Argued Jan. 31, 2013.
[Copyrighted Material Omitted]
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Richard W. Galiher, Jr., Chevy Chase MD, for petitioner.
Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of brief in support of respondent.
William S. Sands, Jr., with whom, John C. Duncan, III, Fairfax, VA, was on the brief, for intervenor.
Before THOMPSON and BECKWITH, Associate Judges, and BELSON, Senior Judge.
THOMPSON, Associate Judge:
Under the District of Columbia Workers' Compensation Act (the " Act" ), an injured worker determined to be eligible for permanent total disability benefits is entitled to a payment set at 66 2/3% of her average weekly wage (" AWW" ). " [T]he AWW ‘ is intended to provide a fair and reasonable estimate of what the employee in question would have been able to earn in the labor market in the absence of a work-injury[.]’ " UPS v. District of Columbia Dep't of Emp't Servs., 834 A.2d 868, 872 (D.C.2003).
The instant matter represents the continuation of a dispute between petitioner Carol Middledorf Kelly and her former employer, Washington Hospital Center (" the Hospital" ), about the AWW to be used in calculating her workers' compensation permanent total disability payments. We first considered this dispute in Washington Hosp. Ctr. v. District of Columbia Dep't of Emp't Servs., 983 A.2d 961 (D.C.2009) (" Middledorf Kelly I " ). As we noted in that opinion, at the time petitioner was injured while working for the Hospital, the Act required generally that an injured worker's AWW be calculated " by dividing by 13 the total wages the employee earned in the employ of the employer in the 13 consecutive calendar weeks immediately preceding the injury[.]"  Id. at 968 (quoting D.C.Code § 36-311(a)(4) (Supp.1993) (current version at D.C.Code § 32-1511(a)(4) (2012 Repl.))). However, in cases prior to Middledorf Kelly I, our court had recognized that it sometimes is appropriate to calculate a worker's AWW based on fewer than thirteen weeks in order to " produce an honest approximation of claimant's probable future earning capacity." UPS, 834 A.2d at 872 (internal quotation marks omitted); see also George Hyman Constr. Co. v. District of Columbia Dep't of Emp't Servs., 497 A.2d 103, 108 (D.C.1985). We concluded in Middledorf Kelly I that in petitioner's case, the statutory purpose was not served by including in the AWW calculation two weeks when petitioner did not work and was not paid. See 983 A.2d at 969. We remanded the matter to the Compensation Review Board (" CRB" ) " with instructions to further remand to the [District of Columbia Department of Employment Services (" DOES" ) administrative law judge
(" ALJ" ) ] for a proper calculation" of petitioner's AWW. Id. at 969-70.
Eventually, after two remands to the ALJ, the CRB issued an October 4, 2011, Decision and Order, in which it upheld an ALJ determination of petitioner's AWW that was calculated based on 11 of petitioner's last 13 weeks of employment by the Hospital (the " 11-week calculation" ), reflecting exclusion of the two weeks when petitioner did not work and was not paid. The 11 weeks the ALJ used in the calculation included, however, two other weeks (" the two accrued leave weeks" ) when petitioner also did not work, but for each of which the Hospital paid her $80.20 based on her then-current balance (5.54 hours) of accrued leave (" the accrued leave payments" ). Petitioner now seeks review of the CRB decision upholding that aspect of the AWW calculation, contending that the two accrued leave weeks and payments must be excluded from the AWW calculation in order not to " unfairly dilute[ ]" her earning record.
We heard oral argument in this matter on January 31, 2013. Afterwards, we issued a February 5, 2013, Order in which we posed several questions asking the CRB to clarify the basis of its decision upholding the ALJ's 11-week calculation. The CRB responded in a March 19, 2013, Decision on Record Remand. We have received supplemental briefing from the parties in reaction to the CRB's response, and the matter is now ripe for decision. For the reasons that follow, we affirm in part and reverse in part the CRB's decision, and remand.
We begin by describing in somewhat more detail the ALJ and CRB rulings issued after the remand in Middledorf Kelly I. In an initial decision following our remand, the ALJ determined that five of petitioner's last 13 weeks of work at the Hospital were " zero-pay" " illness-related" weeks and that, therefore, only eight of the thirteen weeks that preceded her workplace injury should be used in the AWW calculation. The ALJ thus used an eight-week calculation that yielded an AWW of $644.57. After the Hospital sought review by the CRB, the CRB determined that the ALJ had erred in " go[ing] beyond the DCCA's reasoning" in Middledorf Kelly I by excluding from the AWW calculation more than the two weeks discussed in that opinion. The CRB reasoned that the ALJ improperly " excluded weeks in which the claimant was paid, albeit while on sick
leave." The CRB stated that it took " the position that being paid for leave time is still being paid wages for [the] purpose [of] this calculation." It further stated that " excluding [four] weeks  would result in an inappropriately inflated (and thereby unreasonable) AWW because wage-earning weeks have been improperly excluded." Finally, the CRB reasoned that " [t]he DCCA determined that ... only two weeks should have been excluded from the 13 week calculation period" and that the ALJ was " constrained to adopt that reasoning and calculate the new AWW accordingly." The CRB remanded the case again, and the ALJ re-calculated petitioner's AWW using 11 weeks, the determination the CRB upheld in its October 4, 2011, order that is now in issue.
In considering the CRB's ruling and the parties' arguments right after oral argument, this division arrived at a tentative disagreement with the CRB's understanding that our court's decision in Middledorf Kelly I tied the ALJ's hands in the way the CRB described. The Middledorf Kelly I division remanded the case to the CRB " with instructions to further remand to the ALJ for a proper calculation of claimant's average weekly wage," 983 A.2d at 969-70, without stating that the " proper calculation" must exclude only the two weeks discussed in the opinion. Therefore, in this division's February 5, 2013, order, we instructed the CRB to revisit the question of whether the two accrued leave payments and weeks were to be included in calculation of petitioner's AWW (and, in making that determination, to consider what bearing, if any, petitioner's attendance and earnings history prior to the 13 pre-injury weeks should have on a fair and reasonable estimate of her probable future earning capacity in ...