Terry, Farrell, and Glickman, Associate Judges.
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
Argued September 16, 1999
This petition for review challenges the denial of compensation to petitioner under a former (now-repealed) version of the Victims of Violent Crime Compensation Act (VVCCA). That statute required a person filing a claim for compensation to do so "within 180 days after the crime [of which the person had been a victim]," but provided that "this time limit may be extended for good cause shown." D.C. Code § 3-402 (a)(2) (1994). Regulations implementing the statute defined "good cause" sufficient to waive the limitations bar as including: "The physical or mental incapacity of the claimant." 28 DCMR § 2303.4 (a) (1987).
Petitioner filed a crime victims' compensation claim outside the 180-day period, but in proceedings before the District of Columbia Department of Employment Services (DOES), which administered the former act, he presented evidence that he had been mentally incapacitated during the relevant time. A hearing and appeals examiner, followed by the DOES Acting Deputy Director for Labor Standards, rejected the showing of good cause and denied petitioner benefits. While petitioner was seeking review in this court, the Council of the District of Columbia repealed the old VVCCA and replaced it with a new one that contained, among other things, a liberalized statute of limitations. Petitioner's first argument to us is that he should be given the benefit of that statute. For reasons explained in part II, we reject that argument. Petitioner further argues that the Deputy Director's rejection of his good cause showing is flawed, in part because it appeared to rest on the Conclusion that although petitioner himself was mentally "incapacitated" during the 180-day period, someone else could have filed for compensation on his behalf just as they had done with regard to a claim for workers' compensation he had made. We agree with petitioner, for reasons stated in part III, that the Deputy Director's analysis of the incapacity issue reveals enough confusion on this point that a remand is necessary for further consideration and clarification. Moreover, the analysis appears to reflect a misunderstanding about the relationship between crime victims' compensation and what the statute expressly terms "collateral sources," including workers' compensation, from which a claimant has also been compensated. Finally, we simply cannot be sure of what finding the agency made on the pivotal issue of whether petitioner suffered from a mental incapacity during the period relevant to timely filing of a claim. For these reasons, we vacate the agency's decision and remand for further consideration.
The facts of the assault giving rise to petitioner's claim for benefits are not disputed. As the hearing examiner found, petitioner was the innocent victim of a violent crime on January 22, 1993, when he was assaulted at the Brookland station of the United States Postal Service, for which he worked as a driver. The armed assailant, while attempting a robbery, threatened petitioner by telling him fifteen times or more, "Prepare to die!" This incident caused petitioner to have flashbacks to an attempted robbery in 1990 while he was loading money into a mail truck, when he was held hostage at gunpoint and the assailant pointed the gun at his head and pulled the trigger, only to have the gun misfire. The examiner described petitioner's mental condition after the January 1993 assault as follows:
The record reveals that petitioner experienced a number of physical and emotional difficulties as a result of the 1993 violent crime including flashbacks, sleeping disorders and generally a constant sickly state. [The] credible testimony [of Dr. Arnsdorf, petitioner's treating psychologist,] about her treatment sessions[,] as well as the various medications prescribed by Dr. Griffin, [his treating] psychiatrist, supported the seriousness of petitioner's condition. In addition to not performing his regular duties, petitioner could not work overtime and could not operate his taxicab[, a part-time supplemental job]. He further admitted on the record that when he applied for workers' compensation, his claim was denied for a year, forcing him to rely on his wife's salary and to sell his boat and a car in order to survive financially.
Aided by Dr. Arnsdorf, petitioner had filed for workers' compensation beginning in February 1993. The claim was initially denied and he appealed, *fn1 ultimately prevailing to the extent that he was awarded 75% of his base salary in benefits. *fn2 On March 3, 1994, fourteen months after the assault, he applied for crime victims' compensation benefits. Following an evidentiary hearing, the hearing examiner found that, "[a]t first blush, it appears that a strong argument might be made that good cause has been demonstrated to excuse the late filing of the claim" - a reference to what the examiner found to be petitioner's "[serious] physical and emotional difficulties." The examiner also found, however, that since petitioner had not "appl[ied] for crime victims' benefits until after his workers' compensation claim was finally accepted, a strong and . . . reasonable inference may be drawn that [he] applied for [them] specifically to augment his workers' compensation award in order to fully replace his salary." Pointing out that "petitioner might have timely filed both a workers' compensation claim and crime victims' claim," the examiner concluded that, "[i]n either case, . . . petitioner, or someone on petitioner's behalf, was bound to follow the filing deadlines for each program." Accordingly, "petitioner's attempt to augment his workers' compensation benefits with a crime victims' compensation award fail[ed] to establish good cause for the late filing . . . ."
On administrative appeal, the Deputy Director adopted the examiner's recommended denial of the claim. Observing that the hearing examiner had been "keenly aware of the psychological difficulties [petitioner] was having," the Deputy Director continued:
The Hearing Examiner was persuaded, however, that claimant's actions, albeit with the assistance of Dr. Arnsdorf, in applying for workers' compensation benefits first, and then not applying for crime victims' benefits until he had been awarded workers' compensation benefits (and found the award of 75% of his $38,000.00 base pay to be insufficient) [d]o not establish good cause for the 14 month delay in filing the claim.
The Deputy Director went on to reason that petitioner had received a "make whole" remedy in the form of "tax free receipt of 75% of his base salary and payment of his medical expenses" as workers' compensation, and that "[a]ny subsequent award of crime victims' benefits would amount to unjust enrichment since petitioner would be receiving compensation for the same injury." Returning to the issue of petitioner's mental condition during the limitations period, the Deputy Director stated:
Although there is no dispute that petitioner was incapacitated following the violent crime, the record is also undisputed that petitioner, or someone on petitioner's behalf (Dr. Arnsdorf), filed for workers' compensation benefits within 45 days of the January 22, 1993 incident. Petitioner, or someone on petitioner's behalf such as his wife (or Dr. Arnsdorf), might just as easily [have] filed a claim for crime victims' benefits within that same timeframe. [Emphases added.]
Since, as the Deputy Director concluded, "petitioner, or someone on petitioner's behalf, might have filed a crime victims' compensation claim as readily as filing a workers' compensation claim," she adopted the hearing examiner's ...