Lead Opinion
Associate Judge:
Intervenor Anthony Lawson, a street light technician, filed for permanent partial disability benefits for impairment of both of his arms resulting from a neck and shoulder injury he sustained during the course of his employment with petitioner M.C. Dean, Inc, The Administrative Law Judge (“ALJ”) awarded Mr. Lawson “schedule” benefits based on a forty-five-percent (45%) permanent partial disability rating for Mr. Lawson’s “right upper extremity” and a thirty-percent (30%) permanent partial disability rating for his “left upper extremity.”
On petition for review to this court, petitioners argue that the CRB erred by affirming the ALJ’s compensation order that improperly (1) combined non-schedule impairments of the neck and shoulders and schedule impairments of the arms into assessments of the “upper extremities” when awarding schedule disability benefits for the “arms,” and (2) considered the impact of the impairments on Mr. Lawson’s personal, social, and occupational activities in addition to the statutory factors to increase the schedule disability award. We grant the petition for review, reverse the disability award, and remand for legal clarification by the CRB of the injuries attributable to the “arm,” versus the upper extremity, pursuant to a schedule award and for new disability analysis by the ALJ consistent with D.C.Code § 32-1508(3)(U-i) (2012 Repl.),
I. Background
Injury and Treatment
On April 1, 2006, Mr. Lawson sustained an injury to his neck and shoulders while
Administrative Proceedings and the ALJ’s Compensation Order
Mr. Lawson filed his compensation claim in January 2012. Both parties obtained permanent partial impairment diagnoses for purposes of the litigation. Mr. Lawson’s expert was treating physician Dr. Moskovitz, who was qualified as an expert in orthopedic surgery without objection. Dr. Moskovitz determined that Mr. Lawson had a twenty-seven percent (27%) impairment of the entire body on March 15, 2012, based on “class III cervical spine impairment that is permanent with modifiers for rotator cuff disease, AC [acromioclavicular] arthritis and persisting neuritis/CTS [carpal tunnel syndrome].” Because the District of Columbia Workers’ Compensation Act (“the Act”)
The specifics of Dr. Moskovitz’s methodology are important. In both his written assessments and his deposition, Dr. Mos-kovitz discussed the impairments of Mr. Lawson’s neck, shoulders, arms, and hands together. He explained that the current edition of the AMA Guides makes separation of specific impairments more difficult, which prompted him to initially evaluate impairment of the whole person. When
Petitioners paid for an independent expert evaluation of Mr. Lawson’s injuries by Dr. Scheer, also an orthopedic surgeon. Applying the AMA Guides, he concluded in his final assessment completed July 2, 2012, that Mr. Lawson suffered only a ten percent (10%) impairment of the left upper extremity causally related to the April 2006 injury with no causally related impairment of the right upper extremity. Dr. Scheer identified a further two percent (2%) impairment of each upper extremity from ulnar neuropathy unrelated to the April 2006 injury.
Mr. Lawson testified at the administrative hearing on February 14, 2013. He described his injury and the long series of treatments. Because the hearing was held just two months after his right hand carpal tunnel surgery, he could not yet determine whether the operation had improved his condition. He did not show any wage loss, but he indicated that he was assigned fewer job duties, was a less efficient worker, and could no longer supplement his income with contract work. The record does not indicate how much income Mr. Lawson previously received from the supplemental contract work, and the parties had stipulated his weekly wages at $1120, which produces a statutory compensation rate of $745.
Mr. Lawson sought schedule benefits for a fifty-percent (50%) permanent partial disability of his right upper extremity and a thirty-percent (30%) permanent partial disability of his left upper extremity. In his post-hearing brief, Mr. Lawson explained that he sought “a much higher disability rating than the [impairment] ratings” assigned by Dr. Moskovitz due to his “limited opportunities for advancement based on his skills, work history, and the restrictions imposed by his disability.” In the compensation order, the ALJ credited Dr. Moskovitz, the treating physician, over Dr. Scheer, hired by the employer for purposes of litigation. The ALJ found Dr. Moskovitz’s medical opinion to be more persuasive and consistent with the record, and the ALJ accepted his conclusions that Mr. Lawson’s impairments resulted from the April 2006 work injury and that Mr. Lawson had reached maximum medical improvement. The ALJ therefore found that Mr. Lawson had a thirty-one percent (31%) impairment of the right upper extremity and a sixteen percent (16%) impairment of the left upper extremity based on Dr. Moskovitz’s medical assessment.
