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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-AA-527

JACQUELINE DENT, PETITIONER,

V.

DISTRICT OF COLUMBIA

DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

PROVIDENCE HOSPITAL; SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,

INTERVENORS.

Petition for Review of an Order of the 

Compensation Review Board of the District of Columbia 

Department of Employment Services

(CRB-101-13)

(Argued March 26, 2015 Decided May 4, 2017)

(Amended May 25, 2017)*

Michael J. Kitzman for petitioner.

Stacy L. Anderson, Senior Assistant Attorney General, with whom Irvin B. 

Nathan, Attorney General for the District of Columbia at the time the brief was 

filed, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor 

General, were on the brief, for respondent.

 

*

This amended opinion reflects a correction in the subheader on p.3 and a 

minor clarification in fn.14.
2

Sarah M. Burton for intervenors.

Before BLACKBURNE-RIGSBY, Chief Judge,

* MCLEESE, Associate Judge, and 

RUIZ, Senior Judge.

RUIZ, Senior Judge: This petition for review challenges the denial of 

Jacqueline Dent‟s claim for workers‟ compensation. Petitioner argues, inter alia, 

that the D.C. Department of Employment Services Compensation Review Board 

(CRB) erred in allowing the Administrative Law Judge (ALJ) to consider the 

absence of wage loss in deciding that she was not permanently partially disabled, 

and, therefore, denying her claim to a schedule award. Squarely addressing the 

question for the first time under the current version of the District of Columbia

Workers‟ Compensation Act, we hold that the CRB reasonably concluded that 

wage loss (or the absence thereof) may be taken into account, along with other 

factors, in considering whether a claimant is entitled to a schedule award for 

permanent partial disability under the District of Columbia Workers‟ 

Compensation Act, D.C. Code § 32-1508 (3)(S) (2012 Repl.). Specifically, we 

hold that such evidence is a relevant consideration — though not necessary — in 

determining a claimant‟s disability percentage for a schedule award under D.C. 

Code § 32-1508 (3)(U-i). We therefore affirm the order of the CRB.

 

*

 Chief Judge Blackburne-Rigsby was an Associate Judge of the court at the 

time of argument. Her status changed to Chief Judge on March 18, 2017.
3

I. The Administrative Proceedings

A. Hearing by the Department of Employment Services, Office of 

Hearings & Adjudications

Petitioner testified that on May 8, 2001, she injured her right shoulder at 

work at Providence Hospital, intervenor in this case, when she fell off her chair 

and hit the desk. The employer‟s health staff at Providence Hospital gave 

petitioner pain medication and referred her to physical therapy. Ultimately, the 

health staff suggested that petitioner follow up with an orthopedic surgeon. 

Petitioner was tested, diagnosed, and treated by three orthopedic surgeons: Dr. 

Edward Rankin, Dr. Steven Hughes, and Dr. Easton Manderson. 

At the time of the injury in 2001, petitioner was working two 40-hour jobs, 

at Providence Hospital and Howard University Hospital.1 She continued to hold 

both jobs until 2010, when she retired from Providence Hospital, but remained full 

time at Howard University Hospital, even working overtime, leading to 50- to 60-

hour work weeks. At the hearing on September 18, 2012, petitioner testified that 

 

1

 At Providence Hospital, petitioner worked as a receptionist/clerk, 

scheduling medical examinations for patients. At Howard University Hospital, she 

was employed as a patient access associate “with duties consisting primarily of 

computer input.” 
4

she still experienced pain, explaining, “Yes, I am continually having problems with 

my shoulder and my neck. And I‟m having numbness on my right arm, down into 

my fingers.” Petitioner worked as a patient access associate at Howard and she 

needed to “hit[] the keyboard a little harder” due to the numbness in her right hand. 

At home, petitioner had difficulty vacuuming, caused by the pain in her neck and 

shoulder. She applied heat to her shoulder and neck about four days a week to 

relieve the pain. She testified that she continued to be treated by Dr. Manderson 

for problems with her right shoulder and that he prescribed physical therapy and 

Percocet to relieve her shoulder pain.

During cross-examination, petitioner described other injuries that she 

suffered while employed at Providence Hospital. In 1999, she injured her back; in 

2010, she injured her lower back and left shoulder. After the 2010 injury, she 

continued to see Dr. Manderson for treatment of her lower back pain but did not 

complain to him about ongoing pain in her right shoulder.2 

 

2

In response to a question from intervenor‟s counsel about why petitioner 

did not complain to Dr. Manderson about her right shoulder in 2010 or 2011, 

petitioner testified, “I did not complain to Dr. Manderson because he was not the 

treating physician and I did not have authorization to go to him for my shoulder 

under the guidelines of Providence Hospital.” 
5

In addition to her testimony, petitioner submitted medical documentation in 

the form of reports by Dr. Hughes, Dr. Rankin, and Dr. Joel Fechter, and an MRI 

of her right shoulder. Dr. Hughes conducted an independent medical evaluation on 

July 5, 2001, and, based on petitioner‟s report that she had no prior injuries to her 

shoulder, opined that petitioner‟s neck and right shoulder symptoms were “causally 

related to the accident of [May 8, 2001],” subject to “subsequent medical records.”

Dr. Hughes then began treating petitioner and in a progress note dated August 8, 

2001, recommended physical therapy for bursitis-tendinitis of the right shoulder 

and predicted that petitioner should be able to return to unrestricted duties within 

four to six weeks. On November 19, 2001, Dr. Rankin conducted a physical 

examination of petitioner, who complained of continuing pain in her neck that 

radiated down her right arm. After examining petitioner and reviewing an MRI of 

her right shoulder, Dr. Rankin diagnosed petitioner with “mild tendinosis of the 

distal supraspinatus as well [as] a small incomplete tear on the inferior surface. 

The MR[I] of the cervical spine showed some bulging at C5-6.” He prescribed 

physical therapy and Vioxx 50(mg) and placed no restrictions on her work activity. 

Ten years after the work incident, Dr. Fechter took petitioner‟s medical history, 

reviewed x-rays, and conducted a physical examination of petitioner on February 

11, 2011. He concluded that she had a twenty-three percent impairment of her 

upper right extremity: ten percent impairment under the American Medical 
6

Association (AMA) guidelines, four percent impairment attributable to pain, and 

an additional nine percent impairment attributable to weakness (3%), loss of 

endurance (3%), and loss of function (3%).

Providence Hospital submitted records of the independent medical 

examinations of petitioner conducted by Dr. Hughes and Dr. Marc Danziger, and 

medical records from Dr. Manderson, the treating physician. Dr. Danziger 

conducted an independent medical evaluation of petitioner on June 14, 2011, and 

did not describe any lingering issues from petitioner‟s 2001 right shoulder injury.

Dr. Hughes conducted an independent medical evaluation of petitioner on 

December 8, 2011, and a re-evaluation on July 25, 2012; both times he concluded 

that petitioner “would qualify for a permanent impairment to the right upper 

extremity of 5% with no apportionment based on available records and history.”3

Dr. Manderson conducted a series of evaluations from April 30, 2010, to March 

25, 2011, and treated petitioner primarily for lower back pain, which resulted from 

a different workplace injury. In his reports, Dr. Manderson did not mention 

petitioner‟s right shoulder injury. 

