Before Steadman, Schwelb, and Glickman, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
On Petition for Review of a Decision of the District of Columbia Department of Employment Services
Petitioners *fn1 entered into a lump sum settlement agreement with an employee who suffered an on-the-job injury. The employee had a pre-existing condition which resulted in a substantially greater disability than would have been caused by the injury alone. Petitioners seek review here of a decision by the Director of the Department of Employment Services ("DOES") denying them Special Fund relief under the District of Columbia Workers' Compensation Act of 1979 ("WCA"), D.C. Code § 36-301, et seq. (1997 Repl. & March 2000 Supp.). Because the rationale for the Director's decision turns on a case whose holding she misread, we must remand the matter for further agency proceedings.
On several separate occasions during 1992, William Selby ("claimant") suffered injury to his back during the course of his employment with petitioner Genstar Stone Products Co. ("Genstar"). At the time of the initial injury, the claimant suffered from a pre-existing non-occupational permanent physical impairment - osteoporosis -which combined with the work-related injuries and resulted in a substantially greater disability than would have resulted from the injuries alone. *fn2 In December 1994, pursuant to § 36-308(8), the Office of Workers' Compensation approved a lump sum settlement between claimant and petitioner Genstar as compensation for claimant's disability.
The following year, petitioners sought partial reimbursement from the Special Fund. That fund, established pursuant to § 36-340, is financed mainly by assessments against employers and insurance companies and operates to remove a detriment to the hiring of workers with an existing disability. The fund reimburses employers for monetary benefits paid to such employees for permanent total or partial injuries after 104 weeks. § 36-308(6). *fn3 The Director rejected the petitioners' claim for Special Fund relief, which was presented as a pure matter of law. *fn4 Genstar Stone Prods. Co., et al. v. Trustee, Special Fund, Dir. Dkt. No 96-88; H&AS No. 93-511A; OWC No. 242013 (Sept. 30, 1997).
The Director's legal analysis, in its entirety, was as follows:
The Director notes that in Azzolino v. Marine Terminals Corporation, 9 BRBS 566, BRB 77-680 (1978), the Benefits Review Board held that employers were not entitled to special fund relief after lump sum settlements with claimants. In Washington Metropolitan Area Transit Authority v. Department of Employment Services, 683 A.2d 470 (D.C. 1996), the District of Columbia Court of Appeals cited Benefits Communication Corp. v. Kleiforth, 642 A.2d 1299, 1304 (D.C. 1994) for the proposition "that with borrowed legislation such as the WCA we ordinarily look to the interpretation of the federal statute for guidance in determining the construction of our own statute." Therefore, the Director determines that the Hearing Examiner interpretation of D.C. Code § 36-308 is the correct interpretation of the statute. See Wonder Bread v. Office of Workers' Compensation, Dir. Dkt. 89-22; H&AS No. 88-606; OWC No. 0064196 (September 1997).
The Wonder Bread decision cited by the Director actually was issued subsequent to the Genstar decision, on October 23, 1997. See Wonder Bread v. Office of Workers' Comp., Dir. Dkt. No. 89-22; H&AS No. 88-606; OWC No. 0064196 (Oct. 23, 1997). In it, the Director repeated almost verbatim the above analysis. In addition, she rejected two further arguments. First, she addressed the argument that Azzolino had been overruled by a subsequent case and pointed out "that even if Azzolino was overruled later, Azzolino was the law at the time the D.C. Council enacted the WCA." *fn5 Second, in response to the argument that § 36-340(a) cited the lump sum settlement provision (then § 36-308(f)) as a possible use of Special Fund moneys, she pointed out that this reference was clearly a codification error and that the official enrolled act contained no such reference. See 27 D.C. Reg. 2503 (June 13, 1980).
Plainly, then, the Director's interpretation of the statute as precluding any claim by an employer against the Special Fund after a lump-sum settlement with the employee rested ultimately on her belief that the Azzolino decision, decided under the somewhat comparable Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 908(f), on which the District's WCA was based, see John Driggs Corp. v. D.C. DOES, 632 A.2d 740, 743 (D.C. 1993), had so held.
The precise question at issue here is ultimately a matter of law and this court remains "the final authority on issues of statutory construction." WMATA v. D.C. DOES, 683 A.2d 470, 472 (D.C. 1996) (quoting Harris v. D.C. DOES, 660 A.2d 404, 407 (D.C. 1995)). However, it is a firmly established rule in this jurisdiction that "an agency's interpretation of its own regulations or of the statute which it administers is generally entitled to great deference from this court." King v. D.C. DOES, 742 A.2d 460, 466 (D.C. 1999) (citation omitted). To this end, "[o]rdinarily, therefore, this court will not attempt to interpret the agency's statute until the agency itself has done so. . . . Instead, we will remand to permit the agency to engage in the necessary analysis of the legislation it is charged with carrying out." Id.
However, the degree of deference to be accorded to such agency interpretation is a function of the process by which that interpretative ruling has been arrived at and the degree to which the agency's administrative experience and expertise have contributed to the process. *fn6 For example, "[w]hen it appears that the agency (or, in this case, the Director) did not conduct any analysis of the language, structure, or purpose of the statutory provision, it would be incongruous to accord substantial weight to [the] agency's determination." Proctor v. D.C. DOES, 737 A.2d 534, 538 (D.C. 1999) (citations omitted). Likewise, "if the ...