arm, not including the shoulder. We reiterate, however, that Mr. Lyles
is not foreclosed from relying on impairments of his shoulder that have as their
consequence partial or total loss of the use of his arm.
C.
HUH finally argues that the CRB erred by concluding that, in calculating the
amount of the award, the ALJ adequately explained the connection between Mr.
Lyles’s physical impairments and the extent of Mr. Lyles’s disability. We agree.
Here too some background is necessary. If a claimant suffers total loss of a
schedule body part, or total loss of use of a body part, the WCA provides a set
21
amount of compensation, generally 66⅔% of the claimant’s average weekly wages
for a specified duration that varies depending on the body part at issue. D.C. Code
§ 32-1508 (3)(A)-(R). A claimant seeking such an award is not required to introduce
any evidence about the actual or likely effect of the loss on the claimant’s wages or
employment prospects. E.g., Smith v. District of Columbia Dep’t of Emp’t Servs.,
548 A.2d 95, 101 (D.C. 1988). As we explained in Smith,
The typical schedule, limited to obvious and easily-
provable losses of [schedule body parts], was justified on
two grounds: the gravity of the impairment supported a
conclusive presumption that actual wage loss would
sooner or later result; and the conspicuousness of the loss
guaranteed that awards could be made with no controversy
whatsoever. Although impaired earning capacity need not
be proved to receive schedule benefits, this is not to be
interpreted as an erratic deviation from the underlying
principle of compensation law—that benefits relate to loss
of earning capacity and not to physical injury as such. The
basic theory remains the same; the only difference is that
the effect on earning capacity is a conclusively presumed
one, instead of a specifically proved one based on the
individual’s actual wage-loss experience.
Id. (ellipsis, citation, brackets, and internal quotation marks omitted).
A claimant may also seek a schedule award based on partial loss of use of a
schedule body part. D.C. Code § 32-1508 (3)(S). As previously noted, the WCA
generally provides that six factors may be considered in determining disability for
purposes of schedule awards: the AMA Guides, pain, weakness, atrophy, loss of
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endurance, and loss of function. D.C. Code § 32-1508 (U-i). Those factors thus are
relevant to determining the degree of partial loss of use. Our cases indicate,
however, that the amount of a partial-loss schedule award is not properly determined
based solely on a non-economic medical determination as to the degree of physical
impairment of the body part at issue. Negussie v. District of Columbia Dep’t of
Emp’t Servs., 915 A.2d 391, 399 (D.C. 2007) (“‘[D]isability’ is an economic and
legal concept which should not be confounded with a medical condition . . . .”).
Rather, in the context of partial-loss schedule awards, we have stated that
“compensation under the [WCA] is predicated upon the loss of wage earning
capacity, or economic impairment, and not upon functional disability or physical
impairment.” Dent v. District of Columbia Dep’t of Emp’t Servs., 158 A.3d 886,
901 (D.C. 2017) (internal quotation marks omitted). We also have said that the six
statutory factors “may be considered by the ALJ and the CRB in making a schedule
award for permanent partial disability to compensate for loss of wage-earning
capacity.” Id. at 902; see also id. at 903 (“The ALJ’s ability to come to a considered
judgment of the extent of permanent partial disability is particularly important in the
context of a schedule award. Because a schedule award is a one-time payment meant
to compensate for the loss of future wage-earning capacity resulting from a work
injury, it necessarily involves an element of prediction. Determining the extent of
disability thus requires a highly fact-bound inquiry that takes into account the
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particulars of the individual claimant, such as employment skills, experience, age,
education, and reasonable prospects; evidence of post-injury wages, compared with
pre-injury wages, may be more or less probative of loss of future wage-earning
capacity depending on the facts of the case. It is for the ALJ to consider and weigh
the relevant evidence presented in a given case.”) (citation and internal quotation
marks omitted).
As previously noted, Dr. Menet concluded that Mr. Lyles had a 47%
permanent impairment to his right upper extremity, based on the following specific
impairments: 3% based on lack of full motion, 12% for pain, 10% for weakness,
12% for loss of function, and 10% for loss of endurance. Dr. Menet did not tie those
calculations to predictions about Mr. Lyle’s future wage-earning capacity. The ALJ
accepted Dr. Menet’s calculations, with one exception: the ALJ did not accept the
10% impairment based on loss of endurance, because Mr. Lyles had returned to full-
time work as a radiological technician/medical assistant. The ALJ therefore
concluded that Mr. Lyles had suffered a 37% permanent disability to his right upper
extremity. The ALJ did not explain how Dr. Menet’s other calculations related to
Mr. Lyles’s future wage-earning capacity.
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The CRB acknowledged that ALJs must specifically explain the nexus
between the statutory factors of pain, weakness, atrophy, loss of endurance, and loss
of function and a claimant’s “industrial capacity.” (The CRB has equated “industrial
capacity” and “wage-earning capacity.” Dent, 158 A.3d at 898 (internal quotation
marks omitted).) The CRB concluded, however, that the ALJ had adequately
explained his conclusions. We do not agree. The ALJ did not explain the likely
consequences, if any, that Mr. Lyles’s physical impairments would have for Mr.
Lyles’s wage-earning capacity. We therefore must remand for the ALJ to provide
the necessary explanation. See generally, e.g., Bowles v. District of Columbia Dep’t
of Emp’t Servs., 121 A.3d 1264, 1269 (D.C. 2015) (“When the ALJ fails to explain
its reasoning in arriving at a disability award[,] such that we are unable to
meaningfully review the decision to determine whether it is based on substantial
evidence, we must remand the case back to the CRB.”) (brackets and internal
quotation marks omitted).
For the foregoing reasons, we vacate the order of the CRB and remand the
case for further proceedings.
So ordered.