Harris v. DOES, No. 96-AA-1908.

• Decision Date: 10 February 2000
• Docket Number: No. 96-AA-1908.
• Citation: 746 A.2d 297
• Parties: Eugene M. HARRIS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Bell Atlantic-Washington, D.C., Inc., Intervenor.
• Court: D.C. Court of Appeals

746 A.2d 297

Eugene M. HARRIS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Bell Atlantic-Washington, D.C., Inc., Intervenor.

No. 96-AA-1908.

District of Columbia Court of Appeals.

Argued December 15, 1998.

Decided February 10, 2000.

Richard C. Strasser for petitioner.

Lutz Alexander Prager, Assistant Corporation Counsel, filed a statement in lieu of brief, for respondent.

Donald P. Maiberger, Rockville, MD, for intervenor.

Before RUIZ and REID, Associate Judges, and KING, Senior Judge.

KING, Senior Judge:

This is the fourth time this case has come before us for review. When we first considered it, we remanded for a determination of the time when Eugene M. Harris received notice that the employer had filed an injury report with the Department of Employment Services ("DOES"), because of the effect the timing of the filing had on the statute of limitations. Harris v. District of Columbia Dep't of Employment Servs., 592 A.2d 1014, 1018 (D.C.1991). Next, in Harris v. District of Columbia Dep't of Employment Servs., 648 A.2d 672, 673 (D.C.1994), we vacated the first opinion after receiving an exhibit showing that Harris had in fact filed the claim before the employer's filing of an injury report; therefore, the claim was timely filed. Next, in Harris v. District of Columbia Office of Worker's Compensation, 660 A.2d 404, 408-10 (D.C.1995), we again remanded, holding that the agency erred in denying the claim on the grounds that it was a recurrence of a 1977 injury and was therefore compensable only under the predecessor statute, not the statute in effect in 1983 and today. Finally, in this petition for review, Harris challenges a compensation order holding that, while he suffered an injury in 1983 that was not a recurrence of the earlier injury, Harris had no corresponding disability, and therefore was not entitled to any compensation. In this instance we affirm.

I.

Harris was employed by Bell Atlantic, and its predecessor, C & P Telephone Co., beginning in 1969. Harris initially injured his back in 1977, suffering a lumbar sprain while performing his work duties. Harris returned to work with restrictions. His lumbar condition became chronic.

In 1983, Harris was working as a supervisor, a sedentary position. In that year, however, while C & P Telephone employees were on strike, Harris and other supervisors were asked to perform non-sedentary work. When Harris was performing the function of a frame attendant, his lumbar symptoms began to increase in intensity.

Some time later, Harris was unable to perform his functions due to his increased back pain, and he stopped working on July 8, 1985. On September 30, 1985, Dr. Sam Wiesel, an orthopedic consultant, performed an examination of Harris at the request of C & P Telephone. Dr. Wiesel wrote a report stating Harris was capable of performing non-heavy labor work. Based on Dr. Wiesel's report, C & P Telephone's Medical Department released Harris to return to work on October 23, 1985 in his previous position as a supervisor. Harris, however, did not return to work until November 12, 1985. He was paid his full salary from July 8, 1985 through October 22, 1985, and from November 12, 1985 until he was terminated in November 1994, assertedly as a part of a reduction in force.

Harris submitted progress reports from his treating physician, Dr. Jeffrey Goltz. In an October 21, 1985 progress report, Dr. Goltz stated that Harris was unable to return to work. In a November 18, 1985 report, Dr. Goltz observed that Harris had returned to work, but that Dr. Goltz believed someone at work was pushing him to do more than he could do physically.

Because Harris did not return to work on October 23, 1985, Dr. Anita Herbert, C & P Telephone's Washington Medical Director, phoned Dr. Goltz to inquire about Harris's condition. From this conversation, which took place on November 12, 1985, Dr. Herbert learned that Dr. Goltz believed Harris's work assignment involved physical labor. Dr. Herbert informed Dr. Goltz that was not the case, that Harris's job was sedentary in nature, and that he did not have to do heavy lifting.

