## District of Columbia Court of Appeals No. 14
- AA
- 1141 M.C. DEAN, INC., et al. , Petitioner s ,

v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent , & CRB
- 056
- 14

ANTHONY LAWSON , Intervenor

. On Petition for Review of an Order of the District of Columbia Compensation Review Board
BEFORE: G LICKMAN , B LACKBURNE

- Rigsby and M C L EESE , Associate Judges

. J U D G M E N T This case came to be heard on the administrative record, a certified copy of the agency hearing transcript and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion file d this date, it is now hereby ORDERED and ADJUDGED that the petition for review is granted, and the case is rem anded to the Compensation Review Board ( ―CRB ‖) for resol ution of that legal question. A dditionally, the case is remanded for clarification of the disability analysis. For the Court:

Dated: July 7, 2016

. Opinion by Associate Judge Anna Blackburne

- R igsby

. Concurring opinion by Associate Judge Roy W. McLeese. JUL - 7 2016Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14

- AA

- 1141
M.C. D EAN , I NC
. , ET AL
. , P ETITIONERS ,

v. D ISTRICT OF C OLUMBIA D EPARTMENT OF E MPLOYMENT S ERVICES , R ESPONDENT , and
A NTHONY L AWSON , I NTERVENOR
. Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services

( CRB

- 056

- 14) (Argued September 16 , 2015 Decided July 7, 2016 ) D. Stephenson Schwinn , with whom Raphael J. Cohen was on the brief, for petitioners. Karl A. Racine , Attorney General, Todd S. Kim , Solicitor General, and Loren L. AliK

han , Deputy Solicitor General, on the statement in lieu of brief for respondent. Eric M. May for intervenor

. Before G LICKMAN , B LACKBURNE

- R IGSBY , and M C L EESE , Associate Judges

. Opinion for the court by Associate Judge B LACKBURNE

- R IGSBY
. Concurring opinion by Associate Judge M C L EESE at page 26. 7/7/162

B LACKBURNE

- R IGSBY , Associate Judge : I ntervenor 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. T he 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. ‖ 1 M.C. Dean and its co

- petitioner, insurer Zurich North America, appealed to the Compensation Review Board (―CRB‖), which affirmed the ALJ‘s order.

On petition for review to this court , petitioners argue that the CRB erred by affirming the ALJ‘s compens ation 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 i mpact of the impairments

1 ―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 awar d 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.‖3

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 lifting a 200

- pound transformer base during the course of his employment as a streetlight technician with M.C. Dean. 2 Mr. Lawson first sought treatment less than two weeks after the injury. When the injury failed to heal, he began physical therapy in August 2007. Even after ongoing physical therapy and left rotator cuff
surgery in February 2008 , Mr. Lawson continued to experience discomfort in his

2 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.4

neck and both shoulders, which by October 2008 was radiating down his arms, producing numbness in both hands , and causing swelling in his right arm and hand

. He was then referred to Dr. Moskovitz, an orthopedic surgeon who supervised Mr

. Lawson ‘s treatment through the administrative hearing in 2013

. Mr. Lawson had spinal fusion surgery in October 2009 , but he experienced only minor improvement and continued his physical therapy and consultation with Dr. Moskovitz. By February 2011 , Mr. Lawson ‘s ―major complaints ‖ involved his

arms rather than his neck and shoulders , including intermittent numbness and tingling when he turned his head or bent his elbows and pain in his wrists and triceps. Mr. Lawson ‘s last treatment prior to the administrative hearing was carpal
tu nnel surgery on his right hand in December 2012.

Administrative Proceedings and the ALJ’s Compensation Order

Mr. Lawson filed his compensation claim in January 2012

. B oth 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 permanent5

with modifiers for rotator cuff disease, AC [acromioclavicular] arthritis and persisting neuritis/CTS [carpal tunnel syndrome].‖ Because th e District of Columbia Workers‘ Compensation Act (―the Act‖) 3 recognizes separate schedule and non

- schedule disabilities rather than compensating the percentage of full

- body impairment , Mr. Lawson ‘s counsel requested an adjusted calculation of the impairment specifically for the ―upper extremity (ies)

. ‖ In his response dated May 31, 2012, Dr. Moskovitz provided a new ass essment of Mr. Lawson ‘s condition based on the current edition of the American Medical Association Guides to the Evaluation of Per

manent Impairment (― AMA Guides ‖): permanent physical impairment of the right upper extremity equal to nineteen percent (19%) of the whole person or thirty

- one percent (31%) of the right upper extremity itself, and permanent physical impairment of t he left upper extremity equal to nine percent (9%) of the whole person or sixteen percent (16%) of the left upper extremity itself. In his deposition, Dr. Moskovitz indicated that carpal tunnel surgery could improve the impairment assessments of each uppe r extremity by just one percent

.

