Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. 00-38)
Before Wagner, Chief Judge, and Reid and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Justice Adjei asks us to reverse a decision by the Department of Employment Services (DOES) denying his claim for workers' compensation benefits on the ground that he and his employer were exempted from the provisions of the District of Columbia Workers' Compensation Act by the exception to the Act's coverage set forth in D.C. Code § 32-1503 (a-3) (2001). Adjei contends that DOES misconstrued the scope of the coverage exception and misapplied it by disregarding substantial evidence in the record. We conclude otherwise and affirm the denial of Adjei's claim.
Adjei worked for Colonial Dodge, Inc., as a "parts driver," delivering automotive parts and supplies to service stations and other locations in Maryland, Virginia and the District of Columbia. Adjei claimed that he sustained a cumulative back injury carrying cases of antifreeze on three separate delivery runs, the first two in Maryland and the last in the District. Adjei filed for workers' compensation benefits in both the District and Maryland.
At the time of his injury, Adjei was a resident of Maryland. Colonial Dodge was headquartered in Maryland and was licensed and registered to do business there. Adjei had entered into his employment contract with Colonial Dodge in Maryland, and Colonial Dodge furnished coverage for its employees, including Adjei, under the workers' compensation law of Maryland. *fn1 Daily delivery run records for the two-week period leading up to the date of Adjei's injury showed that most of his deliveries were in Maryland, and only a handful of delivery runs - thirteen out of two hundred thirty, or fewer than six percent - were in the District of Columbia. The runs into the District were comparable in duration to the runs elsewhere.
The DOES hearing examiner concluded on these undisputed facts that subsection (a-3) *fn2 of D.C. Code § 32-1503 exempted Adjei and Colonial Dodge from the coverage of the District of Columbia Workers' Compensation Act. The examiner considered the sole point in contention to be whether Adjei worked in the District only "intermittently" within the meaning of subsection (a-3). Adjei argued that the term "intermittently" signified employment that was temporary, part-time or seasonal. The examiner rejected this argument on the ground that the term is used in the statute "to qualify and quantify the actual time in the District of Columbia as opposed to describing claimant's employment as a whole." Since "intermittently" is not defined in the Act, the examiner referred to the dictionary definition of "intermittent" as meaning "coming and going at intervals: not continuous; also occasional." *fn3 Using this definition, the examiner concluded that Adjei's deliveries in the District were occasional and hence intermittent under the Act.
Adjei appealed the hearing examiner's denial of his claim to the Director of the Department of Employment Services. While his appeal was pending, the Maryland Workers' Compensation Commission disallowed the claim for benefits that Adjei had filed under Maryland law based on its finding that Adjei did not sustain an accidental injury arising out of and in the course of employment. *fn4
Thereafter, the Director of DOES affirmed the hearing examiner's denial of Adjei's claim. The Director concluded that "[a]s Claimant only made a few trips in the District, when compared to the trips Claimant made in Maryland, Claimant was properly classified as working only intermittently in the District of Columbia" for purposes of D.C. Code § 32-1503 (a-3). Deeming the other requirements of subsection (a-3) satisfied as well, the Director agreed with the examiner that the District of Columbia did not have "jurisdiction" over Adjei's claim.
After filing his petition for review in this court, Adjei moved to remand the case for DOES to consider whether the District had a substantial interest in awarding benefits to him in light of Maryland's denial of benefits for the same injury. Intervenors Colonial Dodge and its workers' compensation insurance carrier opposed a remand, though DOES did not, and Adjei's motion for remand was denied. Adjei represents that his appeal from the decision of the Commission in Maryland has been stayed pending the outcome of his appeal here.
Adjei argues that D.C. Code § 32-1503 (a-3), supra footnote 2, did not exempt him and Colonial Dodge from the coverage of the D.C. Workers' Compensation Act for two reasons: because the Maryland Workers' Compensation Commission denied his claim for benefits under Maryland law, and because three months' worth of daily run records showed that he continuously made deliveries in the District several days each week as part of his job. In support of his first reason, Adjei argues that subsection (a-3) should not be construed to apply where the employee has not received and is not entitled to receive benefits under the workers' compensation scheme of another jurisdiction for the work-related injury that the employee suffered in the District. Claiming that subsection (a-3) is ambiguous on this point, Adjei renews his request that we remand the case for DOES to construe the exemption in light of his proposed construction and the purpose and legislative history of the statute as a whole. In support of his second reason, Adjei argues that because he made periodic, regular and repeated deliveries in the District, he was not working just "temporarily or intermittently" in the District within the meaning of subsection (a-3). In this connection, Adjei faults the hearing examiner for basing her decision on delivery run records for only a two-week period rather than the full three-month period that the records covered.
We disagree with each of Adjei's contentions. As to the first, we conclude that no remand is necessary because the statute will not admit of the construction that Adjei advances. As to Adjei's second contention, we reject it because the agency adopted a reasonable interpretation of subsection (a-3), the finding that Adjei worked in the District only intermittently was supported by substantial evidence and consideration of ...