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Fred F. Blanken & Co. v. District of Columbia Department of Employment Services

June 05, 2003

FRED F. BLANKEN & CO., ET AL., PETITIONERS,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND JUDITH S. BLANKEN, INTERVENOR.



Petition for Review of Action by the District of Columbia Department of Employment Services (Dir. Dkt. 99-14)

Before Steadman and Washington, Associate Judges, and Nebeker, Senior Judge.

The opinion of the court was delivered by: Washington, Associate Judge

Argued May 21, 2002

Petitioners, Fred F. Blanken & Co. (Employer) and Hartford Mutual Insurance Co. (Insurer), seek review of the decision of the Director of the Department of Employment Services (DOES), arguing that the Director erred as a matter of law in finding that claimant/intervenor Judith Blanken's application for a hearing requesting modification of her earlier disability award was timely under D.C. Code § 36-324 (a) (1997), currently D.C. Code § 32-1524 (2001) of the Workers' Compensation Act (Act). We affirm in part and remand in part.

I.

On November 27, 1992, Judith Blanken was employed by Fred F. Blanken & Co. as a real estate broker when she sustained a work-related injury. While showing a property to a client, she fell walking up a concrete staircase, and landed on her left knee. As a result of the fall, Blanken experienced severe pain in her left knee. After her condition failed to improve with physical therapy and cortisone injections, she had arthroscopic surgery on March 22, 1993. Following the surgery, Blanken continued to experience pain and numbness in her knee. She also became increasingly dissatisfied with the care she was receiving from her physician, Dr. A. Roy Rosenthal, and in 1995, she came under the care of Dr. Philip Schneider. Although she felt Dr. Schneider was much more responsive to treating the symptoms related to her knee injury, her condition continued to worsen.

The parties agreed by stipulation on December 20, 1995 that Blanken had a twenty percent permanent partial disability to her left leg as a result of her work-related injury and that compensation for that injury would begin on November 10, 1993.*fn1 On January 19, 1996, the Office of Workers' Compensation (OWC) approved the parties' stipulation and payment continued until January 26, 1996. Blanken continued to claim that the condition of her leg worsened and requested additional compensation benefits. On December 31, 1996, within one year of the last compensation payment pursuant to the January 19, 1996 Compensation Order, Blanken filed an application for a hearing requesting modification of the Compensation Order pursuant to D.C. Code § 36-324 and requesting a change of physician. A formal hearing was scheduled for September 9, 1997.

On September 2, 1997, DOES received a request for a continuance from Blanken due to her counsel's vacation plans. In her September 4, 1997 Order, Hearing and Appeals Examiner Gail L. Davis denied the request for a continuance, and dismissed Blanken's application without prejudice. The Examiner's Order also indicated that "[t]he case is remanded [to] the Office of Workers' Compensation for such further action as may be warranted, until Claimant files a new Application for Formal Hearing, which application has been enclosed for Claimant's convenience" (emphasis in the original). Blanken refiled her application for hearing on September 11, 1997. On October 24, 1997, petitioners filed a motion to dismiss Blanken's refiled Application for Formal Hearing, arguing that it was not timely filed within the one year statutory period and failed to include new evidence justifying her request for modification based on a change of condition.

Blanken subsequently filed a motion for reinstatement on January 27, 1998 in which she characterizes Examiner Davis's dismissal order as being made in contemplation of an immediate refiling of the application since she was never afforded an option of either proceeding with her case on September 9, 1997 or dismissal. Alternatively, Blanken characterizes Examiner Davis's conduct in issuing the order as being taken without authority since it was done in response to a request for a continuance. Thus, Blanken contended that either petitioners' motion to dismiss the refiled application should be denied or the original application should be reinstated in light of the fact that the September 4, 1997 Order dismissing the Application was issued "[w]ithout a written request from Claimant, or any agreement from parties," and created the "problem [as to] . . . whether the re-application . . . was timely." On February 9, 1998, Hearing and Appeals Examiner David L. Boddie denied the motion to dismiss and a formal hearing was held on March 2, 1998.

In his January 19, 1999 Compensation Order, Examiner Boddie rejected the petitioners' argument that Blanken's September 11, 1997 Application for Hearing was time-barred because it was filed one year and eight months after Blanken received the last compensation payment under the January 1996 Compensation Order. Examiner Boddie, applying the doctrine of equitable tolling, concluded that Blanken's application had been timely filed. To support this conclusion, Examiner Boddie relied on the language of Examiner Davis's September 4, 1997 Order which dismissed the case without prejudice and remanded it to the OWC "for such further action as may be warranted, until Claimant files a new Application for Formal Hearing, which application has been enclosed for Claimant's convenience." Examiner Boddie found that

Examine[r] [Davis's] dismissal order . . . reflects an awareness on [the Examiner's] . . . part of the claimant's desire to have her claim heard as soon as possible, and an intent on the part of the Hearing Examiner to meet that desire by dismissing the case without prejudice and enclosing an application for hearing for refiling with the order of dismissal.

Examiner Boddie also noted, citing Ferreira v. District of Columbia Department of Employment Servs., 531 A.2d 651, 655 (D.C. 1987), that finding Blanken's claim time-barred "would be inconsistent with the underlying humanitarian purposes of the Act that its provisions are to be liberally construed for the benefit of claimant's (sic) and reflecting a strong legislative policy favoring awards in arguable cases."

With respect to the merits of Blanken's request for modification, Examiner Boddie credited Dr. Schneider's testimony that Blanken's condition had progressively worsened. Dr. Schneider testified during his deposition regarding his May 23, 1997 follow-up independent medical evaluation in which he found that Blanken's condition had worsened since his last medical evaluation in January 1995, due to increased swelling of her left knee, decreased range of motion in her knee, significant arthritis in the knee, and no remaining joint space left on the medial side. Based on that evaluation, he concluded that Blanken had a thirty-five percent impairment of the left lower extremity as a result of her November 27, 1992 work-related injury. Thus, Blanken was entitled to a modification of the January 19, 1996 Compensation Order pursuant to D.C. Code § 36-324 and an additional award of fifteen percent based on the schedule reflected in D.C. Code § 36-308 (3)(B) (1997).*fn2 ...


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