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CHERRYDALE HEATING v. DISTRICT OF COL.

December 24, 1998

CHERRYDALE HEATING & AIR CONDITIONING AND TIC INSURANCE COMPANY, PETITIONERS,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. HOWARD POOLE, INTERVENOR. GABRIELLE EVANS, PETITIONER, V. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. DEBEVOISE & PLIMPTON AND INA/CIGNA INSURANCE COMPANY, INTERVENORS.



Before Terry, Farrell, and Reid, Associate Judges. [722 A2d Page 32]

The opinion of the court was delivered by: Farrell, Associate Judge.

On these consolidated petitions for review, we must decide whether the Director of the Department of Employment Services ("DOES") erred in awarding (in No. 96-AA-1512) and denying (in No. 97-AA-1364) further temporary total disability benefits to a claimant who had previously received a schedule payment for a permanent partial disability. See D.C.Code § 36-308(3) (1997). Petitioner in each case ("Cherrydale Heating" in No. 96-AA-1512, "Evans" in No. 97-AA-1364) contends that the Director's two decisions cannot be reconciled with each other or with this court's decision in Smith v. District of Columbia Dep't of Employment Servs., 548 A.2d 95 (D.C. 1988). In Smith, we upheld the Director's interpretation of the Workers' Compensation Act ("the Act") *fn1 as generally barring an award of further temporary total disability benefits to a recipient of a schedule payment for a permanent partial disability stemming from the same injury. See id. at 102.

We hold that the decisions reviewed here are not inconsistent, and that each rests, as did the Director's decision in Smith, upon a reasonable interpretation of the governing statute: specifically, that the amputation undergone by claimant Poole (No. 96-AA-1512) justifies a narrow departure from the general prohibition recognized in Smith, but that the lesser change of condition experienced by claimant Evans (No. 97-AA-1364) does not. We therefore affirm both decisions.

I. The Facts

A. No. 96-AA-1512

Howard Poole suffered injuries to his left great toe while at work on September 1, 1985, when he was struck on the foot by a piece of falling sheet metal. He received medical and surgical treatment, and subsequently filed for benefits under the Act. In a Compensation Order of August 4, 1988, Poole was awarded temporary total disability benefits from September 1, 1985 through February 4, 1986. When he thereafter reached maximum medical improvement, he received a schedule award for a 10% permanent partial disability of the left great toe.

In September 1988, Poole's treating physician determined that his condition had worsened, and in November 1988 amputated a large portion of the affected toe. Poole therefore sought renewed temporary total disability benefits from September 30, 1988 and continuing, but did not request an increased permanent partial disability rating based on the amputation.

A DOES hearing examiner denied the application on the basis of our decision in Smith, supra. The Director, however, reversed and remanded after distinguishing Smith as follows:

The claimant in Smith suffered a mere flare-up of her injury, whereas in this case the claimant had to undergo surgery to amputate a further portion of his toe. Even though employer argues that this distinction is without merit, the claimant, herein, after his surgery would need some time to be once again at the stage of maximum medical improvement. Therefore, claimant is entitled to receive wage loss benefits, if he cannot work, until he can be rated again for his schedule injury.

B. No. 97-AA-1364

Eileen Gabrielle Evans, then a legal secretary, tripped and fell at work on April 29, 1987, sustaining injuries to her left wrist and both knees. She received temporary total and then temporary partial disability benefits from May 2 through September 8, 1987. In a 1989 stipulation Evans, her employer, and the employer's insurer agreed that, having reached maximum medical improvement, she was entitled to schedule benefits for permanent partial disability as follows: 15% for the left hand, 16% for the right leg, and 18% for the left leg.

After the stipulation, Evans returned to work but continued having difficulty with her left hand and knee. She underwent separate surgeries for these problems in late 1990 and early 1991, and was again unable to work. She requested temporary total disability benefits [722 A2d Page 33]

for the period from October 15, 1990, through April 7, 1991, contending that, unlike the claimant in Smith, supra, who had experienced merely a "flare-up" of her condition that came and went, Evans' condition had worsened to the point of requiring surgery. A hearing examiner rejected this distinction, ruling that although Evans had "experienced a deterioration to the condition of her hand and left knee," Smith nonetheless barred an award of further temporary disability benefits for the same injury. The Director affirmed, "agree[ing] with the Hearing Examiner's conclusion that since claimant reached maximum medical improvement and received a schedule award . . . for permanent ...


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