 

3 Dr. Hughes conducted the first evaluation pursuant to the Fifth Edition of 

The Guides of Evaluation of Permanent Impairment, published by the American 

Medical Association; the second evaluation applied the Sixth Edition. 
7

B. ALJ Compensation Order4

Petitioner argued that she was entitled to a twenty-three percent rating for 

permanent partial disability to her right shoulder and right arm based on Dr. 

Fechter‟s assessment. The employer urged the ALJ to accept the opinion of Dr. 

Hughes, who found that petitioner has a 5% permanent partial disability in the 

upper right extremity. After considering the medical assessments and factors 

enumerated in D.C. Code § 32-1508 (3)(U-i)(i)-(v) for schedule awards, the ALJ

made the following findings of fact:

I find that [petitioner] was not a credible witness. I find 

that [petitioner] has reached maximum medical 

improvement from her May 8, 2001 work injury to her 

right shoulder. [Petitioner] has a 5 per cent permanent 

partial physical impairment of her right upper extremity. 

I find [petitioner] has no permanent partial disability of 

the right upper extremity based upon factors of pain, 

weakness, atrophy, loss of endurance and loss of 

function. I further find no reliable credible evidence [that 

petitioner‟s] May 8, 2001 work injury has altered her 

capacity to meet personal, social, or occupational 

demands. I find [petitioner] has no permanent partial 

disability of the upper right extremity.

 

4

Providence Hospital made voluntary payments, based on Dr. Hughes‟s 

assessment of 5% permanent partial disability. Petitioner filed an Application for 

Formal Hearing, seeking a higher award.
8

AHD No. 12-381, Compensation Order at 3 (July 23, 2013) (emphasis added)

[hereinafter AHD Order]. The ALJ noted that “[d]isability is an economic and not 

a medical concept and any injury that does not result in loss of wage-earning 

capacity cannot be the foundation for a finding of disability.” Id. at 8. In 

conclusion, the ALJ rejected the claim

due to the remoteness of her claim, the lack of evidence 

to support her testimony of ongoing symptoms related to 

the injury, lack of medical evidence to support testimony 

that she is currently receiving ongoing treatment related 

to the injury[,] the fact that there have been intervening 

injuries and treatment, and the fact that, with the 

exception of time off due to other injuries, [petitioner] 

has been able to and has continued to work.

Id. at 9. Petitioner appealed the ALJ‟s decision to the CRB.

C. CRB Decision and Order

On appeal, the CRB considered four issues: whether the ALJ erred in 

considering whether there had been an actual wage loss when assessing petitioner‟s 

claim; whether the ALJ erred in considering the lack of ongoing medical treatment; 

whether the Compensation Order denying petitioner‟s claim was supported by 

substantial evidence; and whether the ALJ improperly accorded the treating 
9

physician preference to Dr. Hughes‟s opinion. 

The CRB concluded that the ALJ‟s determination that petitioner sustained 

no economic loss resulting from her injury was supported by substantial evidence 

and affirmed the Compensation Order denying any schedule award for permanent 

partial disability. The CRB noted that the ALJ found that petitioner has a physical 

impairment of 5% to her right upper arm, consistent with Dr. Hughes‟s medical 

assessment, but that considering the 10-year history of uninterrupted full-time 

employment since the injury, there was “no evidence that the impairment is likely 

to have any economic or industrial impact.” The CRB rejected petitioner‟s 

argument that Smith v. District of Columbia Dep’t of Emp’t Servs., 548 A.2d 95 

(D.C. 1988), mandated a schedule award for permanent partial disability without 

regard to whether petitioner had suffered a wage loss. The CRB read the statement 

in Smith that “impaired earning capacity need not be proved to receive schedule 

benefits” as referring to the method by which benefits for permanent disability are 

calculated pursuant to a schedule award. The CRB explained that Smith discussed 

“the theoretical underpinnings of schedule awards and how once such an award is 

made, what actually happens in the future is irrelevant to whether a claimant has 

been over or undercompensated by the award that was made, because it is 

„conclusively presumed‟ that the statutory schedule represents the industrial effect 
10

of the injury.” The CRB noted that “Smith does not say that a claimant‟s actual 

wage loss experience prior to receiving an award under the schedule is irrelevant 

to the making of the prediction regarding future wage loss.” The CRB then cited

(Carolyn) Jones v. District of Columbia Dep’t of Emp’t Servs., 41 A.3d 1219 (D.C. 

2012), for the proposition that the ALJ can consider the “existence and amount of a 

specific, identifiable loss of wages” in schedule award cases. The CRB concluded 

that “to the extent that such wage loss correlates with or is indicative of loss of 

wage-earning capacity or economic impairment, actual wage loss history (its 

presence or absence) may be considered as a factor by an ALJ in making a

prediction about the future impact a schedule injury will cause.” The CRB

affirmed the ALJ‟s decision that petitioner had no compensable permanent partial 

disability, finding it was supported by substantial evidence and correct legal 

analysis. This petition for judicial review of the agency decision followed.

II.

We review the CRB‟s Decision and Order which affirmed the ALJ‟s 

Compensation Order — we do not directly review the ALJ‟s determination on 

appeal. See (Carolyn) Jones, 41 A.3d at 1221. Judicial review of an 

administrative decision is limited to determining whether the decision is arbitrary, 
11

capricious, an abuse of discretion, or otherwise not in accordance with law. See id. 

“We will not affirm an administrative determination that „reflects a misconception 

of the relevant law or a faulty application of the law.‟” Washington Metro. Area 

Transit Auth. v. District of Columbia Dep’t of Emp’t Servs., 992 A.2d 1276, 1280 

(D.C. 2010) (quoting Georgetown Univ. v. District of Columbia Dep’t of Emp’t 

Servs., 971 A.2d 909, 915 (D.C. 2009)). “However, „we acknowledge [the CRB‟s] 

expertise and . . . responsibility for administering the Workers‟ Compensation 

Act,‟ and thus „we ordinarily must defer to [its] reasonable interpretations of 

ambiguous provisions in that legislation.‟” Asylum Co. v. District of Columbia 

Dep’t of Emp’t Servs., 10 A.3d 619, 625 (D.C. 2010) (alteration in original) 

(quoting Howard Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs., 960 

A.2d 603, 606 (D.C. 2008)).

In her petition for review, petitioner alleges that the CRB erroneously 

affirmed the ALJ‟s order because the CRB required a schedule award claimant to 

prove impaired earning capacity to receive benefits and permitted the ALJ to 

consider the absence of wage loss in evaluating the evidence of economic 

impairment; erred in allowing the ALJ to consider the character and regularity of 

continuing medical care when assessing the disability percentage of a permanent 

injury; and erred in concluding that substantial evidence supported the ALJ‟s 
12

finding that petitioner was not a credible witness.

A. Schedule Awards for Permanent Partial Disability 

and Evidence of Wage Loss

The principal legal issue presented in this petition for review is whether 

wage loss (or the absence thereof) may properly be taken into consideration in 

deciding whether a claimant is entitled to a schedule award for a permanent partial 

disability based on loss of use.

Some states permit the introduction of such evidence in determining whether 

to compensate for loss of use of a scheduled member depending on the conceptual 

basis states employ for compensating disability under workers‟ compensation 

statutes: industrial use or physical use. In industrial use jurisdictions a worker‟s 

wages may be considered as a means of measuring an individual claimant‟s postinjury ability to engage in work. 7 LEX K. LARSON, LARSON‟S WORKERS‟

COMPENSATION LAW § 86.04[5] at 86-20, 24 (Matthew Bender, Rev. Ed. 2014).

