Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB92-07).
The opinion of the court was delivered by: Fisher, Associate Judge
Before KRAMER and FISHER, Associate Judges, and SCHWELB, Senior Judge.
The Compensation Review Board affirmed an Administrative Law Judge's determination that Keith Boyd was entitled to additional workers' compensation benefits for temporary total disability ("TTD") although he previously had received a schedule award based on the same injury. We reverse and remand for further proceedings not inconsistent with this opinion.
I. Factual and Procedural Background
In 2002 Keith Boyd injured his left knee while working for WMATA. The resulting treatment included surgery, and WMATA voluntarily paid temporary total disability benefits and related medical expenses. In February 2004, the parties agreed that Mr. Boyd would receive a "schedule award" for a permanent partial disability of 15% of his left lower extremity.*fn1 Following another surgery, WMATA voluntarily paid additional TTD benefits and Boyd again reached maximum medical improvement. The parties have stipulated that Mr. Boyd is entitled to an increase in the schedule award to equal a 20% partial loss to his left lower extremity, but they dispute whether he was entitled to the TTD benefits WMATA paid after he received the initial schedule award. WMATA argued that it had paid those benefits by mistake and that it was therefore entitled to a credit against the increase in the schedule award.
Agreeing that there were no facts in dispute, the parties submitted the legal issue to the Department of Employment Services. Purporting to rely upon our decision in Cherrydale Heating & Air Conditioning v. District of Columbia Dep't of Employment Servs., 722 A.2d 31 (D.C. 1998), which we will discuss in more detail later, the ALJ held that Mr. Boyd was entitled to additional TTD benefits after receiving the initial schedule award.Therefore, WMATA was not entitled to a credit for those payments against the amount it owed for the additional schedule award.
The CRB affirmed for different reasons. It concluded that the ALJ had erred in her reasoning because Mr. Brown had not met the rigorous test recognized in Cherrydale. Nevertheless, the CRB held that Mr. Brown was entitled to the new round of TTD benefits because our decisions in Cherrydale and Smith v. District of Columbia Dep't of Employment Servs., 548 A.2d 95 (D.C. 1988), do not apply to a request for "modification based upon a change of conditions occurring within a year of a schedule award . . . ." See D.C. Code § 32- 1524 (a) (2001).*fn2
This case is governed by a legal principle established in Smith and a narrow exception to that principle recognized in Cherrydale. In Smith, an injured employee "had reached maximum medical improvement" and she and her employer (coincidentally, WMATA) stipulated that she "was entitled to benefits in the nature of a schedule award . . . for a 5 percent permanent partial disability of her right upper extremity." 548 A.2d at 96. The agency approved the stipulation, and the award was paid, but within one year a "flare up" of her condition caused her to miss work, and she applied for temporary total disability benefits. Id. The Department of Employment Services denied the application "on the ground that she had already received all of the benefits to which she was entitled." Id.
Having examined the language and legislative history of the workers' compensation statute, "we infer[red] that [the] Council did not intend to provide such additional benefits after an employee has received a schedule award for the same injury." Id. at 99 (footnote omitted). We explained that a schedule award was not a departure from the principle that "compensation under the Act is predicated upon the loss of wage earning capacity, or economic impairment, and not upon functional disability or physical impairment." Id. at 100 (footnote omitted). "'The basic theory remains the same; the only difference is that the effect on earning capacity is a conclusively presumed one, instead of a specifically proved one based on the individual's actual wage-loss experience.'" Id. at 101 (quoting 2 A. LARSON, WORKMEN'SCOMPENSATION LAW, § 58.11, at 10-323 to 10-324 (1987) (footnotes omitted)).
"Although the schedule award will be overly generous in some cases, and grievously inadequate in others, such a result inheres in the very nature of compensation schemes." Id. at 102. We therefore "affirm[ed] the agency's decision denying Smith temporary total disability benefits on the ground that she was ineligible because of prior receipt of a schedule award for permanent partial disability arising out of the same injury." Id.
Ten years later, we applied the holding of Smith to the consolidated cases of two workers who had received schedule awards. Cherrydale, 722 A.2d 31. Both claimants had further surgery after receiving their award and both claimed they were entitled to additional benefits for temporary total disability. The Director awarded further TTD benefits to one worker, but denied them to the other. The petitioners asserted that these decisions were inconsistent with each other and with our decision in Smith, which had upheld the Director's determination that the Workers' Compensation Act generally barred an award of further temporary total disability benefits stemming from the same injury once the worker had received a schedule award for a permanent partial disability. Id. at 32.
We affirmed the Director's decision in each of the cases under review in Cherrydale, concluding that they rested "upon a reasonable interpretation of the governing statute: specifically, that the amputation undergone by claimant Poole . . . justifies a narrow departure from the general prohibition recognized in Smith,but that the lesser change of condition experienced by claimant Evans . . . does not." 722 A.2d at 32. We read the Director's decision in Poole's case "as recognizing a narrow exception to the general rule for an extreme change of condition resulting in amputation or its functional equivalent." Id. at 34. "It is certainly reasonable to regard amputation as an extraordinary condition that 'affects . . . the body itself' -- that in effect causes re-injury to the body -- in a way that lesser treatment including surgery does not." Id. (citation omitted). "[B]oth the trauma associated with amputation and the ...