The ALJ then proceeded from the medical impairment analysis to the non-medical disability analysis to determine the extent of Mr. Lawson’s permanent partial disability. Starting with the right upper extremity, the ALJ considered the five factors from D.C.Code § 32-1508(3)(U-i): pain, atrophy, weakness, loss of endurance, and loss of function. Based on Mr. Lawson’s testimony and the medical evidence, the ALJ assigned ten percent permanent par
Turning to the left upper extremity, the ALJ found “the same symptoms affecting that body part as he does on the right side, although perhaps not as extreme.” The ALJ assigned five percent permanent partial disability for pain, five percent for weakness, and five percent for loss of endurance. The ALJ then considered the impact of the injury on Mr. Lawson’s personal life, specifically on “personal activities” such as sleeping and shopping, “social activities” such as recreation, and “occupational activities” such as independent contract work. The ALJ assigned an additional five percent disability for each of those activities, producing “a total 30 per cent permanent partial disability of the left upper extremity.” The ALJ never considered whether the “upper extremities” as defined by Dr. Moskovitz differed from the “arms” as stated in the Act’s schedule. Petitioners appealed to the CRB.
The CRB’s Decision and Order
Petitioners appealed the ALJ’s compensation order to the CRB, arguing that the ALJ erred by (1) awarding schedule benefits for impairment of the arms based on non-schedule injury to the neck and shoulders and (2) considering personal, social, and occupational impacts beyond the scope of the economic disability inquiry under D.C.Code § 32-1508(3)(U-i).
The CRB also held that the ALJ properly considered personal and social activities in his disability determination. It reasoned that “[a] claimant’s inability to perform personal or social activities can demonstrate an effect on the ability to perform job duties.” The CRB noted that an inability to carry groceries or play sports “demonstrate^] an inability to perform functions similar to those required by [Mr. Lawson’s] job” that involves heavy lifting. It also found that an additional disability award for occupational activities was proper because “consideration of a disability’s effect on occupational capacity is precisely what an ALJ is tasked to do when assessing schedule member permanent partial disability.” The CRB therefore affirmed the compensation order, and M.C. Dean and Zurich North America filed a petition for review with this court.
II. Analysis
A. Standard of Review
“Our review of a final order of the CRB is limited to determining whether the decision is arbitrary, capricious, an
B. Whether the Schedule Award for the “Upper Extremity” Was Appropriate
The term “upper extremity” used by Dr. Moskovitz in his assessment is not specifically defined in the Act or related regulations. Petitioners challenge whether the “upper extremity” is synonymous with the term “arm” used, but not specifically defined in, the Act for purposes of a schedule award. See D.C.Code § 32-1508(3)(A). See generally Continental Ins. Cos. v. Pruitt, 541 S.W.2d 594, 595 (Tenn.1976) (rejecting argument that “upper left extremity” was equivalent to the left “arm” for purposes of statutory workers’ compensation schedule). Petitioners attack the methodology behind Dr. Moskovitz’s upper extremity assessments because he began at the base of the skull and included impairments to the neck and shoulders. They contend that the mingling of the schedule (arm) and non-schedule (neck and shoulder) impairments required the ALJ to separate out the economic disability attributable to just the arms before making an award. Mr. Lawson counters that Dr. Moskovitz limited his assessment to arm impairments and the ALJ properly credited Dr. Moskovitz’s diagnoses.
