January 23, 2014
Nathalia L. BROWN, Petitioner,
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Potomac Electric Power Company, Intervenor.
Argued Oct. 10, 2013.
[Copyrighted Material Omitted]
Matthew J. Peffer, Greenbelt, MD, for petitioner.
Shawn M. Nolen, with whom Kevin J. O'Connell, Rockville, MD, was on the brief, for intervenor.
Irvin B. Nathan, Attorney General for the District of Columbia, and Todd S. Kim, Solicitor General, filed a statement in lieu of brief for respondent.
Before GLICKMAN and McLEESE, Associate Judges, and NEWMAN, Senior Judge.
GLICKMAN, Associate Judge:
Nathalia Brown petitions for review of a decision by the Compensation Review Board (" CRB" or " the Board" ) of the Department of Employment Services denying her claim for permanent partial disability benefits under the Workers' Compensation Act. Brown contends that the CRB erred in two principal respects: first, by raising sua sponte a previous suspension of her benefits on account of her refusal to cooperate with vocational rehabilitation as a continuing bar to any disability compensation
award; and second, in holding that if the bar is removed and Brown is awarded permanent partial disability compensation for both " schedule" and " non-schedule" injuries, those partial disability awards must be paid to her consecutively rather than concurrently because concurrent payments would exceed the payments that Brown could receive if she were permanently and totally disabled.
Brown's challenge to the CRB's suspension-of-benefits ruling presents unsettled issues concerning the interpretation of the Workers' Compensation Act and the procedural rules that the Board follows. Because the Board did not provide a reasoned analysis and resolution of those issues, we vacate its decision and remand this case for further proceedings. However, we affirm the Board's ruling that concurrent compensation for permanent partial disabilities arising out of the same work accident cannot exceed the compensation authorized for permanent total disability.
I. Factual and Procedural Background
Brown sustained the work-related injuries that gave rise to her present claims while she was working as a lead shop mechanic for intervenor Potomac Electric Power Company (" PEPCO" ). On March 26, 1995, Brown was standing on a ladder, running electrical lines in the ceiling to repair a light fixture, when her right hand came into contact with a live wire. A co-worker pushed her off the ladder to break the electrical contact and save Brown from electrocution. In addition to the burns she received from the electric shock, Brown injured her neck, back, and shoulder in the fall. Her back injury subsequently led her to sustain other permanent injuries that need not be detailed here.
The lasting physical impairments resulting from Brown's work-related injuries made it impossible for her to resume her former position. PEPCO attempted to accommodate her return to work by offering her a variety of light duty positions, but Brown found all of them unsatisfactory. In December 1998, she ceased working altogether.
PEPCO voluntarily paid Brown temporary total disability benefits. In November 2005, the company engaged a vocational rehabilitation consultant to evaluate Brown and assist her in applying for available sedentary jobs within her physical limitations for which she was qualified. However, Brown attended only four of her eight scheduled rehabilitation appointments and did not pursue the job opportunities identified by the consultant. Moreover, in January 2006, Brown rejected PEPCO's renewed offer of another light duty position.
Instead, Brown filed a claim for permanent total disability benefits under the Workers' Compensation Act. PEPCO contested the claim, which proceeded to a hearing before an Administrative Law Judge (" ALJ" ) in the Hearings and Adjudication Section of the Office of Employment Services. The ALJ rendered his decision in a January 18, 2007, compensation order. Finding that Brown was not totally disabled, that she had voluntarily limited her income by failing to accept offered employment, and that she had refused
unreasonably to cooperate with vocational rehabilitation, the ALJ denied her claim for permanent total disability benefits and, in accordance with D.C.Code § 32-1507(d), declared that Brown's " temporary total disability benefits should be suspended until such time as she expresses a willingness to cooperate" with vocational rehabilitation. The CRB affirmed the compensation order on appeal.
Brown did not petition for further review. Neither did she seek to terminate the suspension of her benefits by expressing a willingness to cooperate with vocational rehabilitation. Instead, she commenced a second proceeding by filing a new claim requesting permanent partial (rather than total) disability benefits. Brown sought " schedule" benefits for partial impairments of her arms and legs plus " non-schedule" benefits for wage loss occasioned by the injuries to her back and neck.
In opposition, PEPCO contended inter alia that Brown's physical complaints were exaggerated and that she had voluntarily limited her income.  PEPCO also argued that if Brown were awarded both schedule and non-schedule benefits, the awards should be paid consecutively rather than concurrently (i.e., payment of the non-schedule wage loss benefits should be deferred until the schedule benefits were exhausted). However, PEPCO did not resurrect its argument that Brown was ineligible to receive any benefits at all by virtue of her failure to cooperate with vocational rehabilitation; it did not rely on the prior finding in the January 2007 compensation order to that effect.
