D.C. Mun. Regs. tit. 7, § 130
130.1 A disability is partial, when a qualified health professional determines that a claimant can perform work with restrictions, provided that:
130.2 If the disability is partial, subject to the limitations in Section 2306a of the Act (D.C. Official Code § 1-623.06a), the claimant's monthly monetary compensation shall be sixty-six and two-thirds percent (66 2/3%) (or seventy-five percent (75%), if an augmented rate of wage-loss compensation is permitted) of the difference between the claimant's monthly pay, as defined at Section 2301(4) of the Act (D.C. Official Code § 1-623.01(4)), and the claimant's monthly wage-earning capacity after the beginning of the partial disability.
130.3
- (a) Determination based on actual wages. If the claimant has current or a history of actual earnings which fairly and reasonably represent his or her wage-earning capacity, those earnings shall form the basis for payment of wage-loss compensation for partial disability.
- (b) Determination based on labor market survey. If the claimant's actual earnings do not fairly and reasonably represent his or her wage-earning capacity, or if the claimant has no actual earnings, the Program shall perform a labor market survey, using the factors set forth in § 130.5 of this chapter, to select a position that represents his or her wage-earning capacity.
- (c) Determination pending labor market survey. If a claimant is released to work in any capacity, the Program may calculate earnings at the highest minimum wage rate in effect within a fifty (50) mile radius of the claimant's residence at the time, taking into account the total hours the claimant is medically authorized to work, to construct a temporary wage-earning capacity until a labor market survey is completed.
130.4 In establishing a wage-earning capacity, the Program is not obligated to secure
employment for the claimant in the position selected for establishing a wage-earning capacity.
130.5 The phrase “labor market survey” means a determination of the types of positions that a claimant is capable of doing, based on the following factors, as set forth in Section 2315 of the Act (D.C. Official Code § 1-623.15):
(a) The nature of his or her injury;
(b) The degree of physical impairment;
(c) His or her usual employment;
(d) His or her age;
(e) His or her qualifications for other employment;
(f) The availability of suitable employment; and
(g) Other factors or circumstances which may affect his or her wage-earning capacity as a worker with a disability.
130.6 When conducting a labor market survey, the Program shall identify at least three (3) suitable positions that are available at the time. The claimant’s wage-earning capacity shall be calculated based on the annual earnings of the lowest-paid position identified, taking into account the total hours the claimant is medically authorized to work, unless it is reasonable to select a higher-paid position based on the factors set forth in § 130.5 of this chapter.
130.7 The Program shall determine whether the positions selected are reasonably available and vocationally suitable. The fact that a claimant is not successful in securing employment does not establish that the selected positions are not vocationally suitable.
130.8
(a) When calculating wage-earning capacity pursuant to Section 2315 of the Act (D.C. Official Code § 1-623.15) and this section, it is necessary to establish that the selected positions are medically suitable given the claimant’s injury-related and pre-existing impairments.
(b) A wage-earning capacity determination must be based on a current or contemporaneous medical evaluation.
(c) Medical conditions not related to the work-related injury or condition that
has been accepted as compensable by the Program will not be considered, unless they pre-existed the accepted injury or condition.
(d) Considerations shall be based on well-defined work restrictions in the medical or claim record.
130.9 The positions selected for determining the wage-earning capacity must be reasonably available in the general labor market within fifty (50) miles of the claimant’s residence.
130.10 [Repealed].
130.11 To convert the monthly partial disability monetary compensation into bi-weekly installments, the monthly compensation rate shall be multiplied by twelve (12) and divided by twenty-six (26).
130.12 Cost-of-living adjustments shall be applied to the partial disability compensation rate in accordance with § 139.2 of this chapter.
130.13 The Program may apply a wage-earning determination retroactively if the evidence shows that partial, rather than total, disability existed. A claimant’s receipt of actual earnings shall be deemed to support the retroactive application of a wage-earning capacity determination to at least the period when wages were first earned. Following the Program’s initial determination, a retroactive determination based solely on a labor market survey may not encompass any period during which wage-loss benefits were actually paid.
SOURCE: Final Rulemaking published at 28 DCR 2307 (May 22, 1981); as amended by Emergency and Proposed Rulemaking published at 57 DCR 9540 (October 8, 2010)[EXPIRED]; as amended by Final Rulemaking published at 57 DCR 12224, 12229 (December 24, 2010); as amended by Final Rulemaking published at 59 DCR 8766, 8771 (July 27, 2012); as amended by Final Rulemaking published at 64 DCR 6325 (July 7, 2017); as amended by Final Rulemaking published at 66 DCR 4246 (April 5, 2019); as amended by Final Rulemaking published at 67 DCR 7481 (June 12, 2020).