Howard University Hospital v. District of Columbia DOES and James M. Lyles, Jr.

• Court: District of Columbia Court of Appeals
• Decided: January 27, 2022
• Docket: 20-AA-405
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-AA-405

HOWARD UNIVERSITY HOSPITAL, et al., PETITIONERS,

V.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

JAMES M. LYLES, JR., INTERVENOR.

Petition for Review of an Order of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-32-20)

(Argued December 09, 2021 Decided January 27, 2022)

William H. Schladt for Petitioners.

David J. Kapson for Intervenor.

Before BLACKBURNE-RIGSBY, Chief Judge, MCLEESE, Associate Judge, and FISHER, Senior Judge.

FISHER, Senior Judge: Petitioner Howard University Hospital appeals a

Decision and Order of the Department of Employment Services (“DOES”)

Compensation Review Board (“CRB”) which affirmed a workers’ compensation

schedule award to intervenor-claimant James M. Lyles. Petitioner argues that when, 2

as here, a workplace injury increases an employee’s preexisting permanent partial

disability (“PPD”), the schedule award should be apportioned so that the employer

is only responsible for the amount attributable to the subsequent injury. We affirm

the CRB’s determination that apportionment is not available and petitioner is

responsible for Mr. Lyles’ full PPD schedule award.

I. Procedural and Factual Background

Intervenor first injured his upper right arm in 2011 while working for a

different employer which is not a party to this litigation. His workers’ compensation

claim for this first injury was settled. On April 29, 2013, while working as a

radiological technician for petitioner, he sustained a second injury to the same arm

and filed a workers’ compensation claim for a PPD schedule award pursuant to D.C.

Code § 32-1508(3)(A) and (S) (2019 Repl.). An administrative law judge (“ALJ”)

held a full evidentiary hearing on February 8, 2017. After a lengthy procedural

history, including multiple opinions from the ALJ and the CRB, and a remand from

this court in Howard University Hospital v. District of Columbia Department of

Employment Services, 200 A.3d 1244 (D.C. 2019), the ALJ most recently concluded

that intervenor had proven a total PPD of 30% to his upper right arm. Of this 30% 3

PPD, 20% was attributable to the 2011 injury, and 10% was attributable to the 2013

injury that intervenor incurred while working for petitioner.

The only issue remaining on appeal is how much of intervenor’s total PPD

schedule award must be compensated by petitioner, which depends on the effect of

the 1998 Workers’ Compensation Amendment Act (“WCAA”) on the private sector

workers’ compensation system. Petitioner argues that it is only liable for the portion

of the PPD award attributable to the 2013 injury. On remand from this court, the

CRB issued two en banc decisions addressing this issue. Before us on appeal is the

most recent en banc decision, issued on May 21, 2020, in which the CRB concluded

that petitioner was responsible for the full PPD schedule award.

II. Analysis

“We review a decision of the CRB to determine whether the decision is

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.’” Gaines v. District of Columbia Dep’t of Emp. Servs., 210 A.3d 767, 770 (D.C.

2019) (quoting Reyes v. District of Columbia Dep’t of Emp. Servs., 48 A.3d 159,

164 (D.C. 2012)). The issue before us “is ultimately a matter of law and this court

remains ‘the final authority on issues of statutory construction.’” Genstar Stone 4

Prod. Co. v. District of Columbia Dep’t of Emp. Servs., 777 A.2d 270, 272-73 (D.C.

2001) (quoting WMATA v. District of Columbia Dep’t of Emp. Servs., 683 A.2d 470,

472 (D.C. 1996)). However, “[w]e defer to the CRB’s reasonable interpretation of

statutes that the CRB is charged with administering.” Gaines, 210 A.3d at 770.

Thus, we will affirm the CRB’s “interpretation so long as it is not plainly wrong or

inconsistent with the legislature’s intent.” Red Star Express v. District of Columbia

Dep’t of Emp. Servs., 606 A.2d 161, 163 (D.C. 1992). We further note that

“[w]orkers’ compensation statutes ‘are remedial in character and are generally

construed liberally in favor of claimants.’” Gaines, 210 A.3d at 770 (quoting

Marsden v. District of Columbia, 142 A.3d 525, 529 (D.C. 2016)).

The issue in this case concerns an employer’s liability when an employee’s

workplace injury exacerbates a preexisting injury, thereby increasing his total PPD.

There are generally three approaches to compensation for a subsequent injury:

[F]irst, the “full-responsibility” rule, imposing liability for the entire resulting disability upon the employer; second, apportionment statutes, under which the employer pays only for the single member lost in its employment; and third, second injury funds, which ensure that the employee receives the full disability benefits but reimburses the employer for the difference between this sum and what the employer would pay under an apportionment statute. 5

8 Lex K. Larson & Thomas A. Robinson, Larson’s Workers’ Compensation Law

§ 90.01 (2021). Petitioner argues that the District of Columbia’s workers’

compensation scheme provides for apportionment, meaning that the employer would

only be liable for the portion of the PPD schedule award 1 attributable to the

subsequent injury.