Our review of Dr. Moskovitz’s deposition testimony in the record indicates that he included more than Mr. Lawson’s arms in his assessment of the upper extremity impairments. Specifically, in his initial assessment, Dr. Moskovitz explained that he “combined everything related to cervical spine and shoulders as a whole person rating, and [he] understood later that the statutory requirements or regulatory requirements, whatever they are in the District of Columbia, require a different classification .... ” Having included “everything” in his whole person rating, Dr. Moskovitz did not exclude neck and shoulder impairments from his new calculations for the upper extremities because, in his view, “[t]he upper extremity begins at the base of the skull.” The inclusion of everything beginning at the base of the skull — neck, shoulder, and arm impairments together — in both the “whole person” and “upper extremity” assessment's is further reflected by Dr. Moskovitz’s statements that the upper extremity impairments, if translated into a whole person impairment number, would be “pretty consistent,” if not “exactly the same figure,” presumably because he was simply subdividing the exact same impairments into right and left sides. Finally, when asked for his “opinion within a reasonable] degree of medical certainty as to the impairments of [Mr. Lawson’s] upper extremities as a result of the April 1st, 2006 injury,” Dr. Moskovitz responded that “the physical impairment of [Mr. Lawson’s] right upper extremity is 31
The terms “arm” and “upper extremity” are often used interchangeably for purposes of schedule awards. See, e.g., Negussie v. District of Columbia Dep’t of Emp’t Servs., 915 A.2d 391, 393-95 (D.C.2007) (claimant sought “a schedule award of 28% for permanent partial disability to the left arm” but the ALJ awarded “six percent (6%) permanent partial disability for loss of industrial use of the left upper extremity”). Yet Dr. Moskovitz’s definition (“upper extremity begins at the base of the skull”) reflects a potential distinction in the terms. See 7 Larson, Workers’ Compensation Law § 87.02, at 87-3 & n. 4.1 (2015) (noting that physicians may be more comfortable discussing the upper and lower extremities than simply the arm and the leg). Without a clear determination from the CRB as to where the arm begins for purposes of a schedule award, a particular doctor’s or ALJ’s understanding of the terms “arm” and “upper extremity” may result in the inconsistent determination of schedule awards or, as petitioners contend here, in the arbitrary expansion or reduction of a schedule “arm” award in a particular case.
The fact that Mr. Lawson’s injury was limited to the neck and shoulders does not prevent independent impairments of the arms because “it is not the situs of the injury which determines whether a schedule award is payable; it is the situs of the disability resulting from the injury which is controlling.” Petway, supra, 994 A.2d at 376-77 (quoting Kovac v. Avis Leasing Corp., H & AS No. 84-177, OWC No. 000792, at 6 (Director’s Decision July 17, 1986)). However, the Department of Employment Services has previously interpreted the Act to exclude the neck and shoulder from schedule arm awards. See Morrison v. District of Columbia Dept. of Emp’t Servs., 736 A.2d 223, 225-26 & n. 1 (D.C.1999) (collecting D.C. administrative cases distinguishing the arm from the shoulder for purposes of schedule awards). Morrison presented the inverse of this case: the claimant had suffered one injury that affected both his arm and his shoulder, but he was awarded only schedule benefits for the “right upper extremity” despite also seeking non-schedule benefits based on evidence of his shoulder disability. Id. at 226-27. We determined that “right upper extremity” must have meant the arm without the shoulder because it produced a schedule award. Id. at 226 n. 4. We therefore remanded because a separate and distinguishable shoulder disability would be separately compensable as a non-schedule disability, subject to a showing of wage loss. Id. at 228. Analogously, in Petway, we considered a claimant’s eligibility for concurrent schedule and non-schedule awards based on impairment of the lower back and legs. 994 A.2d at 376. We used the agency’s terminology and affirmed the “finding that the injuries to Ms. Petway’s low[er] back and to her lower extremities were ‘separate and distinct dis
Although prior administrative decisions held that actual neck and shoulder impairments can only contribute to non-schedule disability awards, see Morrison, supra, 736 A.2d at 225 n. 1, the CRB affirmed the compensation order in this case in which the ALJ fully credited Dr. Moskovitz’s upper extremity impairment assessment without grappling with the inclusion of neck and shoulder impairments in that assessment. The CRB is entitled to deference in its interpretation of the Act which does not explicitly define either the “arm” or the “upper extremity.” The CRB has expertise in the area of workers’ compensation and could potentially conclude — though we take no position — that sound policy and legislative intent support a change in the scope of arm awards since Morrison was decided in 1999. Compare Dye v. Indus. Comm’n of Ariz., 153 Ariz. 292, 736 P.2d 376, 378 (1987) (en banc) (holding shoulder, though part of the “left upper extremity,” is not included in a schedule award for the arm), and Safeway Stores, Inc. v. Indus. Comm’n of Ariz. (Peterson), 27 Ariz.App. 776, 558 P.2d 971, 974 (1976) (collecting cases from several jurisdictions distinguishing the arm from the shoulders for workers’ compensation awards), with Strauch v. PSL Swedish Healthcare Sys., 917 P.2d 366, 368-69 (Colo.Ct.App.1996) (stating that the court was “not persuaded ... as a matter of law that the shoulder is not part of the arm”). Because the extent of the “arm” differentiates schedule awards and non-schedule awards, a definition of that boundary is essential. Looking at this case, while the rotator cuff may lie in a gray area on the border of the shoulder and arm (an important question that the CRB may need to resolve), cervical spine impairments plainly fall within the neck rather than the arm as previously understood. If the CRB has changed the scope of schedule awards for the “arm” since Morrison was decided, it must state the change explicitly so that the Act may be uniformly applied.
