D.C. Workers with Scheduled Injuries may Qualify for Permanent Total Disability Wage-Loss Benefits

Case File

In a matter of first impression, the District of Columbia Court of Appeals held that a claimant who suffers permanent total disability from an injury to a scheduled body part is not limited to a schedule award and may instead qualify for wage-loss benefits.

Case

District of Columbia Department of Public Workers v. District of Columbia Department of Employment Services, No. 25-AA-0233 (D.C. 10/22/26).

What Happened?

A D.C. sanitation worker injured his right ankle when he stepped into an uncovered sewer drain. He applied for and received temporary disability benefits. When the worker learned that his benefits were going to expire, he filed for a hearing with the Office of Administrative Hearings to determine whether he had a permanent disability warranting a permanent disability award. The Administrative Law judge issued a compensation order awarding the worker a schedule award for a 20% impairment of his right ankle.

The Compensation Review Board reversed and remanded with instructions to apply a wage-earning capacity test rather than using the schedule. The OAH ultimately awarded the worker a wage-loss award, and the CRB affirmed. The CRB concluded that the ALJ should first determine whether the claimant was permanently and totally disabled, because a finding of permanent total disability would entitle him to potentially greater wage-loss benefits than a schedule award.

The employer appealed to the District of Columbia Court of Appeals.

The question the court had to address on appeal was whether an employee covered under the Comprehensive Merit Personnel Act who is permanently and totally disabled by an injury to a scheduled body part may receive a wage-loss award or whether the schedule is exclusive and precludes any other form of compensation.

Rule of Law

In Washington D.C., workers' compensation awards take one of two forms:

(1) Wage-loss awards, which provide a percentage of the employee's wages at the time of injury for as long as the employee remains unable to work.

(2) Schedule awards, which provide that same percentage of wages for a fixed number of weeks when the disability involves the permanent loss or loss of use of a body part listed in the statutory schedule, regardless of when or whether the employee can return to work.

More specifically, under Section 1-623.05(a), once a claimant establishes that they are totally disabled, D.C. must pay the claimant the compensation set forth in the statute for the duration of the disability. On the other hand, Section 1-623.07(a) provides that if there is a permanent disability involving the loss or loss of use of a member or function of the body or disfigurement, the employee is entitled to basic compensation for the disability.

What the Court Said

In a matter of first impression, the court held that Section 1-623.07 does not provide the exclusive remedy for workers whose injuries involve scheduled body parts. A claimant who can establish permanent total disability may pursue benefits under Section 1-623.05 even when the disabling injury affects a scheduled member. In the court's analysis, if permanent total disability was categorically unavailable for scheduled losses, it would be "peculiar" for the statute to give claimants who can show a set of scheduled losses a "virtual 'head start' toward proving permanent total disability."

Workers' Comp 101: Temporary vs. permanent benefits. In D.C., a claimant who can still work but whose wage-earning capacity falls below their pay at the time of their injury receives temporary partial disability benefits, and a claimant who is completely unable to work receives temporary total disability. A claimant's wage-earning capacity is typically determined by their actual earnings, but if a claimant's actual earnings do not fairly or reasonably represent their wage-earning capacity, or if they have no actual earnings, their wage-earning capacity is determined based on the following factors:

(1) The nature of the injury

(2) The degree of physical impairment

(3) The worker's usual employment

(4) The worker's age

(5) The worker's qualifications for other employment

(6) The availability of suitable employment

(7) Other factors or circumstances that may affect the worker's wage-earning capacity as a worker with a disability

Permanent disability benefits, which are either wage-loss awards or schedule awards, are awarded when a claimant reaches maximum medical improvement and demonstrates a permanent impairment or permanent loss of earning capacity.

The court also explained that "as a practical matter" it will almost always be the case that a claimant who is permanent totally disabled will be worse off receiving a schedule award than he would be receiving an award under Section 1-623.95.

For example, under Section 1-623.05, a claimant would receive 66 2/3% of his monthly pay in perpetuity, unless and until he is no longer considered totally disabled. On the other hand, under the schedule in Section 1-623.07, the claimant would receive the same 66 2/3% of his monthly pay, but only for 312 weeks, regardless of whether he remained totally disabled after the final payment.

"If the schedule is exclusive," the court wrote, "he is entitled to only the lesser award, despite qualifying for the greater one, simply because he was unlucky enough to have his disability involve a scheduled member."

Conversely, another claimant who was equally permanent totally disabled by virtue of an injury to a nonscheduled member would not face the same limitation.

"This arbitrary outcome strikes us as fundamentally at odds with both the plain meaning of the text, which already contemplates a more generous award for an employee who is permanently totally disabled under Section 1-623.05 because that award is not time-limited in the same way as the award under Section 1-623.07," the court wrote.

In the court's analysis, a claimant who proves permanent total disability is not barred from seeking benefits under the permanent-total-disability provision simply because the injury involves a scheduled member.

Verdict: The court sent the case back to the ALJ to consider whether a wage-loss award was justified.

Takeaway

Under the CMPA in Washington, D.C., a schedule award is not the exclusive remedy in every case where the schedule applies. A claimant whose total disability stems from injury to a body member listed on the schedule is not limited to the award provided in Section 1-623.07. A claimant who proves a schedule disability is entitled to invoke Section 1-623.07 and receive the schedule award; a claimant who can meet the more rigorous burden of proving permanent total disability under Section 1-623.05 is not barred from doing so merely because her disability happens to involve a scheduled member.

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