Before: Rogers, Chief Judge; Ferren, Associate Judge; and Kern, Senior Judge.
The opinion of the court was delivered by: Per Curiam
On consideration of petitioner's consolidated motion to supplement the record on review and to dismiss summarily the appeal and remand the case for a hearing on the merits, the lodged exhibit, the opposition, response, and reply thereto, and respondent agency's response to this court's February 10, 1992, order, it is
ORDERED that motion to supplement the record on review is granted and the Clerk is directed to file the lodged "Petitioner's Exhibit 1B" as a supplemental record. It is
FURTHER ORDERED that petitioner's motion to dismiss summarily the appeal and remand case for a hearing on the merits is granted to the extent that this appeal is hereby remanded to the District of Columbia Department of Employment Services for a hearing on the merits of petitioner's claim.
Statement by KERN, Senior Judge. In my view the Division's remand of the record in this case to DOES without at the same time vacating its opinion is inappropriate under the particular circumstances.
In June 1991, a division of this court, by divided vote, issued an opinion, Harris v. District of Columbia Department of Employment Services, 592 A.2d 1014 (D.C. 1991), in the instant case that the parties had submitted without seeking oral argument. The District of Columbia Department of Employment Services did not even file a brief, adopting the brief of the intervenor-employer. Its argument was that the decision of DOES that petitioner's claim was time-barred was correct upon the particular facts and under the applicable statute. The majority, without any input from DOES, undertook an arguably novel construction of the D.C. Workers' Compensation Act insofar as it provides for time limitations on the filing of claims and reversed DOES.
The decision produced (1) a petition for rehearing en banc by C&P Telephone, the intervenor, in which it asserted that "this Decision has important future ramifications for C&P . . . and all employers in a similar position," and (2) a response by the Corporation Counsel on behalf of DOES expressing the hope "that the Division will reconsider its decision; if it does not do so, rehearing en banc is warranted to avoid confusion, unfairness, and added expense in the operation of the District's Workers' Compensation Act."
In addition, counsel, now representing petitioner under court-appointment, asserts that there is newly-discovered evidence before DOES that would produce "the inevitable finding that Petitioner's claim was timely." In response to this contention by petitioner, the Corporation Counsel suggests that under the circumstances "the Court vacate its opinion and remand the case for . . . appropriate findings."
Given all the circumstances here, I believe that the court should vacate its opinion, as well as remand the case to DOES for further proceedings. The Division's far-reaching construction of the statute DOES administers without any in-put from DOES, together with the apparent likelihood that the factual basis of the Division's opinion -- that petitioner filed his claim out of time -- is contrary to the newly discovered evidence, undermines the continuing vitality of the opinion which has become the object of a pending petition for rehearing en banc.