C. Consideration of Personal, Social, and Occupational Activities
Petitioners also raise an alternative argument challenging the ALJ’s legal analysis. They contend the ALJ erred by first performing the standard five-factor analysis of § 32 — 1508(3)(U—i) to arrive at thirty percent (30%) disability for the right upper extremity and fifteen percent (15%) disability for the left upper extremity, then increasing each upper extremity schedule disability award by fifteen percent (15%) based on additional factors not set forth in the statute. For the right upper extremity increase, the compensation order has only one sentence: “Based upon these finding, [sic] I assign 5 per cent disability to each of these factors, for a total 45 per cent disability of the right upper extremity.” The other “finding[s]” or “factors” are never identified. For the left am, the compensation order includes two paragraphs explaining the personal, social, and occupational limitations resulting from the disability before assigning an additional “5 per cent permanent partial disability for the impact the work injury has caused impacting upon [Mr. Lawson’s] activities in these areas for a total 30 per cent permanent partial disability of the -left upper extremity.”
The ALJ’s omission of the additional findings regarding the right upper extremity award prevents meaningful review of the decision. “[A] reviewing court ... must know the reasons that underlie the decision made by the agency.” Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219, 1224 (D.C.2012). Petitioners argue that the ALJ relied on the same three factors laid out in the left upper extremity analysis — five percent increases each for personal, social, and occupational activities — when increasing the right upper extremity award. Mr. Lawson counters that the ALJ increased the award by the same three statutory factors used previously — pain, weakness, and. loss of endurance — though he cannot explain why the ALJ would reiterate the same factors instead of awarding fifteen percent disability for each factor in the first instance. The debate between counsel at oral argument about the additional factors the ALJ used to determine the disability percentage reflects the lack of clarity in the ALJ’s additional award for the right upper extremity. Because the ALJ “fail[ed] to ‘explain its reasoning in arriving at a disability award’ ” for the right upper extremity, “we must remand the case back to the CRB.” Bowles v. District of Columbia Dept. of Emp’t Servs., 121 A.3d 1264, 1269 (D.C.2015) (quoting Jones, supra, 41 A.3d at 1225).
Turning to the left upper extremity award, petitioners argue that the independent five-percent increases in the disability rating for personal, social, and occupational activities were improper. Mr. Lawson counters that consideration of personal and social activities falls within the ALJ’s discretion when assessing the economic disability resulting from a claimant’s impairments. He further argues that consideration of occupational limitations is necessarily within the ALJ’s role in determining disability.
We conclude that the ALJ erred in failing to demonstrate a nexus between Mr. Lawson’s personal and social activities and his wage earning capacity, and therefore the disability award should not have been increased by non-occupational consequences of an injury. A schedule award should not increase based on functional
The ALJ also found that Mr. Lawson’s arm injuries imposed “physical limitations regarding overhead work” causing an inability to perform some work assignments. These functional limitations both narrowed Mr. Lawson’s work assignments and his ability to seek second jobs as an indepen-deht contractor. As a result, the ALJ awarded five percent partial disability for occupational limitations. The CRB affirmed, reasoning that “consideration of a disability’s effect on occupational capacity is precisely what an ALJ is tasked to do.” Petitioners argue that the occupational limitations were de minimis and warranted no further award beyond the factor analysis, and Mr. Lawson again relies on Negussie and the ALJ’s general discretion.