The specifics of Dr. Moskovitz‘s methodology are important . In both his written assessments and his dep osition, Dr. Moskovitz discussed the impairments
of Mr. Lawson ‘s neck, shoulders, arms, and hands together. He explained that the

3 D.C . Code §§ 32

- 1501 to

- 1545 (2012 Repl.).6

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 separately assess ing impairments of the left and right upper extre mities , he did so with the understanding that ―[t]he upper extremity begins at the base of the skull.‖ Dr. Moskowitz found a causal link between the impairments and the April 2006 injury with reasonable certainty

.

Petition er s paid for an independent expert evaluation of Mr. Lawson ‘s injuries by Dr. Scheer, also an orthopedic surgeon . A pplying the AMA Guides , he
concluded in his final assessment completed July 2, 2012, that Mr. Lawson suffered only a ten percent (10%) impairm ent 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 less7

efficient worker, and could no longer supplement his income with contract work.
T he 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. 4 He also described the impact o f his injury on activities outside work, such as an inability to carry grocery bags and to play recreational sports.

Mr. Lawson sought schedule benefits for a fifty

- percent (50%) permanent partial disability of his right upper extremity and a thirty

- pe rcent (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 opportunitie s for advancement based on his skills, work history, and the restrictions imposed by his disability.‖ In the compensation order, t he 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

4 $745 reflects the statutory amount of 66 2⁄3% 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 specified , 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).8

and consistent with the record, and the ALJ accepted his conclusion s that Mr.
Lawson ‘s impairments resulted from the April 2006 work injury an d 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%) impairme nt of the left upper extremity based on Dr. Mosko vitz‘s medical assessment.

The ALJ then proceeded from the medical impairment analysis to the non

medical disability analysis to determine t he extent of Mr. Lawson ‘s permanent partial disability

. Starting with the right upper extremity, the ALJ consider ed 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 partial disability for pain, ten perc ent for weakness, and ten percent for loss of endurance. The ALJ then increased the disability finding by five percent for each of three other unidentified factors ( referred to only as ―these finding‖ [sic] and ―these factors‖ in the compensation o rder) f or ―a total 45 per cent disability of the right upper extremity.‖9

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 activiti es‖ 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 ― up per extremities ‖ as defined by Dr. Moskowitz 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 inju ry to the neck and shoulders and (2) considering personal, social, and occupational impacts beyond the scope of the economic disability10

inquiry under D.C. Code § 32

- 1508 (3)(U

- i)

. 5 In its decision, the CRB noted that , ―I t is axiomatic that disability experienced in a schedule member may be compensable even if the anatomical situs of this injury is a non - schedule body part,‖ citing WMATA v. District of Colu mbia Dep’t of Emp’t Servs. (Chang) , 683 A.2d 470 (D.C. 1996). The CRB determined that the ALJ‘s disability findings for
Mr. Lawson ‘s arms were supported by substantial evidence, regardless of other treatment or disability to the neck and shoulders. The CRB did not address petitioners‘ argument that Dr. Moskowitz included the neck and shoulders, not just the arms, in the ―upper extremity‖ impairments that the ALJ fully credited and relied upon in determining the schedule disability awards

.

The CRB also h eld 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 [s] 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 occupationa l activities was proper because ―consideration of a

5 Petition er s also challenged the ALJ‘s failure to credit them for the amount of temporary benefits paid after Mr. Lawson ‘s various surgeries, but the CRB declined to address the issue because petitioners did not raise it before the ALJ.11

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 o rder, and M.C. Dean and Zurich North America filed a petition for review with this court

.

II. Analysis

A. Standard of Review

―Our r eview of a final order of the CRB is limited to determining whether the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.‖ Reyes v. District of Columbia Dep’t of Emp’t Servs. , 48 A.3d 159, 164 (D.C. 2012) (internal quotation omitted). We will a ffirm if ― (1) the agency made findings of fact on each contes ted material factual issue, (2) substantial evidence supports each finding, and (3) the agency‘ s conclusions of law flow rationally from its findings of fact.‖ Id

. Although we review the decision of the CRB , we cannot ignore the ALJ‘s compensation order which is the subject of the CRB‘s review, and we will remand if the ALJ‘s factual findings are not supported by substantial evidence. Id

. Finally, when a petitioner challenges the CRB‘s interpretation of the Act, we defer to the agency‘s interpretation unless it is12

―unreasonable or in contravention of the language or legislative history of the statute.‖ Howard Univ. Hosp. v. District of Columbia Dep’t o f Emp’t Servs. ( Petway ) , 994 A.2d 375, 377 (D.C. 2010) (q uotation omitted )

.

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 ex tremity
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

.13

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
whol e person rating, and [he] understood later that the statutory requirements or regulatory requirements, whatever they are in the D istrict of Co lumbia, 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‖ assessments 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 in to right and left sides. Finally, when asked for h is ―opinion within a reason[able ] degree of medical certainty as to the impairments of [ Mr. Lawson ‘s] upper extremities as a result of the April 1st, 2006 in jury,‖ Dr. Moskovitz responded that

― the physica l impairment of [ Mr. Lawson ‘s] right upper extremity is 31 percent based on residual neurological impairment, rotator cuff impairment and that his14

physical impairment of the left upper extremity is 16 percent based on his cervical spine impairment and rota tor cuff/arthritis treated surgically in the past.‖ 6 The references to impairments of the rotator cuff and cervical spine further reflect that Dr. Moskovitz adhered to his definition of ―upper extremity‖ and included impairments of the neck and shoulders up to ―the base of the skull.‖

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 discussi ng 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

6 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.15

ALJ‘s understanding of the term s ―arm‖ and ―upper extremi ty‖ may result in the inconsistent determination of schedule awards or, as petitioners contend here, in
the arbitr ary 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 sh oulders does not prevent inde pendent impairments of the arms because ―i t 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 (Direc tor‘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 awa rds). 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 base d on evidence of his shoulder disability. I d . at 226

– 27. We determined that ―right upper extremi ty‖ must have meant the arm
without the shoulder because it produced a schedule award. Id . at 226 n.4. We16

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  ̳sepa rate and distinct disabilities‘ as
described in Morrison . . . .‖ Id

. at 378

– 79

.

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 a t 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 ―upp er extremity.‖ The
CRB has expertise in th e 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

. C ompare Dye v. Indus. Comm’n of Ariz. , 736 P.2d 376, 378 (Ariz. 1987) (en banc)17

(holding shoulder, though part of the ―left upper extremity,‖ is not included i n a schedule award for the arm), and Safeway Stores, Inc. v. Indus. Comm’n of Ariz. ( Peterson ) , 558 P.2d 971, 974 (Ariz. Ct. App. 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) (sta ting 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 definitio n of that boundary is essential. Looking at thi s 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. 7

7 Petitioners also argue that the pain radiating from Mr. Lawson ‘s neck

- and

shoulder injury into his arms cannot serve as the bas is 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 si gnificant 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 pet itioner suffers multiple disabilities from a single (continued . . .)18

We therefore remand for the CRB to clarify the definition s of ―arm‖ and ―upper e xtremity‖ so that the legal scope of schedule awards do es not vary from
case to case

.

(. . . continued) 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. L awson ‘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. Petit ioners argue more narrowly that radiating pain alone is non

compensable beyond the im pairment from which it radiates. See Johnson v. District of Columbia Water & Sewer Auth. , CRB No. 11

- 0 13, 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 schedu le 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 fin dings beyond radiating pain , such as numbness, ―a loss of strength in [ Mr. Lawson‘s] upper extremities, and physical limitat ions regarding overhead work.‖ See Muhammad v. District of Columbia Dep’t of Emp’t Servs. , 774 A.2d 1107, 1113 (D.C. 2001) (remandi ng a decision denying any disability where the claimant complained of ―pain, numbness, reduced coordination, and general dysfunction‖ in his hand).19

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 increa sing each upper extremity schedule disability award by fifteen percent (15%) based on additional factor s 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 arm, the compensation

or der includes two paragraphs explaini ng 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.‖

T he ALJ‘s omission of the additional findings regarding the right upper extremity award prevents meaningful review of the decision. ― [A] reviewing court20

. . . 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, 122 4 (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 u sed 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. T he debate between
counsel at oral argumen t 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 t he 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 discr etion when assessing the21

economic disability resulting from a claimant‘s impairments. He further argues that consideration of occupational limitations is necessarily within the ALJ‘s r ole in determining disability.

The ALJ relied on the general definit ion of non

- medical disability in the
AMA Guides as authority to award disability benefits for the impact of Mr.
Lawson ‘s impairment on his personal and social activities , not just his wage earning capacity

. 8 The CRB noted that ―it may appear that considering a

8 When amending the Act, the D.C. Council considered and rejected the direct use of the AMA Guides in det ermining 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 Counc il 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 impairme nt, not an intention to allow the American Medical Association to add factors to the District‘s workers‘ compensation 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 princi ples

— 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 (continued . . .)22

disability‘s impact on personal or social activities should be beyond the scope of compensation offered for work

- related injuries,‖ but it affirmed because such a restriction ―is shortsighted‖ since non - work act ivities could still ―demonstrate an
effect on th e ability to perform job duties. ‖ T he compensation order did not tie personal and social functions to the multi

- factor framework of § 32

- 1508 (3)(U

- i), however, for the ALJ instead provided a five

- percent in crease for limited ―sleep through the night and grocery shopping‖ (personal) and a five

- percent increase for limited ―ability to participate in recreational activities‖ (social) without (. . . continued) Bancorp , 694 A.2d 961, 967

– 68 (Md. 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 assess ed by nonmedical 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‖ the ories 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 A ct 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‖).23

demonstrating a nexus between those limitations and Mr. Lawson ‘s abili ty to perform job duties

.

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 impairment of personal and social activities because those are beyond the economic scope of the Act. 9 While the CRB‘s observation that personal and social activities may reflect work

- related limitations is consistent with our holding, those activities are not indepen dent ly compensable harms

. Contrary to our concurring colleague, we conclude that consideration of personal and social activities is only consistent with the legislative history and structure of the Act if there is a nexus to wage

- earning capacity, so a remand on this issue is unn ecessary.

9 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. Distr ict of Columbia Dep’t of Emp’t Servs. , 783 A.2d 623, 627 (D.C. 2001) (stating ―[d]isability is an economic and not a medical concept‖ based on the ―loss of wage

- earning capacity‖).24

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 abi lity to seek second jobs as an independent contractor. As a result, the ALJ awarded five percent partial disa bility for occupational limitat ions. The CRB affirmed, reasoning that ―consideration of a disability‘s effect on occupational capacity is precise ly 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. L imitations of occupational activities are assessed under the statutory str ucture ( 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 expl ained

. 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]25

up to just 10%‖); Jones, supra , 41 A.3d at 1226 (remanding for addition al 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, t he 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 func tion‖ 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 a n 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

. 10

10 Because we place no independent reliance on the AMA Guides , we need not decide Lawson‘s motion to strike.26
III. Conclusion

In this case, the ALJ credited an expert whose assessment included all of the claimant‘s impairments to his neck, shoulder, and arm in the left and right ―upper extremity‖ assessments. Because the CRB has not clearly determined where the ―arm‖ ends for purposes of a schedule a ward under D.C. Code § 32

- 1508 (3)(A), or whether the statutory term ―arm‖ is actually synonymous with the medical term ―upper extremity , ‖ we grant the petition for review and remand to the CRB for resolution of that legal question . A dditionally, we reman d for clarification of the disability analysis.

So ordered.

M C L EESE , 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. 23. 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 22 n.8. I would not rule so broadly. As the court explains, ante at 21

- 2 2 , the CRB27

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 th ose effects adversely affect a claimant‘s ability to perform job duties. Ante at 2 1

- 2 2 . 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 2 2

- 23.

Because we cannot affirm the CRB‘s basis for uphol ding 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. As s’n v. Public Serv. Comm’n , 129 A.3d 925, 930 (D.C. 20 16 ) ( ― 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 ask s 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 con sideration by the agency in the first instance is not28

required , however, if the question at issue could have only one permissible answer. Id. (― [R] emand is not required in cases where

. . . it is clear what the agency's
decision has to be

. ‖ ) (internal quo tation marks omitted). I do not view this as such

a case.

The applicable statute, D .C. Code § 32

- 1508 , arguably suggests that non economic e ffects 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 s ection 32

- 1508 (3), court explain s that benefits are determined ― by reference to the type of injury suff ered

. . . without regard to actual wage loss.

. . . 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 tol l, and that the scheduled benefit will be an appropriate, if arbitrary, compensation to offset wage losses that eventually can be anticipated. ‖)

.29

When a listed body part is partially impaired rather than completely lost , the award is determined as a prop ortion of the award for a complete loss . D.C. Code § 32

- 1508 (3)(S ). For purposes of calculating th at 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 39 1 , 397 ( D.C. 20 07 ) . 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

a n injury.

We have nevertheless held that scheduled permanent partial disability award s 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 (― ̳ [D] isability ‘ 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 o f wages‖) . As far as I am aware,30

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 22 n.8. To the contrary, ou r 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 effe cts 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 determin ing the amount31

of a scheduled permanent partial disability award

. I would remand for the CRB to address that issue in the first instance.