5

 

 

5

 See, e.g., Mid-Continent Cas. Co. v. Busick, 353 S.W.2d 926, 928-29 (Tx. 

Civ. App. 1962) (holding that evidence showing worker was able to continue to 

work after injury and earn wages as before injury did not permit finding that 

(continued . . .)
13

In physical use jurisdictions, loss of use, as “derivative from and equated to the 

concept of [physical] loss, . . . should be judged in purely functional terms, with no 

reference to the impact on the claimant‟s ability to perform his particular work.” 

Id. at 86-22.6 LARSON criticizes the purely physical approach in determining loss of 

use for worker‟s compensation:

The trouble with these cases is that they assume 

that “loss of use” can be mechanically measured in 

relation to use by some theoretical claimant. They 

assume, in other words, that the concept of “loss of use” 

of the hand has some fixed uniform content as to all 

human beings, regardless of age, sex, skill, or anything 

else. But the very word “use” immediately raises the 

question: use for what? For assembling electronic 

equipment? For delivering a karate chop? For threading 

a needle? For holding a pencil? For lifting a bale of 

cotton? These are all “uses,” after all.

Id. at 86-23.

 

(. . . continued)

“member [wa]s so affected as to substantially and materially impair the use thereof 

in the practical performance of its function in the pursuit of a laboring man”).

6

See, e.g., General Motors Corp. v. Sligh, 133 S.E.2d 56, 57 (Ga. Ct. App. 

1963) (reversing award to scheduled member based on consideration of 

employment because award should be “based on [physical] impairment to the 

member, irrespective of the earning ability of a claimant after an accident is 

sustained”) ( internal quotation marks omitted).
14

The CRB‟s decision in this case implicitly recognized that the District of 

Columbia is an industrial use jurisdiction when it allowed the ALJ‟s consideration 

of evidence of post-injury wages as a factor in determining petitioner‟s permanent 

partial disability resulting from claimed partial loss of use. The government 

defends the CRB‟s decision, arguing that it is a reasonable interpretation of the 

District of Columbia Workers‟ Compensation Act that is not precluded by this 

court‟s decision in Smith, and is supported by other decisions of this court, 

including (Carolyn) Jones. After examining the language, history, and purpose of 

the relevant portions of the statute, and our jurisprudence interpreting and 

applying the statute, we agree with the CRB that the District of Columbia

Workers‟ Compensation Act is grounded on principles of industrial use and 

economic impairment, and defer to the CRB‟s reasonable determination that 

consideration of wages is relevant to the industrial use of a scheduled member 

and may be taken into account as a factor in determining the extent of a worker‟s 

loss of use in making a permanent partial disability schedule award under D.C. 

Code § 32-1508 (3)(U-i). 

1. Overview of District of Columbia Workers’ Compensation Act
15

It is useful to place the issue presented in this appeal in the context of the 

overall statutory scheme. The District of Columbia Workers‟ Compensation Act 

provides benefits for temporary and permanent disability that results from 

workplace injuries. D.C. Code § 32-1501 et seq. (2012 Repl.) (D.C. WCA). All 

benefits for temporary disability, whether total or partial, are calculated by 

reference to the claimant‟s actual wages. D.C. Code § 32-1508 (2) (“In case of 

disability total in character but temporary in quality, 66 2/3% of the employee‟s 

average weekly wages shall be paid to the employee during the continuance 

thereof.”) and (5) (“In case of temporary partial disability, the compensation shall 

be 66 2/3% of the injured employee‟s wage loss . . . .”).

Once a work injury has stabilized and the worker has reached maximum 

medical improvement, the worker may be entitled to benefits for permanent 

disability. Calculation of permanent disability benefits depends on whether the 

worker is eligible for one of two types of awards: schedule or non-schedule. D.C. 

Code § 32-1508 (3)(A)-(U) (schedule award); D.C. Code § 32-1508 (3)(V) (nonschedule award). A non-schedule award involves compensation for disability to a 

part of the body not specified in the schedule award list and is calculated by 

reference to the employee‟s actual wage loss, regardless of whether the permanent 

disability is total or partial. D.C. Code § 32-1508 (3)(V)(ii). Injuries to the back, 
16

shoulder, or neck, for example, are subject to non-schedule awards. Compensation 

is calculated with reference to actual wage loss (comparing pre- and post-injury 

wages) and continues for the duration of wage loss attributable to the on-the-job 

injury. D.C. Code § 32-1508 (3)(V)(ii)I. A schedule award is for injuries to parts 

of the body listed in the statute, e.g., arm, leg, finger, eye. D.C. Code § 32-1508

(3)(A-R). Unlike the continuing payments for non-schedule awards, compensation 

for schedule awards is based on a one-time prospective assessment of economic 

impact over the life of the injured worker. In the case of permanent total loss or 

total loss of use of a scheduled member of the body, that prospective assessment 

has been legislatively determined and is fixed in the statute by reference to a 

formula: “66 2/3% of the employee‟s average weekly wages” multiplied by the 

number of weeks contained in the schedule award list for the specific part of the 

body. Id. In the case of permanent partial loss or loss of use of a scheduled 

member of the body, disability compensation may be made “for proportionate loss 

or loss of use of that member.” D.C. Code § 32-1508 (3)(S). When evaluating a 

schedule award for such partial loss or loss of use, “the most recent edition of the 

American Medical Association‟s Guides to the Evaluation of Permanent 

Impairment may be utilized, along with the following 5 factors: (i) Pain; (ii) 

Weakness; (iii) Atrophy; (iv) Loss of endurance; and (v) Loss of function.” D.C. 

Code § 32-1508 (3)(U-i). These five factors, along with evidence of physical 
17

impairment, are used to determine a claimant‟s disability percentage. Once this 

percentage of loss of use has been determined, it is then applied to the amount 

fixed in the statute for total loss or loss of use of the scheduled member to calculate 

the one-time permanent partial disability award for proportionate loss of use. It is 

the determination of the percentage of loss of use of a member that is to be 

employed as a variable in the formula for calculating a schedule award that is at 

issue in this case.

The D.C. WCA‟s schedule award provision is based on both the U.S. 

Longshoremen‟s and Harbor Workers‟ Compensation Act (“LHWCA”) and the 

Maryland Workers‟ Compensation Act, so we review the history and interpretation 

of the schedule award section of these acts in interpreting the D.C. WCA. See 2B 

SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 52:2 (Norman J. 

Singer & J.D. Shambie Singer eds., 7th ed. 2015) (“When a state legislature adopts 

a statute which is identical or similar to one in another state or country, courts of 

the adopting state usually adopt the original jurisdiction‟s construction.”).

The LHWCA, enacted by Congress in 1927, was made applicable to workers 

in the private sector of the District of Columbia when Congress enacted legislation 

specific to the District of Columbia that incorporated the LHWCA provisions, the 
18

Workmen‟s Compensation Act of 1928, Pub. L. No. 70-419, §§ 1-3, 45 Stat. 600 

(1928) (codified at D.C. Code §§ 36-501, -502 (1973)); see Carey v. Crane Serv. 

Co., 457 A.2d 1102, 1103 n.2 (D.C. 1983). The LHWCA defines “disability” as 

“incapacity because of injury to earn the wages which the employee was receiving 

at the time of injury in the same or any other employment.” 33 U.S.C. § 902 (10)

(2012) (originally enacted as Act of March 4, 1927, ch. 509, § 2 (10), 44 Stat. 

