July 01, 1999
BERNARD RENARD, PETITIONER,
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, RENOVEX, ET AL., INTERVENORS.
Before Steadman and Farrell, Associate Judges, and Levie, Associate Judge, Superior Court of the District of Columbia. *fn1
The opinion of the court was delivered by: Farrell, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Submitted June 15, 199
Before us is what purports to be a petition for review of a decision of the Department of Employment Services (DOES) denying petitioner's application for a change of physician pursuant to D.C. Code § 36-307 (b)(4) (1997), part of the District of Columbia Workers' Compensation Act (DCWCA). Sua sponte, we requested supplemental briefing on whether the agency's denial of the request presented a "contested case" within the meaning of D.C. Code § 1-1502 (8) (1992), a prerequisite to our jurisdiction under the District's Administrative Procedure Act (DCAPA). *fn2 See D.C. Code § 1-1510 (a). We now hold that it did not, and accordingly dismiss the petition for lack of jurisdiction.
As defined by the DCAPA, a "contested case" is "a proceeding before the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are required by any law . . . or by constitutional right, to be determined after a hearing before the Mayor or before an agency." D.C. Code § 1-1502 (8). "This court has interpreted the nature of the hearing referred to in the contested case definition to be 'a trial-type hearing where such is implicitly required by either the organic act or by constitutional right . . . .'" Bd. of Zoning Adjustment, supra note 1, 644 A.2d at 997 (citations omitted). An illustration of the sort of proceeding that does not meet this requirement is the bid protest procedure for government contract awards reviewed in Jones & Artis Constr. Co. v. District of Columbia Contract Appeals Bd., 549 A.2d 315, 318 (D.C. 1988). In holding that the contractor's "protest" to the Contract Appeals Board of the cancellation of an invitation for bids did not result in a contested case, we pointed out first that "[t]he statute [in question] (and certainly the Constitution) does not require a hearing, let alone a trial-type hearing, to resolve a protest." Id. (citation omitted). Moreover, the Board administering the statute "ha[d] adopted no regulations . . . pursuant to statutory authority that would suggest the Board might use a trial-type hearing to resolve a protest." Id. (citation omitted). Instead, we explained, traditional government contract protests "are decided on the written submissions, coupled on occasion with a 'conference,' not a formal hearing, attended by interested parties." Id.; see also Singleton v. District of Columbia Dep't of Corrections, 596 A.2d 56, 57 (D.C. 1991) ("Because the regulations do not bestow on prisoners the 'full panoply' of trial-type procedural rights, we necessarily conclude that the proceeding before the prison housing board at issue here was not a trial-type hearing and hence not a contested case." (footnotes omitted)).
From the jurisdictional standpoint, the procedure by which petitioner requested a change of physician under the DCWCA reflects the same shortcomings as did the protest procedure in Jones & Artis. The DCWCA gives an employee "the right to choose an attending physician to provide medical care under this chapter," D.C. Code § 36-307 (b)(3), but then provides, simply, that the Mayor "may order a change of physician . . . when in his judgment such change is necessary or desirable." Id. § 36-307 (b)(4). Plainly the statute does not require a hearing before the decision whether to permit a change is made. *fn3 And the regulations issued pursuant to it do not do so either. Besides prohibiting a change "to another medical care provider . . . without authorization of the insurer or the Office [of Workers' Compensation]," 7 DCMR § 212.12 (1994), they provide only that:
"If the employee is not satisfied with medical care, a request for change may be made to the Office. The office may order a change where it is found to be in the best interest of the employee." 7 DCMR § 212.13.
This discretionary decision ("may") need not be preceded by any sort of hearing, let alone a trial-type one. In fact, the DCWCA requires trial-type hearings only with respect to "claim[s] for compensation," D.C. Code § 36-320; see 7 DCMR § 220 - of which a request for change of physician self-evidently is not one *fn4 - and disputes over medical fees. See 7 DCMR § 212.10. For all that appears from the statute and regulations, requests for change of physician are customarily decided in just the same way they were here - on written submission by the claimant, including any exhibits, and a written opposition by the employer.
Petitioner points to the order denying his request for a change of physician, which purported to authorize appeal from the denial administratively to the Director of DOES, see D.C. Code § 36-322 (b)(2), followed by review in this court under the DCAPA. See id. § 36-322 (b)(3). But, as we have repeatedly held, "the Council of the District of Columbia," and so necessarily the District's administrative agencies, "may not enlarge the congressionally prescribed limitations on our jurisdiction, most significantly the contested case limitation in the DCAPA." Jones & Artis, 549 A.2d at 318; see also Capitol Hill Restoration Soc'y v. Moore, 410 A.2d 184, 188 (D.C. 1979). *fn5
The petition for review is, accordingly, Dismissed.