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Howard University Hospital v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

January 31, 2019

Howard University Hospital, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and James M. Lyles, Jr., Intervenor.

          Argued September 25, 2018

          On Petition for Review of an Order of the District of Columbia Department of Employment Services Compensation Review Board (CRB-36-17)

          William H. Schladt 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.

          David J. Kapson, with whom Kevin H. Stillman was on the brief, for intervenor.

          Before Thompson and McLeese, Associate Judges, and Pryor, Senior Judge.

          McLeese, Associate Judge.

         Petitioner Howard University Hospital (HUH) challenges an award of workers' compensation to intervenor James M. Lyles, Jr. We vacate and remand for further proceedings.

         I.

         Mr. 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.

         At a 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.

         Mr. 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.

         HUH 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 injury.

         The ALJ 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.

         The ALJ 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, the ...


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