WMATA v. DC DEPT. OF EMPLOYMENT SERV.

• Decision Date: 17 October 1996
• Docket Number: No. 95-AA-1499.,95-AA-1499.
• Citation: 683 A.2d 470
• Parties: WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Lin C. Chang, Intervenor.
• Court: D.C. Court of Appeals

683 A.2d 470

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Lin C. Chang, Intervenor.

No. 95-AA-1499.

District of Columbia Court of Appeals.

Argued September 25, 1996.

Decided October 17, 1996.

Michael D. Dobbs, Spokane, WA, with whom Dona M. Kilpatrick, was on the brief, Washington, DC, for petitioner.

Charles F.C. Ruff, Corporation Counsel, Washington, DC, with whom Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief, for respondent.

Carolyn McKenney, Washington, DC, for intervenor.

Before FERREN and REID, Associate Judges, and NEWMAN, Senior Judge.

FERREN, Associate Judge:

Washington Metropolitan Area Transit Authority (WMATA) petitions for review of the decision of the Director of the Department of Employment Services (DOES) adopting the hearing examiner's order awarding intervenor Lin C. Chang workers' compensation benefits. The examiner concluded, and the Director agreed, that Chang was entitled to a schedule award under D.C.Code § 36-308(3) (1993 Repl.) for a 5% permanent partial disability in his legs arising from a non-schedule back injury that Chang had suffered in 1986. We affirm the Director's decision.

I.

On April 15, 1986, Lin C. Chang, a forty-six-year-old WMATA mechanic, suffered a work-related back injury while lifting an air-conditioner compressor. Chang immediately sought treatment at Washington Hospital Center but was unable to return to work. Over the next few days, Chang continued to experience severe pain in his lower back when sitting and standing, along with occasional discomfort in his toes. Dr. Robert S. Viener, a board-certified orthopedic surgeon, examined Chang on April 21, 1986. After performing a series of tests, including nerve-conduction studies, EMGs, and a CAT scan, Dr. Viener diagnosed Chang as having advanced intervertebral disc degeneration and a central herniated disc.

Chang was unable to work for approximately fifteen weeks because of his work-related injuries. On August 5, 1986, Chang reached maximum medical improvement and returned to work. WMATA assigned Chang to light duty at a reduced salary. On August 25, 1986, Chang filed an "Employee's Claim Application" with DOES seeking an award for his lost wages under the District of Columbia Workers' Compensation Act (WCA) of 1979, D.C.Code §§ 36-301 to -345 (1993 Repl.). Before the claim could be adjudicated, WMATA and Chang entered into a written stipulation whereby WMATA agreed to compensate Chang in part for his lost wages from April 17, 1986 to August 4, 1986, and for his salary reduction after his return to light duty on August 5, 1986.¹

Because Chang continued to experience spasms and discomfort in his legs and lower back, he remained under the care of Dr. Viener. On July 10, 1987, Dr. Viener rated Chang as suffering from "a 20% permanent partial disability for degenerative disc disease at multiple levels in the lumbar spine." Dr. Viener later apportioned 15% of the 20% permanent partial disability to Chang's back condition and 5% of the disability "for his legs." Dr. Louis E. Levitt, petitioner WMATA's physician, examined Chang on October 27, 1987 and diagnosed a "5% whole body disability based on persistent symptomatology surrounding low back complaints." Dr. Levitt did not attribute any of Chang's whole body disability to his legs.

In February 1989, Chang's average weekly wage rose to $708.06 and exceeded for the first time his pre-injury weekly wage of $699.95. In the absence of weekly wage losses, WMATA stopped compensating Chang in March 1989 pursuant to the stipulation agreed upon in 1986. Chang, mean-while, continued to experience problems with his back and legs attributable to the original work-related back injury. On December 18, 1989, Chang sought an independent medical examination from Dr. Harvey N. Minninberg. Dr. Minninberg examined Chang and assessed a 6% impairment to the whole body, which he mathematically converted to a 34% impairment to the "lower extremity." Shortly thereafter, Chang asked WMATA to compensate him for 34% permanent partial impairment of his legs. When WMATA declined, Chang filed a workers' compensation claim in February 1990 seeking a schedule award for permanent partial impairment in his left leg under D.C.Code § 36-308(3)(B).

