D.C. Pub. Sch. v. D.C. Dep't of Emp't Servs.

Decision Date28 October 2021
Docket NumberNo. 17-AA-1049, 17-AA-1094,17-AA-1049, 17-AA-1094
Parties DISTRICT OF COLUMBIA PUBLIC SCHOOLS, Petitioner/Intervenor, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and Marsha Karim, Intervenor/Cross-Petitioner.
CourtD.C. Court of Appeals

Caroline S. Van Zile, Deputy Solicitor General for the District of Columbia, with whom Karl Racine, Attorney General, Loren L. AliKhan, Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for petitioner/intervenor.

Robert A. Taylor, Jr., Washington, for intervenor/cross-petitioner.

Before Blackburne-Rigsby, Chief Judge, and Easterly and Deahl, Associate Judges.

Deahl, Associate Judge:

Marsha Karim injured her right arm and shoulder in a work-related automobile accident in 2009, when she was employed as a social studies teacher by the District of Columbia Public Schools (DCPS). She received temporary disability benefits before returning to work in 2011. Upon her return, she promptly claimed to have aggravated her injury and, three years later, sought a so-called "schedule award" for permanent partial disability benefits in relation to her injury. An Administrative Law Judge (ALJ) concluded Karim had suffered a 27% permanent impairment to her "right upper extremity" and granted her a schedule award commensurate with that impairment, along with an award of compound interest. The Compensation Review Board (CRB) approved that 27% rating over DCPS's objections, but determined interest on that award should be computed on a simple rather than a compound basis. The CRB remanded to the ALJ to revise the award accordingly. Before the ALJ could do so, the Office of Risk Management (ORM) intervened with its own computation of the award under new regulations shifting the authority to do so to ORM.

The cross-petitions for review now before us present three issues. In its petition, DCPS argues the 27% impairment rating includes an unjustified and unexplained 10% increase over the 17% rating that it concedes is supported by the evidence. We disagree and find the 27% impairment rating is adequately explained and supported by substantial evidence. In her cross-petition, Karim makes two arguments. She first argues that, contrary to the CRB's conclusion, the ALJ had equitable discretion to award her compound interest on her award. We disagree and uphold the CRB's determination that simple interest alone was warranted here. Karim's second argument involves the new regulations mentioned above, shifting authority to ORM to calculate the award due to Karim. At bottom, her challenge to those regulations concerns whether (a) the ORM acted within its authority when it passed regulations providing that certain schedule awards are reviewable exclusively by ORM's Chief Risk Officer, or instead (b) as Karim argues, those regulations exceeded ORM's authority so that claimants seeking a schedule award continue to have a right to a hearing before an ALJ, along with a right to review by the CRB. The CRB agreed with DCPS that ORM's regulations altering the process for reviewing schedule awards were valid, and our recent opinion in Frazier v. District of Columbia Dep't of Emp't Servs. , 229 A.3d 131 (D.C. 2020), binds us to do the same. We therefore affirm.


Karim sustained injuries to her right shoulder, arm, neck, and lower back as a result of a work-related automobile accident in 2009. At the time, DCPS employed her as a social studies teacher at Eastern High School. Following the injury, an MRI revealed a number of torn muscles

in her shoulder, though Karim had received surgery to the same shoulder to repair a torn rotator cuff two months before the accident. Karim filed a workers’ compensation claim with the public-sector workers’ compensation program—which we refer to simply as "the program"—established by the Comprehensive Merit Personnel Act (CMPA). The program accepted her claim and awarded her temporary total disability benefits from December 2009 to August 2011, when her physician released her to return to work. After returning to work for just one day, Karim claimed to have aggravated her injuries while breaking up a fight between students. She filed another request for temporary disability benefits, but the program denied it after determining her injuries were not related to the incident at school. She appealed the decision to a Department of Employment Services (DOES) ALJ, who upheld the program's determination. Karim then retired on disability in February 2012.

