THE WASH. POST v. Dept. of Employment Services

• Decision Date: 18 April 1996
• Docket Number: No. 95-AA-228.,95-AA-228.
• Citation: 675 A.2d 37
• Parties: THE WASHINGTON POST, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Adil Mukhtar, Intervenor.
• Court: D.C. Court of Appeals

675 A.2d 37

THE WASHINGTON POST, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent Adil Mukhtar, Intervenor.

No. 95-AA-228.

District of Columbia Court of Appeals.

Argued February 16, 1996.

Decided April 18, 1996.

William H. Schladt, Gaithersburg, MD, for petitioner.

Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Alan S. Toppelberg, Washington, DC, for intervenor.

Before TERRY, SCHWELB, and KING, Associate Judges.

SCHWELB, Associate Judge:

On November 9, 1994, following an evidentiary hearing, a hearing and appeals examiner of the District of Columbia Department of Employment Services (DOES or the agency) found that intervenor Adil Mukhtar, who was formerly employed by petitioner, The Washington Post (the Post), had suffered temporary total disability as a result of a workrelated injury. The examiner issued a compensation order based upon that finding. The Post filed an internal appeal of the compensation order, but the order became final when no final decision was issued by the Director within forty-five days. See D.C.Code § 36-322(b)(2) (1993 Repl.).

The Post has now filed a petition for review in this court. The Post contends that the examiner's finding of temporary total disability was based on an incorrect legal standard and that two of the examiner's evidentiary rulings were erroneous. We agree in part with the Post's position, and we therefore vacate the agency's decision and remand for further proceedings.

I.

On January 21, 1992, Mukhtar, who was then employed in the Post's Maintenance Department, was operating a forklift in the vicinity of a loading dock. The brakes on the forklift failed, and the forklift struck the dock. Mukhtar suffered injuries to his back. Mukhtar continued his employment with the Post for approximately seven months after the accident. He claims, however, that his condition subsequently deteriorated, and that he became unable to perform his duties. He has not worked for the Post since August 19, 1992.

Mukhtar filed a claim for compensation and, on September 20, 1993, an evidentiary hearing was held before the examiner. More than a year later, the examiner issued her detailed findings of fact and conclusions of law. The examiner found, inter alia,¹ that Mukhtar suffered from temporary total disability as a result of his work-related accident. She found that Mukhtar "is capable of maintaining light duty employment with a restriction on lifting over 10 pounds," but noted that "employer has not offered claimant light duty employment." Apparently on the basis of the Post's failure to make such an offer, the examiner concluded that Mukhtar was entitled to temporary total disability benefits from August 19, 1992 "to the present and continuing," and to interest on accrued benefits. She held that this entitlement would continue "until suitable alternative employment is offered or until the disability resolves, whichever comes first."

II.

"The scope of our review of the agency's orders is defined by the now-familiar `substantial evidence' standard." Harris v. District of Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C.1995). We must sustain the examiner's factual findings if they are supported by substantial evidence in the record as a whole. Id.; see D.C.Code § 1-1510(a)(3)(E) (1992 Repl.). As we reiterated in Harris, however,

our review of the agency's legal rulings is de novo, for "it is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), and the judiciary is the final authority on issues of statutory construction. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984).

Id. Although courts accord considerable weight to an agency's construction of a statute which the agency administers, see, e.g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Joyner v. District of Columbia Dep't of Employment Servs., 502 A.2d 1027, 1031-32 (D.C.1986) (citation omitted), we conclude in this case that the examiner's finding of temporary total disability was based on an incorrect legal standard.

Our compensation statute provides that "in case of disability total in character but temporary in quality, 662/3% of the employee's average weekly wages shall be paid to the employee during the continuance thereof." D.C.Code § 36-308(2) (1993 Repl.).² "`Disability' means physical or mental incapacity because of injury which results in the loss of wages." Id. Disability is an economic and not a medical concept. American Mut. Ins. Co. v. Jones, 138 U.S.App.D.C. 269, 271, 426 F.2d 1263, 1265 (1970).³ As the court explained in American Mut. Ins. Co.,

the degree of disability in any case cannot be measured by physical condition alone, but there must be taken into consideration the injured man's age, his industrial history, and the availability of the type of work which he can do. Even a relatively minor injury must lead to a finding of total disability if it prevents the employee from engaging in the only type of gainful employment for which he is qualified....

