Kevatte A. Jones, Petitioner,
District of Columbia Department of Employment Services, Respondent, and Washington Metropolitan Area Transit Authority, Intervenor.
Submitted May 27, 2015
Petition for Review of a Decision of the Compensation Review
N. DeSmyter was on the brief for petitioner.
A. Adams, Interim Attorney General for the District of
Columbia at the time the brief was filed, Todd S. Kim,
Solicitor General, Loren L. AliKhan, Deputy Solicitor
General, and Mary L. Wilson, Senior Assistant Attorney
General, filed a statement in lieu of brief for respondent.
Kathryn H.S. Pett, General Counsel, Washington Metropolitan
Area Transit Authority, and Sarah O. Rollman, Chief Counsel,
were on the brief for intervenor.
Thompson and Beckwith, Associate Judges, and Belson, Senior
Belson, Senior Judge.
A. Jones petitions this court for review of a decision of the
Compensation Review Board ("CRB") that denied, in
part, her claim for permanent partial disability. Petitioner,
who was injured while employed as a bus driver, contends that
the CRB erred as a matter of law when it concluded that she
was prohibited from presenting, to support her claim,
evidence that because of her injury she could not meet the
physical requirements of her previous job as a deputy
sheriff. Without a clear explanation of the basis of the
CRB's conclusion, we are unable to determine whether the
CRB's decision was a reasonable interpretation of the
statute that it administers, and, therefore, remand the
matter to the CRB for further consideration so that it can
set forth more clearly the basis for its decision.
was hired by the Washington Metropolitan Area Transit
Authority ("WMATA") as a bus driver on August 6,
2007. On September 25, 2007, petitioner - while operating her
employer's bus - was involved in a crash in which the bus
"jumped a curb, " then "hit a building and a
pole." AHD No. 08-309A, Compensation Order at 2 (June
26, 2013) [hereinafter "Compensation Order"]. The
crash caused petitioner's head to strike the driver's
side window, and caused her left arm and left knee to strike
the left side panel of the bus. The respective impacts
injured petitioner's head and left arm, leg, and knee.
to being hired by WMATA, petitioner had worked as a deputy
sheriff for the Arlington County Sheriffs Department for a
period of ten years. But one year after she sustained an
injury to her left knee while working as a deputy sheriff in
2006, she ceased that line of work and began working as a bus
driver for WMATA. Petitioner testified that after she was
injured while driving a bus for WMATA she unsuccessfully
attempted to return to her career in law enforcement.
Petitioner asserts that - due to the injury she suffered as a
bus driver - she cannot meet the physical standards that
local law enforcement agencies require of their job
the accident, on October 12, 2007, petitioner came under the
care of Dr. Joel Fechter. Petitioner was cleared to return to
full-duty work on November 5, 2007, and obtained employment
as a bus driver for Prince George's County
Schools. Petitioner experiences no difficulties in
performing all of the duties required of her for that job,
save for her inability to wash the bus she drives.
October 2007 and June 2012, petitioner underwent a variety of
treatments under the care of Dr. Fechter to rehabilitate her
from her various injuries. Full recovery, however, was not
attained, and on June 13, 2012, Dr. Fechter concluded that
petitioner "had reached maximum medical
improvement." In light of his medical opinion, Dr.
Fechter provided permanent partial impairment ratings of 32%
for petitioner's left upper extremity and 25% for her
left lower extremity. At WMATA's request, petitioner was
examined by a second physician, Dr. Stephen R. Matz, on
January 22, 2013. Dr. Matz assigned disability ratings of 10%
for the left upper extremity and 15% for the left knee, of
which he attributed 5% to her September 25, 2007, injury
while driving for WMATA.
formal hearing before a Department of Employment Services
("DOES") Administrative Law Judge
("ALJ"), petitioner submitted "evidence of her
industrial history, " specifically her previous work
experience as an Arlington County deputy sheriff, "to
demonstrate her diminished ability to compete in the labor
market because of her work injury." CRB No. 13-095,
Decision and Order at 2 (June 10, 2014) (footnote omitted)
[hereinafter "Decision and Order"]. She testified
that she was unable to perform the push-ups, running, and
dragging of heavy objects necessary to obtain such job. The
ALJ, however, did not permit detailed testimony regarding
petitioner's former employment, and did not consider
petitioner's inability to return to her former employment
in assessing her permanent partial disability schedule award.
The ALJ ruled that while her "work as a police officer
would certainly be relevant" if she were seeking a
permanent impairment disability award with respect to an
injury sustained as a police officer, petitioner had ceased
working as a police officer, was employed as a bus driver
when she was injured, and was seeking a permanent partial
disability award for injuries sustained as a bus driver. The
ALJ awarded petitioner 12.5% permanent partial disability of
the left arm and 16% permanent partial disability of the left
leg. Petitioner appealed, and the CRB affirmed, concluding
that petitioner had no right to introduce the evidence of the
physical demands of her prior employment. The CRB reasoned