On Petition for Review of a Decision of the District of Columbia Department of Employment Services (DKT 44-02)
Before Schwelb, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
On October 11, 2002, the Director of the District of Columbia Department of Employment Services (DC DOES) affirmed a Compensation Order entered by a DC DOES Administrative Law Judge (ALJ) denying in pertinent part the claim of Nartausha A. Mills, then a professional basketball player for the Washington Mystics and an employee of the Women's National Basketball Association (WNBA) (the employer), for temporary total disability benefits. Ms. Mills has filed a petition for review in this court, contending that the Director's decision is not supported by substantial evidence and that it is based on an erroneous legal analysis. We vacate the Director's decision and remand for further proceedings.
I. THE PROCEEDINGS BEFORE THE AGENCY
In April 2000, Ms. Mills, then a student at the University of Alabama, was the second selection in the WNBA draft and was selected by the Mystics. She signed a contract providing that she would play for the Mystics until May 15, 2001. The WNBA's regular season ran from training cam p in May 2000 until Septem ber 15 o f that yea r. It is undisputed that, during the long off-season from September to May, players in the WNBA had the right to seek employment elsewhere, including the opportunity to play basketball abroad.
On May 17, 2000, while at practice, Ms. Mills suffered an injury to her left hand and wrist when she stretched out her left arm to break a fall. She nevertheless continued to play until mid-August 2000, with a splint protecting her left wrist. On or about August 30, 2000, Ms. Mills had surgery, and her wrist was placed in a cast for three months.
Ms. Mills testified that at some time not identified in the record, her agent had received an oral offer from Urla, a professional basketball team in Turkey, *fn1 inviting her to play for that team during the 2000-01 off-season. Ms. Mills was, however, unable to accept the Turkish team's offer because her injury and operation prevented her from playing. Ms. Mills stated that following her recovery, she did play for Urla during the 2001-02 off-season and earned $50,000.
The employer voluntarily paid Ms. Mills her full salary for the 2000 season. The employer declined, however, to pay her total temporary disability benefits and related medical expenses for the period from September 16, 2000 until May 14, 2001. Ms. Mills then filed a claim for these benefits and expenses pursuant to the Workers' Compensation Act (WCA), D.C. Code §§ 32-1501 et seq. (2001).
The ALJ denied Ms. Mills' claim. The ALJ wrote, in pertinent part:
Claimant argues her "salary from the employer covered only the period which constitutes the entire Regular Season, and (her) total wage loss was the direct result of her hand injury . . . ." In other words, claimant received no compensation during the 2000 off-season. Claimant conceded in her testimony at the formal hearing that her employment contract with the Mystics, although permitting an off-season employment, never guaranteed it, and it was entirely up to her own efforts to secure employment in the off-season.
A careful review of the record in this case, however, does not indicate claimant presented any evidence supporting her claim how she was entitled to a continued employment during the 2000 off-season, which she could not perform due to her May 17, 2000 injury. Thus, there is no ascertainable wage loss for the 2000 off-season.
Remarkably, the ALJ made no reference at all to Ms. Mills' testimony regarding the oral offer from the Turkish club.
The Director of DC DOES affirmed the ALJ's decision, albeit on somewhat different grounds. In the dispositive portion of ...