Apportionment, Nature and Extent, and PPD Awards

James M. Lyles, Jr. v. Howard University Hospital and Sedgwick CMS, 200 A.3d 1244 (2019)

This case was litigated up to the D.C. Court of Appeals and is now on its way back down to the trial judge.  It is certain to be going back up to the D.C. Court of Appeals in the near future.

Claimant injured his right shoulder in 2013.   He had a prior right shoulder injury in 2011 while working for a different employer.  Claimant did file for workers’ compensation benefits for the 2011 injury and that claim settled.  For the 2013 injury, a hearing was held on nature and extent of the injury to the right shoulder.  The employer made three arguments:

1. The shoulder is not part of the upper extremity for impairment purposes. This was the law before 2017 when the CRB decided that the shoulder was part of the arm;
2. The ALJ did not explain the connection between the claimant’s physical impairment and the extent of the claimant’s disability and the claimant’s industrial capacity;
3. Employer was entitled to apportionment for the claimant’s pre-existing condition based upon the statute and subsequent amendments. Alternatively, the claimants are limited to 104 weeks of compensation.

The ALJ disagreed with the employer and held that the claimant sustained a 37% impairment to the right upper extremity for the right shoulder injury, and the employer was responsible for this amount.  On appeal, the CRB also disagreed with the employer and affirmed the Compensation Order.  The employer then appealed to the D.C. Court of Appeals, who reversed and remanded the case.  In a January 31, 2019 decision, the Court of Appeals held as follows:

1. As a matter of law, the shoulder is not part of the upper extremity for impairment purposes. The claimant can get an impairment award for the effects the shoulder injury has on the upper extremity but cannot get an impairment award because of the shoulder.
2. The ALJ must explain the likely consequences, if any, that the physical impairment has on wage-earning capacity.  An award for impairment is meant to compensate for the effect the injury has on the claimant’s wage-earning capacity; it is not meant to compensate the claimant for the injury or for pain and suffering.  Unfortunately, the Court of Appeals also stated that the claimant does not need to present any evidence about the actual or likely effect of the loss on wages or employment prospects.
3. Regarding apportionment, the matter was remanded to the CRB to analyze how repeal of the Special Fund affected the remainder of the statute pertaining to apportionment.

On remand, the CRB issued its decision on May 2, 2019.  After analyzing the statutes pertaining to apportionment and the Special Fund and considering that the city council’s objective was to contain workers’ compensation costs so that D.C. was more competitive with Maryland and Virginia, the CRB held that there is now apportionment in D.C. for PPD only.  It does not apply to TTD or TPD.  Therefore, in D.C., there is now “apportionment so that a subsequent employer’s liability for a PPD award is the amount by which the subsequent injury increased a claimant’s PPD.”  Lyles v. Howard University Hospital et al., CRB No. 17-036 (R), AHD No. 14-001A, OWC No. 705796 (May 2, 2019).

The practical effects are as follows:

1. Until held otherwise, there is apportionment in D.C. for PPD claims. Obtaining information about a claimant’s prior injuries and/or conditions is necessary to try and reduce a PPD award.  Information about a claimant’s prior condition should be provided to IME doctors when obtaining an impairment rating.
2. The shoulder is not part of the arm. While a claimant cannot get an award for impairment to the shoulder, a claimant can get (1) an award for wage loss, if any, for the shoulder injury; and (2) PPD to the upper extremity for any effects on the upper extremity.  Taking claimant’s deposition to determine the effects of a shoulder injury on the arm will also assist in determining PPD exposure.  IME doctors should provide specifics on any effects that the shoulder injury has had on the arm, including range of motion and grip strength.
3. Because an impairment award is meant to compensate a claimant for the effect on wage-earning capacity, presenting evidence about a claimant’s hours, wage history, overtime work, as well as any extra-curricular activities (such as exercising, house maintenance, hobbies, etc.) can reduce an impairment award. Establishing that a claimant’s wage-earning capacity is not affected by an injury will be helpful to keep the impairment award low.

For more information about this article, please contact Naureen R. Weissman at 410.230.3579 or nweissman@fandpnet.com.