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08/26/93 JEROME OUBRE v. DISTRICT COLUMBIA

August 26, 1993

JEROME OUBRE, PETITIONER
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND A.A. BEIRO CONSTRUCTION COMPANY, AND HARTFORD ACCIDENT & INDEMNITY COMPANY, INTERVENORS



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

Before Steadman and Wagner, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge : This case arises under the District of Columbia Workers' Compensation Act, D.C. Code §§ 36-301 to -345 (1988)(the Act). Petitioner, Jerome Oubre, seeks review of a decision of the Department of Employment Services (DOES) reversing and setting aside a portion of a compensation award as determined by a hearing examiner. The Director of DOES reversed the examiner's decision, concluding that the wage issue had been resolved conclusively in a prior proceeding involving the same accident and parties. Petitioner's principal argument before this court is that res judicata principles do not operate to bar a redetermination of his actual wages under the Act where the earlier ruling was based upon a stipulation reached by the parties as a result of erroneous information provided by the employer. Intervenors, A.A. Beiro Construction Company (Beiro) and Hartford Accident & Indemnity Company (Hartford), and the District of Columbia take the position that the Act does not provide for modification of a prior, final compensation order based upon mutual mistake of fact. We conclude that issue preclusion principles do not apply where there is manifest error in the record of the prior proceeding based upon the parties' mutual mistake in calculating the statutory rate of workers' compensation.

I.

Petitioner sustained a back injury arising out of and during the course of his employment as a carpenter for Beiro. He filed a claim for workers' compensation under the Act. After a full evidentiary hearing on the claim, the Acting Chief Hearing Examiner, Robert C. Baker, entered a compensation order on April 10, 1987 awarding Oubre temporary total disability benefits for the period October 12, 1985 to September 24, 1986. *fn1 The compensation award was based upon an average weekly wage of $507.28, a figure to which the parties stipulated based upon wage records provided by Beiro. Neither party sought review or reconsideration of the order, and it became final on May 10, 1987.

Subsequently, petitioner filed a claim for additional benefits based upon aggravation of his original injury. Prior to the evidentiary hearing on the subsequent claim, the employer, Beiro, filed a motion to exclude any new evidence of petitioner's average wage unless petitioner could show a "change in condition" as required by D.C. Code § 36-324. Beiro also argued that res judicata principles precluded petitioner from relitigating the issue which was decided in the first proceeding. The hearing examiner denied Beiro's motion and admitted the evidence. Following the hearing, the examiner awarded benefits based upon a corrected average weekly wage of $602.24. *fn2

The examiner observed that this wage information was based upon evidence provided petitioner by the employer which was uncontroverted. Further, the examiner stated that the claim under consideration involved an additional period of benefits and therefore, the prior decision had no bearing on the claim. *fn3 The compensation order required the employer to pay petitioner benefits based on the corrected average weekly wage for the following: (1) temporary partial disability benefits from September 25, 1986 through March 24, 1987; (2) temporary total disability benefits from March 25, 1987 through April 5, 1988; and (3) permanent total disability benefits beginning April 6, 1988. The employer filed an application for review with the Director of DOES. See D.C. Code § 36-322 (b)(2).

On appeal at the agency, the employer contended, inter alia, that the hearing examiner's decision to readjudicate petitioner's average weekly wage was contrary to law and precluded by res judicata principles. While acknowledging that the stipulation of wages at the first claim's hearing was based upon erroneous information supplied by the employer and its carrier, applying res judicata principles, the Director of DOES nevertheless held that petitioner could not relitigate the wage issue absent a showing that the information previously provided was "fraudulently tendered-vis-a-vis-tendered as a mistake of fact." Therefore, the Director set aside that portion of the order redetermining petitioner's average weekly wage and affirmed and adopted the remaining findings and decision of the hearing examiner. The Director rejected the employer's and carrier's argument that the claim should have been considered as a modification of the original compensation order on its merits and on the basis that the employer had not made the argument before the hearing examiner.

II.

Petitioner argues that res judicata principles do not bar correction of a mutual mistake of fact which results in the deprivation of benefits to the employee as mandated by the Act. See D.C. Code § 36-311 (a). Petitioner also contends that the wage issue was not litigated in the first proceeding and therefore, res judicata/collateral estoppel principles do not apply. Respondent and intervenors take the contrary position. They also contend that the agency's ruling that the Act does not permit modification of a prior, final compensation order based upon a mutual mistake of fact is reasonable and in conformity with the plain meaning of the Act and its legislative history. Before addressing these issues, we examine some of the legal principles which will guide our analysis.

At the outset, we acknowledge, as we have so often, the limited role of this court in reviewing administrative decisions. See, e.g., Madison Hotel v. District of Columbia Dep't of Employment Servs., 512 A.2d 303, 306 (D.C. 1986). We will not disturb the agency's decision if it flows rationally from the facts which are supported by substantial evidence in the record. Id. (citing Kramer v. District of Columbia Dep't of Employment Servs., 447 A.2d 28, 30 (D.C. 1982); D.C. Code § 1-1510 (a)(3)(E)); Saah v. District of Columbia Bd. of Zoning Adjustment, 433 A.2d 1114, 1116 (D.C. 1981). In reviewing questions of law, we will uphold the agency's interpretation of the statute it is responsible for administering unless it is unreasonable in light of prevailing law, or conflicts with the statute's plain meaning or legislative history. Smith v. District of Columbia Dep't of Employment Servs., 548 A.2d 95, 97 (D.C. 1988); Lee v. District of Columbia Dep't of Employment Servs., 509 A.2d 100, 102 (D.C. 1986); Washington Metropolitan Area Transit Authority v. District of Columbia Dep't of Employment Servs., 515 A.2d 740, 741 (D.C. 1986). "Indeed, we must sustain the agency's interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance." Smith, 548 A.2d at 97. We will not uphold an agency's decision which is based upon a material misconception of the law. Madison Hotel, supra, 512 A.2d at 306. Subject to this deferential standard for matters of statutory interpretation, the reviewing court has the greater expertise when the agency's decision rests upon a question of law. Saah, 433 A.2d at 1116.

The issues presented for review in this case involve only the agency's determinations of questions of law. Here, petitioner challenges the agency's application of res judicata principles to bar his claim for full compensation under D.C. Code § 36-311. Resolution of these issues involve not only matters of statutory interpretation of the Workers' Compensation Act, but also well established legal principles governing the binding effect of stipulations and the application of the doctrine of res judicata/issue preclusion to successive administrative proceedings. As to the latter questions of law, no special deference is owed to the agency's determination. See Saah, supra, 433 A.2d at 1116.

III.

Pursuant to D.C. Code ยง 36-311, with exceptions not pertinent here, workers' compensation for an injured employee is computed on the basis of the employee's average weekly wage at the time of the injury. Applying res judicata principles, the agency declined to compute petitioner's compensation for his second claim on that basis because the parties had stipulated to a lower figure, albeit upon a mutual mistake of fact, at a hearing on the claim for petitioner's original injury. Petitioner contends that the agency erred in this ruling primarily for these reasons: (1) the issue was not litigated in the prior ...


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