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Krause v. District of Columbia Department of Employment Services

June 12, 2003

MARK W. KRAUSE, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. DYNALECTRIC COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY, INTERVENORS.



Petition for Review of a Decision of the District of Columbia Department of Employment Services

Before Wagner, Chief Judge, and Steadman and Farrell, Associate Judges

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

Argued May 15, 2003

The Director of the District of Columbia Department of Employment Services, reversing a decision of a hearing examiner, denied petitioner workers compensation benefits on the strength of this court's decisions in Franklin v. District of Columbia Dep't of Employment Servs., 709 A.2d 1175 (D.C. 1998), and Powers v. District of Columbia Dep't of Employment Servs., 566 A.2d 1068 (D.C. 1989), both standing for the principle that "there is no right to compensation benefits when an employee resigns, not for reasons related to the injury or disability, but for economic reasons to take a better paying job." Id. at 1069. The Director, though, failed to address a seemingly pivotal distinction cited by the examiner between those cases and this one: that although petitioner quit his limited-duty job with the employer to take a better paying job elsewhere, his wages -- both before he resigned and after he began the new employment -- were still below what he had earned before his work-related injury.

This court defers to an agency's interpretation of the statute it administers "so long as that interpretation is reasonable and consistent with the statutory language." Franklin, 709 A.2d at 1176 (quotations and citations omitted). Franklin and Powers both rested upon such deference to the Director's determination of when, under the Workers' Compensation Act (WCA), an employee's resignation severs the causal link between a compensable injury and a subsequent wage loss. But a qualifier to the rule of deference is that a court may reasonably expect such agency interpretations to be supported by appropriate analysis and consideration. See Munson v. District of Columbia Dep't of Employment Servs., 721 A.2d 623, 626-27 (D.C. 1998); Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d 896, 899-902 (D.C. 1995)). The danger in the present case is that the Director, "without sufficient consideration of factual and potentially legal differences, may have too readily applied . . . judicial decision[s]" -- i.e., Franklin and Powers -- "that [were themselves] simply deferring to an agency interpretation." Franklin, 709 A.2d at 1178 (Steadman, J., dissenting). In applying those decisions as he did, the Director has adopted what appears to be an unwavering rule that when an employee resigns from a job to take a better paying one elsewhere -- whether or not the employee's wages ever reach his pre-injury level -- this severs all connection between an injury and a resulting wage loss. Our review function, restricted though it is, requires us to insist that the Director provide a better explanation of how that rule is compatible with the text and purposes of the WCA. We therefore vacate and remand for further consideration.

I.

Krause, the employee/petitioner, worked as an electrician for intervenor (Dynalectric) until October of 1986 when he injured his back while at work. After surgery, he returned to work with Dynalectric in March of 1988 *fn1 in a modified-duty capacity as an assistant project manager. *fn2 Before the injury, his salary with Dynalectric averaged about $49,000 a year; his post-injury salary averaged some $23,000. In March of 1989, Krause quit Dynalectric to take a position as an estimator/planner with another employer, Burns & Roe. That job, which also was within his medical restrictions, paid more than his post-injury position with Dynalectric, but still less than he had earned as an electrician. *fn3 After working for Burns & Roe for some four and a half years, Krause was laid off due to a reduction in force. Thereafter, when he found work with various other employers, he earned more than he would have been paid by Dynalectric in the modified-duty job, but less than what he had earned as an electrician before his work-related injury. At the same time, he underwent significant periods of unemployment, including one period of over a year.

II.

Reversing a contrary decision by a hearing examiner, the Director denied Krause workers compensation reflecting the difference between his pre-injury wages and his subsequent earnings. Relying on Powers and Franklin, supra, the Director reasoned simply:

Where an employee terminates employment for economic reasons, compensation for subsequent wage loss is not the responsibility of that employer . . . . Based on the

evidence of record, there is no dispute that Claimant sever[ed] his employment with Employer, Dynalectric for economic reasons, a better paying job. Claimant's decision to leave Dynalectric was voluntary and not related [to] his work injury. There is no evidence that the disability was a factor in Claimant's decision to sever the employment with Dyn[a]lectric. Thus, the Director is not persuaded [by] claimant's argument that a departure from Powers and Franklin is warranted under the facts of this case.

III.

In Powers and Franklin, we sustained the Director's denial of benefits on the ground that in each case the employee's decision to leave his present job for a better paying one "voluntarily entail[ed] a risk of wage diminution as a result of subsequent events," and thus "[severed] any causal link" between his work injury and the subsequent loss of wages. Powers, 566 A.2d at 1069; Franklin, 709 A.2d at 1177. Each of those cases, however, differed from the present one in a factual respect that appeared important then -- but seemingly not now -- to the Director's analysis. The claimant in Powers, as the court stated, had

suffered a back injury at work and could no longer perform all the duties required by his old job with the National Geographic Society. Nevertheless, the Society retained him in a light-duty job at his former wage level. Several months later the employee resigned in order to take a higher-paying job with the U.S. Postal Service. After a few weeks, he quit because ...


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