We agree that determining “occupational capacity is precisely what an ALJ is tasked to do,” but it is not clear that occupational capacity should be an independent factor evaluated in a vacuum. Limitations of occupational activities are assessed under the statutory structure (with the Maryland factors of pain, weakness, atrophy, loss of endurance, and loss of function), and our recent decisions have emphasized that variance from the physical impairment rating to the economic disability rating should be specifically explained. See Bowles, supra, 121 A.3d at 1269-70 (remanding where disability award could not be derived from summation of the possible evidence: “No combination of 7%, 8%, and 5% add[s] up to just 10%”); Jones, supra, 41 A.3d at 1226 (remanding for additional findings where the basis for a 7% disability award “and not, for example, 1%, 10% or 30% — is a complete mystery”). On remand, the CRB should consider whether a compensation order must connect the specific impairments to a factor in the disability analysis instead of compensating occupational capacity in the abstract. If so, the ALJ’s findings in this case regarding limited range of motion affecting job duties would still be relevant, and they might support an award increase for “loss of function” under § 32-1508(3)(U-i)(v).
The ALJ did not clearly explain its award for the right upper extremity. The ALJ also erred by considering personal and social activities as independent factors in the left upper extremity disability analysis without .demonstrating an economic nexus to wage-earning capacity. We therefore remand for new disability analysis by the ALJ and clarification of the role of “occupational capacity” in the disability analysis by the CRB.
III. Conclusion
In this case, the ALJ credited an expert whose assessment included all of the claim
So ordered.
. ‘'Schedule” benefits automatically compensate for economic disability of particular parts . of the body with a conclusively-presumed amount. "Non-schedule” benefits are based on the actual wage loss that results' from an economic disability. Here, Mr, Lawson sought only a schedule award for disabilities of both arms, while neck and shoulder disabilities give rise to non-schedule awards. The ALJ and CRB used the term “upper extremity” throughout this case to support a schedule disability award for the "arm,”
. With the exception of temporary disability benefits collected during recuperation from the surgeries discussed herein, Mr. Lawson never stopped work or lost any wages, and M.C. Dean did not make any voluntary payments for permanent disability.
. D.C.Code §§ 32-1501 to-1545 (2012 RepL).
. $745 reflects the statutory amount of 66 2A% of Mr. Lawson's average weekly wage. See D.C.Code § 32-1508(3). For complete loss of arm function, an employee receives 312 weeks' compensation. § 32-1508(3)(A). Although the actual monetary award was not specifled, it appears that Mr. Lawson would receive seventy-five percent (75%) of the value of an arm lost, producing a compensation amount of $174,330 (0.75 x $745/week x 312 weeks).
. Petitioners also challenged the ALJ's failure to credit them for the amount of temporary benefits paid after Mr. Lawson’s various sur-genes, but the CRB declined to address the issue because petitioners did not raise it before the ALJ.
. Petitioners also attack another aspect of Dr. Moskovitz’s methodology, asserting he never determined anything except a whole-body impairment rating including all of Mr. Lawson’s injuries. We need not resolve this issue because we have no reason to suppose that it will arise on remand.
. Petitioners also argue that the pain radiating from Mr. Lawson’s neck-and-shoulder injury into his arms cannot serve as the basis for a schedule disability award for the arms because radiating pain alone does not constitute a separate and distinct disability. Mr. Lawson counters that the compensation order reflects the independent physical impairments of his arms. Location is significant only to the extent that the CRB determines that the “arm” is not coextensive with the “upper extremity” as assessed by Dr. Moskovitz.
Because the situs of the disability controls rather than the situs of the injury, we have held that "when a petitioner suffers multiple disabilities from a single injury, that petitioner is entitled to both schedule and non-schedule benefits, subject to proof that the non-schedule disability led to wage loss.” Morrison, supra, 736 A.2d at 226. The fact that Mr. Lawson’s injury occurred to the neck and shoulders, even if eligible only for non-schedule benefits, does not preclude a schedule award for resulting impairment of the arms. See id. at 227-28. It may, however, require separation of the impairments.
