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LONG v. DEPT. OF EMPLOYMENT SERVICES

August 27, 1998

ALVIN W. LONG, JR., PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. PLAZA REALTY INVESTORS AND CNA INSURANCE COMPANY, INTERVENORS.



Before Terry, King, and Ruiz, Associate Judges.

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

Petitioner, Alvin Long, seeks review of a decision by the Department of Employment Services ("DOES") granting him a supplemental allowance under D.C.Code § 36-306 but limiting it to the annual percentage increases in the maximum compensation rate as determined under D.C.Code § 36-305. Intervenors, Plaza Realty Investors and its insurance carrier (collectively "the employer"), agree that DOES erred in calculating Long's supplemental allowance, but contend that D.C.Code § 36-306(d) imposes a cap on the amount that Long may receive for 1992 and all subsequent years. Because the agency's reading of D.C.Code § 36-306 does not enable us properly to review its decision, we remand the case to DOES so that it may construe the statute in the first instance. [717 A2d Page 330]

I

In 1979 Mr. Long went to work for Plaza Realty as a boiler engineer. While at work on September 2, 1986, he fell off a ladder and injured his shoulder. As a result of that injury, Mr. Long has not been able to return to work. Beginning on the date of the injury, Long received temporary total disability benefits in the amount of $320.00 per week. *fn1 On April 26, 1993, a DOES hearing examiner found him to be permanently and totally disabled and awarded him permanent and total benefits, still in the amount of $320.00 per week, *fn1 from April 16, 1991, to the present and continuing.

On June 4, 1997, another hearing examiner awarded Mr. Long a supplemental allowance from 1992 to the present and continuing. However, instead of determining Long's allowance in the manner prescribed by D.C.Code § 36-306 (1997), the examiner ruled that the yearly percentage increases in the maximum rate for all compensation awards "govern claimant's entitlement to supplemental allowance beginning in the year 1992 to the present and continuing." The Director, without construing the applicable statutory provisions, affirmed the hearing examiner's order.

II

This case involves the interpretation of two separate statutes, D.C.Code § 36-305 and D.C.Code § 36-306. Section 36-305 provides in part:

(b) Compensation for disability or death shall not exceed the average weekly wages of insured employees in the District of Columbia or $396.78, whichever is greater.

(d) For the purposes of this section, the average weekly wage of insured employees in the District of Columbia shall be determined by the Mayor as follows: on or before November 1st of each year, the total wages reported on contribution reports for employees, excluding employees of the government of the District of Columbia, and the government of the United States, to the District Unemployment Compensation Board for the year ending on the preceding June 30th shall be divided by the average monthly number of such employees. . . . The average annual wage thus obtained shall be divided by 52 and the average weekly wage thus determined rounded to the nearest cent. The average weekly wage as so determined shall be applicable for the year beginning the following January 1st.

Therefore, after fixing a claimant's compensation rate under D.C.Code § 36-308, DOES must ensure that the rate does not exceed the maximum allowable award. D.C.Code § 36-305 establishes the means to determine that maximum award, which is calculated on a yearly basis according to the average weekly wage for insured employees in the District of Columbia. DOES has prepared a table listing the maximum compensation rates from 1982 through 1996 and the percentage amount by which the maximum rate increased from year to year. *fn2 That table provides the following maximum compensation rates and their percentage increases:

MAX. PERCENTAGE YEAR COMP INCREASE RATE

1/01/86 $431.70 4.46208% 1/01/91 $584.10 5.9% 1/01/92 $613.09 5.0% 1/01/93 $647.84 5.668% 1/01/94 $679.17 4.836% 1/01/95 $701.52 3.29078% 1/01/96 $723.34 3.11038% 1/01/97 $748.83 3.5%

Once a person's award has been calculated, it remains fixed and is not adjusted to reflect [717 A2d Page 331]

the yearly increases in the maximum compensation rate. Instead, under D.C.Code § 36-306, persons who have been adjudged to be totally and permanently disabled *fn3 receive an additional allowance designed to supplement their total award in order to account for ...


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