On January 27, 2022, The D.C. Court of Appeals addressed in Howard University Hospital, et al. v. D.C. Dep’t of Employment Servs. the issue of whether the 1998 Workers’ Compensation Amendment Act (“WCAA”) affects how much of an employee’s total permanent partial disability (“PPD”) schedule award must be compensated by the employer in the event of a workplace injury increasing the employee’s preexisting PPD.

The D.C. Court of Appeals affirmed the Compensation Review Board (“CRB”) determination that apportionment is not available, and the employer is liable for the employee’s full PPD schedule award. In supporting this decision, The Court looked to the legislative intent of the Workers’ Compensation Act (“WCA”) and its subsequent amendments. Generally, there are three approaches to compensation for subsequent injuries: (1) “full-responsibility,” which imposes liability on the employer for the entire resulting disability; (2) apportionment statutes, under which the employer only pays for the amount of disability caused during its employment; and (3) second injury funds, which ensure the employee receives full benefits but reimburse the employer for the difference between full benefits and benefits under an apportionment statute.

[Expanded Paragraph:] In the original 1979 WCA, an employer was only liable for the part of the disability or death caused by the subsequent injury. However, a claimant would receive supplemental compensation from a special fund to raise the total compensation to the amount entitled to the claimant if the subsequent injury had been the sole cause of the subsequent amount or disability or death. In 1990, the WCA was amended to eliminate apportionment in favor of full liability but maintain the special fund to mitigate the employer’s financial burden via reimbursement for permanent disability benefits after 104 weeks. The most recent amendment added a temporal limitation to this law, rendering it only applicable to injuries occurring before April 16, 1999. This limitation has therefore left a gap in the law as to whether apportionment applies to subsequent injuries occurring after April 16, 1999.

[Abridged Paragraph:] The original 1979 WCA expressly provided for the apportionment approach, only imposing liability on the employer for the amount of disability caused by the subsequent injury. However, a second injury fund was also utilized to ensure the employee received full disability benefits. In 1990, the WCA was amended to eliminate the apportionment approach in favor of the “full-responsibility” approach, while still maintaining the second injury fund to mitigate the employer’s financial burden. The most recent amendment, the 1998 WCAA, prospectively repealed the 1990 law, leaving a gap in the law as to whether apportionment applies to subsequent injuries occurring after April 16, 1999.

To bridge this gap, the CRB looked to the original purpose of the second injury fund—preventing discrimination against employees with a preexisting injury. However, the intent behind its repeal in the 1998 WCAA was not to decrease the employer’s financial obligation through apportionment—it was because the Americans with Disabilities Act better promoted the goal of the second injury fund, so that the fund was no longer needed. Moreover, reading apportionment into the statute would have gone against the fundamental concept of the “aggravation rule,” which does not weigh the relative contribution of the accident and the prior disease. The general rule in workers’ compensation has also supported the “full-responsibility” approach in the absence of an apportionment statute.

The Court found that nothing in the legislative history of the WCA contradicted the CRB’s conclusions noted above, affirming the CRB’s conclusion that the WCA does not provide for an apportionment of a PPD schedule award was reasonable and consistent with the statutory scheme. Accordingly, for subsequent injuries occurring after April 16, 1999, employers are liable for the full PPD schedule award without apportionment.

_{This article was co-authored by Law Clerk, Jennifer Nigro.}