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Morrison v. D.C. Dept. of Employment Services8/19/1999
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Argued September 22, 199
This appeal presents the question whether an injured worker may receive benefits for more than one disability resulting from the same injury. In this case, petitioner, an X-ray technician, was injured while lifting a patient out of a wheelchair. As a result of this injury, he was unable to return to his full-duty position at Washington Hospital Center, and subsequently obtained a light-duty X-ray technician position with a different employer, but at a reduced salary. The Director of the Department of Employment Services (DOES) determined that the petitioner was entitled to payments for a "schedule injury" under D.C. Code § 36-308 (3)(A) (1997), based on a permanent partial disability to his right arm. On appeal, petitioner contends that he is entitled to additional, permanent partial disability "non-schedule" benefits under D.C. Code § 36-308 (3)(V) for his shoulder disability. Because the hearing examiner did not make a clear factual finding as to whether petitioner suffers from a disability to his shoulder in addition to the disability to his arm, we vacate the Director's decision and remand for a determination of the extent of petitioner's disability. Should the agency find that petitioner has a shoulder disability, we hold that petitioner is entitled to both schedule and non-schedule benefits if he is able to show that the shoulder disability led to wage loss.
I.
This court reviews the Director's final decision, see Washington Metro. Area Transit Auth. (WMATA) v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472 (D.C. 1996), to determine whether it is supported by "substantial evidence." D.C. Code § 1-1510 (a) (3) (E) (1999). Substantial evidence is "'more than a mere scintilla;'" rather, it is "'such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion.'" George Hyman Constr. Co. v. District of Columbia Dep't of Employment Servs., 498 A.2d 563, 566 (D.C. 1985) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (citations omitted)). Where questions of law are at issue, however, this court reviews the Director's rulings de novo, see KOH Sys. v. District of Columbia Dep't of Employment Servs., 683 A.2d 446, 449 (D.C. 1996), deferring to the Director's interpretation of the statute it enforces unless the interpretation "'conflicts with the statute, is inconsistent with the [governing] regulation, or otherwise is contrary to established legal doctrine.'" Id. at 449-50 (quoting Gunty v. Department of Employment Servs., 524 A.2d 1192, 1196 (D.C. 1987)) (alteration in original).
The statute that provides for payments for permanent partial disabilities divides such disabilities into two categories: "schedule" and "non-schedule." D.C. Code § 36-308 (3) (A)- (M) lists certain parts of the body which, if permanently disabled, entitle the worker to disability payments equal to the number of weeks' compensation listed for that body part in the schedule. D.C. Code § 36-308 (V) provides a formula for compensating disabilities that are not expressly set out in the schedule, measured in terms of actual wages lost as a result of the disability. A worker who suffers a schedule disability, i.e., one for which the statute provides a fixed payment in terms of weeks of compensation, may not opt to recover actual lost wages in lieu of the fixed amount available for such a disability. See Lenaerts v. District of Columbia Dep't of Employment Servs., 545 A.2d 1234, 1238 (D.C. 1988) (citing Potomac Electric Power Co. v. Director, Office of Worker's Compensation Programs, 449 U.S. 268 (1980))
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