March 08, 2001
JOYCE H. SARGENT, PETITIONER,
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
CATHERINE EPLING, INTERVENOR.
Before Terry and Ruiz, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Petition for Review of a Decision of the District of Columbia Department of Employment Services
Argued February 13, 2001
This is a petition for review of an award of attorney's fee for work performed by claimant's attorney in a workers' compensation case *fn1 before the Director of the District of Columbia Department of Employment Services (DOES). The employer seeks review of two orders issued by DOES, one dated October 22, 1999, awarding attorney's fees in the amount of $1,837.50, and the second, dated November 30, 1999, denying the employer's motion for reconsideration. As there is no substantial evidence in the record supporting the award, we reverse.
On November 12, 1998, claimant's counsel, Benjamin Boscolo, wrote to DOES to petition for an award of attorney's fees for $2,143.75 for "time and expense to defend" an award of attorney's fees by the hearing examiner on January 14, 1998 for work on the underlying claim for compensation. The additional attorney's fees requested were for the "defense" that took place during the time period after February 11, 1998, when the employer filed an application for review of the hearing examiner's award with the Director. *fn2 The November 12, 1998 petition for attorney's fees, however, enclosed an itemization that listed 12.25 hours of services from May 13, 1994 to January 1, 1995 (i.e., prior to the application for review by the Director). It is undisputed that these dates did not reflect the work referred to in the petition. *fn3 Despite the incorrect itemization, DOES granted claimant's petition stating that, "[h]aving examined the submission, the Director concludes that the petition for 12.25 hours is reasonable in light of the work performed at the Director's level," and ordered the employer to compensate claimant for attorney's fees in the amount of $1,837.50. *fn4
In a workers' compensation case, we defer to the determination of the Director of DOES as long as it flows rationally from the facts, and those facts are supported by substantial evidence on the record. See Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 683 A.2d 470, 472 (D.C. 1996). The Director's legal rulings are reviewed de novo. See id.
The parties do not dispute that the Director's award of attorney's fees was based on an itemization that referred to services performed prior to the filing of the petition for review by the Director. Therefore, we hold that there was no substantial evidence to support the Director's award of fees for work performed at the Director's level. Intervenor submits that although the itemization "was annexed as an exhibit to the fee petition as the result of an administrative error," there is other evidence in the record, i.e., the entire administrative file, to support the award. We disagree. The Director's order stating, "[h]aving examined the submission," demonstrates that the decision relied on the incorrect itemization. *fn5 Therefore, because the Director's decision is not based on "substantial evidence," we reverse. *fn6