Conversely, a continuing injury that does not result in any loss of wage-earning capacity cannot be the foundation for a finding of disability.

Id. at 271-72 & n. 9, 426 F.2d at 1265-66 & n. 9 (citations, footnotes, and internal quotation marks omitted).

Because disability is an economic concept, its existence depends on the realities of the marketplace. A claimant suffers from total disability if his injury prevents him from engaging in the only type of gainful employment for which he is qualified. Id. at 272, 426 F.2d at 1266; see also Abex Corp. v. Brinkley, 252 A.2d 552, 553 (Del.Super.1969). Total disability does not mean absolute helplessness, Sherwood v. Gooch Milling & Elevator Co., 235 Neb. 26, 453 N.W.2d 461, 467 (1990), and the claimant need not show that he is no longer able to do any work at all. Gulf Ins. Co. v. Gibbs, 534 S.W.2d 720, 724 (Tex.Civ.App.1976). In the words of the leading treatise,

evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial.... The rule followed by most modern courts has been well summarized by Justice Matson of the Minnesota Supreme Court in the following language:

An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.

2 ARTHUR LARSON, WORKMENS' COMPENSATION LAW, § 57.51(a), at 10-283 to 10-288 (1995) (quoting Lee v. Minneapolis St. Ry. Co., 230 Minn. 315, 41 N.W.2d 433, 436 (1950)).

This court has held that the burden is on the employer to prove that work for which the claimant was qualified was in fact available. Joyner, supra, 502 A.2d at 1031 & n. 4. We explained, however, that the employer can meet this burden "by proof short of offering the claimant a specific job or proving that some employer specifically offered claimant a job." Id. at 1031 n. 4 (quoting Trans-State Dredging v. Benefits Review Bd., 731 F.2d 199, 201 (4th Cir.1984)) (quoting New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1043 (5th Cir.1981)). We so held because a contrary rule.

would invite at least some claimants to adopt a passive, or even negative, attitude about pursuing re-employment, since workers' compensation benefits could be terminated only after the claimant refused a specific offer. There might be no specific offer if the claimant failed to take the steps usually necessary to procure offers (e.g., investigating job opportunities, circulating resumes, interviewing, etc.).

502 A.2d at 1031.

In the present case, the examiner apparently believed that the Post's failure to offer Mukhtar a "light duty" position conclusively established that Mukhtar was entitled to temporary total disability benefits. This aspect of her decision cannot be reconciled with our decision in Joyner, which was itself based on the agency's interpretation of the statute. Accordingly, we must remand the case to the agency for further consideration under the standard adopted by this court in Joyner.⁴

Because a remand is necessary in any event, and because the evidentiary issues presented to us by the Post are likely to arise again in further proceedings before the agency, we now address those issues.

III.

At the time of his accident, Mukhtar was the sole proprietor of a used car dealership, as well as an employee of the Post. At the hearing, counsel for the Post sought to cross-examine Mukhtar regarding his profits from the dealership and to introduce evidence on that subject, hoping to show that Mukhtar's earnings at the business exceeded his lost wages at the Post. Mukhtar's attorney objected on relevance grounds. After hearing argument, the examiner excluded the evidence:

He could make Three Hundred Thousand Dollars a year just sitting at a desk. I am going to sustain the objection.

The Post contends that the examiner's ruling was based on an erroneous understanding of the law. Noting that "disability" is defined in the District as "physical or mental incapacity because of injury which results in the loss of wages," D.C.Code § 36-301(8) (emphasis added), the Post asserts that Mukhtar's wage loss from his job at the Post must be offset by his earnings elsewhere. If Mukhtar's post-injury earnings from his used car business exceeded his combined pre-injury earnings, then, according to the Post, Mukhtar sustained no loss of wages as a result of his injury and therefore has no disability within the meaning of Section 36-301(8).

But "income from a...