§ 32–1508. Compensation for disability.

Compensation for disability shall be paid to the employee as follows:

(1) In case of total disability adjudged to be permanent, 66 2/3% of the employee’s average weekly wages shall be paid to the employee during the continuance thereof. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any 2 thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined only if, as a result of the injury, the employee is unable to earn any wages in the same or other employment;

(2) In case of disability total in character but temporary in quality, 66 2/3% of the employee’s average weekly wages shall be paid to the employee during the continuance thereof;

(3) In case of disability partial in character but permanent in quality, the compensation shall be 66 2/3% of the employee’s average weekly wages which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with paragraph (2) or (4) of this subsection respectively, and shall be paid to the employee, as follows:

(A) Arm lost, 312 weeks’ compensation;

(B) Leg lost, 288 weeks’ compensation;

(D) Foot lost, 205 weeks’ compensation;

(E) Eye lost, 160 weeks’ compensation;

(F) Thumb lost, 75 weeks’ compensation;

(G) First finger lost, 46 weeks’ compensation;

(H) Great toe lost, 38 weeks’ compensation;

(I) Second finger lost, 30 weeks’ compensation;

(J) Third finger lost, 25 weeks’ compensation;

(K) Toe other than great toe lost, 16 weeks’ compensation;

(L) Fourth finger lost, 15 weeks’ compensation;

(M) Compensation for loss of hearing of 1 ear, 52 weeks. Compensation for loss of hearing of both ears, 200 weeks, provided that the Mayor may establish a waiting period, not to exceed 6 months, during which an employee may not file a claim for loss of hearing resulting from nontraumatic causes in his occupational environment until the employee has been away from such environment for such period, and provided further, that nothing in this subparagraph shall limit an employee’s right to file a claim for temporary partial disability pursuant to paragraph (5) of this section;

(N) Compensation for loss of more than 1 phalange of a digit shall be the same as for loss of the entire digit. Compensation for loss of the 1st phalange shall be one half of the compensation for loss of the entire digit;

(O) Compensation for an arm or a leg, if amputated at or above the elbow or the knee, shall be the same as for a loss of the arm or leg; but if amputated between the elbow and the wrist or the knee and the ankle, shall be the same as for loss of a hand or foot;

(P) Compensation for loss of binocular vision or for 80% or more of the vision of an eye shall be the same as for loss of the eye;

(Q) Compensation for loss of 2 or more digits, or 1 or more phalanges of 2 or more digits, of a hand or foot, may be proportioned to the loss of use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot;

(R) Compensation for permanent total loss of use of a member shall be the same as for loss of the member;

(S) Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member. Benefits for partial loss of vision in 1 or both eyes, or partial loss of hearing in 1 or both ears shall be for a period proportionate to the period benefits are payable for total bilateral loss of vision or total binaural loss of hearing as such partial loss bears to total loss;

(T) The Mayor shall award proper and equitable compensation for serious disfigurement of the face, head, neck or other normally exposed bodily areas not to exceed $7,500;

(U) In any case in which there shall be a loss of, or loss of use of, more than 1 member or parts of more than 1 member set forth in subparagraphs (A) to (S) of this paragraph, not amounting to permanent total disability, the award of compensation shall be for the loss of, or loss of use of, each such member or part thereof, which awards shall run consecutively, except that where 1 injury affects only 2 or more digits of the same hand or foot, subparagraph (Q) of this paragraph shall apply; and

(U-i) In determining disability pursuant to subparagraphs (A) through (S) of this subsection, the most recent edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment may be utilized, along with the following 5 factors:

Guides to the Evaluation of Permanent Impairment

(i) Pain;

(ii) Weakness;

(iii) Atrophy;

(iv) Loss of endurance; and

(v) Loss of function.

(V)(i) In other cases the employee shall elect:

(I) To have his or her compensation calculated in accordance with the formula set forth in either sub-subparagraph (ii)(I) or (II) of this subparagraph; and

(II) To receive the compensation at the time the employee returns to work or achieves maximum medical improvement.

(ii) The compensation shall be 662/3% of the greater of:

(I) The difference between the employee’s actual wage at the time of injury and the average weekly wage, at the time of injury, of the job that the employee holds after the employee has a disability; or

(II) The difference between the average weekly wage, at the time the employee returns to work, of the job that the employee held before the employee had the disability and the actual wage of the job that the employee holds when the employee returns to work.

(iii) If the employee voluntarily limits his or her income or fails to accept employment commensurate with the employee’s abilities, the employee’s wages after the employee becomes disabled shall be deemed to be the amount the employee would earn if the employee did not voluntarily limit his or her income or did accept employment commensurate with the employee’s abilities. Notwithstanding the provisions of this section, in the case of injury occurring on or after April 16, 1999, the periods of compensation set forth in subparagraphs (A) through (S) of this paragraph shall each be reduced by a proportion of 25% of the stated period of weeks, rounded upward to the nearest whole week.

(W) The compensation and remuneration payable to a professional athlete claimant pursuant to subparagraph (V)(ii) of this paragraph shall be determined by referring to the date of the claimant’s disability and a date that is not later than the date on which the claimant’s employment as a professional athlete would have ended, as determined pursuant to § 32-1501(17C), if the disability for which he or she seeks compensation and remuneration pursuant to subparagraph (V)(ii) of this paragraph had not occurred.

