Brown v. Dist. of Columbia Dep't of Emp't Servs.

• Decision Date: 23 January 2014
• Docket Number: No. 12–AA–418.,12–AA–418.
• Court: D.C. Court of Appeals
• Parties: Nathalia L. BROWN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Potomac Electric Power Company, Intervenor.

83 A.3d 739

Nathalia L. BROWN, Petitioner,

v.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andPotomac Electric Power Company, Intervenor.

No. 12–AA–418.

District of Columbia Court of Appeals.

Argued Oct. 10, 2013.

Decided Jan. 23, 2014.

Matthew J. Peffer, Greenbelt, MD, for petitioner.

Shawn M. Nolen, with whom Kevin J. O'Connell, Rockville, MD, was on the brief, for intervenor.

Irvin B. Nathan, Attorney General for the District of Columbia, and Todd S. Kim, Solicitor General, filed a statement in lieu of brief for respondent.

Before GLICKMAN and McLEESE, Associate Judges, and NEWMAN, Senior Judge.

GLICKMAN, Associate Judge:

Nathalia Brown petitions for review of a decision by the Compensation Review Board (“CRB” or “the Board”) of the Department of Employment Services denying her claim for permanent partial disability benefits under the Workers' Compensation Act.¹ Brown contends that the CRB erred in two principal respects: first, by raising sua sponte a previous suspension of her benefits on account of her refusal to cooperate with vocational rehabilitation as a continuing bar to any disability compensationaward; and second, in holding that if the bar is removed and Brown is awarded permanent partial disability compensation for both “schedule” and “non-schedule” injuries, those partial disability awards must be paid to her consecutively rather than concurrently because concurrent payments would exceed the payments that Brown could receive if she were permanently and totally disabled.

Brown's challenge to the CRB's suspension-of-benefits ruling presents unsettled issues concerning the interpretation of the Workers' Compensation Act and the procedural rules that the Board follows. Because the Board did not provide a reasoned analysis and resolution of those issues, we vacate its decision and remand this case for further proceedings. However, we affirm the Board's ruling that concurrent compensation for permanent partial disabilities arising out of the same work accident cannot exceed the compensation authorized for permanent total disability.

I. Factual and Procedural Background

Brown sustained the work-related injuries that gave rise to her present claims while she was working as a lead shop mechanic for intervenor Potomac Electric Power Company (“PEPCO”). On March 26, 1995, Brown was standing on a ladder, running electrical lines in the ceiling to repair a light fixture, when her right hand came into contact with a live wire. A co-worker pushed her off the ladder to break the electrical contact and save Brown from electrocution. In addition to the burns she received from the electric shock, Brown injured her neck, back, and shoulder in the fall. Her back injury subsequently led her to sustain other permanent injuries that need not be detailed here.

The lasting physical impairments resulting from Brown's work-related injuries made it impossible for her to resume her former position. PEPCO attempted to accommodate her return to work by offering her a variety of light duty positions, but Brown found all of them unsatisfactory. In December 1998, she ceased working altogether.

PEPCO voluntarily paid Brown temporary total disability benefits.² In November 2005, the company engaged a vocational rehabilitation consultant to evaluate Brown and assist her in applying for available sedentary jobs within her physical limitations for which she was qualified. However, Brown attended only four of her eight scheduled rehabilitation appointments and did not pursue the job opportunities identified by the consultant. Moreover, in January 2006, Brown rejected PEPCO's renewed offer of another light duty position.

Instead, Brown filed a claim for permanent total disability benefits under the Workers' Compensation Act. PEPCO contested the claim, which proceeded to a hearing before an Administrative Law Judge (“ALJ”) in the Hearings and Adjudication Section of the Office of Employment Services. The ALJ rendered his decision in a January 18, 2007, compensation order.³ Finding that Brown was not totally disabled, that she had voluntarily limited her income by failing to accept offered employment, and that she had refusedunreasonably to cooperate with vocational rehabilitation, the ALJ denied her claim for permanent total disability benefits and, in accordance with D.C.Code § 32–1507(d), declared that Brown's “temporary total disability benefits should be suspended until such time as she expresses a willingness to cooperate” with vocational rehabilitation.⁴ The CRB affirmed the compensation order on appeal.⁵