1424, 1425).7 The LHWCA provides for both schedule and non-schedule awards. 

See 33 U.S.C. § 908 (c)(1)-(19) (2012) (schedule award), (21) (non-schedule 

award). In the case of schedule awards, it provides that “[c]ompensation for 

permanent partial loss or loss of use of a member may be for proportionate loss or 

loss of use of the member.” 33 U.S.C. § 908 (c)(19) (originally enacted as Act of 

March 4, 1927, ch. 509, § 8 (c)(19), 44 Stat. 1424, 1428). The Supreme Court has 

observed, in dictum, that “evidence of loss of wages or wage-earning capacity was 

considered irrelevant in cases of permanent partial disability falling within the 

schedule provisions.” Potomac Elec. Power Co. v. Dir., Office of Workers’ Comp. 

Programs, U.S. Dep’t of Labor, 449 U.S. 268, 276-77 (1980) (referring to

LHWCA, 44 Stat. 1424, as amended, 33 U.S.C. §§ 901-950 (1976 ed. and Supp. 

 

7

The LHWCA‟s current definition of “disability” also contains a 

modification not relevant to this case, but the quoted portion remains unchanged 

from the original definition contained in the 1927 Act.
19

III)).8

In 1980, the Council of the District of Columbia enacted the Workers‟

Compensation Act of 1979, D.C. Law 3-77, 27 D.C. Reg. 2503 (1980) (codified at 

D.C. Code § 32-1501 et seq. (2012 Repl.), formerly D.C. Code § 36-301 et seq.

(1981)), and repealed all earlier workers‟ compensation legislation applicable to 

the District. See Carey, 457 A.2d at 1103 n.2. The Council intended to “amend[] 

the D.C. Code which incorporate[d] by reference the [LHWCA].” D.C. Council, 

Report on Bill 3-106 at 2 (Jan. 16, 1980) (hereinafter PS/CA Committee Report). 

The Council Committee on Public Service and Consumer Affairs (PS/CA 

Committee) believed that the District‟s administration of the D.C. WCA would 

 

8

The Court‟s observation regarding § 908 (c)(19) of the LHWCA was 

dictum because the PEPCO case dealt with the distinct, albeit related, issue of 

“whether a permanently partially disabled employee, entitled to compensation 

under the statutory schedule, may elect to receive a larger recovery . . . measured 

by the actual impairment of wage-earning capacity caused by his injury.” 449 U.S. 

at 270. The Court made the observation noted in the text above to bolster its literal 

interpretation of the LHWCA as providing two mutually exclusive compensation 

systems for workplace injuries: one for injuries to members of the body listed on 

the schedule and another for all other injuries. See id. at 273-80. The D.C. WCA 

also has been interpreted as providing two different and exclusive compensation 

systems, schedule and non-schedule, for workplace injuries. See Lenaerts v. 

District of Columbia Dep’t of Emp’t Servs., 545 A.2d 1234, 1236-39 (D.C. 1988). 

Neither PEPCO nor Lenaerts dealt with the specific issue before the court in this 

appeal: whether evidence of actual wages, as an indicator of wage-earning 

capacity, may be taken into account in determining whether there is permanent 

partial disability for a schedule award.
20

“result in lower costs through more efficient administration and more careful 

consideration of claims.”9 Id. According to the PS/CA Committee, two 

“objectives of the workmen compensation act are: (1) replacement of wages lost 

by disabled workers; [and] (2) restoration of earning capacity and return to 

productive employment . . . .” Id. at 6-7.

The D.C. WCA largely adopted provisions of the LHWCA, including the 

provision for schedule awards for permanent partial disability that the Supreme 

Court generally observed did not include consideration of loss of wages or wageearning capacity. See supra note 8 and accompanying text. There is no indication 

in the PS/CA Committee Report, however, that the Council was aware of that 

interpretation of the comparable LHWCA provision.10 The D.C. WCA‟s definition 

 

9

The D.C. Council referred the D.C. WCA to the D.C. Council Committee 

on Housing and Economic Development; the PS/CA Committee proposed 

amendments to the D.C. WCA. See PS/CA Committee Report at 1, 8.

10 It is important to note that PEPCO was not decided by the Supreme Court

until December 1980, after the D.C. Council enacted the D.C. WCA earlier that 

year; however, the Second Circuit‟s interpretation of the LHWCA, cited in 

PEPCO, predates the Council‟s enactment. See PEPCO, 449 U.S. at 276-77, 277 

n.15 (citing Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 143-44 (2d Cir. 1955)). 

The PS/CA Committee Report does not indicate that the Council knew of the 

Second Circuit‟s decision in Travelers Ins. Co. interpreting the LHWCA schedule 

provisions as excluding evidence of wage-earning capacity. We also observe that 

as in PEPCO, the decision in Travelers Ins. Co. did not address the question of 

how the percentage of disability should be determined and whether evidence of 

(continued . . .)
21

of “disability” is also substantially similar to the LHWCA‟s: “„[d]isability‟ means 

physical or mental incapacity because of injury which results in the loss of wages.” 

D.C. Workers‟ Compensation Act of 1979, Act 3-188 at 3 (May 14, 1980); D.C. 

Code § 32-1501 (8) (2012 Repl.). At the time, an ALJ could adopt a strictly 

medical analysis of impairment without an obligation to conduct an independent 

analysis of an impairment‟s economic impact. See, e.g., Washington Metro. Area 

Transit Auth. v. District of Columbia Dep’t of Emp’t Servs., 683 A.2d 470, 473, 

477-78 (D.C. 1996) (affirming treating physician‟s 5% disability rating for legs 

based on reasonable mathematical conversion derived from physician‟s 20% 

disability rating for body as a whole, noting that “claimant qualifies for a schedule 

award regardless of whether the claimant actually suffers a wage loss as a 

consequence of the disability”). Thus, the pre-1998 D.C. WCA appears to have 

been interpreted as considering only physical consequences of an injury in making 

schedule awards. See DeShazo v. District of Columbia Dep’t of Emp’t Servs., 638 

 

(. . . continued)

wage loss is relevant to that determination. See generally 225 F.2d at 143-44. 

Although the courts‟ rationale can be read as suggesting the answer is no, the 

judicial mind was not applied in those cases to the specific question we face here, 

nor do the cases deal with the potential tension between the LHWCA‟s definition 

of “disability” in terms of “incapacity to earn the wages which the employee was 

receiving at the time of injury” and the courts‟ statements that “evidence of loss of 

wages or wage-earning capacity was considered irrelevant” in making awards for 

permanent partial disability that fall under the schedule. In any event, the language 

of the D.C. WCA has since diverged from that of the LHWCA, as discussed infra.
22

A.2d 1152, 1156 (D.C. 1994) (“The assumption underlying this approach is that, 

although the claimant may be able to continue working, the impact of the injury 

causing a permanent partial disability sooner or later will take its toll, and that the 

scheduled benefit will be an appropriate, if arbitrary, compensation to offset wage 

losses that eventually can be anticipated.”). 

This method for calculating permanent partial loss and loss of use for 

schedule awards continued until 1998, when the D.C. WCA was amended to 

require an ALJ to consider the “American Medical Association Guidelines along 

with 5 other factors to evaluate permanent injuries.” Workers‟ Compensation 

Amendment Act of 1998, D.C. Act 12-571 at 1, 3 (Dec. 23, 1998). The 

amendment followed Maryland‟s five-factor approach to determining permanent 

partial disability. See MD. CODE ANN., LAB. & EMPL. § 9-721 (b) (West 2015). 

