Howard Univ. Hosp. v. Dist. of Columbia Dep't of Emp't Servs.

• Decision Date: 31 January 2019
• Docket Number: No. 17-AA-832,17-AA-832
• Citation: 200 A.3d 1244
• Parties: HOWARD UNIVERSITY HOSPITAL, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and James M. Lyles, Jr., Intervenor.
• Court: D.C. Court of Appeals

200 A.3d 1244

HOWARD UNIVERSITY HOSPITAL, Petitioner,

v.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andJames M. Lyles, Jr., Intervenor.

No. 17-AA-832

District of Columbia Court of Appeals.

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.

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 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.

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, 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.

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).

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).

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.

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,...