Petitioners argue more narrowly that radiating pain alone is non-compensable beyond the impairment from which it radiates. See Johnson v. District of Columbia Water & Sewer Auth., CRB No. 11-013, OWC No. 583201, 2011 DC Wrk. Comp. LEXIS 213 (Apr. 21, 2011). The rule applied in Johnson appears to cut against petitioners' bright-line test because the CRB explained that a claimant need only show "distinct, separate, and identifiable functional impact,” rather than completely separate diagnoses, to support schedule and non-schedule awards arising from one injury. 2011 DC Wrk. Comp. LEXIS 213, at *9-10 (quoting Kovac, supra, H & AS No. 84-177). Their radiating pain argument fails to take into account that the compensation order included substantial impairment findings beyond radiating pain, such as numbness, "a loss of strength in [Mr. Lawson’s] upper extremities, and physical limitations regarding overhead work.” See Muhammad v. District of Columbia Dep't of Emp’t Servs., 774 A.2d
. When amending the Act, the D.C. Council considered and rejected the direct use of the AMA Guides in determining disability. See Comm’e Rpt. on Bill 12-192, at 8 (Oct. 29, 1998); Negussie v. District of Columbia Dep't of Emp’t Servs., 915 A.2d 391, 397 (D.C.2007). Recognizing that they are merely Guides to the Evaluation of Permanent Impairment, the , Council heeded the advice of the AMA that the Guides “should not be used to make direct financial awards or direct estimates of disabilities,” Rpt. on Bill 12-192, supra, at 8. Instead, the Council adopted the five “Maryland factors” as grounds for an ALJ to exercise discretion and find a disability rating that might differ from the impairment rating. Therefore, the statutory reference to the AMA Guides reflects the council’s judgment that they are a reliable basis for medical opinions about physical impairment, not an intention to allow the American Medical Association to add factors to the District’s workers' compen- . sation law. In fact, even when making findings regarding physical impairment, the CRB has held that an ALJ cannot rely upon the ’ AMA Guides unless (1) the parties have admitted them into evidence or (2) the ALJ plans to take judicial notice of the AMA Guides and gives the parties an opportunity to respond. See Bowles, supra, 121 A.3d at 1270.
The ALJ in this case deviated from both principles — it employed the AMA Guides in the disability analysis and did so without notice to the parties even though the AMA Guides were not admitted into evidence — relying upon the following passage in Negussie, supra, 915 A.2d at 397 (quoting Getson v. WM Bancorp, 346 Md. 48, 694 A.2d 961, 967-68 (1997)) (emphasis in original), without regard, for context:
As used in the [AMA] Guides, 'impairment' means an alteration of an individual's health status that is assessed by medical means, 'disability,' which is assessed by non-medical means, means an alteration of an individual’s capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements.
This brief background in the AMA Guides was .not intended, either by its authors or the D.C. Council, to be a source of legal factors, and it does not change the economic focus of the Act, See Comm’e Rpt. on Bill 3-106, at 6 (Jan. 29, 1980) (outlining the “earning capacity” and "whole-man” theories of workers’ compensation before selecting the former, with a focus on "replacement of wages lost by disabled worker[s]” and "restoration of earning capacity”). Negussie subsequently reiterates the longstanding principle that compensation under the Act is tied to loss of wage-earning capacity, not the existence of a medical injury. See 915 A. 2d at 397-98; see also Wheeless v. WMATA, H & AS No. 89-318, OWC No. 091834, 1998 DC Wrk. Comp. LEXIS 463, at *3 (Apr, 1, 1998) (holding employer did not need to approve claimant’s settlement with third-party tortfeasor where "the payments that claimant received in the third party action were for non-economic damages and workers’ compensation benefits are for economic loss”).
. Smith v. District of Columbia Dep’t of Emp’t Servs,, 548 A.2d 95, 100 (D.C.1988), explains that "compensation under the Act is predicated upon the loss of wage earning capacity, or economic impairment, and not upon functional disability ' or physical impairment." See also Upchurch v. District of Columbia Dep’t of Emp’t Servs., 783 A.2d 623, 627 (D.C.2001) (stating ' ‘ [d]is ability is an economic and not a medical concept” based on the "loss of wage-earning capacity”).
. Because we place no independent reliance on the AMA Guides, we need not decide Lawson’s motion to strike.
Concurrence Opinion
Associate Judge, concurring:
I concur in the judgment, and I join the court’s opinion with the exception of n. 8 and the full paragraph on p. 76. In the portions of the opinion that I do not join, the court appears to suggest that an award of permanent disability benefits based on partial impairment of a part of the body specifically listed in D.C.Code § 32-1508(3) (2015 Supp.) (“scheduled permanent partial disability award”) must be tied to “loss of wage-earning capacity.” Ante at 76 n. 8.1 would not rule so broadly. As the court explains, ante at 75-76, the CRB did not decide in this case whether non-economic effects of an injury may properly be considered in determining a scheduled permanent partial disability award. Rather, the CRB upheld the ALJ’s decision on the ground that the personal and social effects of an injury may be considered to the extent that those effects adversely affect a claimant’s ability to perform job duties. Ante at 75-76. As the court further explains, however, the ALJ did not limit consideration of personal and social effects to those that adversely affected the claimant’s ability to perform job duties. Ante at 76-77.