At a hearing on July 10, 1990, Chang testified on his own behalf, and the parties introduced in evidence the medical reports of Dr. Viener, Dr. Minninberg, and Dr. Levitt. WMATA contended that Chang was barred as a matter of law from receiving a schedule award for a disability (leg) caused by a non-schedule injury (back), and that there was not substantial evidence to show that Chang suffered specifically from a leg disability. WMATA also defended on the ground that the stipulation agreement between WMATA and Chang precluded an award.

The hearing examiner concluded, based on Chang's testimony and the medical reports of Dr. Viener, that Chang suffered from "5% permanent partial disability to his legs as a result of trauma to his back." Relying on the Director's interpretation of the WCA in Kovac v. Avis Leasing Corp., H & AS No. 84-177, OWC No. 0000792 (July 17, 1986), the examiner concluded that Chang was entitled to receive a schedule award for a leg disability caused by a non-schedule injury. Finally, the examiner found that the stipulation agreement between WMATA and Chang pertained only to Chang's back injury and thus did not preclude him from recovering benefits for his separate leg disability.

The Director adopted the examiner's findings and conclusions on October 6, 1995. He specifically ruled that the WCA, as previously interpreted in Kovac, permitted the recovery of a schedule award for a disability that arises from a non-schedule injury, and that there was nothing in the stipulation between the parties "that purports to limit claimant from pursuing any other remedies that might be valuable to claimant." On November 3, 1995, petitioner filed a timely petition for review of the Director's decision.

II.

At the outset, we acknowledge that "it is the Director's final decision, not the examiner's, which may be reviewed in this court." St. Clair v. District of Columbia Dep't of Employment Servs., 658 A.2d 1040, 1044 (D.C.1995) (per curiam). Under the District of Columbia Administrative Procedure Act, this court reviews the Director's decision under the now familiar "substantial evidence" standard. See Harris v. District of Columbia Office of Worker's Compensation, 660 A.2d 404, 407 (D.C.1995); St. Clair, 658 A.2d at 1043; D.C.Code §§ 1-1509(e), -1510(a)(3)(E) (1992 Repl.). "We will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record." Oubre v. District of Columbia Dep't of Employment Servs., 630 A.2d 699, 702 (D.C.1993) (citations omitted).

Where questions of law are concerned, this court reviews the agency's rulings de novo; we are presumed to have the greater expertise when the agency's decision rests on a question of law, and we therefore remain "the final authority on issues of statutory construction." Harris, 660 A.2d at 407; see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984). Nevertheless, this court ordinarily defers to the agency's interpretation of the statute it enforces. We have concluded that:

We must give great weight to any reasonable construction of a regulatory statute that has been adopted by the agency charged with its enforcement. The interpretation of the agency is binding unless it is plainly erroneous or inconsistent with the enabling statute. Consequently, we sustain the agency decision even in cases in which other, contrary, constructions may be equally as reasonable as the one adopted by the agency.

Lee v. District of Columbia Dep't of Employment Servs., 509 A.2d 100, 102 (D.C.1986) (citations omitted); see DeShazo v. District of Columbia Dep't of Employment Servs., 638 A.2d 1152, 1154 (D.C.1994); Saah v. District of Columbia Bd. of Zoning Adjustment, 433 A.2d 1114, 1116 (D.C.1981).

A.

WMATA contends the Director erred as a matter of law in awarding Chang a schedule award for a leg disability caused by a separate non-schedule injury compensable under the WCA's wage loss provisions. The Director, in concluding that the WCA's schedule award provisions permit an award for a disability caused by a non-schedule injury, adopted both the reasoning and holding of his earlier decision in Kovac. WMATA's claim of error, therefore, compels this court to consider whether the Director erred as a matter of law in Kovac — a ruling which this court has never had occasion to review.

D.C.Code § 36-308(3)(A)-(U) sets forth the WCA's schedule award provisions intended to compensate a claimant for the total or partial permanent loss, or loss of use of, specifically described "members" of his or her body. Unlike the statute's wage loss provisions, a claimant qualifies for a schedule award regardless of whether the claimant actually suffers a wage loss as a consequence of the disability. Section 36-308(3) provides:

Compensation for disability shall be paid to the employee as follows:

(3) In case of disability partial in character but permanent in quality, the compensation shall be 662/3% of the employee's average weekly wages which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with paragraph (2) or (4) of this subsection respectively, and shall be paid to the employee, as follows:

Subsections (A) through (U) then set forth the number of weeks of compensation (at the 662/3% rate prescribed under § 36-308(3)) awarded for each of the various schedule disabilities. For example, subsection (A) establishes 312 weeks of compensation for an "arm lost," whereas subsection (B)...