Maryland first adopted the five-factor (pain, weakness, atrophy, loss of endurance, 

and loss of function) analysis pursuant to the AMA‟s recommendation that courts 

should not rely exclusively on medical opinions of physical impairment in deciding 

whether a disability exists for purposes of workers‟ compensation. See Getson v. 

WM Bancorp, 694 A.2d 961, 968 (Md. 1997) (“The Commission must do more 

than merely adopt medical evaluations of anatomical impairment; the Commission 

must assess the extent of the loss of use by considering how the injury has affected 
23

the employee‟s ability to do his or her job.”). The D.C. Council also took heed of 

the AMA‟s recommendation in eschewing exclusive reliance on a medical analysis 

of impairment and adopted the Maryland factors for determining permanent partial 

disability in schedule awards. D.C. Council, Report on Bill 12-192 at 8 (Oct. 29, 

1998) (“[T]he Committee heeds the AMA warning and adopts the Maryland 

approach to determine disability, which includes the use of multiple factors.”).11

The 1998 amendment to the WCA, which adopts consideration of the 

Maryland factors in addition to the AMA guidelines, squarely rejected a pure 

physical impairment approach in “determining disability” for schedule awards. 

D.C. Code § 32-1508 (3)(U-i). The question then is whether this new approach to 

disability determination permits the CRB‟s interpretation that evidence of wage 

loss (or the absence thereof) may be considered in determining a claimant‟s 

disability percentage for the purpose of making a schedule award for permanent 

partial disability. This court has not directly addressed the issue, but as the CRB 

noted in its decision in petitioner‟s case, we have intimated that the answer is yes.12

 

11 This change marks a substantial deviation from the LHWCA, which does 

not contain language requiring consideration of similar factors in determining 

permanent partial disability for schedule awards. As such, our analysis does not 

rely on cases interpreting the LHWCA. See supra note 10.

(continued . . .)
24

We turn to examine the CRB‟s decision in this case to determine whether it 

presents a reasonable answer that merits our deference.

2. The CRB’s Decisions

Ordinarily, to determine whether we should defer to the CRB‟s decision in 

this case, we would simply review the decision that has been appealed and 

examine whether it reasonably applies the law and is supported by substantial 

evidence. (Carolyn) Jones, 41 A.3d at 1221. However, petitioner directs our 

attention to, and urges us to follow instead, an earlier decision by the CRB —

Corrigan v. Georgetown Univ., CRB No. 06-094, 2007 D.C. Wrk. Comp. LEXIS 

364 (Sept. 14, 2007) (en banc), which we discuss more fully infra — that came to 

 

(. . . continued)

12 In (Carolyn) Jones, 41 A.3d at 1225, we held that we could not conduct a 

meaningful judicial review of the CRB‟s decision affirming the ALJ‟s 

Compensation Order where the ALJ had not adequately explained how she reached 

a seven percent disability award for permanent injury to the claimant‟s knee, which 

is compensable under the schedule. In our remand order, we suggested that the 

ALJ could consider wage loss evidence. See id. at 1226 (“We also know that the 

ALJ was properly aware that the disability determination was not the same as 

physical impairment, and required a determination of economic wage loss.”); id. at 

1226 n.7 (“Although neither the ALJ nor the parties have referred to the relative 

amounts petitioner received from her full-time and part-time employment, we note 

that there are documents in the record (one from employer‟s counsel) that 

petitioner‟s wages from her part-time work [that were lost as a result of the work 

injury] comprised approximately 20% of her overall earnings.”).
25

the opposite conclusion of the CRB‟s decision in this case. Before we can 

determine whether the CRB‟s decision in this case merits deference, therefore, we 

must examine petitioner‟s reliance on Corrigan.

In Corrigan, the CRB, sitting en banc, squarely addressed the issue before us 

today: whether wage loss should be considered when evaluating the extent of loss 

of use in determining permanent partial disability for a schedule award. The CRB 

cited several opinions by this court and the agency and noted that, unlike the 

Maryland statute, the D.C. WCA does not employ the phrase “industrial use.” Id.

at *30; see, e.g., MD. CODE ANN., LAB. & EMPL. § 9-627 (k)(1) (West 2015). This 

difference, the CRB stated, is important because “industrial loss of use and effect 

upon industrial capacity in other jurisdictions has been equated with loss of wage 

earning capacity.” Corrigan, 2007 D.C. Wrk. Comp. LEXIS 364 at *30 (internal 

quotation marks omitted). The CRB ultimately concluded that wage loss could not 

be taken into account in determining the extent of disability because under the D.C. 

WCA, a “specific [worker‟s] loss [of use of a scheduled member] is to be 

determined without reference to the claimant‟s earning capacity or ability to return 

to work. . . . Compensation is paid if the loss has been incurred, and it is not 
26

relevant whether the worker can work after the loss.”13 Id. at *31. There is no 

published opinion of this court that has affirmed (or even discussed) the CRB‟s 

decision in Corrigan.

In 2012, five years after the CRB decided Corrigan, a CRB panel decided

Al-Robaie v. Fort Myer Constr. Co., CRB No. 10-014, 2012 D.C. Wrk. Comp. 

LEXIS 250 (June 6, 2012). In Al-Robaie, the CRB vacated the ALJ‟s decision that 

the claimant was not entitled to a schedule award because she had not reached 

maximum medical improvement where the unanimous medical opinion was to the 

contrary. Id. at *3-*6. In remanding the case, the CRB cited this court‟s decisions 

in Smith and (Carolyn) Jones as supporting the proposition that the ALJ should

“reconsider the Claimant‟s request for permanent partial disability benefits without 

any consideration of wage loss except to the extent that such wage loss correlates 

with or is indicative of loss of wage earning capacity or economic impairment.”

Id. at *5-*6 & n.7.

 

13

 Although the CRB forbade the use of wage loss in assessing the extent of 

disability and eschewed the notion of industrial loss of use, it also stated that 

physical impairment could be taken into account in determining its impact on the 

“ability to earn wages.” Id. at *34.
27

In the case that is before us for review, the CRB panel affirmed the ALJ‟s 

Compensation Order, stating, as it had in Al-Robaie, that “wage loss [can be 

considered] to the extent that such wage loss correlates with or is indicative of loss 

of wage earning capacity or economic impairment.” Dent v. Providence Hosp., 

CRB No. 13-101, 2014 D.C. Wrk. Comp. LEXIS 234 at *11-*12 (May 7, 2014) 

(emphasis omitted) (quoting Al-Robaie, 2012 D.C. Wrk. Comp. LEXIS 250 at *6). 

The CRB cited this court‟s opinion in (Carolyn) Jones and two subsequent CRB 

opinions, including Al-Robaie, for the proposition that “the absolute prohibition 

upon consideration of the existence and amount of a specific, identifiable loss of 

wages in a particular case is no longer the law in this jurisdiction . . . .” Id.

