Smith v. Dept. of Employment Services, No. 87-34.

• Docket Nº: No. 87-34.
• Citation: 548 A.2d 95
• Case Date: September 29, 1988
• Court: Court of Appeals of Columbia District

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548 A.2d 95 Sharon S. SMITH, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and
Washington Metropolitan Area Transit Authority, Intervenor. No. 87-34. District of Columbia Court of Appeals. Submitted March 9, 1988. Decided September 29, 1988.

Robert B. Adams, Washington, D.C., for petitioner.

Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Acting Corp. Counsel at the time the statement was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., filed a statement in lieu of brief for respondent.

E. Joseph Fitzpatrick, Jr., with whom Jeffrey R. Miller, Gaithersburg, Md., was on the brief, for intervenor.

Before NEWMAN, TERRY and ROGERS, Associate Judges.

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ROGERS, Associate Judge:

In this appeal, we must decide whether an employee's receipt of a schedule award for permanent partial disability under the District of Columbia Workers' Compensation Act, D.C.Code § 36-308(3) (1988 Repl. Vol.), precludes further compensation for temporary total disability benefits under D.C.Code § 36-308(2) where future recurrent pain and discomfort arising out of the same injury cause an additional loss of wages. The respondent District of Columbia Department of Employment Services denied petitioner Sharon S. Smith's application for benefits under § 36-308(2) of the Act for a "flare up" of a previously compensated permanent injury on the ground that she had already received all of the benefits to which she was entitled. We affirm.

I

Petitioner Sharon S. Smith filed for the payment of benefits under the District of Columbia Workers' Compensation Act (Act), D.C.Code § 36-301 et seq. (1988 Repl. Vol.), for a temporary total disability from December 20, 1984, through February 4, 1985. She testified at a hearing before a hearing examiner in the District of Columbia Department of Employment Services (the agency) that her condition was due to a "flare up" of a permanent partial disability that resulted from accidental injuries to her cervical spine and right shoulder on August 6, 1982, while she was employed as a bus driver by intervenor Washington Metropolitan Area Transit Authority (WMATA). Smith's 1982 injuries caused her to miss approximately seventeen months of work and during this time she received benefits for her temporary total disability. See D.C.Code § 36-308(2). She returned to work on January 3, 1984, and on June 24, 1984, she and WMATA entered in to a stipulation that she had reached maximum medical improvement and was entitled to benefits in the nature of a schedule award, D.C.Code § 36-308(3), for a 5 percent permanent partial disability of her right upper extremity. See D.C.Code § 36-308(3)(A) (arm loss, 312 weeks' compensation). The agency approved the stipulation on July 5, 1984, and Smith received a schedule award of $4,636.94. Thereafter, Smith asserted, she experienced on December 20, 1984, a "flare up" of her permanent partial disability that caused her to miss work until February 4, 1985.¹ It was for this period that she applied for temporary total disability benefits. Following the evidentiary hearing, at which Dr. James Callan testified on behalf of WMATA, the hearing examiner denied her application for benefits.

The hearing examiner accepted Smith's testimony that her December, 1984, disability was due to a "flare up" of her August 6, 1982, disability, but denied her benefits because:

Once a claimant reaches maximum medical improvement and elects² to receive a schedule award rather than an award based on a wage loss, that claimant is no longer entitled to temporary total disability benefits for subsequent periods of temporary total disability when he or she cannot work and loses wages. The nature of a schedule award is to compensate a claimant by paying that claimant for a number of weeks he or she could lose wages from work in the future because of the continuing, disabling effects of a permanent condition.

Thus, in the examiner's view, the schedule award includes payment for future lost

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wages as a result of the continuing effects of the disabling permanent condition.

The Acting Director of the agency affirmed the hearing examiner's decision denying benefits without adopting the examiner's rationale. Instead, the Acting Director relied on legislative history of the Act which showed that the Committee of the Council of the District of Columbia reporting the bill had deleted a provision that would have provided for continuing benefits to disabled employees whose schedule awards have ceased. The Acting Director also found support in the fact that, prior to enacting the Act, the D.C. Council had enacted personnel legislation for District government employees that expressly provided for such continuing benefits. See D.C.Code § 1-624.7 (1987 Repl. Vol.).

