On Petition for Review of a Decision of the Compensation Review Board No. CRB18-05.
The opinion of the court was delivered by: Reid, Associate Judge
Before WASHINGTON, Chief Judge, and REID and KRAMER, Associate Judges.
Petitioner Solomon Negussie petitions for review of a decision of the Compensation Review Board ("CRB") of the Department of Employment Services ("DOES") which affirmed an Administrative Law Judge's ("ALJ") compensation order under the District of Columbia Workers' Compensation Act ("the Act").*fn1 He claims, in part, that the ALJ failed to exercise independent judgment regarding his permanent partial disability percentage rating under D.C. Code § 32-1508 (2001). We hold that ALJs have discretion in determining disability percentage ratings because, as used in the Act, "disability" is an economic and legal concept which should not be confounded with a medical condition, and that in this case the ALJ erred by following decisions of the Director of DOES concluding that ALJs are obligated to choose a disability percentage rating provided either by the claimant's or the employer's medical examiner. Consequently, we vacate the CRB's decision in so far as it affirms the ALJ's decision on the merits, and we remand this case to the CRB with instructions to remand it to the ALJ for reconsideration in light of the legal principles articulated in this opinion.
The record before us shows that Mr. Negussie, the manager and owner of Florida Market Chevron (FMC, Inc.), was injured on March 13, 2001, as the result of a head-on collision between his vehicle (which was stopped at a red light) and a bus during his return from a wholesale dealer where he had purchased supplies for the convenience store located at his Chevron gas station. He suffered several injuries, including a left upper arm fracture. After initial evaluation and treatment at Howard University Hospital, Mr. Negussie received further treatment from his primary care physicians, Gerald Family Care, who referred him to Dr. John Klimkiewicz, an orthopedic surgeon, because of the injury to his left arm. Dr. Klimkiewicz began to care for Mr. Negussie's left arm on March 29, 2001. On September 27, 2001, Dr. Klimkiewicz noted that X-rays of Mr. Negussie's upper left arm fracture "show[ed] signs of a nonunion with a radiolucency present at the fracture." Approximately two months later, new X-rays "essentially show[ed] no progression with what appears to be a nonunion of the humeral shaft," and Dr. Klimkiewicz wrote that Mr. Negussie "does not appear to be terribly symptomatic at present," but also noted Mr. Negussie's comment that "he has been able to perform most activities of daily living but has some minor discomfort with significant overhead activities with weight." By March 21, 2002, Dr. Klimkiewicz concluded that Mr. Negussie had "an asymptomatic humeral nonunion," had "[n]o tenderness at the nonunion site," and in the doctor's opinion had "reached maximal medical improvement."
About one month later, Mr. Negussie was seen by Dr. Harvey N. Mininberg for examination and evaluation. Dr. Mininberg found "tenderness" of Mr. Negussie's upper left arm, but no sign of "inflammation or induration," and there was "full mobility to the left shoulder and left elbow." In terms of Mr. Negussie's complaints, Dr. Mininberg noted:
At the present time, [Mr. Negussie] complains of intermittent pain in his left upper arm with attempts at pushing, pulling, lifting. There is a fatigue type pain with overhead activities. He complains of stiffness and aching discomfort in cold and damp weather changes.
With respect to his evaluation of Mr. Negussie's condition, Dr. Mininberg wrote:
In accordance with AMA Guidelines as well as taking into account pain, weakness, loss of endurance and/or loss of function, the patient is entitled to 28% impairment of the left upper extremity.
On September 20, 2002, Mr. Negussie presented himself to Dr. Jerry S. Farber for an independent medical examination, at the request of intervenors (including the employer, FMC, Inc.). Mr. Negussie "complain[ed] of intermittent discomfort in the left arm and shoulder with raising overhead, pushing or pulling . . . [and] a sense of weakness." After his physical examination of Mr. Negussie, Dr. Farber noted, in part:
Examination of both shoulders reveals the patient to have slight lack of combined abduction/external rotation on the left side compared with the right. He has full elevation in forward elevation and also in abduction . . . . He has mild difficulty in elevation of the shoulder beyond 90 degrees on the left but not on the right . . . . Upper arm measurement indicates no significant atrophy comparing left and right sides. There is no local tenderness over the proximal or mid shaft at the humerus on the left and no significant tenderness over the anterior lateral posterior aspect of the shoulder. Grip strength is excellent bilaterally.
Dr. Farber's diagnosis was: "Fracture, closed, healed with mild position left mid shaft humerus." And, his evaluation was as follows:
Based on the AMA Guides for the Evaluation of Permanent Impairment 4th Edition, figure 41, page 44, the patient has a 3% permanent partial impairment of the left upper extremity due to lack of complete abduction. Taking into account the Maryland Factors of Weakness, Atrophy, Loss of Endurance, Pain, and Loss of Function, it is my opinion that the patient has an additional 3% permanent partial impairment due to persistent weakness in the left shoulder girdle ...