To understand the issue of apportionment under the D.C. workers’

compensation system for private employers, we first briefly review the history of the

Workers’ Compensation Act (“WCA”) in its various iterations. The original WCA

of 1979 expressly provided for apportionment:

If an employee receives an injury which combined with a previous occupational or non-occupational disability or physical impairment causes substantially greater disability or death, the employer shall be liable for only that part of the disability or death, and the compensation due therefrom as caused by the subsequent injury . . . .

D.C. Act 3-188, § 9(f), 27 D.C. Reg. 2503, 2516 (June 13, 1980). However, under

§ 9(f) of the WCA, the claimant would receive supplemental compensation from a

special fund “to raise the total compensation . . . to that amount which the

1 Petitioner concedes that apportionment would apply only to PPD scheduled loss awards, not medical expenses or total disability benefits. 6

employee . . . would be entitled . . . if the subsequent injury alone had caused the

subsequent amount of disability or death . . . .” Id.

The WCA was subsequently amended to eliminate apportionment and make

the employer fully responsible for a PPD resulting from a subsequent injury that

exacerbated a previous injury. Workers’ Compensation Equity Amendment Act of

1990, D.C. Act 8-261, § 2(d)(3), 37 D.C. Reg. 6890, 6895 (Nov. 2, 1990). The

special fund remained in place to mitigate the employer’s financial burden in

subsequent injury cases by reimbursing the employer for permanent total or partial

disability benefits after 104 weeks. Id. These provisions are now codified at D.C.

Code § 32-1508(6)(A)-(B).

Finally, the WCAA added language, now codified at § 32-1508(6)(C),

limiting the application of this paragraph to injuries that occurred before the WCAA

went into effect. D.C. Act 12-571, § 2(e)(2), 46 D.C. Reg. 891, 894 (effective Apr.

16, 1999). The full paragraph now provides:

(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 7

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. (B) The special fund shall reimburse the employer solely for the monetary benefits paid for permanent total or partial injuries after 104 weeks. (C) The requirements of this paragraph shall apply to injuries occurring prior to April 16, 1999.

D.C. Code § 32-1508(6). An initial issue in this case was whether the temporal

limitation in subparagraph (C) applies to all of § 32-1508(6), or only to subparagraph

(B). The CRB previously concluded that subparagraph (C) prospectively repealed

only subparagraph (B), thereby discontinuing the special fund’s involvement going

forward but maintaining the non-apportionment language of § 32-1508(6)(A). In

our previous decision in this case, we discussed “the terminology and practices of

statutory drafting and codification,” Howard Univ. Hosp., 200 A.3d at 1249, and

suggested that § 32-1508(6)(C) “could be read to have prospectively repealed all of

§ 32-1508 (6) . . . , including § 32-1508 (6)(A) and (B).” Id. at 1250. We held that

the CRB’s reliance on the title of the WCAA was insufficient to justify its conclusion

and “remanded for the CRB to further consider the proper interpretation of [the

amending language] and its implications for apportionment under the WCA.” Id. 8

The CRB most recently held, and we agree, that subparagraph § 32-

1508(6)(C) prospectively repealed § 32-1508(6) in its entirety. In so concluding, the

CRB recited our observations about the codification of § 32-1508(6)(C). The CRB

also recognized, in an earlier decision, that prospectively repealing only § 32-

1508(6)(B) “would leave irreconcilable conflicts with § 32-1508(6)(A)(iii)” because

many PPD schedule awards entitle a worker to compensation beyond 104 weeks.

Removing only subparagraph (B) would limit a claimant’s award to 104 weeks under

§ 32-1508(6)(A)(iii) without the special fund to make up the difference. However,

this conclusion does not answer the ultimate question of how the prospective repeal

of § 32-1508(6) affects apportionment. Without § 32-1508(6)(A), no statutory

provision within the private sector workers’ compensation arena addresses whether

or not apportionment applies to subsequent injuries occurring after the WCAA took

effect on April 16, 1999.

The CRB approached this statutory gap by drawing on the legislative history

and the original purpose of the special fund, also referred to as the second injury

fund. Modeled after the federal Longshore and Harbor Workers’ Compensation Act,

the special fund was intended to prevent discrimination against employees with a

preexisting injury. Mergentime Perini v. District of Columbia Dep’t of Emp. Servs.,

810 A.2d 901, 904 (D.C. 2002). It sought to achieve this objective by “eliminat[ing] 9

a specific financial incentive not to hire or retain previously injured workers . . . .”

