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03/05/93 ALLIED SECURITY v. DISTRICT COLUMBIA

March 5, 1993

ALLIED SECURITY, INC., ET AL, PETITIONERS
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT; TESFA BEKELE, INTERVENOR



Petition for Review of a Decision of the District of Columbia Department of Employment Services

Before Ferren, King, and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge: Petitioners, Allied Security, Inc. ("Allied"), and its insurer, Liberty Mutual Insurance Company ("Liberty"), seek review of the decision of the District of Columbia Department of Employment Services ("the Agency"), affirming a hearing examiner's order awarding Tesfa Bekele ("Bekele") workers' compensation benefits pursuant to the District of Columbia Workers' Compensation Act, D.C. Code §§ 36-301 - 345 (1988 and 1992 Supp.). Petitioners raise two principal issues on appeal. First, they contend that the Agency erred by holding that an injured employee's medical report, filed with the District of Columbia Office of Workers' Compensation ("OWC") by a physician of that employee, constitutes the filing of a valid claim for workers' compensation benefits within the meaning of D.C. Code § 36-314 (a) (1988) and 7 DCMR §§ 207.1 & 299.1 (1986). Second, petitioners contend that the Agency erred by holding that a statutory penalty should be assessed against them pursuant to D.C. Code §§ 36-315 (d) and (e) (1988) because of their failure to file a formal Notice of Controversion of the claim pursuant to 7 DCMR § 210 (1986). Because the Agency did not fully address and resolve these issues within the meaning of its enabling statute and regulations, we vacate the decision and remand the case to the Agency for further proceedings.

I.

On August 19, 1986, Bekele sustained an injury to his back when he attempted to straighten a chair mat at his security guard station at the World Bank while in the employment of Allied. Allied filed an Employer's First Report of Injury with OWC *fn1 on October 17, 1986. Liberty voluntarily paid workers' compensation benefits for Bekele from August 19, 1986 to January 7, 1987, when Bekele returned to employment as a security guard with Allied. In January 1987, Allied filed the Employer's Notice of Final Payment of Benefits. *fn2 On January 8, 1987, medical reports of Bekele's physician, Dr. Francisco Ferraz, were filed with OWC.

Bekele continued to work as a security guard with Allied until January 1988. At that time, he requested that Allied transfer him to a different geographic area, citing as his reasons that he had received a back injury while working at the World Bank and that on occasion he had to take a taxi home late at night. After efforts failed to find Bekele a light-duty position to which he could be transferred, his employment with Allied was terminated on January 29, 1988. *fn3

On May 24, 1988, counsel for Bekele filed a formal claim with OWC for workers' compensation benefits for Bekele *fn4 and a hearing was conducted on January 12, 1989. Thereafter, the hearing examiner issued a compensation order in which she found that: (1) no official claim form for workers' compensation benefits was timely filed with OWC; (2) the medical reports of Dr. Francisco Ferraz, Bekele's treating physician, received by OWC on January 8, 1987, constituted the timely filing of a claim for benefits; *fn5 and (3) Bekele was entitled to workers' compensation benefits. With regard to the medical reports, the examiner held:

These medical reports [of Dr. Ferraz] were filed with the Mayor within the statutory time period. I am persuaded that the medical are sufficient to constitute a claim[,] therefore this case is not barred by to Section 36-314.

Hearing Examiner's Order dated March 10, 1989 at 4.

The hearing examiner, thereupon, entered an award of workers' compensation benefits in favor of Bekele: he was awarded temporary total disability benefits from February 6, 1988 through March 18, 1988, and temporary partial disability benefits from March 19, 1988 to the present and continuing.

The hearing examiner also assessed a penalty against Allied for its failure to file a timely Notice of Controversion of Bekele's claim. On appeal, the Director of the Agency affirmed the hearing examiner's decision. This appeal ensued.

II.

A. The Claim

D.C. Code ยง 36-314 (a) provides in relevant ...


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