M.C. DEAN, INC. v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, & ANTHONY LAWSON, Intervenor
146 A.3d 67
D.C.2016Background
- In April 2006 Lawson injured his neck and shoulders lifting at work; he later developed radicular symptoms into both arms and had multiple surgeries (left rotator cuff, cervical fusion, right carpal tunnel).
- Lawson sought schedule awards for permanent partial disability to both arms; treating surgeon Dr. Moskovitz assessed bilateral “upper extremity” impairments that began "at the base of the skull," effectively including neck and shoulder pathology in his arm ratings.
- Employer’s expert Dr. Scheer gave much lower upper-extremity ratings and attributed some neuropathy to non‑work causes; the ALJ credited Dr. Moskovitz and awarded 45% to the right upper extremity and 30% to the left.
- The ALJ increased the ratings by adding percentages for pain/weakness/endurance and for unspecified additional factors; he expressly increased the left award for personal, social, and occupational activity limitations without tying those to wage‑earning capacity.
- The CRB affirmed; employer (M.C. Dean and insurer) petitioned for review arguing (1) the ALJ/CRB conflated non‑schedule neck/shoulder impairments with schedule arm awards and (2) the ALJ improperly increased awards based on personal and social activity limitations.
- The court granted review, reversed and remanded: it instructed the CRB to clarify whether the statutory term “arm” is coterminous with the medical term “upper extremity,” and remanded for a new disability analysis because (a) ALJ’s right‑arm award lacked adequate explanation and (b) personal/social impacts were not shown to have an economic nexus to wage‑earning capacity.
Issues
| Issue | Plaintiff's Argument (Lawson) | Defendant's Argument (M.C. Dean) | Held |
|---|---|---|---|
| Whether a schedule award for the “arm” can be based on a treating doctor’s “upper extremity” rating that includes neck/shoulder impairments | Dr. Moskovitz limited his assessment to the upper extremities and the ALJ properly credited him | Dr. Moskovitz improperly began "at the base of the skull," conflating non‑schedule neck/shoulder impairments with schedule arm awards | Remanded to CRB to clarify legal boundary between “arm” and “upper extremity”; court stressed precedent treating neck/shoulder as non‑schedule unless CRB explicitly changes scope |
| Whether schedule awards may compensate impairments caused by non‑schedule anatomical situs (e.g., neck/shoulder causing arm disability) | Radiating or resultant arm disability can justify a schedule award if there is an independent functional impairment of the arm | Radiating pain from neck/shoulder cannot alone form the basis for a separate schedule arm award | Court reiterated that situs of disability (not situs of injury) controls; however, where medical ratings include neck/shoulder, the CRB/ALJ must separate impairments or clarify scope |
| Whether ALJ may increase schedule ratings based on personal and social activity limitations absent an economic nexus | Personal/social limitations reflect functional loss and can inform disability rating | Personal/social activities are beyond the economic scope and cannot be independently compensated without showing connection to wage‑earning capacity | Court held ALJ erred to the extent he increased awards for personal/social activities without demonstrating a nexus to wage‑earning capacity; such increases are not independently compensable |
| Whether the ALJ provided adequate findings to support the right‑arm award (increase to 45%) | The overall record supports the higher award | The ALJ failed to identify or explain the ‘‘additional factors’’ used to increase the right‑arm award, preventing meaningful review | Court remanded because the ALJ failed to explain the basis for the additional 15% on the right; remand for clearer findings and application of statutory factors |
Key Cases Cited
- WMATA v. District of Columbia Dep’t of Emp’t Servs. (Chang), 683 A.2d 470 (D.C. 1996) (situs of the disability controls schedule award eligibility)
- Negussie v. District of Columbia Dep’t of Emp’t Servs., 915 A.2d 391 (D.C. 2007) (distinguishing medical impairment from legal/economic disability; use of AMA Guides is limited)
- Morrison v. District of Columbia Dept. of Emp’t Servs., 736 A.2d 223 (D.C. 1999) (distinguishing arm from shoulder for schedule vs non‑schedule awards)
- Petway (Howard Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs.), 994 A.2d 375 (D.C. 2010) (concurrent schedule and non‑schedule awards for separate disabilities from single injury)
- Bowles v. District of Columbia Dep’t of Emp’t Servs., 121 A.3d 1264 (D.C. 2015) (agency must explain reasoning for disability award percentages)
- Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219 (D.C. 2012) (remand required where ALJ fails to explain basis for chosen disability percentage)
- DeShazo v. District of Columbia Dep’t of Emp’t Servs., 638 A.2d 1152 (D.C. 1994) (scheduled awards reflect presumed economic loss, not case‑specific wage loss)