Brown did not petition for further review. Neither did she seek to terminate the suspension of her benefits by expressing a willingness to cooperate with vocational rehabilitation. Instead, she commenced a second proceeding by filing a new claim requesting permanent partial (rather than total) disability benefits. Brown sought “schedule” benefits for partial impairments of her arms and legs plus “non-schedule” benefits for wage loss occasioned by the injuries to her back and neck.⁶

In opposition, PEPCO contended inter alia that Brown's physical complaints were exaggerated and that she had voluntarily limited her income. ⁷ PEPCO also argued that if Brown were awarded both schedule and non-schedule benefits, the awards should be paid consecutively rather than concurrently (i.e., payment of the non-schedule wage loss benefits should be deferred until the schedule benefits were exhausted). However, PEPCO did not resurrect its argument that Brown was ineligible to receive any benefits at all by virtue of her failure to cooperate with vocational rehabilitation; it did not rely on the prior finding in the January 2007 compensation order to that effect.

On April 30, 2009, after an evidentiary hearing, the ALJ found Brown to be permanently partially disabled and entitled to schedule benefits for impairments of her arms and legs ⁸ plus wage loss benefits stemming from the non-schedule injuries to her back and neck.⁹ Noting the prior finding that Brown had voluntarily limited her income, the ALJ ruled that for purposes of computing her wage loss benefits, her post-disability wages “shall be deemed to be the amount that she would earn if she did not voluntarily limit her income or did accept employment commensurate with her abilities.” ¹⁰ The ALJ further ruled that Brown's awards were to “run consecutively” pursuant to D.C.Code § 32–1508(U).¹¹ The ALJ did not address whether Brown's benefits were suspended because of her refusal to cooperate with vocational rehabilitation.

Brown appealed the compensation award to the CRB, arguing only that her non-schedule benefits should be paid concurrently with her schedule award payments rather than consecutively. She did not challenge the ALJ's ruling that her wage loss benefits should reflect the finding that she had voluntarily limited her income. For its part, PEPCO, which did not cross-appeal,¹² did not cite Brown's failure to cooperate with vocational rehabilitation as a basis to deny or withhold her benefits.

In August 2009, the CRB issued its decision.¹³ Although no one had raised the issue, the CRB brought up the January 2007 suspension of Brown's benefits on account of her failure to cooperate with vocational rehabilitation. There was, the Board noted, “nothing in the record before the CRB that shows this finding was modified.” If Brown's benefits therefore “remain[ed] suspended” the Board declared, then “the ALJ did not have authority to enter any award” in her favor. Primarily for this reason,¹⁴ the CRB vacated the awards and remanded the matter for the ALJ to determine, inter alia, whether Brown was eligible to receive any award in light of the January 2007 failure-to-cooperate finding. “If the ALJ determines that the benefits still are suspended,” the CRB declared, “then the ALJ should dismiss the present Application.”

“To foster judicial economy,” the CRB nonetheless went on to consider whether any dual awards to Brown of schedule and non-schedule benefits should be payable consecutively or concurrently. Despite what it called “the general rule that an injured worker may receive concurrent payment of permanent partial schedule and permanent partial wage loss benefits,” the Board held that this rule did not apply where a claimant seeks “permanent disability benefits that, when paid concurrently, would exceed the amount of an award that she could receive for permanent total disability.” ¹⁵

On remand, the ALJ concluded that a suspension of benefits for failing to cooperate with vocational rehabilitation “ends only upon a demonstrated willingness of the injured party to participate in vocational rehabilitation,” and that whether Brown demonstrated such a willingness “can only be addressed in a modification of the prior order” pursuant to the modification procedure set out in D.C.Code § 32–1524.¹⁶ Because Brown had not sought to modify the January 2007 order suspending her benefits on account of her failure to cooperate with vocational rehabilitation, the ALJ ruled that she was not entitled to the permanent partial disability benefits she sought.¹⁷

The CRB affirmed this ruling. It rejected Brown's contention that the suspension of her temporary total disability benefits did not apply to her current claim for permanent partial disability benefits; “[t]he plain language of the Act,” the Board explained, “does not discriminate as to the type of benefit to be suspended when a claimant fails to cooperate[.]” ¹⁸ Therefore, the Board held, Brown needed to obtain a modification of the January 18, 2007 order pursuant to D.C.Code § 32–1524 in order to be eligible for payment of any further disability compensation.¹⁹ Brown filed a timely petition for review by this court.

II. Standard of Review

Generally speaking, our review of a CRB decision in a workers' compensation case is deferential and limited to assessing whether the decision was “arbitrary, capricious, an...