Hospital not responsible for impairment attributed to earlier injury

The D.C. Circuit Court of Appeals vacated a finding by Washington, D.C.’s Compensation Review Board on Thursday that found an employer to be responsible for all of an impairment though it stemmed from two separate injuries.

In Howard University Hospital v. District of Columbia Department of Employment Services, the circuit court held that the review board erred in failing to properly consider how the employee’s impairments would affect his wage-earning capacity and consider apportionment of the disability between the two injuries.

The employee worked as a radiological technician at Howard University Hospital in Washington, D.C. In 2013, the technician said he felt pain in his right shoulder while lifting a patient to prepare for an X-ray. He had previously suffered an injury to his right shoulder in 2011 while working for a different employer and received disability benefits in connection with that injury.

He received medical treatment and filed a workers comp claim seeking disability benefits for permanent partial use of his arm stemming from the 2013 injury. An independent medical examiner concluded that the technician had a 47% impairment to his right upper extremity and attributed 20% of that impairment to his 2011 injury, and 27% to his 2013 injury. A second examiner found that the technician had only a 4% impairment, and that half was related to the 2011 injury and attributed the other half to the 2013 injury. The ALJ gave greater weight to the first examiner and determined that the technician had a 37% permanent disability to his right upper extremity and that the hospital was responsible for all of the impairment because a subsection in the Washington D.C. Workers Compensation Act appeared to preclude apportionment of injuries.

The hospital challenged the award and the circuit court vacated the ALJ’s judgment and remanded the case for further proceedings. The three-judge panel unanimously concluded that the review board must consider the proper interpretation of the act. The act had required that a claimant’s current employer compensate only for a new portion of a disability that arose in part from a prior injury and in part from a new injury, and provided for additional compensation in such circumstances to be paid by a second-injury fund, which would reimburse employers for benefits paid after 104 weeks. However, a subsection later added noted that the provision would apply only to injuries occurring prior to 1998 and preclude apportionment of injuries. However, the court noted that given the complicated way the subsection had been arranged and labeled, it could be concluded that the D.C. Council had only intended to repeal the second-injury fund, not apportionment as well.

The hospital also challenged the board’s conclusion that the shoulder is part of the arm for compensation purposes and that the board erred in finding that he ALJ adequately explained the connection between the technician’s physical impairments and the extent of his disability.

The circuit court agreed, holding that the board failed to articulate a reasonable basis for treating the shoulder as part of the arm when determining a schedule award, and noted that the ALJ failed to explain the consequences, if any, that the technician’s physical impairments would have on his future wage-earning capacity. As a result, the court vacated the order of the board and remanded the case for further proceedings.

Howard University Hospital could not be reached for comment.