APPEAL FROM THE DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SERVICES (DOES).
Before King and Reid, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Reid, Associate Judge:
This case involves a challenge to a decision of the Director of the Department of Employment Services ("DOES") regarding a worker's compensation matter. Washington Hospital Center ("WHC") employed an acute care technician who was attacked and injured by a patient on August 14, 1989. WHC voluntarily paid temporary total disability benefits to the employee from August 15 to August 28, 1989. On February 12, 1991, the employee filed a claim seeking payment of temporary total disability benefits retroactive to August 29, 1989 and forward to the present and continuing. The hearing examiner denied the claim on June 19, 1992, on the ground that it was not timely filed and thus barred by D.C.Code § 36-314(a) (1997). The Director reversed, deciding that the statute of limitations set forth in § 36-314(a) did not begin to run until the employer sent a copy of the report required by § 36-332 to the employee. The Director ordered an intra-agency remand "for findings on when, or if, employer sent a copy of its First Report of Injury . . . to claimant."
WHC challenges the Director's decision on the ground that: (1) he lacked jurisdiction to render it; and (2) he erred in reversing a compensation order of the hearing examiner determining that the statute of limitations, governing the filing of the disability benefits claim at issue in this case, had expired. We conclude that the Director had jurisdiction to review the hearing examiner's compensation order. Moreover, because the Director remanded the matter to the agency for further findings and conclusions of law, there is no final order before us, and thus, we lack jurisdiction to hear the merits of WHC's petition. [712 A2d Page 1019]
In an order dated June 19, 1992, the hearing examiner concluded that the statute of limitations for the filing of a claim beg to run on August 28, 1989, the last day on which the employer voluntarily paid benefits to the employee. Thus, in the view of the hearing examiner, the employee was required to file her claim no later than August 28, 1990. Because the employee did not file her claim until February 12, 1991, the hearing examiner denied her claim for relief.
On March 6, 1995, the Director of DOES reversed the hearing examiner's order, citing our vacated opinion in Harris v. Department of Employment Services, 592 A.2d 1014 (D.C. 1991), vacated as moot, 648 A.2d 672 (D.C. 1994). We held in Harris, which is no longer binding, that under D.C.Code § 36-314(a), the statute of limitations for Ming a claim does not begin to run until the employee has received notice that the employer has filed its injury report. Id. at 1018 & n. 7. The employer filed its First Report of Injury with the Office of Workers' Compensation ("OWC") of DOES on or about August 21, 1989. However, the record before us is silent as to whether the employer sent a copy of the injury report to the employee at the time it was filed with OWC, or whether the agency transmitted a copy to the employee. In remanding the matter, the Director stated:
This matter must be remanded to the Hearings & Adjudication Section [of DOES] for findings on when, or if, employer sent a copy of its First Report of Injury . . . to claimant. After making such findings, the Hearing Examiner should make such necessary findings of fact and conclusions of law to resolve claimant's request for benefits.
Prior to any proceedings in the agency after remand, WHC Med an amended petition for review in this court on May 3, 1995, contending that: (1) the hearing examiner's order became final forty-five days after its issuance, and thus, the Director had no jurisdiction to review it; (2) the Director wrongly concluded that an employer must send a copy of the First Injury Report to the injured employee before the limitations period begins to run; and (3) the Director's order "is otherwise legally incorrect and not supported by substantial evidence of record." We turn now to WHC's first contention.
The Director's Jurisdiction To Review the Hearing Examiner's Compensation Order
WHC argues that the Director lacked jurisdiction to reverse the hearing examiner's order because his decision was not made within forty-five days after the hearing examiner's order was issued. WHC contends that the forty-five day period set forth in § 36-322(b)(2) is mandatory and not directory. The District maintains that the forty-five day period is not mandatory.
Section 36-322(b)(2) provides in pertinent part:
The Mayor is authorized to establish an administrative procedure for review of compensation orders raising a substantial question of law or fact. Application for such review shall be made by any party within 30 days from the date a compensation order is filed. . . . Final decisions issued pursuant to such review shall be rendered within 45 days from the date of the application and shall be based upon the record of the hearing. If a final decision is not ...