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             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)

      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.

      Sarah M. Burton for intervenors.
                                       2

      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. Office of Administrative Hearings (OAH) Hearing




      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-


      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

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

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;
                                        9

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

substantial evidence; and whether the ALJ improperly accorded the treating

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
                                         10

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

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

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
                                        11

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

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

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
                                         12

continuing medical care when assessing the disability percentage of a permanent

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

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 post-

injury ability to engage in work.       7 LEX K. LARSON, LARSON‟S WORKERS‟
                                         13

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

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.



      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
“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

Id. at 86-23.




      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).
                                         15

     1.    Overview of District of Columbia Workers’ Compensation Act




      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) (non-

schedule award). A non-schedule award involves compensation for disability to a
                                         16

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,

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
                                          17

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

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.”).
                                        18

      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

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


      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

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.

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,

          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

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

“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 wage-

earning 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
                                                                   (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

 (. . . continued)
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
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

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

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.
                                         23

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

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

      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.
                                          24

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

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 —
      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

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

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 went en
banc, twice, 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 they were ultimately decided 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-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
                                                                    (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 Al-

Robaie, 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 Al-

Robaie, reflects a reasonable interpretation of the D.C. WCA that merits our


 (. . . continued)
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 higher-
paying 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 Dept. of Emp’t Servs., 853 A.2d 704, 707

(D.C. 2004) (citing Washington Post v. District of Columbia Dept. 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 pre-

and 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 wage-

loss 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 post-

injury 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 pre-

and 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.