(4) Any compensation to which any claimant would be entitled under paragraph (3) of this section, excepting paragraph (3)(V) of this section, shall, provided the death arises from causes other than the injury, be payable in full to and for the benefit of the persons following:

(A) If there be a surviving spouse or domestic partner and no child of the deceased to such spouse or domestic partner;

(B) If there be a surviving spouse or domestic partner and surviving child or children of the deceased, one half shall be payable to the spouse or domestic partner and the other one half to the surviving child or children;

(C) The Mayor may in his discretion require the appointment of a guardian for the purpose of receiving the compensation of the minor child. In the absence of such a requirement, the appointment for such a purpose shall not be necessary;

(D) If there be a surviving child or children of the deceased but no surviving spouse or domestic partner, then to such child or children;

(E) If there be no surviving spouse or domestic partner and no surviving children, such unpaid amount of the award shall be paid to the survivors specified in § 32-1509 (other than a spouse, domestic partner, or child); and the amount to be paid each such survivor shall be determined by multiplying such unpaid amount of the award by the appropriate percentage specified in § 32-1509(4), but if the aggregate amount to which all such survivors are entitled, as so determined, is less than such unpaid amount of the award, the excess amount shall be divided among such survivors pro rata according to the amount otherwise payable to each.

(5) In case of temporary partial disability, the compensation shall be 66 2/3% of the injured employee’s wage loss to be paid during the continuance of such disability, but shall not be paid for a period exceeding 5 years. Wage loss shall be the difference between the employee’s average weekly wage before the employee had the disability and the employee’s actual wages after the employee had the disability. If the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, then his wages after the employee had the disability shall be deemed to be the amount he would earn if he did not voluntarily limit his income or did accept employment commensurate with his abilities.

(6)(A) If an employee receives an injury, which combined with a previous occupational or nonoccupational disability or physical impairment causes substantially greater disability or death, the liability of the employer shall be as if the subsequent injury alone caused the subsequent amount of disability and shall be the payment of:

(i) All medical expenses;

(ii) All monetary benefits for temporary total or partial injuries; and

(iii) Monetary benefits for permanent total or partial injuries up to 104 weeks.

(B) The special fund shall reimburse the employer solely for the monetary benefits paid for permanent total or partial injuries after 104 weeks.

(7) In each case, payment of benefits shall be 66 2/3 % of the employee’s average weekly wage.

(8) The Mayor may approve lump-sum settlements agreed to in writing by the interested parties, discharging the liability of the employer for compensation, notwithstanding §§ 32-1516 and 32-1517, in any case where the Mayor determines that it is in the best interest of an injured employee entitled to compensation or individuals entitled to benefits pursuant to § 32-1509. The Mayor shall approve the settlement, where both parties are represented by legal counsel who are eligible to receive attorney fees pursuant to § 32-1530. These settlements shall be the complete and final dispositions of a case and shall be a final binding compensation order.

(9) Repealed.

(10) An award for disability may be made after the death of an injured employee from causes other than work-related injury. If the award made is for permanent partial disability, pursuant to paragraph (3)(A) through (U) of this section, the award shall be payable in full pursuant to paragraph (4) of this section. If the award made is for any other category of disability, the amount of the award shall be computed from the date of the injury to the date of death, and shall be payable in full in the same manner as an award payable pursuant to paragraph (4) of this section.

(July 1, 1980, D.C. Law 3-77, § 9, 27 DCR 2503; May 10, 1989, D.C. Law 7-231, § 44, 36 DCR 492; Mar. 6, 1991, D.C. Law 8-198, § 2(d), 37 DCR 6890; Apr. 16, 1999, D.C. Law 12-229, § 2(e), 46 DCR 891; Oct. 14, 1999, D.C. Law 13-49, § 12(b), 46 DCR 5153; Apr. 24, 2007, D.C. Law 16-305, § 48(c), 53 DCR 6198; Sept. 12, 2008, D.C. Law 17-231, § 31(d), 55 DCR 6758; Sept. 26, 2012, D.C. Law 19-171, § 37(b), 59 DCR 6190.)

Prior Codifications

1981 Ed., § 36-308.

Section References

This section is referenced in § 32-1501, § 32-1524, and § 32-1540.

Effect of Amendments

D.C. Law 13-49 made a clarifying technical amendment.

D.C. Law 16-305, in par. (3)(V)(ii), substituted “has a disability” for “becomes disabled” and “had the disability” for “became disabled”; and in par. (5), substituted “the employee had the disability” for “becoming disabled”.

D.C. Law 17-231, in par. (4), substituted “spouse or domestic partner” for “widow or widower”; and, in par. (4)(E), substituted “surviving spouse or domestic partner” for “surviving spouse” and substituted “spouse, domestic partner, or child” for “wife, husband, or child”.

The 2012 amendment made a technical correction to D.C. Law 17-231, § 31(d) which did not affect this section as codified.

Editor's Notes

Mayor authorized to issue rules: See Historical and Statutory Notes following § 32-1501.