Id. (italics omitted). This incentive inadvertently “arose because the basic statutory

scheme of workers’ compensation requires an employer to take full responsibility

for compensating an employee when that employee has been injured on the job”;

thus, hiring a previously injured worker “presents a risk of greater liability to an

employer than a healthy employee does.” Id. at 904-05.

In its report on the proposed amendment, the Committee on Government

Operations also noted this purpose behind the special fund. See D.C. Council,

Committee on Government Operations, Report on Bill No. 12-192 at 2 (October 29,

1998) (“Committee Report”). It stated that the proposed bill would “eliminate[] the

second injury fund for new injuries” because the special fund was intended “to

promote hiring of the disabled” and “[t]he American with Disabilities Act better

promotes this goal.” Id. Thus, the CRB concluded that, rather than decreasing the

employer’s obligation through apportionment, “the Council intended to remove the

mechanism by which an employer’s financial obligation for a PPD schedule award

was reduced because the reason for that mechanism no longer existed.” 2

2 Petitioner unpersuasively argues that apportionment of a PPD schedule award would advance an expressed goal of the WCAA to “contain workers’ compensation costs to make the District more competitive with the surrounding 10

The CRB emphasized that, although an employer’s financial obligation and

the related role of the special fund under the WCA have changed over time, the

employee has always been entitled to receive the full amount of a PPD schedule

award. In repealing the special fund, the Council did not give any indication that it

intended to decrease the compensation to workers. The CRB reasoned that reading

apportionment into the statute would run afoul of the aggravation rule, which it

describes as “a fundamental workers’ compensation concept” which has deep roots

in our case law. See, e.g., King v. District of Columbia Dep’t of Emp. Servs., 742

A.2d 460, 468 (D.C. 1999) (“It is well settled that ‘an aggravation of a preexisting

condition may constitute a compensable accidental injury under the Act.’” (quoting

Ferreira v. District of Columbia Dep’t of Emp. Servs., 531 A.2d 651, 660 (D.C.

1987))). We have described the aggravation rule as “an obvious example of meeting

the humanitarian nature of the Act” that “stems from the principle that the employer

must take the employee as it finds him or her.” McCamey v. District of Columbia

Dep’t of Emp. Servs., 947 A.2d 1191, 1197 (D.C. 2008) (en banc). The leading

treatise in this area explains that in general, under the aggravation rule, “the relative

jurisdictions as a place to do business.” Committee Report at 1. However, petitioner has not pointed to anything in the legislative history connecting this general objective of the WCAA to § 32-1508(6) or the issue of apportionment. The Committee report specifies several ways the proposed legislation would achieve this cost-saving objective, and does not mention anything about apportionment or an employer’s financial obligation for subsequent injuries. Id. 11

contribution of the accident and the prior disease is not weighed.” 1 Larson’s

Workers’ Compensation Law § 9.02[6]. Moreover, “[i]n the absence of an

apportionment statute, the general rule is that the employer becomes liable for the

entire disability resulting from a compensable accident.” 8 Larson’s Workers’

Compensation Law § 91.01.

After a diligent search, we have not found anything in the legislative history

that is contrary to the CRB’s conclusion or speaks directly to the issue of

apportionment after the WCAA went into effect. We agree with the CRB that

departing from the principle of aggravation and lessening the total benefits the

employee would receive for a PPD schedule award would be a major shift in

workers’ compensation law. Absent express statutory direction or some other clear

indication of legislative intent to make such a significant change, the CRB’s

conclusion that the WCA does not provide for apportionment of a PPD schedule

award was reasonable and not inconsistent with the statutory scheme. 3 This

3 In holding that the WCA does not provide for apportionment, we do not mean that a claimant is entitled to double recovery. See Safeway Stores, Inc. v. District of Columbia Dep’t of Emp. Servs., 806 A.2d 1214, 1222 (D.C. 2002) (noting that principles of unjust enrichment can apply where “the injured employee has been otherwise compensated for the same injury”). In this case, the ALJ had previously held that petitioner was entitled to a dollar-for-dollar credit for any previous PPD payments the claimant had received. However, in the en banc decision before us on 12

construction is also in line with the humanitarian nature of workers’ compensation.

Petitioner has not pointed to anything in the statutory scheme or legislative history

that convinces us to override the CRB’s interpretation.

III. Conclusion

Accordingly, we affirm the CRB’s Decision and Order holding that petitioner

is liable for the full PPD schedule award without apportionment.

So ordered.

appeal, the CRB noted that this issue was not appropriately before it and amended the ALJ’s compensation order to vacate the credit awarded. Both parties agree that the issue of the dollar-for-dollar credit is not before us, and we do not express any opinion on it.