On May 2, 2019, the Compensation Review Board (CRB) issued a decision opening the door for apportionment claims in private sector injuries in the District of Columbia. James M. Lyles, Jr. v. Howard University Hospital, (CRB No. 17-036). This decision was in response to a remand from the D.C. Court of Appeals directing the CRB to revisit their interpretation of D.C. Code § 32-1508 (6).
The crux of the analysis centers around the changes to the Act in 1998 which eliminated the Special Fund involvement for injuries occurring on or after April 16, 1999. Before the amendment in 1998, the Special Fund was responsible for reimbursing employers a portion of benefits where a pre-existing disability or physical impairment combined with a work injury caused a substantially greater disability or death. The CRB examined the legislative history surrounding the 1998 amendment and determined that the two main goals of the amendment were to make D.C. more competitive with Maryland and Virginia and to improve the overall efficiency of the payment of benefits.
The CRB concluded that eliminating the Special Fund’s payments without allowing an employer to claim apportionment would not make D.C. more competitive with Maryland or Virginia. Maryland and Virginia both permit apportionment. The CRB concluded that after the amendments in 1998, employers should have been able to claim apportionment, although it has been unrecognized until now. The CRB has limited the scope of apportionment under this section for permanency partial disability awards, not temporary benefits.
At this time, the CRB has remanded the case back to the Administrative Hearings Division for issuance of a revised compensation order. We fully expect that this decision will make its way back up to the D.C. Court of Appeals. Until there is contrary law from the courts, in any claim where there are pre-existing injuries or conditions contributing to permanent partial disability, employers and insurers should raise the issue of apportionment. We will continue to keep a close eye on this developing situation.
UPDATE: On January 10, 2020, the Compensation Review Board issued a decision reversing their prior ruling finding apportionment exists in the District of Columbia. This issue is pending an appeal and we expect the D.C. Court of Appeals will chime with a final decision on this matter. Stay tuned to the blog for further updates when that occurs.