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02/19/92 THEODORE CUNNINGHAM v. GEORGE HYMAN

February 19, 1992

THEODORE CUNNINGHAM, APPELLANT
v.
GEORGE HYMAN CONSTRUCTION CO. & SUPERIOR IRON WORKS, INC., APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Curtis E. von Kann, Trial Judge)

Before Terry, Steadman and King, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Under the District of Columbia Workers' Compensation Act of 1979 (the "Act), *fn1 an injured worker is not put to an immediate election between receiving compensation under the Act from his or her employer or attempting to recover damages against some third person allegedly liable for the injury. However, once the worker accepts compensation "under an award in a compensation order," he or she must file suit against that third person within six months thereafter or effectively *fn2 lose the right to do so. D.C. Code § 36-335 (a), (b) (1988).

The issue in this appeal is precisely when that six-month period begins to run. The trial court held that the triggering point is an award covering any part of the claimed disability, such as the temporary disability award here. Appellant argues that the period should not begin to run until the worker accepts a final and comprehensive award for all disabilities compensable under the Act. However, the controlling statutory language dictates the result reached by the trial court. We therefore affirm the grant of summary judgment against appellant.

I

On October 10, 1984, appellant Theodore Cunningham suffered disabling injuries from a falling brick while he was working as an employee of Superior Iron Works, Inc. ("Superior"), a subcontractor of Hyman Construction Co. ("Hyman"), the general contractor at the work site. Following his injury, Cunningham filed a workers' compensation claim under the 1979 Act when a dispute developed over the computation of Cunningham's "average weekly wage." D.C. Code § 36-311(a)(4) (1988 Supp.). On April 17, 1986, the Department of Employment Services (DOES) issued a final order covering Cunningham's temporary total disability for the period October 10, 1984, through June 18, 1985. *fn3 Subsequently, on October 11, 1988, DOES issued an order approving Cunningham's lump-sum insurance settlement for permanent partial disability, pursuant to D.C. Code § 36-308(8). *fn4

In the meantime, on September 18, 1987, Cunningham commenced the present negligence action against Hyman, which in turn filed a third-party complaint against Superior. It is not contested that the action was brought more than six months after Cunningham had accepted compensation under DOES order of April 17, 1986, covering temporary disability benefits. The trial court granted summary judgment in favor of Hyman and Superior on December 6, 1990, holding that the Act barred Cunningham from seeking damages of any kind from a third party because he had failed to institute suit within six months after receiving compensation pursuant to an award governing any part of his disability.

In doing so, the trial court rejected Cunningham's argument that the six-month period should not begin to run until the worker accepts a final and comprehensive award for disability compensable under the Act and that the DOES order of April 17, 1986, which addressed only temporary disability, was insufficient in scope to trigger the statute of limitations in his case. In the alternative, appellant also argued that, even if any third-party claim with respect to temporary disability were time-barred, nevertheless a distinct claim with respect to damages for permanent disability, not the subject of the first award/order, would not be barred under the statute. He presents these same arguments to us for resolution on appeal.

II

A

We begin with an examination of the precise relevant language, mindful of the maxim that "if the words are clear and unambiguous, we must give effect to [the statute's] plain meaning." James Parreco & Son v. District of Columbia Rental Housing Comm'n 567 A.2d 43, 45 (D.C. 1989). Section 36-335 of the Act provides in relevant part: *fn5

(a) If, on account of a disability or death for which compensation is payable under this chapter, the person entitled to such compensation determines that some person . . . is liable for damages, he need not elect whether to receive such compensation or to recover damages against such third person.

(b) Acceptance of such compensation under an award in a compensation order filed with the Mayor shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within 6 months after such award.

A straightforward reading of this statutory language supports the Conclusion that the six-month period is brought into play by acceptance of compensation under any award. Subsection (b) speaks of "an" award and "a" compensation order and provides no limiting adjective in either case. This language is in marked contrast, for example, to that used elsewhere in the statute in section 308(8), ...


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