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Jones v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

May 4, 2017

Kevatte A. Jones, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and Washington Metropolitan Area Transit Authority, Intervenor.

          Submitted May 27, 2015

         On Petition for Review of a Decision of the Compensation Review Board (CRB-095-13)

          Krista N. DeSmyter was on the brief for petitioner.

          Eugene 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.

          Before Thompson and Beckwith, Associate Judges, and Belson, Senior Judge.

          Belson, Senior Judge.

         Kevatte 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.

         I.

         Petitioner 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.

         Prior 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 applicants.

         Following 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.[1] 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.

         Between 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.

         At a 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 that ...


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