September 25, 2018
Petition for Review of an Order of the District of Columbia
Department of Employment Services Compensation Review Board
William H. Schladt 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
J. Kapson, with whom Kevin H. Stillman was on the brief, for
Thompson and McLeese, Associate Judges, and Pryor, Senior
McLeese, Associate Judge.
Howard University Hospital (HUH) challenges an award of
workers' compensation to intervenor James M. Lyles, Jr.
We vacate and remand for further proceedings.
Lyles worked for HUH as a radiological technician. In 2013,
he felt pain in his right shoulder while lifting a patient to
prepare for an x-ray. Mr. Lyles received medical treatment
and eventually filed a workers' compensation claim
seeking disability benefits pursuant to D.C. Code §
32-1508 (3)(A) and (S) (2012 Repl.), which provide for
compensation for permanent partial loss of the use of an arm.
HUH did not dispute that Mr. Lyles had suffered a
work-related injury and was entitled to some compensation.
HUH and Mr. Lyles presented conflicting evidence about the
extent of Mr. Lyles's disability.
February 2017 hearing before an administrative law judge
(ALJ), Mr. Lyles testified that he still felt a burning and
tearing sensation from his neck down into his arm, which was
aggravated by motions such as lifting, pulling, and pushing.
He further testified that his right arm was very weak and
that he therefore did not use his right arm as much as he
used to. At the time of the hearing, Mr. Lyles was working
for a new employer as a radiological technician/medical
assistant. His duties for his new employer did not include
pulling or lifting of patients or machinery. Mr. Lyles also
testified that he was no longer able to bowl or lift heavy
weights at the gym. Mr. Lyles acknowledged that he had
suffered a previous injury to his right shoulder in 2011,
while working for a different employer, and had claimed
disability benefits from his employer in connection with that
injury. That disability claim was settled.
Lyles introduced the results of an independent medical
examination conducted in 2016 by Dr. Matthew Menet. Dr. Menet
concluded that Mr. Lyles still had difficulty lifting,
reaching, and pulling. In opining about the extent of Mr.
Lyles's disability, Dr. Menet relied upon the Fourth
Edition of the American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides). Dr. Menet
also considered pain, loss of function, weakness, and loss of
endurance. Dr. Menet concluded that Mr. Lyles had a 47%
permanent impairment to his right upper extremity. That
figure rested on adding the following specific impairments:
3% based on lack of full range of motion, 12% for pain, 10%
for weakness, 12% for loss of function, and 10% for loss of
endurance. According to Dr. Menet, 20% of the 47% impairment
was related to Mr. Lyles's 2011 injury and 27% was
related to Mr. Lyles's 2013 injury.
introduced the results of an independent medical examination
conducted in 2016 by Dr. Mark Scheer. Dr. Scheer relied on
the Sixth Edition of the AMA Guides, as well as his
assessment of Mr. Lyles's pain, weakness, atrophy, loss
of function, and loss of endurance. Dr. Scheer concluded that
Mr. Lyles had a 4% permanent impairment to his right upper
extremity. According to Dr. Scheer, 2% of the 4% impairment
was preexisting and 2% was related to Mr. Lyles's 2013
credited Mr. Lyles's testimony and gave greater weight to
Dr. Menet's opinion than to Dr. Scheer's opinion.
With one exception, the ALJ adopted Dr. Menet's
calculations in determining the extent of Mr. Lyles's
disability. The exception was that the ALJ did not accept the
10% impairment based on loss of endurance, because Mr. Lyles
had returned to full-time work as a radiological
technician/medical assistant. The ALJ therefore concluded
that Mr. Lyles had suffered a 37% permanent disability to his
right upper extremity.
further concluded that HUH should be held responsible for all
of the impairment at issue, not solely the portion of the
impairment that was caused by Mr. Lyles's most recent
injury. The ALJ explained that apportionment of disability
was precluded by D.C. Code § 32-1508 (6)(A) ("If an
employee receives an injury, which combined with a previous
occupational or nonoccupational disability or physical
impairment causes substantially greater disability or death,