Before Farrell and Reid, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Petition for Review of a Decision of the District of Columbia Department of Employment Services
The issue presented in this case is whether the one year time limit set forth in D.C. Code § 36-324 (a) bars intervenor Ryvette Richardson-Smith's claim for a schedule award of permanent partial disability benefits under the District of Columbia Workers' Compensation Act. A hearing examiner for the Department of Employment Services ("DOES") concluded that § 36-324 (a) (1997) was inapplicable to her claim, and thus, the claim was not time barred. The Director of DOES affirmed. We affirm the Director's decision, and hold that the one year time limit set forth in § 36-324 (a) does not bar a claim for a schedule payment of permanent partial disability benefits under § 36-308 where the issue of permanent partial disability benefits was not considered in a prior compensation claim and award for temporary total disability wage loss benefits.
On February 15, 1986, Ms. Richardson-Smith was employed as a nurse at Capitol Hill Hospital. She injured her left knee during the course of her employment. In 1989, in an unpublished memorandum opinion, this court affirmed a 1987 compensation order awarding her temporary total disability benefits for the periods February 25, 1986 to April 12, 1986 and April 25, 1986 to June 3, 1986.
According to the record on review, Dr. Joseph D. Linehan, Ms. Richardson-Smith's orthopedic surgeon, sent a letter to her lawyer on October 10, 1990. The letter summarized the results of Ms. Richardson-Smith's May 1, 1986 arthroscopic surgery on her left knee after a diagnosis of "a mild anterior cruciate ligament strain; possible meniscal tear." The letter also referenced Ms. Richardson-Smith's subsequent physical therapy and her use of "a neoprene knee brace during the period of her rehabilitation." Dr. Linehan stated in summary:
"She seems to have a fairly good functional result from this procedure and although the Guide to the Evaluation of Permanent Impairment from the American Medical Association does not address directly meniscal repair, I would interpret her as having 10 percent permanent physical impairment of the lower extremity for "torn meniscus and/or meniscectomy".
On February 12, 1991, Ms. Richardson-Smith filed a claim for a schedule award of permanent partial disability benefits. Capitol Hill Hospital opposed the award on the ground that Ms. Richardson-Smith was actually seeking a modification of her 1987 compensation award under D.C. Code § 36-324 and her claim was barred because she did not meet the one year time limit set forth in § 36-324 (a). No evidentiary hearing took place. Rather, the matter was decided based upon the parties' stipulations, exhibits, and arguments.
The hearing examiner concluded that Ms. Richardson-Smith was not seeking a modification of the 1987 compensation order; that is, she did not claim that the degree of her disability had changed. Instead, she sought a schedule award for a permanent partial ten percent disability to her lower left extremity that was not time barred by § 36-324 (a).
Capitol Hill Hospital filed an application for review, asserting in part that Ms. Richardson-Smith's claim was time barred, and that the hearing examiner's decision was contrary to law and not based on substantial evidence. The Director determined that Ms. Richardson-Smith's claim raised "an entirely new issue" and was not time barred. Specifically, the Director declared that:
"The matter of claimant's permanent injury was never raised or adjudicated at the initial hearing, and since this was the first time the issue was before the agency, it is not a modification of the earlier 1987 Compensation Order. Even though claimant received an earlier award of temporary total benefits for the same knee injury, that award was for a temporary and total disability, a "loss of wages." Claimant's current request before the Hearing Examiner is for a permanent partial schedule award and is not based on claimant's loss of wages."
The Director also affirmed the hearing examiner's decision on the ground that: "[T]he Hearing Examiner's findings are supported by substantial evidence [and] are in accordance with the law." ...