Before Steadman and Schwelb, Associate Judges, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Schwelb, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
The Washington Metropolitan Area Transit Authority (WMATA) has asked this court to review a decision of the Director of the Department of Employment Services (DOES) awarding workers' compensation benefits to claimant Warren Johnson, a former WMATA Metrobus driver. WMATA contends that the Director erroneously failed to credit WMATA for pension benefits paid by WMATA to Johnson under the employer's retirement plan. We affirm.
THE PROCEEDINGS BEFORE THE AGENCY
Johnson was initially employed by D.C. Transit, WMATA's predecessor, on February 15, 1957. On October 25, 1990, a Metrobus operated by Johnson was struck by a private automobile operated by a drunk driver. Johnson sustained serious injuries to his lumbar and cervical spine, and he suffered carpal tunnel syndrome in his right wrist. The collision also aggravated Johnson's pre-existing cervical disc disease and diabetic condition. As a result of his injuries, Johnson has not been able to return to his job with WMATA, nor has he engaged in any other gainful employment.
Following the accident, Johnson applied for workers' compensation. On December 11, 1991, a full evidentiary hearing was held on his claim. Almost two years later, on November 16, 1993, a DOES Hearing and Appeals Examiner issued a Compensation Order (Order No. 1) awarding Johnson temporary total disability benefits. In the meantime, Johnson had retired, and he had begun to receive pension benefits pursuant to a retirement plan negotiated by WMATA with Johnson's labor union.
WMATA filed a motion for modification of Order No. 1, arguing that WMATA was entitled to a credit for pension benefits that it had paid to Johnson. On July 7, 1995, a different Hearing and Appeals Examiner issued a second compensation order (Order No. 2) in which he held that WMATA was entitled to the requested credit pursuant to the provisions of D.C. Code § 36-308 (9) (1997), which provided, at all times relevant to this appeal, as follows:
"In no event shall the total money allowance payable to an employee or his dependent survivor(s): (1) As compensation for an injury or death under this chapter; (2) as federal old age, and survivors insurance benefits; and (3) from employee benefit plans subject to the Employee Retirement Income Security Act of 1974 (26 U.S.C. § 401 et. seq.) and such income maintenance plans solely funded by the employer (computed weekly) exceed in the aggregate the higher of 80% of the employee's average weekly wage or the total of federal payments and employee benefit plans payments. In the event the total aggregate money allowance payable to an employee or his survivor(s) exceeds this limitation, the amounts otherwise payable as compensation or death benefits under this chapter shall be reduced accordingly.[ *fn1 ]"
Johnson filed an internal agency appeal, and on March 31, 1997, the Director issued a decision (Order No. 3) reversing Order No. 2. The Director held that the pension plan under which Johnson was receiving benefits was not "solely funded by the employer," as required by § 36-308 (9), and that the benefit ceiling set forth in the statute was therefore inapplicable. WMATA filed a timely petition for review.
JOHNSON'S PENSION PLAN AND OTHER BENEFITS
The relevant facts relating to WMATA's retirement plan are undisputed. From 1957 until 1983 -- a period spanning more than a quarter of a century -- Johnson made contributions of two percent of his annual salary to the plan. These contributions totaled $23,714. Johnson claims that, if ...