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DeShazo v. District of Columbia Dept. of Employment Services

March 17, 1994

MARK DESHAZO, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. CONTEMPORARY SERVICES AND FIREMAN'S FUND INSURANCE COMPANY, INTERVENOR



Petition for Review of an Order of The District of Columbia Department of Employment Services

Before Ferren, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: Petitioner was injured while working for intervenor, his part-time employer. He applied for workers' compensation. See District of Columbia Workers' Compensation Act, D.C. Code §§ 36-301 to -345 (1993). After a hearing, the Department of Employment Services (DOES) Hearings and Appeals Examiner awarded petitioner temporary total and permanent partial disability benefits. The Examiner applied the principle of "wage stacking" -- i.e., he combined petitioner's wages from his full-time and part-time jobs -- in calculating the "average weekly wage" used to compute petitioner's temporary total disability benefits; but the Examiner did not use wage stacking to compute petitioner's permanent partial disability benefits. The Director of DOES affirmed the decision, and petitioner brought this appeal to correct the claimed error in refusing to use wage stacking to calculate petitioner's permanent partial disability benefits. Because the issue is complex and the rationale for decision is unclear, we remand the case to DOES for further explanation.

I.

Petitioner testified to the following facts at the DOES hearing on April 9, 1990. Petitioner was injured on July 12, 1989, while working for his part-time employer, Contemporary Services, as a security guard at a concert at RFK stadium. The injury occurred when the concert began and a crowd of people rushed toward the stage, knocking petitioner to the ground and injuring his right arm. Petitioner received first aid at RFK stadium and went to a hospital emergency room the following day. Some weeks later, petitioner had surgery performed on his arm. Medical reports indicated that petitioner had a 36% permanent partial disability to his "right upper extremity."

At the time of his injury, petitioner held -- in addition to his part-time employment with Contemporary Services -- a full-time job as a housing inspector for the District of Columbia Department of Public and Assisted Housing. His salary from the District government at the time of his injury was between $19,000 and $20,000 per year. His salary from Contemporary Services at that time was $4.75 per hour. As a result of the accident, petitioner missed approximately one and a half to two weeks of his full-time job and approximately three months of his part-time job.

The Hearings and Appeals Examiner concluded that "Claimant's injury arose out of and in the course of his employment," and that "all the medical evidence in the record supports claimant's requested relief." The Examiner found that petitioner's salary was $370 per week at his full-time job and $11.81 per week at his part-time job. He concluded that, because petitioner had "missed from seven to ten days of work at his full-time employment," petitioner was "entitled to temporary total disability benefits for both jobs for the first week of his disability . . . based on [his combined] average weekly wage of $381.81." The Examiner also concluded, however, that "for purposes of his remaining temporary total disability [after his first week] *fn1 and his permanent partial disability, claimant's average weekly wage is $11.81," reflecting only his part-time job.

Petitioner appealed from the Hearings and Appeals Examiner's decision, administratively, to the Director of DOES, contending that the Examiner had erred in failing to use "wage stacking" in computing his permanent partial disability benefits. The Director of DOES affirmed, ruling "it is clear that wage stacking allows for the combining of two wages only for the period that an employee is disabled and not able to work at both jobs." According to the Director, therefore, "since claimant returned to his full-time employment [after seven to ten days], claimant's average weekly wage for calculating his benefits under the permanent partial disability schedule should be $11.81." Petitioner challenges the Director's decision on the ground that petitioner was entitled to wage stacking, combining the average weekly wages for both his part-time and his full-time jobs, in the agency's calculation of his permanent partial disability benefits under D.C. Code § 36-308 (3).

II.

Petitioner relies on MCM Parking Co. v. District of Columbia Dep't of Employment Servs., 510 A.2d 1041 (D.C. 1986), for the proposition that wage stacking always applies to an injured worker who holds concurrent jobs at the time of an injury. Specifically, he contends in his brief that, because MCM Parking did not use "any language limiting the holding to temporary total or permanent total disability," wage stacking is mandated here.

MCM Parking does not compel the Conclusion petitioner would have us reach. In that case, we concluded that "if a worker, holding two jobs concurrently, is totally disabled, one way to assume 'replacement of wages lost' is to take both incomes into account when computing benefits awarded under the statute." 510 A.2d at 1043 (emphasis added). In the present case, however, petitioner's injury did not totally disable him; he was able to return to his full-time job seven to ten days after the injury while remaining unable to continue with his part-time job. In short, this case deals with a situation that MCM Parking did not address.

III.

Petitioner next contends that the applicable language of the statute cannot be read to justify using more than one average weekly wage to determine a claimant's temporary total and permanent partial disability benefits. *fn2 Petitioner stresses, in particular, that because the total amount of permanent partial disability benefits under the statute is to be determined by reference to a prescribed formula, without regard to actual wage loss, the fact that he was able to return to his full-time employment soon after his injury should not have affected the calculation of his permanent partial disability benefits.

We must "defer to an agency's interpretation of a statute it administers unless that interpretation is unreasonable in light of the prevailing law." Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 515 A.2d 740, 741 (D.C. 1986); see MCM Parking, 510 A.2d at 1043; Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 569 (D.C. 1985). The agency's interpretation, therefore, is "controlling unless it is plainly erroneous or inconsistent with the statute." See Weaver Bros. v. District of Columbia Rental Hous. Comm'n, 473 A.2d 384, 388 (D.C. 1984). Although we are mindful of this deferential standard of review, the agency's ...


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