Because we cannot affirm the CRB’s basis for upholding the ALJ’s decision, we would ordinarily remand for the CRB to consider in the first instance whether non-economic effects may properly be considered in determining a scheduled permanent partial disability award. See, e.g., Apartment & Office Bldg. Ass’n v. Public Serv. Comm'n 129 A.3d 925, 930 (D.C.2016) (“Generally, an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained. Thus, if a party asks this Court to affirm an agency order based upon a ground that was not considered by the agency, we ordinarily must remand for the agency to consider the new ground in the first instance.”) (citations and internal quotation marks omitted). Remand for consideration by the agency in the first instance is not required, however, if the question at issue could have only one permissible answer. Id. (“[Rjemand is not required in cases where ... it is clear what the agency’s decision has to be.”) (internal quotation marks omitted). I do not view this as such a case.
The applicable statute, D.C.Code § 32-1508, arguably suggests that noneconomic effects may properly be taken into account in determining a scheduled permanent partial disability award. Specifically, section 32-1508(3) provides specific monetary awards for permanent disability involving the complete loss of the use of specified parts of the body. It is well settled that the amount of such awards is not tied to a case-specific showing of economic effect. See, e.g., DeShazo v. District of Columbia Dep’t of Emp’t Servs., 638 A.2d 1152, 1156 (D.C.1994) (discussing prior codification of section 32-1508(3), court explains that benefits are determined “by reference to the
When a listed body part is partially impaired rather than completely lost, the award is determined as a proportion of the award for a complete loss. D.C.Code § 32-1508(3)(S). For purposes of calculating that proportion, the statute authorizes consideration of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, along with five additional factors: pain, weakness, atrophy, loss of endurance, and loss of function. D.C.Code § 32-1508(3)(U-i). As we have explained, the AMA Guides assess the degree of medical impairment, not necessarily the degree of legal disability. Negussie v. District of Columbia Dep’t of Emp’t Servs., 915 A.2d 391, 397 (D.C.2007). The five other statutory factors focus on the physical condition of the body part at issue and are not explicitly tied to a case-specific assessment of the economic effects of an injury.
We have nevertheless held that scheduled permanent partial disability awards are not properly determined based solely on a non-economic medical determination as to the degree of physical impairment. Negussie, 915 A.2d at 395-99; see id. at 399 (“ ‘[Disability’ is an economic and legal concept which should not be confounded with a medical condition....”); D.C.Code § 32-1501(8) (2012 Repl.) (defining “disability” as “physical or mental incapacity because of injury which results in the loss of wages”). As far as I am aware, however, we have not held that scheduled permanent partial disability awards must be tied entirely to a case-specific assessment of actual or predicted “loss of wage-earning capacity.” Ante at 76 n. 8. To the contrary, our decisions arguably leave room for ALJs to base scheduled permanent partial disability awards at least in part on considerations — such as functional assessments of the degree of impairment — that are not tied to a case-specific assessment of actual or predicted loss of wage-earning capacity. See, e.g., Brown v. District of Columbia Dep’t of Emp’t Servs., 83 A.3d 739, 743 n. 6 (D.C.2014) (amount of scheduled permanent partial disability award “varies depending on the particular body part injured and the degree of its impairment, regardless of the actual wage loss the worker sustains as a result of the injury”); Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219, 1224 (D.C.2012) (in determining scheduled partial permanent disability awards, ALJs “come[] to a conclusion based on a complex of factors, taking into account physical impairment and potential for wage loss”) (emphasis added).
In determining the amount of the award in this case, the ALJ gave independent weight to the injury’s effects on “personal and social activities.” The CRB did not rule in this case as to whether such effects, untied to actual or predicted economic impact, may properly be considered in determining the amount of a scheduled permanent partial disability award. I would remand for the CRB to address that issue in the first instance.