On April 30, 2009, after an evidentiary hearing, the ALJ found Brown to be permanently partially disabled and entitled to schedule benefits for impairments of her arms and legs  plus wage loss benefits
stemming from the non-schedule injuries to her back and neck. Noting the prior finding that Brown had voluntarily limited her income, the ALJ ruled that for purposes of computing her wage loss benefits, her post-disability wages " shall be deemed to be the amount that she would earn if she did not voluntarily limit her income or did accept employment commensurate with her abilities."  The ALJ further ruled that Brown's awards were to " run consecutively" pursuant to D.C.Code § 32-1508(U). The ALJ did not address whether Brown's benefits were suspended because of her refusal to cooperate with vocational rehabilitation.
Brown appealed the compensation award to the CRB, arguing only that her non-schedule benefits should be paid concurrently with her schedule award payments rather than consecutively. She did not challenge the ALJ's ruling that her wage loss benefits should reflect the finding that she had voluntarily limited her income. For its part, PEPCO, which did not cross-appeal, did not cite Brown's failure to cooperate with vocational rehabilitation as a basis to deny or withhold her benefits.
In August 2009, the CRB issued its decision. Although no one had raised the issue, the CRB brought up the January 2007 suspension of Brown's benefits on account of her failure to cooperate with vocational rehabilitation. There was, the Board noted, " nothing in the record before the CRB that shows this finding was modified." If Brown's benefits therefore " remain[ed] suspended" the Board declared, then " the ALJ did not have authority to enter any award" in her favor. Primarily for this reason, the CRB vacated the awards and remanded the matter for the ALJ to determine, inter alia, whether Brown was eligible to receive any award in light of the January 2007 failure-to-cooperate finding. " If the ALJ determines that the benefits still are suspended," the CRB declared, " then the ALJ should dismiss the present Application."
" To foster judicial economy," the CRB nonetheless went on to consider whether any dual awards to Brown of schedule and non-schedule benefits should be payable consecutively or concurrently. Despite what it called " the general rule that an injured worker may receive concurrent payment of permanent partial schedule
and permanent partial wage loss benefits," the Board held that this rule did not apply where a claimant seeks " permanent disability benefits that, when paid concurrently, would exceed the amount of an award that she could receive for permanent total disability." 
On remand, the ALJ concluded that a suspension of benefits for failing to cooperate with vocational rehabilitation " ends only upon a demonstrated willingness of the injured party to participate in vocational rehabilitation," and that whether Brown demonstrated such a willingness " can only be addressed in a modification of the prior order" pursuant to the modification procedure set out in D.C.Code § 32-1524. Because Brown had not sought to modify the January 2007 order suspending her benefits on account of her failure to cooperate with vocational rehabilitation, the ALJ ruled that she was not entitled to the permanent partial disability benefits she sought.
The CRB affirmed this ruling. It rejected Brown's contention that the suspension of her temporary total disability benefits did not apply to her current claim for permanent partial disability benefits; " [t]he plain language of the Act," the Board explained, " does not discriminate as to the type of benefit to be suspended when a claimant fails to cooperate[.]"  Therefore, the Board held, Brown needed to obtain a modification of the January 18, 2007 order pursuant to D.C.Code § 32-1524 in order to be eligible for payment of any further disability compensation. Brown filed a timely petition for review by this court.
II. Standard of Review
Generally speaking, our review of a CRB decision in a workers' compensation case is deferential and limited to assessing whether the decision was " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  In this case, Brown's claims that the CRB violated its procedures in sua sponte raising the
suspension issue and misconstrued the Workers' Compensation Act raise questions of law. As to such questions arising from decisions by administrative agencies, our review is subject to well-established doctrines mandating deference to an administrative agency's interpretation of its own rules and regulations and of the statute it is charged with implementing.
III. Suspension of Benefits
We begin with Brown's argument that the CRB erred in sua sponte raising the prior suspension of her workers' compensation benefits as a bar to her claim for permanent partial disability compensation. Her contention has both procedural and substantive aspects.
As a procedural matter, it is unclear whether the CRB acted permissibly in raising the suspension-of-benefits issue in the manner it did. This court has never decided whether the CRB, in an appeal from an ALJ's compensation decision, may deny a disability claim on a ground not presented by the parties to the ALJ or considered by the ALJ. The Board itself has declared that it lacks such authority, however, in a case not mentioned in the decisions now before us. It was also problematic for the Board to inject the suspension-of-benefits issue when PEPCO had neither taken a cross-appeal from the ALJ's award nor raised the issue in opposition to Brown's appeal. Under these circumstances, we conclude that we must remand this case for the Board to consider and explain its authority to raise issues sua sponte.
In addition, even if it was permissible for the Board to raise this seemingly forfeited issue sua sponte, we think there is another facet of its ruling that deserves further consideration by the Board on remand; namely, the Board's holding, over Brown's objections, that her right to receive benefits must remain suspended until such time as she obtains a modification of the January 2007 compensation order pursuant to D.C.Code § 32-1524. While we do not agree with Brown that the January 2007 suspension is inapplicable to her current application for permanent partial disability benefits, we do agree that requiring her to comply with the requirements of § 32-1524 to lift the suspension may be problematic. It raises an issue of statutory interpretation that the Board should consider on remand.
A. Sua Sponte Character of the Board's Ruling
In the absence of an applicable statutory command or agency regulation, an administrative tribunal has wide latitude in adopting rules of procedure for the proceedings before it. This authority extends to rules of issue preservation and forfeiture, a topic on which the Workers' Compensation Act and the District of Columbia Administrative Procedure Act  (" DCAPA" ) are silent. Moreover, the CRB's rules do provide that it may remand a case to the ALJ for " additional findings of fact or conclusions of law,"  and an interpretation of that authorization allowing the Board to address new issues sua sponte and remand for the ALJ to address them would likely be a reasonable one entitled to deference.
But our recognition of agency power to prescribe procedural rules has a corollary: the agency is obligated to abide by its rules. The CRB, a year before it raised Brown's failure to cooperate with vocational rehabilitation as a bar to her receipt of benefits, had held that " [i]f an issue is not raised in the proceeding below, in other words, if an issue is not preserved below, the issue cannot be raised to and
decided by the CRB."  The Board did not reconcile its action in Brown's case with that prior holding. Moreover, the Board did not explain why it raised the suspension-of-benefits issue despite PEPCO's failure to raise it on a cross-appeal or even to brief the issue.
As we have explained, " the function of the court in reviewing administrative action is to assure that the agency has given full and reasoned consideration to all material facts and issues," and " [t]he court can only perform this function when the agency discloses the basis of its order by an articulation with reasonable clarity of its reasons for the decision."  Here, we do not know whether the CRB interpreted its preservation rule to allow for a remand, applied a reasonable exception to the rule, ignored it inadvertently, or abandoned the rule entirely. Similarly, we do not know the CRB's rationale for raising the suspension-of-benefits issue sua sponte, and in spite of PEPCO's failure to cross-appeal. On remand the Board therefore should address whether it had the authority or
discretion to raise the suspension-of-benefits issue.
B. Modification of the Suspension Ruling
1. Applicability of the January 2007 Ruling to Brown's Current Application for Benefits
The Workers' Compensation Act " imposes reciprocal obligations on an employer and an employee in respect to vocational rehabilitation." D.C.Code § 32-1507 requires employers to furnish rehabilitation services " designed, within reason, to return the employee to employment at a wage as close as possible to the wage that the employee earned at the time of injury."  In return, the statute provides that if " the employee unreasonably refuses ... to accept vocational rehabilitation[,] the Mayor shall, by order, suspend the payment of further compensation, medical payments and health insurance coverage during such period, unless the circumstances justified the refusal."  As the Board has stated, " a suspension of benefits pursuant to D.C.Code § 32-1507(d) is only appropriate throughout the period that an injured employee unreasonably refuses to accept vocational rehabilitation and upon demonstration of a willingness to participate in the vocational rehabilitation which an employer is obliged to continue to provide, the suspension of benefits must end." 
Accordingly, we have stated, the suspension of benefits continues until such
time as the employee begins to
cooperate or manifests a willingness to do so. On its face, therefore, the January 2007 finding that Brown unreasonably refused to cooperate with vocational rehabilitation would seem to require the suspension of her benefits so long as she adheres to that refusal.
In arguing that the suspension in January 2007 of her temporary total disability benefits does not apply to her current claim for permanent partial disability benefits, Brown relies on our decision in Capitol Hill Hospital v. District of Columbia Department of Employment Services,  which affirmed that a claimant did not need to modify an earlier award of temporary disability benefits to bring a claim for permanent disability benefits arising out of the same injury. This was because the statutory modification procedure in what is now D.C.Code § 32-1524 " is designed for the review of a specific compensation award covering an issue ‘ previously decided’ by that order, and is not addressed to new issues that were not decided in the prior compensation award."  The new claim in Capitol Hill Hospital did not require reconsideration of anything decided in connection with the earlier award; instead, it turned on a new issue— permanence— that had not been considered previously. In the present case, however, the Board held that Brown's current claim does require reconsideration of an issue— her refusal to cooperate with vocational rehabilitation and its consequences— decided in the earlier proceeding. Whether that is so turns on the Board's interpretation of D.C.Code § 32-1507(d) as requiring the suspension of any and all benefits that a recalcitrant employee otherwise could receive, not just those benefits that were considered in the proceeding that resulted in the order of suspension. This seems to us a reasonable construction of the provision at issue; it certainly does not " contravene" the statutory text. The Board's construction is consistent with the evident statutory goal of providing a powerful incentive to employees to cooperate with vocational rehabilitation.  We conclude that the CRB's interpretation of D.C.Code § 32-1507(d) is entitled to deference.
2. Procedure for Ending the Suspension of Benefits
On the other hand, the Board's further conclusion— that if Brown wishes to
abrogate the suspension of her benefits, her only recourse is to apply for a modification of the January 2007 order based on a change of conditions pursuant to D.C.Code § 32-1524(a)— gives us pause. As we have said, " consistent with the Act's humanitarian purpose, that section creates an exception to principles of claim and issue preclusion and provides a procedure that enables claimants to revisit compensation awards."  But the exception is time-limited. The statute permits an order rejecting an employee's claim to be reopened only within one or three years, depending on whether the claim is for schedule or non-schedule benefits. This seems to mean that an employee whose benefits (including medical benefits) have been suspended for failure to cooperate with vocational rehabilitation has only one or three years to lift the suspension by choosing to cooperate or showing that her continued refusal has become reasonable. That limitation may be justified, but it would appear to be in tension with the proviso in D.C.Code § 32-1507(d) that, as interpreted by the CRB, mandates that benefits be suspended only " during such period" as " the employee unreasonably refuses ... to accept vocational rehabilitation."  The harshness of the time bar on claimants who are otherwise eligible for disability benefits is also arguably out of step with the general rule that " workers' compensation statutes should be liberally construed to achieve their humanitarian purpose." 
This is not to say that the imposition of § 32-1524(a)'s time limits on claimants whose benefits are suspended under § 32-1507(d) cannot be justified. So far as we can tell, however, the Department of Employment Services has not addressed the tension between the two statutory provisions. While the CRB has said, in this and prior cases, that a claimant seeking the reinstatement of suspended benefits must utilize the modification statute, it has never specifically acknowledged the problem created by § 32-1524(a)'s deadlines in this context, let alone reconciled them with its understanding of § 32-1507(d).
In accordance with our usual practice, we will not attempt to construe the statutory provisions before the agency charged with administering them has done
so; " we think it inadvisable for this court to attempt to review the issue on this record without a clearer exposition by the agency of its statutory analysis in light of the facts of this case and the broader considerations presented by the issue."  The interpretation of the suspension and modification provisions " should be made, in the first instance, by the agency."  We trust that on remand, or perhaps in subsequent proceedings, the CRB will " engage in the necessary analysis of the legislation it is charged with carrying out." 
IV. Consecutive Payment of Awards
We come now to Brown's objection to the CRB's alternative holding that her awards for both schedule and non-schedule permanent partial disability benefits (assuming Brown is or becomes eligible to receive them) must be paid to her consecutively rather than concurrently. Brown does not persuade us that the Board failed to articulate a reasoned interpretation of the Workers' Compensation Act or otherwise erred in reaching its conclusion. 
As the Board stated, quoting an opinion of this court and an authoritative treatise on workers' compensation law, " where concurrent injuries result from the same accident, the normal rule is that, since a person can be no more than totally disabled at a given point, he or she cannot be awarded both total permanent and permanent partial benefits for the same injurious episode, nor can that person be awarded a cumulation of partial benefits whose sum total is greater than the benefits for permanent total disability."  The Board declared itself " persuaded by this authority."
The " normal rule" means that the combined weekly benefits for two partially disabling injuries (e.g., schedule and non-schedule disability payments) should never be higher than the weekly maximum payment for total disability. As Larson explains, the " theoretical reason" for this rule " is that, at a given moment in time, a person can be no more than totally disabled."  Otherwise stated, a partially disabled worker, who by definition remains capable of earning some wages, should not
be compensated at a higher rate than a totally disabled worker who can earn nothing. Larson adds that a " practical reason" often supports the " normal rule" as well— if the combined weekly benefits of an employee who is capable of working exceed the weekly maximum for total disability, " it may be more profitable for [the employee] to be disabled than to be well— a situation which compensation law studiously avoids in order to prevent inducement to malingering." 
This rule does not mean a permanently disabled employee is forbidden to receive both a schedule and a non-schedule award if the combined weekly compensation from the two awards would be higher than the weekly compensation for total disability. In the District of Columbia, as in many jurisdictions, there are durational limitations on permanent partial disability awards. D.C.Code § 32-1505(b) provides that " [f]or any one injury causing temporary or permanent partial disability, the payment for disability benefits shall not continue for more than a total of 500 weeks." D.C.Code § 32-1508 specifies lower durational limits on the payment of benefits for schedule injuries— for example, the compensation period is 234 weeks for the loss of an arm in the case of an injury occurring on or after April 16, 1999. Consequently, as Larson states, " [t]he great majority of decisions have held" that when an employee has more than one permanent partial disability award, the awards can be paid consecutively— " the maximum allowances for these injuries can, so to speak, be laid end-to-end." 
That is what the Board held in this case with respect to schedule and non-schedule awards for injuries deriving from a single work accident. Its decision to follow what Larson calls " the normal rule" with respect to concurrent permanent partial disability awards was presaged by the conclusion the Board reached a year earlier in Ambrose v. Howard University.  In Ambrose, on remand from this court, the CRB considered the related question of whether a claimant may receive permanent partial schedule disability benefits simultaneously with permanent total disability benefits. 
After considering, inter alia, the " absence of express statutory authority" for such concurrent payment and the lack of support for it in the relevant legislative history, precedent under the Longshoreman's and Harbor Workers' Compensation Act (" LHWCA" ), and " the purpose and the nature of the benefits" in question, the Board held in accordance with Larson's statement of the normal rule that " an injured worker is not entitled to receive permanent partial disability benefits ... concurrently with the award of permanent total disability benefits." 
The considerations on which the CRB relied in Ambrose support its holding in the present case. First, the Workers' Compensation Act does not provide that permanent partial disability benefits must be paid concurrently if they would exceed the benefits payable for total disability. To the contrary, the Act
strongly implies that a combination of even the most serious injuries may at most entitle an employee to receive permanent total disability compensation. Moreover, the Act specifically provides that any multiple schedule awards the claimant receives " shall run consecutively."  Consecutive payment is necessary to avoid paying the partially disabled employee more per week than if the employee were totally disabled, because the weekly compensation payable under a single schedule award, 66 2/3% of the employee's average weekly wages, is the same as it is under a total disability award. Brown does not dispute that her benefits for her different schedule injuries must be paid consecutively in accordance with D.C.Code § 32-1508(3)(U); she argues only that her non-schedule benefits should be paid alongside them. Although the Act does not specify how to pay a permanently partially disabled employee who, like Brown, has been awarded both schedule and non-schedule benefits, the logic of the Act dictates that those awards also should " run consecutively" if concurrent payment would overcompensate the employee compared to one who is totally disabled. " It makes little sense ... to compel [the employer] to pay compensation at a greater rate for a less serious occurrence." 
The essentially identical provisions of the LHWCA have been held to preclude concurrent payments in this situation. The purpose and nature of the benefits in question likewise support the CRB's decision. As this court said in Smith, schedule benefits for permanent partial disability are " intended to compensate only for economic, not physical impairment" ; although a schedule award is " payable regardless of actual wage loss, ... ‘ the schedule was never intended to be a departure from or an exception to the wage— loss principle.’ "  It would constitute such a departure to pay schedule benefits concurrently with other permanent wage loss benefits—
whether those other benefits are for total disability as in Ambrose or a partial disability as in this case— if the combined payments would be more than what the employee could receive even if she were totally disabled.
In sum, the CRB has articulated a reasoned and reasonable interpretation of the Act. Brown has advanced no countervailing argument in favor of concurrent payment, nor has she identified any pertinent factor that the Board neglected to consider. We therefore defer to the Board's interpretation.
For the foregoing reasons, we vacate the decision of the CRB holding that any further payment of disability benefits to Brown is suspended until such time as the January 18, 2007 compensation order finding that she failed to cooperate with vocational rehabilitation is modified pursuant to D.C.Code § 32-1524. We remand this case to the CRB for it to address its authority to raise the suspension issue sua sponte and the applicability of the modification statute and its time limits to the 2007 suspension order. We uphold the CRB's contingent ruling that the awards for permanent partial disability schedule benefits and for permanent partial wage loss benefits are payable consecutively.