Submitted June 1, 2017
Petition for Review of a Decision of the Compensation Review
Board of the District of Columbia Department of Employment
E. Pisano was on the brief for petitioner.
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.
Beckwith and McLeese, Associate Judges, and Farrell, Senior
BECKWITH, ASSOCIATE JUDGE.
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
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.
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.
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
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. 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."
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 ...