Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. 00-23)
Before Terry and Washington, Associate Judges, and Kern, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Petitioner, Peggy Pannell-Pringle, seeks review of a final order of the District of Columbia Department of Employment Services ("DOES") which denied her application for workers' compensation benefits for injuries resulting from an automobile accident that occurred in the course of her employment. DOES ruled that petitioner's unauthorized settlement with the driver of the other car barred her claim for compensation under D.C. Code § 32-1535 (g) (2001). *fn1 Petitioner argues that DOES erred in determining that this statute operates as a complete bar to a claim for compensation when no compensation order existed at the time of the settlement. We hold that DOES's interpretation of the statute is reasonable and therefore affirm the order under review.
Petitioner was involved in an automobile accident arising in the course of her employment on August 4, 1997. She notified her employer, Nursing Enterprises, Inc., of the accident promptly after it occurred and then went to the hospital. She was diagnosed with a sprained neck and returned to work later that day. Within a week after the accident, and before filing a workers' compensation claim, she entered into an agreement with the driver of the other car in which she settled her claim against him for $1,000. She did not notify either her employer or her employer's insurance carrier, Liberty Mutual Insurance Company, of the settlement.
Over the next nine months, petitioner's neck continued to bother her, but her doctors maintained the original diagnosis of a sprained neck. In March of 1998, however, doctors at Bayview Hospital diagnosed petitioner as having a "Jefferson fracture" in her neck. She underwent several surgeries and was absent from work from April 4, 1999, through August of 1999. She later filed a claim for workers' compensation alleging that her disability was due to the August 1997 accident.
After a hearing on petitioner's claim, a hearing examiner found that the accident happened during the course of petitioner's employment and that it was the cause of her injuries. The examiner also ruled, however, that petitioner was barred from receiving total disability benefits *fn2 because her settlement with the third party was not authorized under D.C. Code § 32-1535 (g). *fn3 Although the actual language of section 32-1535 (g) did not mandate this result, the examiner held that he was bound by Travelers Insurance Co. v. Haden, 418 A.2d 1078 (D.C. 1980), which interpreted a nearly identical provision in the Longshoremen's and Harbor Workers' Compensation Act as conclusively presuming prejudice when an employee enters into an unauthorized settlement. *fn4 In a lengthy footnote, the examiner stated that his preference would be to inquire into whether the employer was actually prejudiced by an unauthorized settlement because such an inquiry would further the "humanitarian" purpose of the statute. He concluded, however, that "this is a significant policy determination which, under the Act, must be left to the Director by interpretation, or the City Council by statutory revision."
Petitioner appealed from the examiner's decision to the Director of DOES, who affirmed the decision of the hearing examiner because he found that Haden was persuasive. Although the Director acknowledged that an inquiry into prejudice was "attractive," he concluded that there was "simply . . . no language in D.C. Code § [32-1535] (g) providing for an inquiry into `prejudice' in these cases." The Director reasoned that the drafters of the act had "used such qualifying `prejudice' language when it was intended and deemed appropriate," but noted that they did not use that language here. Petitioner now maintains that the Director's interpretation was contrary to the statutory scheme.
In reviewing an agency interpretation of a statute, this court follows the two-part test set out by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984); see, e.g., Timus v. District of Columbia Dep't of Human Rights, 633 A.2d 751, 758-759 (D.C. 1993) (en banc). "First, the reviewing court must determine whether the meaning of the statute is clear." Columbia Realty Venture v. District of Columbia Rental Housing Comm'n, 590 A.2d 1043, 1046 (D.C. 1991). If it is, "that is the end of the matter." Chevron, 467 U.S. at 842. If the statute is ambiguous, however, we must defer to the agency's interpretation of the statutory language so long as it is reasonable. Id. at 842-843; see Smith v. District of Columbia Dep't of Employment Services, 548 A.2d 95, 97 (D.C. 1988) ("The agency's interpretation of the statute it administers is binding on this court unless it conflicts with the plain meaning of the statute or its legislative history").
A. The Plain Meaning of Section 32-1535
Before 1980, persons employed in the District of Columbia were covered by workers' compensation under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 et seq. See Triplett v. George Hyman Construction Co., 565 A.2d 83, 84-85 (D.C. 1989); D.C. Code §§ 36-501, 36-502 (1973). In 1980, however, the Council of the District of Columbia enacted the District of Columbia Workers' Compensation Act ("the Act"), which borrowed heavily from the LHWCA. Nguyen v. Liberty Mutual Insurance Co., 611 A.2d 541, 544 (D.C. 1992). Section 36 of the Act, now codified at D.C. Code § 32-1535, was virtually identical to section 33 of the LHWCA (33 U.S.C. § 933) before that section was amended in 1984. As a result, cases interpreting 33 U.S.C. § 933 prior to 1984 may be treated as " `persuasive' precedent" in determining the meaning of D.C. Code § 32-1535. Nguyen, 611 A.2d at 544 (citation omitted); accord, e.g., Grayson v. District of Columbia Dep't of Employment Services, 516 A.2d 909, 911 n.2 (D.C. 1986) (federal cases interpreting provisions of the LHWCA that are "virtually identical" to corresponding sections of the Act are "persuasive authority").
D.C. Code § 32-1535 allows a worker injured on the job by a third party to sue the third party without forfeiting the right to workers' compensation from his or her employer, so long as the amount recovered from the third party is less than the entitled employer compensation. D.C. Code § 32-1535 (a), (b), and (f). Section 32-1535 (g), however, prohibits the injured employee from recovering workers' compensation benefits if the suit against the third party is settled without the written approval of the employer. *fn5 Although petitioner in this case settled her claim without the approval of her employer, she argues ...