14

 As 

 

14 The “absolute prohibition” referred to by the CRB in Dent is an implicit 

reference to Corrigan‟s exclusion of evidence of actual wage loss in determining 

the extent of permanent partial disability for schedule awards. The CRB gave 

notice of its intent to go en banc in two cases to decide whether “the CRB‟s 

decision in [Corrigan was] abrogated or modified by [(Carolyn) Jones].” Notice of 

En Banc Review, Hoepfl v. Washington Metro. Area Transit Auth., CRB No. 13-

119 (Nov. 1, 2013); Notice of En Banc Review, Jackson v. Washington Hosp. Ctr., 

CRB No. 13-068 (Nov. 1, 2013). The CRB‟s decision in Dent was stayed pending 

disposition of the en banc cases, which had reached opposing conclusions 

regarding the continued validity of Corrigan, but the CRB rescinded its decision to 

consider the cases en banc and they were ultimately decided by a regular CRB 

panel in each case without resolving the question. Hoepfl v. Washington Metro. 

Area Transit Auth., CRB No. 13-119, 2014 D.C. Wrk. Comp. LEXIS 154 at *19

(Apr. 7, 2014) (remanding to reopen the record for additional evidence); Jackson v. 

Washington Hosp. Ctr., CRB No. 13-068, 2014 D.C. Wrk. Comp. LEXIS 179 at 

*20 (May 30, 2014) (affirming award for permanent partial disability although 

ALJ found no medical impairment). More recently, the CRB has explicitly stated 

that “Corrigan no longer represents the applicable law, and hasn‟t since” Al-

(continued . . .)
28

set out supra, the CRB explained that this court‟s opinion in Smith does not 

preclude and (Carolyn) Jones, 41 A.3d at 1224-26, 1226 n.7, supports the 

conclusion that there is no such prohibition. 

The CRB‟s decision in this case, taken together with its decision in AlRobaie, indicates a recognition by the CRB that the principle it espoused in 

Corrigan — that evidence of actual wage loss is irrelevant in determining a 

schedule award under the D.C. WCA — is in tension with this court‟s decision in 

(Carolyn) Jones, which is binding on the CRB. Thus, the CRB‟s decision to

abandon Corrigan was not arbitrary, but reasoned, based on its interpretation of 

Smith and (Carolyn) Jones. As a result, under established principles of 

administrative law, our inquiry is not whether Corrigan was correct;

15 rather, the 

question for the court is whether the CRB‟s decision in this case, following AlRobaie, reflects a reasonable interpretation of the D.C. WCA that merits our 

 

(. . . continued)

Robaie. See, e.g., Lee v. Marriott Corp., CRB No. 15-134, 2016 D.C. Wrk. Comp. 

LEXIS 109 at *6 (Mar. 9, 2016); El Masaoudi v. UNO Chicago Grill, CRB No. 

15-093, 2015 D.C. Wrk. Comp. LEXIS 605 at *8 (Oct. 15, 2015).

15 The Department of Employment Services, represented by the Office of 

the Attorney General of the District of Columbia, filed a brief on the merits and 

participated in oral argument in this case. It does not defend (or indeed cite) 

Corrigan, so we see no need to address it as a matter of judicial deference to an 

agency interpretation.
29

deference. We conclude that it does.16

3. The CRB’s Decision in This Case Is Reasonable

In this case, as in Al-Robaie, the CRB allowed the ALJ to consider evidence 

of the claimant‟s actual wage history in making a schedule award, to “the extent to 

 

16 This division is aware of the CRB‟s decision in (Kevatte) Jones v. 

Washington Metro. Area Transit Auth., CRB No. 13-095, 2014 D.C. Wrk. Comp. 

LEXIS 236 (June 10, 2014), issued shortly after the CRB‟s decision in this case, in 

which the CRB relied on Corrigan‟s categorical rule that wages are irrelevant in 

determining disability for schedule awards. In that case the ALJ denied the 

claimant‟s proffer of evidence of her prior employment as a deputy sheriff as part 

of her “industrial history.” The claimant argued the evidence was relevant to the 

ALJ‟s determination of the extent of her disability for a schedule award, because, 

as a result of the injuries she sustained while employed as a bus driver, she lost 

wage-earning capacity as she could no longer meet the requirements for a higherpaying position in law enforcement even though she was able to resume driving a 

bus. A divided panel of the CRB affirmed the Compensation Order, agreeing with 

the ALJ‟s exclusion of evidence of the claimant‟s prior employment history. A 

majority of the CRB panel referred to Corrigan‟s prohibition on considering “the 

claimant‟s earning capacity or ability to return to work” in determining “specific 

loss” (i.e., the percentage loss or loss of use of a scheduled member) because 

“compensation is paid if the loss has been incurred, and it is not relevant whether 

the worker can work after the loss.” Id. *9 (quoting Corrigan, 2007 D.C. Wrk. 

Comp. LEXIS 364 at *30-*31). One of the panel members disagreed. See id. at 

*14-*17 (Leslie, AAJ, dissenting) (noting that each claim for disability presents “a 

complex of factors” to be considered by the ALJ and explaining that “[p]rior 

vocational history can be a relevant factor in determining how the industrial 

accident has impaired Claimant‟s ability to earn income (i.e., potential for wage 

loss)”). On petition for review of the CRB‟s decision, the court today remands the 

case to the CRB for further consideration. (Kevatte) Jones v. District of Columbia 

Dep’t of Emp’t Servs., No. 14-AA-696 (D.C. May 4, 2017).
30

which such wage loss correlates with or is indicative of loss of wage earning 

capacity or economic impairment.” We conclude that the CRB‟s decision is based 

on a reasonable interpretation of an ambiguous provision in the D.C. WCA and 

thus merits our deference. There are several reasons why we so conclude. We 

begin with the plain language of the text, which is the first step in interpreting a 

statute. See Eaglin v. District of Columbia, 123 A.3d 953, 955 (D.C. 2015). The 

specific provision at issue in this case provides that “[c]ompensation for permanent 

partial loss or loss of use of a member may be for proportionate loss or loss of use 

of the member.” D.C. Code § 32-1508 (3)(S). It neither mandates nor prohibits 

consideration of evidence of actual wages in determining a claimant‟s 

“proportionate . . . loss of use.” Thus, the CRB‟s decision to consider evidence of 

a claimant‟s post-injury loss of wages in determining whether the claimant has 

suffered “proportionate . . . loss of use” is permissible if supported by other 

indicators of statutory interpretation.

Second, the 1998 amendment of the D.C. WCA provided further direction in 

how to “determin[e] disability” in making schedule awards for permanent partial 

disability by listing five factors — pain, weakness, atrophy, loss of endurance, and 

loss of function — in addition to physical impairment. D.C. Code § 32-1508 

(3)(U-i). As “disability” is defined in the D.C. WCA in economic terms — as 
31

“incapacity because of injury which results in the loss of wages,” D.C. Code § 32-

1501 (8) — it makes sense to interpret “[l]oss of function,” for example, as 

incorporating at least in part the notion of a loss of economic function. Applying 

the Maryland factors, in Getson the Maryland Court of Appeals provided as an 

example of the proper consideration of disability a workplace injury suffered by a 

freight checker and a pianist that results in amputation of both thumbs — a 

schedule award under both the Maryland and District of Columbia workers‟ 

compensation acts — that would yield significantly different disability ratings 

depending on the ability to return to “pre-accident duties . . . [n]otwithstanding the 

similarity of the injuries. . . .” Getson, 694 A.2d at 968 (internal quotation marks 

omitted). Evidence of wage loss could similarly be connected to any of the other 

factors listed in the statute to the extent that there is a logical nexus between wages 

and the factor at issue. For example, a worker may be able to continue to work, 

but not full-time, because of pain, weakness, or loss of endurance. Thus, the 

CRB‟s determination that evidence of wages — either wage loss or the ability to 

maintain the same level of wages post-injury — is relevant in determining a 

claimant‟s disability percentage for a schedule award has support in the text of the 

statute.

