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Howard University Hospital/Property & Casualty Guarantee Fund v. Dist. of Columbia Dep't of Employment Services

May 8, 2008

HOWARD UNIVERSITY HOSPITAL/PROPERTY & CASUALTY GUARANTEE FUND, PETITIONERS,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
TOMMIE AMBROSE, INTERVENOR.



Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services. (CRB23-06).

The opinion of the court was delivered by: Schwelb, Senior Judge

Argued November 28, 2007

Before RUIZ and FISHER, Associate Judges, and SCHWELB, Senior Judge.

Howard University Hospital (the employer) has asked this court to review a decision of the Compensation Review Board (CRB) of the District of Columbia Department of Employment Services (D.C. DOES). In that decision, the CRB affirmed a Compensation Order in which a D.C. DOES Administrative Law Judge (ALJ) held that the claimant, Tommie Ambrose, who had been injured while working for the employer, was entitled to concurrent benefits for permanent total disability (based on the condition of his left hip) and for permanent partial disability (in relation to the condition of his right knee). The injuries were suffered as a result of the same work-related accident.

The employer claims that the CRB erred in holding that Ambrose is totally disabled. In the alternative, the employer asserts that even if Ambrose is totally disabled, he is not entitled to concurrent benefits for permanent total disability and for permanent partial disability. We conclude that Ambrose is entitled to permanent total disability benefits. Although we entertain considerable doubt that he is also entitled to receive partial disability benefits, we remand the case to the CRB with directions to reconsider that issue in the light of the authorities cited in this opinion.

I. BACKGROUND

From 1981 to 1997, Ambrose was employed by Howard University Hospital as a security guard and special police officer. On February 17, 1997, while on duty, Ambrose fell while pursuing a suspect. Ambrose suffered injuries, inter alia, to his right knee.

On October 26, 2000, Ambrose underwent an "arthroscopic debridement" of his right knee. Ambrose claims, and the ALJ found, that the injury to the knee caused Ambrose to place greater weight on his left hip than on his right hip. The unequal distribution of weight aggravated a pre-existing arthritic condition in Ambrose's left hip, with the result that on October 25, 2002, Ambrose underwent total hip replacement surgery. On the basis of the expert testimony of one of Ambrose's treating physicians, the ALJ found, following an evidentiary hearing, that as a result of the condition of his now-replaced left hip, Ambrose is not able to return to the work force as a security guard or special police officer, although he is able to perform certain primarily sedentary tasks. The ALJ also found that Ambrose continues to experience pain, swelling, and occasional grating and locking sensations in his right knee, that the condition of Ambrose's left hip is causally related to his on-duty accident, and that Ambrose is permanently and totally disabled. The ALJ found that Ambrose has suffered a 25% permanent partial disability to his "right lower extremity," and that Ambrose is entitled to a "schedule award"*fn1 based on that finding.

Turning to the question of whether Ambrose is entitled to concurrent awards for the "schedule" injury to his knee and the permanent total disability relating to his hip, the ALJ relied on the then newly-formed CRB's recent decision in Sullivan v. Boatman & Magnani, CRB No. 03-74, 2005 DC Wrk. Comp. LEXIS 184 (Aug. 31, 2005). The ALJ wrote that in Sullivan, the CRB set forth a standard permitting a schedule disability award and a concurrent wage loss partial or total disability award only where the partial or total wage loss disability is based upon the wage loss being due to the anatomically non-schedule body part, and there is also a distinct, separable and identifiable functional impact upon the schedule body part sufficient to sustain an award. (Citation omitted.)

Applying the ruling in Sullivan to the facts before him, the ALJ concluded:

It is my reading of the new rule that Claimant's injuries meet the criteria and therefore he is entitled to both the permanency award and the wage loss award concurrently.

The employer appealed to the CRB from the Compensation Order and, in a brief "Decision and Order," the CRB affirmed. The CRB stated that "the ALJ's factual findings are supported by substantial evidence on the record as a whole, and are conclusive, and the ALJ's legal conclusions are in accordance with the law." The CRB added that []the record fully supports the ALJ's thorough, well reasoned decision and the Panel, therefore, adopts the reasoning and legal analysis expressed by the ALJ in that decision in affirming the Compensation Order in all respects.

The employer filed a timely petition for review.

II. PERMANENT TOTAL DISABILITY

The employer contends that the "claimant is capable of workingand is therefore not entitled to permanent total disability." According to the employer, "[it] has met its burden of demonstrating job availability and the claimant has voluntarily limited his income under the Act." The employer also asserts that although disability is an economic concept and not a medical concept, "this does not mean that if the economy is bad, and the claimant cannot get a job, he is entitled to benefits." Neither of these contentions is persuasive.

With respect to the employer's assertion that Ambrose unreasonably limited his job search and thus his income, the ALJ found as follows:

On the issues of voluntary limitation of income and failure to cooperate, I find that Employer has not carried its burden on either. The record evidence is such that Claimant has pursued all job leads presented to him by the vocational counselor engaged by Employer and also has pursued jobs leads on his own. The evidence is that for all job leads identified by the vocational counselor, Claimant has submitted an application and in certain instances also sat for an interview. In addition, the vocational counselor testified that Claimant participated in all recommended job training and that he was prepared to continue to assist Claimant but that Employer had terminated his services, not based on any negative report of Claimant not cooperating but rather because Employer stated that Claimant intended to pursue his own job leads.

Although the employer's position is not altogether without support on the record,*fn2 the ALJ's findings on this issue are supported by substantial evidence, and the employer has not persuaded us that we may or should second-guess an evidentiary determination by the trier of fact, who heard the evidence first-hand.

The ALJ and the CRB ruled, and we agree, that the possibility that jobs exist involving types of work in which Ambrose is inexperienced and unqualified does not preclude a finding of total disability. In Washington Post v. District of Columbia Dep't of Employment Servs., 675 A.2d 37 (D.C. 1996), we explained that [a] claimant suffers from total disability if his injury prevents him from engaging in the only type of gainful employment for which he is qualified. [American Mut. Ins. Co. of Boston v. Jones, 138 U.S. App. D.C. 269, 272, 426 F.2d 1263, 1266 (1970)]; see also Abex Corp. v. Brinkley, 252 A.2d 552, 553 (Del. Super. 1969). Total disability does not mean absolute helplessness, Sherwood v. Gooch Milling & Elevator Co., 235 Neb. 26, 453 N.W.2d 461, 467 (Neb. 1990), and the claimant need not show that he is no longer able to do any work at all. Gulf Ins. Co. v. Gibbs, 534 S.W.2d 720, 724 (Tex. Civ. App. 1976). In the words of the leading treatise, evidence that claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require that it be reduced to partial. . . . The rule followed by most modern courts has been well summarized by Justice Matson of Minnesota Supreme Court in the following language:

An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not ...


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