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STONE v. D.C. DEPT. OF EMPL. SERVICES

February 26, 1998

LINDA STONE, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND SAFEWAY, INC., INTERVENOR.



Before Wagner, Chief Judge, and Terry and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge:

Linda Stone has asked this court to review the denial by the District of Columbia Department of Employment Services ("DOES" or "the agency") of her claim for worker's compensation benefits. We dismiss her petition as untimely.

I.

Ms. Stone claims that on February 14, 1995, while she was employed by intervenor Safeway Stores, Inc. as a "cashier/teller," she suffered a work-related injury, and that she [707 A2d Page 790]

is entitled to temporary total disability benefits pursuant to the District of Columbia Workers' Compensation Act (WCA), D.C. Code §§ 36-301 et seq. (1997). On August 7, 1996, a DOES hearing and appeals examiner issued a Compensation Order denying Ms. Stone's claim on the merits. On August 13, 1996, Ms. Stone filed an application for review with the Office of the Director of DOES.

The WCA provides in pertinent part that where an applicant has sought review by the Director, the Director's final decision

shall be rendered within 45 days from the date of the application. . . . If a final decision is not rendered within such 45-day period the compensation order shall be considered a final decision for purposes of appeal [to the District of Columbia Court of Appeals].

D.C. Code § 36-322(b)(2). The Director took no action on Ms. Stone's petition within the forty-five-day period, and the Compensation Order became final, by operation of law, for purposes of appeal.

On November 18, 1996, Ms. Stone filed a petition in this court seeking review of the August 7, 1996 Compensation Order. Safeway contends that this court lacks jurisdiction because Ms. Stone's petition was untimely. We agree.

II.

Our rules provide, with exceptions not here pertinent, that a petition for review of an agency order or decision shall be filed "within thirty days after notice is given, in conformance with the rules or regulations of the agency . . . sought to be reviewed. . . ." D.C.App. R. 15(a). The parties agree that the petition was not filed within thirty days of the expiration of the forty-five-day statutory period for review by the Director of the Compensation Order issued by the examiner. Accordingly, if the agency is deemed to have given Ms. Stone notice, as required by Rule 15(a), of the order sought to be reviewed, then her petition was untimely.

The record reveals that Ms. Stone received notice of the Compensation Order, but it does not appear that the agency provided her with any separate notification of the expiration of the forty-five-day period specified in § 36-322(b)(2). We must therefore decide whether the provisions of that statute, which automatically convert the examiner's decision into the Director's decision after forty-five days, constitute sufficient notice of the Director's disposition to begin the running of the thirty-day period specified in D.C.App. R. 15(a).

A similar issue arose in Flores v. District of Columbia Rental Hous. Comm'n, 547 A.2d 1000 (D.C. 1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989). In that case, a landlord had filed a motion for reconsideration of an adverse decision of the Rental Housing Commission. Under the Commission's rules, the motion for reconsideration automatically stayed the running of the thirty-day period for seeking review in this court. An agency regulation, however, required the agency to grant or deny the motion for reconsideration within fifteen days. The regulation provided that failure by the Commission to act within fifteen days "shall constitute a denial of the motion for reconsideration." Id. at 1002 n. 4.

The Commission took no action on the landlord's motion within the fifteen-day period during which the Commission was authorized to grant such a motion. The Commission did not notify the landlord, however, that the motion had been denied. Subsequently, more than thirty days after the fifteen-day period for reconsideration had expired, the landlord filed a petition for review in this court. The tenant moved the court to dismiss the ...


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