Third, the CRB‟s decision to permit consideration of evidence of actual 
32

wage loss as a factor in determining a claimant‟s permanent disability percentage 

for a schedule award is consonant with two of the D.C. WCA‟s objectives: 

“replacement of wages lost by disabled worker[s]” and “restoration of earning 

capacity and return to productive employment.” PS/CA Committee Report at 6-7. 

We have repeatedly commented that this economic orientation is reflected in the 

D.C. WCA‟s definition of disability, which establishes a link between mental or 

physical incapacity because of injury and a resulting wage loss. D.C. Code § 32-

1501 (8). As this court noted in Smith, 548 A.2d at 100, “compensation under the 

Act is predicated upon the loss of wage earning capacity, or economic impairment, 

and not upon functional disability or physical impairment.” In Negussie v. District 

of Columbia Dep’t of Emp’t Servs., 915 A.2d 391, 396-99 (D.C. 2007), this court 

relied on the legislative history of the 1998 amendment, Smith, and Maryland cases 

to explain that the ALJ is not bound by medical assessments of physical 

impairment when calculating a disability percentage for schedule awards, which 

are intended to compensate for economic loss. This court held:

ALJs have discretion in determining disability percentage 

ratings and disability awards because, as used in the Act, 

“disability” is an economic and legal concept which 

should not be confounded with a medical condition, and 

. . . in this case the ALJ erred by following decisions of 

the Director of DOES that require ALJs to choose a 

disability percentage rating provided either by the 

claimant‟s or the employer‟s medical examiner.
33

Id. at 398-99 (emphasis added). Numerous statements by this court emphasize that 

“[d]isability . . . is an economic concept rather than a medical condition.” 

Washington Post v. District of Columbia Dep’t of Emp’t Servs., 853 A.2d 704, 707 

(D.C. 2004) (citing Washington Post v. District of Columbia Dep’t of Emp’t Servs., 

675 A.2d 37, 41 (D.C. 1996)); see also Potomac Elec. Power Co. v. District of 

Columbia Dep’t of Emp’t Servs., 835 A.2d 527, 531 (D.C. 2003) (“Disability is an 

economic and not a medical concept.”) (quoting Harris v. District of Columbia 

Dep’t of Emp’t Servs., 746 A.2d 297, 301 (D.C. 2000)); Upchurch v. District of 

Columbia Dep’t of Emp’t Servs., 783 A.2d 623, 627 (D.C. 2001) (“Disability is an 

economic and not a medical concept, and any injury that does not result in loss of 

wage-earning capacity cannot be the foundation for a finding of disability.”); 

Smith, 548 A.2d at 101 (“A schedule award is intended to compensate only for 

economic, not physical, impairment.”). We have recently decided that the five 

Maryland factors are limited to proving loss of wage-earning capacity and do not 

encompass impairments to a claimant‟s personal and social life “because those are 

beyond the economic scope of the act.” M.C. Dean, Inc. v. District of Columbia 

Dep’t of Emp’t Servs., 146 A.3d 67, 77 (D.C. 2016) (citing Smith, 548 A.2d at 100, 

and Upchurch, 783 A.2d at 627). Using evidence of actual wages in applying the 

statutory factors to determine a claimant‟s disability percentage for a schedule 
34

award furthers the legislative objective of compensating claimants for the 

economic harm of loss of wage-earning capacity. As Professor Larson has 

commented, “[i]t is earning capacity that should be crucial; actual wage-loss is 

significant as the best evidence of loss of earning capacity, but obviously some 

adjustment based on what the worker is „able to earn‟ must be made[.]” Arthur 

Larson, The Wage-Loss Principle in Workers’ Compensation, 6 WM. MITCHELL L.

REV. 501, 525 (1980) [hereinafter Larson, Wage-Loss Principle]. 

Fourth, the CRB‟s determination to permit consideration of the actual impact 

on wages in determining the extent of “proportionate” loss or loss of use in a case 

of permanent partial disability provides a useful tool for ALJs tasked with 

exercising discretion based on the understanding that „“disability‟ is an economic 

and legal concept.” Negussie, 915 A.2d at 398-99. There is an important 

distinction between determining the extent of disability by taking account of preand post-injury wages as a factor to be considered by the ALJ in applying this 

economic concept and calculating the amount of disability compensation using the 

formula prescribed in the statute after the extent of disability has been found. The 

former is a finding of fact by the ALJ of the percentage loss of industrial use of the 

schedule member (0 - 100%) based on a weighing of the facts relevant to the 

individual claimant, whereas the latter is a straightforward mathematical 
35

calculation that uses the ALJ‟s finding of percentage loss of use as part of a 

statutory formula (% loss of use X 2/3 average weekly wage X number of weeks 

fixed in the statute for the schedule member). It is the latter method of calculating 

the amount of compensation as provided in the statute that we have said is not 

subject to alteration or dependent on actual wage loss because it reflects a 

conclusive legislative determination of the likely eventual loss of wage-earning 

capacity in case of loss or loss of use of the parts of the body specified in the 

schedule. See DeShazo, 638 A.2d at 1156 (noting that “scheduled benefit will be 

an appropriate, if arbitrary, compensation to offset wage losses that eventually can 

be anticipated”); Smith, 548 A.2d at 101 (quoting LARSON for proposition that “the 

schedule was never intended to be a departure from or an exception to the wageloss principle”); Lenaerts v. District of Columbia Dep’t of Emp’t Servs., 545 A.2d 

1234, 1236-39 (D.C. 1988) (distinguishing between different and mutually 

exclusive formulas for calculating compensation for schedule and non-schedule 

work injuries).

None of the foregoing should be read to imply that evidence of wage loss is 

either necessary or sufficient to justify a schedule award for permanent partial 

disability, however. We do not read the CRB‟s decision as conferring any special 

weight to evidence of wage loss, or the absence thereof. Such evidence is merely 
36

one factor that may be considered by the ALJ and the CRB in making a schedule 

award for permanent partial disability to compensate for loss of wage-earning 

capacity. As the D.C. WCA permits consideration of the AMA guidelines as well 

as the five Maryland factors in making that predictive judgment, D.C. Code § 32-

1508 (3)(U-i), it is quite possible that a claimant could recover a schedule award 

for permanent partial disability despite evidence that the claimant has experienced 

no actual wage loss, as a result of a showing of some combination of physical 

impairment under the AMA guidelines, pain, weakness, atrophy, loss of endurance, 

or loss of function that support a finding that a claimant‟s wage-earning capacity 

has been, or is likely to be, compromised. Contrariwise, it is possible that a 

claimant could fail to recover a schedule award despite evidence that the claimant 

experienced actual wage loss, if the remaining evidence points in favor of finding 

either no physical or mental incapacity caused by the workplace injury or an 

insufficient link between the incapacity and wage loss, as required by the definition 

of disability.

The ALJ‟s ability to come to a considered judgment of the extent of 

permanent partial disability is particularly important in the context of a schedule 

award. Because a schedule award is a one-time payment meant to compensate for 

the loss of future wage-earning capacity resulting from a work injury, it necessarily 
37

involves an element of “prediction.” See (Carolyn) Jones, 41 A.3d at 1224. 

