Abebe v. D.C. Dep't of Emp't Servs.
Abebe v. D.C. Dep't of Emp't Servs.
Opinion of the Court
Petitioner Solomon Abebe was injured on the job and filed a workers' compensation claim for disability benefits. His claim was granted in part and denied in part, and the Compensation Review Board (CRB) affirmed. Mr. Abebe petitions for our review. Agreeing that the CRB erred in affirming the compensation order, we vacate its decision and remand for further proceedings.
I.
Mr. Abebe worked as a security guard at CVS, a job that required him to stand for eight-hour shifts and watch for shoplifters, among other duties. While he was at work one day in February of 2013, Mr. Abebe approached a group of people he *725believed were attempting to shoplift. They attacked him, punching and kicking him and leaving him unconscious on the floor.
Dr. Christopher Magee treated Mr. Abebe for his injuries, diagnosing him with post-traumatic calcific bursitis of the right shoulder, lumbosacral strain, contusion of both knees, and right ankle sprain. Dr. Magee performed arthroscopic surgery to excise and debride a torn labral in Mr. Abebe's right shoulder. An MRI of his right knee ruled out any tears.
Mr. Abebe underwent two additional medical examinations prior to the hearing on his workers' compensation claim. Dr. Harvey Mininberg performed an independent medical evaluation (IME) at Mr. Abebe's request and opined that he suffered from a 36% permanent partial impairment to his right upper extremity and a 32% permanent partial impairment to his right lower extremity as a result of the attack. And Dr. Robert A. Smith twice examined Mr. Abebe at his employer's request. Dr. Smith opined that Mr. Abebe suffered from an 8% permanent partial impairment to his right shoulder, 4% of which was preexisting and 4% of which resulted from the attack. Dr. Smith indicated that Mr. Abebe had 0% impairment in his right knee.
Mr. Abebe sought awards of permanent partial disability (PPD) of 36% to his right upper extremity and 32% to his right lower extremity, in line with Dr. Mininberg's opinion, and an evidentiary hearing was held before an administrative law judge (ALJ). The ALJ subsequently issued a compensation order in which he found that Mr. Abebe was credible and continued to experience pain and impairment, but in which he also rejected Dr. Mininberg's PPD ratings entirely and Dr. Smith's evaluation "to the extent that it does not properly account for Mr. Abebe's subjective complaints." The ALJ granted Mr. Abebe's claim in part, awarding him compensation for an 8% PPD to his right upper extremity but no compensation for his right lower extremity. The ALJ found that, whereas Mr. Abebe could previously stand for an eight-hour shift and ran and rode his bicycle regularly, after the assault he struggled with pain, could stand for no longer than twenty minutes at a time, and could not "even press the pedal" of his bike due to pain.
Mr. Abebe appealed to the Compensation Review Board, arguing that the 0% PPD award for his right knee was not supported by substantial evidence in the record. The CRB affirmed, although on somewhat different grounds from the ALJ. The CRB referred to an intervening decision of this court, M.C. Dean, Inc. v. District of Columbia Department of Employment Services ,
*726II.
When reviewing a CRB order, we determine whether the decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Asylum Co. v. District of Columbia Dep't of Emp't Servs. ,
The CRB's decision relied on our holding in M.C. Dean , in which we held that the claimant's diminished ability to "sleep through the night," shop for groceries, and "participate in recreational activities" did not justify increases in his PPD award.
The CRB also erred in concluding that the ALJ's compensation order was supported by substantial evidence. Although the ALJ found that Mr. Abebe suffered from these aforementioned impairments, he believed himself constrained by our decisions in Jones v. District of Columbia Department of Employment Services ,
We can understand the dilemma Jones and Bowles created for the ALJ in this case. Having discredited Dr. Mininberg's evaluation entirely and Dr. Smith's evaluation "to the extent that it does not properly account for Mr. Abebe's subjective complaints," but crediting Mr. Abebe's testimony about his impairments, the ALJ had no simple way of arriving at a PPD percentage. But as 0% is also a percentage requiring justification, the ALJ's solution did not fix the problem.
*727It is true, as the ALJ observed, that the claimant carries the burden of proving the nature and extent of a disability. See Golding-Alleyne v. District of Columbia Dep't of Emp't Servs. ,
Concluding that the CRB erred in holding that no nexus existed between Mr. Abebe's impairments and his wage earning capacity and in affirming the ALJ's PPD award as supported by substantial evidence, we vacate its decision and remand for further proceedings consistent with this opinion.
So ordered.
Mr. Abebe testified at the hearing that he was unable to return to work after the incident. The employer has not contended that he left his job for reasons unconnected to his injuries.
Reference
- Full Case Name
- Solomon ABEBE v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, and US Security Associates Holdings and Liberty Mutual Holdings Insurance Company, Intervenors.
- Status
- Published