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Abebe v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

June 7, 2018

Solomon Abebe, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and US Security Associates Holdings and Liberty Mutual Holdings Insurance Company, Intervenors.

          Submitted June 1, 2017

          On Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-44-16)

          Lauren E. Pisano was on the brief for petitioner.

          Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the statement was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the statement was filed, filed a statement in lieu of brief for respondent.

          Christopher R. Costabile was on the brief for intervenor.

          Before Beckwith and McLeese, Associate Judges, and Farrell, Senior Judge.

          BECKWITH, ASSOCIATE JUDGE.

         Petitioner Solomon Abebe was injured on the job and filed a workers' compensation claim for disability benefits. His claim was granted in part and denied in part, and the Compensation Review Board (CRB) affirmed. Mr. Abebe petitions for our review. Agreeing that the CRB erred in affirming the compensation order, we vacate its decision and remand for further proceedings.

         I.

         Mr. Abebe worked as a security guard at CVS, a job that required him to stand for eight-hour shifts and watch for shoplifters, among other duties. While he was at work one day in February of 2013, Mr. Abebe approached a group of people he believed were attempting to shoplift. They attacked him, punching and kicking him and leaving him unconscious on the floor.

         Dr. Christopher Magee treated Mr. Abebe for his injuries, diagnosing him with post-traumatic calcific bursitis of the right shoulder, lumbosacral strain, contusion of both knees, and right ankle sprain. Dr. Magee performed arthroscopic surgery to excise and debride a torn labral in Mr. Abebe's right shoulder. An MRI of his right knee ruled out any tears.

         Mr. Abebe underwent two additional medical examinations prior to the hearing on his workers' compensation claim. Dr. Harvey Mininberg performed an independent medical evaluation (IME) at Mr. Abebe's request and opined that he suffered from a 36% permanent partial impairment to his right upper extremity and a 32% permanent partial impairment to his right lower extremity as a result of the attack. And Dr. Robert A. Smith twice examined Mr. Abebe at his employer's request. Dr. Smith opined that Mr. Abebe suffered from an 8% permanent partial impairment to his right shoulder, 4% of which was preexisting and 4% of which resulted from the attack. Dr. Smith indicated that Mr. Abebe had 0% impairment in his right knee.

         Mr. Abebe sought awards of permanent partial disability (PPD) of 36% to his right upper extremity and 32% to his right lower extremity, in line with Dr. Mininberg's opinion, and an evidentiary hearing was held before an administrative law judge (ALJ). The ALJ subsequently issued a compensation order in which he found that Mr. Abebe was credible and continued to experience pain and impairment, but in which he also rejected Dr. Mininberg's PPD ratings entirely and Dr. Smith's evaluation "to the extent that it does not properly account for Mr. Abebe's subjective complaints." The ALJ granted Mr. Abebe's claim in part, awarding him compensation for an 8% PPD to his right upper extremity but no compensation for his right lower extremity. The ALJ found that, whereas Mr. Abebe could previously stand for an eight-hour shift and ran and rode his bicycle regularly, after the assault he struggled with pain, could stand for no longer than twenty minutes at a time, and could not "even press the pedal" of his bike due to pain.[1] The ALJ nevertheless believed himself constrained to deny a compensation award for Mr. Abebe's knee injury because "the evidentiary record provides no basis for a specific percentage of disability based upon those subjective complaints."

         Mr. Abebe appealed to the Compensation Review Board, arguing that the 0% PPD award for his right knee was not supported by substantial evidence in the record. The CRB affirmed, although on somewhat different grounds from the ALJ. The CRB referred to an intervening decision of this court, M.C. Dean, Inc. v. District of Columbia Department of Employment Services, 146 A.3d 67 (D.C. 2016), in which we held that "[a] schedule award should not increase based on functional impairment of personal and social activities because those are beyond the economic scope of the Act." Id. at 76-77. The CRB concluded that evidence that Mr. Abebe "is unable to run ...


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