D.C. Court of Appeals Opens the Door to Apportionment

On January 31, 2019, the D.C. Court of Appeals issued an important decision that signals the likely return of apportionment in the District of Columbia. Wil Schladt, a partner at GodwinTirocchi, LLC, appealed a decision from the Administrative Hearings Division (“AHD”) awarding scheduled loss permanent partial disability to the Claimant based on an injury to the shoulder because the award did not include apportionment for the Claimant’s prior shoulder injury. At the initial appellate level, the Compensation Review Board (“CRB”) affirmed the decision and held that the D.C. Workers’ Compensation Act does not allow apportionment for pre-existing permanent disability.

We then appealed to the Court of Appeals and argued that the CRB misinterpreted the Act. The Court of Appeals rejected the CRB’s prior interpretation of the Act precluding apportionment and remanded the case to the CRB for further consideration to determine the proper interpretation of the Act. While the Court of Appeals did not explicitly require the CRB to find that apportionment was permitted by the Act, it was certainly suggested by the language of the opinion. We are hopeful that the CRB will follow the Court of Appeals’ guidance and rule that apportionment is permitted.

This case is also significant because the Court of Appeals overruled the CRB’s prior decision in Lawson, which held that the shoulder was part of the “arm” for purposes of scheduled loss permanency. Accordingly, in the District of Columbia the shoulder is no longer considered part of the arm.