Karim filed a new claim with the program for a partial permanent disability "schedule award" in 2014. She underwent three separate medical evaluations related to that claim, two of which are relevant here. In the first, Karim's treating physician Dr. Jeffrey Sabloff concluded that she had a torn rotator cuff and degenerative disc disease

. Based largely on the American Medical Association's Guides to the Evaluation of Permanent Impairment (6th ed. 2009), Dr. Sabloff opined that Karim had a 50% partial permanent disability to her "right upper extremity."1 At DCPS's request, Karim also received an independent medical evaluation by Dr. Stanley Rothschild. Dr. Rothschild determined that Karim had "a 19% upper extremity impairment," a figure he reduced by 5% based on her pre-existing shoulder injuries. In other words, he found she had a permanent 14% impairment attributable to her job-related injury. The program issued a decision accepting Karim's claim for a schedule award and granting her a one-time lump sum payment of $51,544.97, based on Dr. Rothschild's 14% impairment rating.

Karim appealed to a DOES ALJ and requested a substantially higher award based on a 50% permanent disability in line with Dr. Sabloff's impairment rating. After an evidentiary hearing, ALJ Gwenlynn D'Souza issued a compensation order nearly doubling the program's 14% impairment rating to 27%. Relying on Dr. Rothschild's and Dr. Sabloff's roughly consistent findings concerning four of six measures of functionality—flexion, extension, abduction, adduction—the ALJ assigned a 17% impairment rating based on those factors alone, which nobody challenges now. She did not specifically credit the assessment of either doctor regarding the remaining two measures of functionality, internal and external rotation, given their "vastly different" views on the topic. She instead generally credited Karim's evidence that her shoulder's internal and external rotation were limited, and then factored those limitations into a 10% increase of the overall impairment rating. That 10% increase was tethered to the "significant loss of industrial use" caused by Karim's injury, given its effects on her "ability to lift, carry, push or pull when using her arm." That 10% increase was further broken down as "2% for pain, 4% for weakness, 2% for loss of endurance, and 2% for loss of function." The ALJ also awarded 4% compound interest on the benefits, running from when Karim's claim should have been paid in 2014.

DCPS petitioned the CRB for review, raising two arguments relevant here. First, DCPS challenged as insufficiently explained the ALJ's decision to increase Karim's schedule award by 10%. Second, it challenged the ALJ's award of compound interest. The CRB rejected DCPS's first argument, stating:

The ALJ noted specifically that the additional amounts awarded took into consideration abduction and internal or external rotation. A review of Dr. Rothschild[’s] [independent medical examination] shows a detailed analysis of abduction, as well as internal and external rotation and included the amount attributable to abduction and internal or external rotation. While we are cognizant that Dr. Rothschild included these numbers in his permanent impairment rating, they are certainly a specific basis on which to increase the permanent partial disability rating and to satisfy the need for specific evidence on which to rely upon when increasing a permanent partial impairment award. We affirm the 27% permanent partial disability award to the right upper extremity.

However, the CRB reversed the ALJ's award of compound interest, explaining that "the interest payable upon accrued benefits" is to be "calculated on a simple and not a compound basis." It thus remanded with directions that the ALJ enter an award using simple interest.

Before the ALJ could do so, ORM intervened pursuant to a recently-promulgated series of "emergency rules" revising the procedures for resolving disputes over certain schedule awards. See 63 D.C. Reg. 15285, 15510–15546 (Dec. 16, 2016).2 Under the prior procedures that Karim had already navigated, a claimant dissatisfied with the program's decision on a claim for a schedule award was entitled to an evidentiary hearing before an ALJ and, if dissatisfied with the ALJ's determination, an appeal to the CRB. See 7 D.C.M.R. §§ 105, 121, 128, 130, 135.2 (2012). Under the revised procedures, many claimants seeking schedule awards—those like Karim whose claims are not filed "within the last 52 weeks" of a temporary disability benefit, D.C. Code § 1-623.06a(a) —are no longer entitled to an evidentiary hearing before an ALJ or review by the CRB. Instead, those claimants can request an audit from ORM's Chief Risk Officer and may then seek further review of that audit in D.C. Superior Court. See 7 D.C.M.R. §§ 156.1, 156.5 (2017).

Shortly after those revised procedures went into effect, the program sent Karim a Notice of Benefits calculating her award to be $91,761 based on the CRB's 27% impairment rating and advising her she could appeal the calculation to ORM's Chief Risk Officer. She then appealed to ORM's Chief Risk Officer arguing, among other things, that the program had shortchanged her by not accounting for a number of weeks that the award should have covered and by miscalculating the total amount of interest due. The ORM's Chief Risk Officer agreed with some of Karim's claims and increased her award...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT