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Bowles v. Districe of Columbia Dep't of Empl. Servs.

Court of Appeals of Columbia District

August 6, 2015

VERNICE BOWLES, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT

Argued June 16, 2015

On Petition for Review from an Order of the Compensation Review Board. (CRB-113-13).

Michael J. Kitzman for petitioner.

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. Alikhan, Deputy Solicitor General, were on the brief, for respondent.

Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and NEBEKER, Senior Judge.

OPINION

Page 1265

Nebeker, Senior Judge

Vernice Bowles petitions this court for review of a Department of Employment Services (" DOES" ) determination, pursuant to the D.C. Workers Compensation Act of 1979 (" WCA" ), as amended, D.C. Code § 36-301 et seq. (2012 Repl.), that she suffered only a 10% permanent partial disability (" PPD" ) to her right leg, due to a 2008 work-related knee injury. The DOES Administrative Law Judge (" ALJ" ) determined that Bowles suffered the 10% PPD; the DOES Compensation Review Board (" CRB" ) affirmed. In her petition for review, Bowles argues, inter alia, that the CRB erred in affirming the ALJ's Compensation Order because the ALJ's error, relying on evidence not in the record, was not harmless and the ALJ erred in failing to explain how it calculated Bowles's 10% PPD. We agree. This court cannot discern how the ALJ calculated its 10% PPD determination, let alone assess whether the ALJ's error was indeed harmless. Accordingly, we grant Bowles's petition for review, vacate the 2014 CRB Decision and Order, and remand for further proceedings consistent with this opinion.

I. FACTS

At the time of her initial right knee injury, Bowles worked for Gentle Touch Senior Care as a Residential Counselor. She assisted developmentally-challenged individuals in various aspects of daily living including cooking, cleaning, grocery shopping, caring for their children, and accompanying them to doctor's appointments. On May 30, 2008, while assisting a disabled patient at Target, Bowles slipped

Page 1266

on a red liquid substance on the floor and sustained injuries to her lower back, right knee, and both hips. The 2009 DOES Compensation Order found that Bowles's knee injury arouse out of and in the course of her employment and ordered Gentle Touch Senior Care to pay Temporary Partial Disability (" TPD" ) benefits.

In April 2009, Bowles began working as an escort, accompanying elderly patients to medical appointments, for Washington Nursing Facility (" WNF" ). In June 2011, " While walking to open the patio [at work], Bowles fell, soaked her pants in the liquid on the floor, and injured her right knee and ankle." " Bowles was diagnosed with mild right knee strain secondary to her injuries of June 7, 2011." The 2012 DOES Compensation Order, issued on October 1, 2012, found that Bowles's knee sprain was caused by her June 2011 work-related fall and accordingly ordered WNF to pay Bowles temporary total disability (" TTD" ) benefits from June 7, 2011, to July 25, 2011. " Dr. Frederic L. Salter [of Phillips and Green] stated that, based on his examination of May 25, 2011, Bowles had not suffered any additional significant injury and her scheduled surgery [to address her 2008 knee injury] would proceed without further care for the June 7, 2011 injury." He recommended that Bowles " remain out of work" until her surgery.

Dr. Salter performed a partial lateral meniscectomy and debridement of partial ACL tear on Bowles on July 26, 2011. He examined her three days after the surgery and determined that she was not fit for working duty, but upgraded her from crutches to a cane. Dr. Meyer evaluated Bowles on August 15, 2011, and observed that her " [g]ait is mildly right antalgic." Ultimately, he allowed her to return " to work as her job is essentially sedentary." After receiving permission from Dr. Meyer, about three weeks after the surgery, Bowles returned to her previous position at WNF. Dr. Phillips conducted his final reevaluation of Bowles on June 19, 2012 and concluded that she " ambulates with a mildly right antalgic gait" and suffered a 42% PPD:

Impression: patient has a permanent injury caused by the accident of 05-30-08. Using the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment, she has the following permanent partial impairment to the right lower extremity: Table 17.5, the antalgic gait, 17%; Table 17.6, 1.8 cm of calf atrophy, 8%; Table 17.33, partial medial meniscectomy, 2%, with an additional 2% for the damage to the cruciate ligament; Table 17.10, 8-degree flexion contracture, 8%, with an additional 5% for pain coming to 42% of the lower extremity within a reasonable degree of medical certainty based on the Fifth Edition of the AMA Guides to the Evaluation of Permanent Impairment. Patient has reached maximum medical improvement.
. . .
Work status: as far as the patient's activity, I would not want her working on her feet all day and certainly would not want her climbing any stairs and/or ladders on a routine basis.

Bowles was ultimately fired from WNF on July 23, 2012 for reasons unrelated to her knee injuries.

DOES Compensation Order. Bowles filed a claim for WCA benefits with DOES on the grounds that she suffered a 42% PPD (loss-of-use, schedule award) to her right leg as a result of the May 30, 2008 injury to her leg, while employed at Gentle Touch Senior Care. ALJ Linda F. Jory presided over a full evidentiary hearing on July 31, 2013. At the hearing, Bowles submitted the 2009 DOES ...


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