II.

On appeal, Smith contends that the agency erred in failing to disinguish between permanent and temporary disability benefits. She maintains, without citing authority, that since 1928³ the prevailing practice in this and other jurisdictions permitted a person in Smith's situation to recover additional benefits because a person's entitlement to benefits under the various disability categories is unaffected by the receipt earlier of a schedule award for permanent partial disability. The only limiting factor to the receipt of such additional benefits, Smith argues, is the claimant's obligation to demonstrate the causal relationship between the original injury and the allegedly disabling condition and to prove disability in fact during the period for which benefits are claimed. WMATA takes the contrary position.

This court will uphold the agency's interpretation of the Act unless the interpretation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. D.C.Code §§ 1-1510, 11-722 (1981). Where an administrative agency is delegated broad authority to administer a statutory scheme, as here, id. § 36-302(a); Mayor's Order No. 82-126, 29 D.C.Reg. 2843 (1982), we defer to a reasonable construction of the statute made by the agency. Thomas v. District of Columbia Dep't of Employment Servs., No. 87-376, slip op. at ___ (D.C. August ___, 1988); Howrey & Simon v. District of Columbia Dep't of Employment Servs., 531 A.2d 254, 258 (D.C. 1987); Barbour v. District of Columbia Dep't of Employment Servs., 499 A.2d 122, 124 (D.C. 1985) (citing SEC v. Chenery Corp., 332 U.S. 194, 207-08, 67 S.Ct. 1575, 1582-83, 91 L.Ed. 1995 (1947)); Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 570 (D.C. 1985). The agency's interpretation of the statute it administers is binding on this court unless it conflicts with the plain meaning of the statute or its legislative history. Nova Univ. v. Educational Inst. Licensure Comm'n, 483 A.2d 1172, 1190-91 (D.C. 1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985); Weaver Bros., Inc. v. District of Columbia Rental Hous. Comm'n, 473 A.2d 384, 388 (D.C. 1984). Indeed, we must sustain the agency's interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance. MCM Parking Co. v. District of Columbia Dep't of Employment Servs., 510 A.2d 1041, 1045 (D.C. 1986); Lee v. District of Columbia Dep't of Employment Servs., supra note 3, 509 A.2d at 102.

Smith contends specifically that the plain language of D.C.Code § 36-308(3) entitles her to receive temporary total benefits under § 36-308(2) any time a recurrence of a previously compensated permanent injury causes her to miss work for as long as she remains employed by WMATA. Section 36-308(3) provides that disability compensation shall be paid to an employee in the following manner:

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In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two thirds percent 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)⁴ of this subsection respectively, and shall be paid to the employee, as follows: [hereinafter the section lists the number of weeks' compensation to which an employee is entitled depending on the body part which is injured].

(Emphasis added.) Thus Smith maintains that the phrase "in addition to" in § 36-308(3) means that her prior receipt of a schedule payment for a permanent partial disability does not preclude her from receiving future temporary total benefits for the same injury under § 36-308(2). This interpretation of § 36-308(3) overlooks, however, another reasonable construction of the phrase "in addition to" which is best illustrated by tracking the Act's compensation provisions in Smith's case, which, in many respects, is a typical employment injury scenario.

Smith received a serious work-related injury fin August, 1982, which caused her to miss a substantial period of work. During her convalescense, she sustained a complete loss of wages, and therefore she was entitled to and did receive temporary total benefits under § 36-308(2).⁵ Eventually Smith's condition improved so that she was able to return to work on a full-time basis in January, 1984, and her temporary total benefits terminated.⁶ Then, between January and June, 1984, her injured shoulder continued to improve although she periodically experienced some discomfort and pain. By June, 1984, her injury had healed as much as it was going to and she reached what is referred to as maximum medical improvement, i.e., a point at which the healing period has ended and stabilization has been reached. See 2 A. LARSON, WORKMEN'S COMPENSATION LAW §§ 57.12(b), at 10-17, 57.13, at 10-41 (1987) (hereinafter LARSON).⁷ Smith and WMATA entered into a stipulated agreement that she had sustained a 5 percent...