Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB203-08).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FISHER, Associate Judge, and FERREN and BELSON, Senior Judges.
Petitioners challenge a decision of the Compensation Review Board ("the Board") which upheld concurrent awards of temporary total disability benefits due to a back impairment and permanent partial disability benefits ("schedule awards") based on impairments to claimant's legs caused by the same work injury. We affirm, publishing this opinion primarily to disapprove a portion of the Board's decision which may lead to error in future cases.
On August 19, 2002, claimant Ellavane Petway ("claimant" or "Ms. Petway") injured her lower back while working as a housekeeper at Howard University Hospital. In a compensation order issued in 2003, an Administrative Law Judge ("ALJ") awarded temporary total disability benefits which are still being paid. Petitioners do not challenge this order, acknowledging that the issue was adjudicated in a prior formal hearing. In 2008, however, a different ALJ awarded Ms. Petway permanent partial disability benefits for a 25% impairment to each of her lower extremities ("schedule awards"*fn1 ), to be paid concurrently with the ongoing temporary total disability benefits for the impairment to her back.
Petitioners make a spirited challenge to this new award, arguing (1) that Ms. Petway is not entitled to benefits for a scheduled loss when she did not injure a scheduled member; (2) that the statute does not permit concurrent awards of temporary total disability benefits and permanent partial disability benefits; and (3) that the ALJ's finding that Ms. Petway has "separate and distinct disabilities" is not supported by substantial evidence. These arguments have significant logical force, but they are either foreclosed by our prior decisions, attack agency interpretations of the statute to which we must defer, or are contradicted by the record. It may be, as petitioners urge, that the workers' compensation system is ripe for reform, but that is a task to be undertaken by the Department of Employment Services and the legislature, not by this court.
Petitioners argue that claimant was not entitled to schedule awards for the impairments to her legs because she injured her back, not her legs, and the back itself is not listed under the schedule provisions. Acknowledging that there are precedents upholding schedule awards of this nature, they ask us to disapprove a seminal decision by the Director of the Department of Employment Services which held that a claimant may be entitled to a schedule award when an injury to a non-scheduled part of the body affects a scheduled body part. Kovac v. Avis Leasing Corp., H&AS No. 84-177 (Director's Decision, July 17, 1986) (approving a schedule award for permanent partial disability in worker's right leg, although he had injured his back, not his leg, at work). In Kovac the Director decided that "it is not the situs of the injury which determines whether a schedule award is payable; it is the situs of the disability resulting from the injury which is controlling." Kovac, at 6.*fn2
We defer to an agency's interpretation of a statute it administers unless the "interpretation is unreasonable or in contravention of the language or legislative history of the statute . . . ." Watergate East Comm. Against Hotel Conversion v. District of Columbia Zoning Comm'n, 953 A.2d 1036, 1043 (D.C. 2008) (quotations and citations omitted). "[W]e must sustain the agency's interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance." Howard University Hosp. v. District of Columbia Dep't of Employment Servs. (Tommie Ambrose), 952 A.2d 168, 173-74 (D.C. 2008) (internal quotation marks and citation omitted).
Petitioners' argument must fail because we have previously considered the Kovac decision and "conclude[d] that it is a reasonable interpretation [of the Workers' Compensation Act] and certainly not contrary to law." Washington Metropolitan Area Transit Authority v. District of Columbia Dep't of Employment Servs. (Chang), 683 A.2d 470, 475 (D.C. 1996). One panel of this court may not overrule another, M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), and the Director obviously has not abandoned Kovac. The Kovac decision is no less reasonable today than it was when we decided Chang.
Petitioners also argue that it is illogical to award concurrent benefits for both temporary total disability and permanent partial disability. How, they ask, is it possible to be both totally disabled and partially disabled at the same time? How can a worker be, at one time, both temporarily and permanently disabled? They also assert that "[a] claimant cannot be more than 100%, or totally, disabled whether that total disability be temporary or permanent." These arguments based on policy and logic must confront the language of the statutory provision for schedule awards, which states:
In case of disability partial in character but permanent in quality, the compensation shall be 66 2/3% of the employee's average weekly wages which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with paragraph (2) or (4)*fn3 of this subsection respectively, and ...