After our last remand, the hearing examiner issued a compensation order, dated May 10, 1996, finding there was no disability for which Harris could be compensated. The hearing examiner rejected the opinions of Dr. Goltz, noting that Dr. Goltz's records were unclear as to whether he had been informed of the overwhelming sedentary nature of Harris's position. After the Director of the Department of Employment Services ("the Director") declined to review the compensation order, Harris filed a petition for review with this court pursuant to D.C.Code § 36-322(b)(3) (1997 Repl.). Before us, Harris presents two arguments in support of his claim that the hearing examiner erred. Specifically, he contends: (1) the examiner improperly denied him benefits for a permanent disability; and (2) the examiner erred in ruling he was not disabled from October 23, 1985 until he returned to work on November 12, 1985. We will consider each contention in turn.

II.

Harris first argues that the hearing examiner failed to award benefits to Harris for a permanent disability. He contends that he is entitled to such an award based on several different theories, all of which we reject.

D.C.Code § 36-308(3) (1997 Repl.) sets forth the method through which a "disability partial in character but permanent in quality" is to be compensated. The Act defines a disability as a "physical or mental incapacity because of injury which results in the loss of wages." D.C.Code § 36-301(8) (1997 Repl.). Reading these two provisions together, a disability is partial when it is the result of an injury causing some, but not an entire, loss of wages. A disability is permanent if the employee will suffer at least some loss of wages which he will not regain due to the injury.

Section 36-308(3) establishes two separate bases for compensating employees who have suffered a permanent disability. Section 36-308(3)(A) through (U) establishes a schedule of awards. Under that provision, an employee suffering a permanent disability will receive an award for any injury specifically listed (a "schedule injury") in addition to any compensation for temporary total or partial disability. D.C.Code § 36-308(3). When an employee suffers a schedule injury, the employee will receive a sum consisting of 66 2/3% of his average weekly wage multiplied by the number of weeks set forth in the Act for the particular injury. Thus, for example, an employee who suffers the loss of an arm (a schedule injury) will receive 66 2/3% of his weekly wage multiplied by 312 weeks. D.C.Code § 36-308(3)(A). There is no dispute that Harris did not suffer a schedule injury.

By contrast, when an employee suffers a permanent loss of earnings due to an injury, but has not suffered an injury listed in sections (A) through (U) (i.e., a schedule injury), section (V) sets forth the rate of compensation:

The compensation shall be 66 2/3% of the greater of:

(I) The difference between the employee's actual wage at the time of injury and the average weekly wage, at the time of injury, of the job that the employee holds after the employee becomes disabled; or

(II) The difference between the average weekly wage, at the time the employee returns to work, of the job that the employee held before the employee became disabled and the actual wage of the job that the employee holds when the employee returns to work.

D.C.Code § 36-308(3)(V)(ii) (1997 Repl.). To receive an award under this section, therefore, the employee must suffer an actual loss of wages. Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 473 (D.C.1996) ("WMATA"). "Disability is an economic and not a medical concept." Washington Post v. District of Columbia Dep't of Employment Servs., 675 A.2d 37, 40 (D.C.1996) (citing American Mut. Ins. Co. v. Jones, 138 U.S.App. D.C. 269, 271, 426 F.2d 1263, 1265 (1970)). Because he did not suffer an actual loss of wages, Harris is not entitled to an award under this section.

Further, Harris claims that he is entitled to compensation for the time after he suffered his injury in 1983, until he was terminated. To support this claim, Harris cites to D.C.Code § 36-308(6)(A) (1997 Repl.):

If an employee receives an injury, 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 and shall be the payment of:

(i) All medical expenses;

(ii) All monetary benefits for temporary total or partial injuries; and

(iii) Monetary benefits for permanent total or partial injuries up to 104 weeks.

Harris would have us read this section to mean that when an employee who has a pre-existing disability or impairment suffers a work-related injury, and the combination of the two causes substantially greater disability, then the employee is automatically entitled to receive 66 2/3% of his average weekly wage, even if the employee returns to work at no loss of wages. Harris's reliance on § 36-308(6) is misplaced.

We have previously stated that under § 36-308(6), "where there is a prior injury, liability should be imposed as if the subsequent injury alone caused the disability." Daniel v. District of Columbia Dep't of Employment Servs., 673 A.2d 205, 208 (D.C.1996) (emphasis in original). Thus, § 36-308(6) does not create a new entitlement to special benefits solely because the employee suffers a new injury in addition to an older injury. Rather, if the prior and current injuries together cause a permanent disability, § 36-308(3) applies, and the employer is liable as if the current injury alone caused the disability.

Here, the hearing examiner treated Harris as if his alleged disability was...