Determining the extent of disability thus requires a highly fact-bound inquiry that 

takes into account the particulars of the individual claimant, such as employment 

skills, experience, age, education, and reasonable prospects; evidence of postinjury wages, compared with pre-injury wages, may be more or less probative of 

loss of future wage-earning capacity depending on the facts of the case. It is for 

the ALJ to consider and weigh the relevant evidence presented in a given case. See

id. (“[R]ecognizing that in making a legal determination of disability, the ALJ 

comes to a conclusion based on a complex of factors, taking into account physical 

impairment and potential for wage loss, and the application of judgment based on 

logic, experience and even „prediction.‟”); Larson, Wage Loss Principle at 524 n. 

94 („“The loss of earning capacity‟ concept leaves room for adjustment in both preand post-injury earnings, to arrive at an accurate representation of true impact 

attributable to the injury. For example, allowances may be made for economic 

increases in wage levels, for changes in the claimant‟s age, training, or hours, for 

distortion of wage by employer sympathy, or for the impermanence of particular 

post-injury earnings.”). 

In this case, for example, the ALJ had the benefit of a long course — ten 

years of continued full-time employment after the injury, without any sign of 
38

letting up or wage loss — to draw upon as one factor in determining that the 5% 

physical impairment of the arm had not had any impact on petitioner‟s ongoing 

capacity to earn wages. The ALJ did not use “the ups and downs of actual wages,” 

DeShazo, 638 A.2d at 1156, to dictate the question of permanent partial disability 

in calculating the schedule award but rather took the petitioner‟s extended work 

history into account, along with the consequence of the injury on all aspects of 

petitioner‟s life, and finding none, came to the ultimate judgment that petitioner 

was not disabled for purposes of workers‟ compensation.

In light of the foregoing analysis, we conclude that the CRB‟s Decision and 

Order affirming the ALJ‟s Compensation Order was based on a reasonable 

interpretation of the D.C. WCA.

B. Evidence of Continuing Medical Care

Petitioner argues that the CRB erred in affirming the ALJ‟s consideration of 

the character and regularity of the medical care petitioner received for her shoulder 

injury when assessing her disability. The government first contends that 

petitioner‟s argument is precluded by the invited error doctrine; in the alternative, 

it argues that the CRB properly affirmed the ALJ‟s use of those factors. Since the 
39

CRB did not rely on the invited error doctrine, this court cannot do so on appeal. 

See Bowles v. District of Columbia Dep’t of Emp’t Servs., 121 A.3d 1264, 1269 

(D.C. 2015) (“An administrative order can only be sustained on the ground relied 

on by the agency.”) (internal quotation marks omitted). Addressing the merits, we 

conclude that the CRB properly found that the ALJ could consider those factors.

Petitioner‟s argument is two-fold: that continuing medical care is not 

required to prove the existence of a permanent partial disability because the 

underlying injury is permanent, and that the ALJ‟s reliance on the absence of 

medical records of continuing treatment was therefore erroneous. Petitioner is 

correct that such evidence is not required because an impairment must reach 

“maximum medical improvement” prior to an award for permanent disability, 

meaning that no further treatment will improve the underlying injury. See Logan v. 

District of Columbia Dep’t of Emp’t Servs., 805 A.2d 237, 241 (D.C. 2002) (citing, 

inter alia, 4 ARTHUR LARSON, LARSON‟S WORKERS‟ COMPENSATION LAW § 80.04, 

at 80-13 (Matthew Bender ed. 2002) (“Permanent means lasting the rest of 

claimant‟s life. A condition that, according to available medical opinion, will not 

improve during the claimant‟s lifetime is deemed to be a permanent one.”)). That 

the evidence is not required, however, does not mean that it is irrelevant, as the 

nature and regularity of continuing medical care after the injury has stabilized may 
40

be useful information in assessing the statutory factors of pain, weakness, atrophy, 

loss of endurance, and loss of function that contribute to the calculation of the 

extent of disability caused by a permanent injury. Evidence of continuing medical 

care is routinely presented to support (or deny) the existence of a disabling 

condition. If the character or regularity of medical care were not admissible, 

claimants could no longer rely on medical records to corroborate that they have 

continued to experience pain, weakness, atrophy, loss of endurance, or loss of 

function even after their injury reached maximum medical improvement. This 

court has noted that a “dearth of evidence of medical analysis and treatment” is 

significant when assessing whether a claimant is entitled to a schedule award. 

Golding-Alleyne v. District of Columbia Dep’t of Emp’t Servs., 980 A.2d 1209, 

1217 (D.C. 2009).

The CRB commented in this case, “How frequently a claimant seeks 

medical care, or takes pain medication, or takes any number of actions can 

certainly shed light on the degree to which that claimant suffers from a medical 

condition and how severe that injury or condition is. . . . [T]he severity of an injury 

is a primary factor in reaching a reasoned conclusion regarding the degree of 

disability.” Consistent with this common-sense notion, petitioner testified at the 

hearing that she was receiving ongoing care and medication for her right shoulder 
41

to ameliorate pain from the injury she sustained eleven years earlier. In light of 

this testimony, it was perfectly reasonable for the ALJ to consider the lack of 

supporting medical records when assessing petitioner‟s credibility as to whether 

she had, in fact, received such continuing treatment in connection with her right 

shoulder. Accordingly, the CRB did not err in affirming the ALJ‟s Compensation 

Order on this point.

C. Review for Substantial Evidence

Petitioner contends that because the CRB did not properly articulate the

substantial evidence standard of review, it therefore erred as a matter of law in 

concluding that the ALJ‟s credibility determinations were supported by substantial 

evidence, without conducting an independent substantial evidence analysis. 

Petitioner focuses on the following statement in the CRB‟s Order: “Given the 

deference accorded to the fact finder on credibility issues, we will not substitute 

our judgment for that of the ALJ. And, lest one forget, the ability to assess 

appearance and demeanor are still important reasons for according much deference 

to the person who heard the evidence, even if they are not the only reasons to do 

so.” (emphasis added). 
42

As a matter of law, the CRB does have the authority to make a judgment on 

the legal sufficiency of the ALJ‟s credibility determination, even under the 

deferential substantial evidence standard of review. See Georgetown Univ. v. 

District of Columbia Dep’t of Emp’t Servs., 985 A.2d 431, 433 n.2 (D.C. 2009) 

(“[T]he ALJ of course retains the fact-finder‟s prerogative to weigh the two 

doctors‟ opinions and assess their credibility, subject again to review for 

substantial evidence.”). An absolute prohibition on the CRB‟s review of the basis 

for the ALJ‟s judgment on credibility issues would be at odds with the requirement 

that there be substantial evidence supporting the ALJ‟s order. Even if the CRB 

may, as a matter of law, reject a credibility determination as insufficiently 

substantiated, this is not such a case, as the ALJ‟s findings were well supported. 

The ALJ‟s determination that “Claimant was not a credible witness” was not based 

solely on an unreviewable assessment of demeanor, but also, as the CRB noted, on 

the consideration that petitioner‟s testimony “did not hang together.” The ALJ 

pointed to specific factors that lent substantial evidentiary support to this 

determination: “the remoteness of [petitioner‟s] claim, the lack of evidence to 

support her testimony of ongoing symptoms related to the injury, [and the] lack of 

medical evidence to support testimony that she is currently receiving ongoing 

treatment related to the injury . . . .” AHD Order at 3, 9. 
43

*******

For the foregoing reasons, the CRB Decision and Order affirming the ALJ‟s 

Compensation Order is 

Affirmed.