Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. No. 02-91)
Before Reid, Associate Judge, and Newman and Nebeker, Senior Judges
The opinion of the court was delivered by: Newman, Senior Judge
Argued September 16, 2003
On this appeal we are required to determine whether the Director of the Department of Employment Services (DOES) erred in deciding that the failure of Wanda McIntyre (Employee) to give timely notice to her employer, Safeway Stores, Inc. (Em ployer), of a work related injury - as required by D.C. Code § 32-1513 of the District of Columbia Workers' Compensation Act of 1979 (the Act), D.C. Code § 32-1501 et seq. (2001) - did not bar the employee's claim for causally related medical benefits pursuant to D.C. Code § 32-1507 (2001). Given our duty to defer to the Director's construction of the provisions at issue, we affirm.
McIntyre filed a claim for compensation benefits, pursuant to the provisions of the Act, after sustaining a cumulative or repetitive trauma injury to her left index finger resulting from her duties as a food clerk/checker for the employer. On August 1, 2000, a DOES Administrative Law Judge held an evidentiary hearing to consider the extent of McIntyre's entitlement to temporary total disability benefits and causally related medical expenses. On March 29, 2001, the ALJ issued an order denying McIntyre's claim s for disability benefits, as well as medical expenses, on the basis that she had failed to provide timely notice of the injury to the employer or to satisfy the statutory requirements to excuse her late notice, pursuant to § 32-1513 of the Act. *fn1
In response to the adverse determination, McIntyre filed an application for review with the Director of the DOES in which she argued that the employer had "actual notice" of her injury or, in the alternative, that her untimely notice of injury to the employer barred only her claim for disability or wage loss but did not bar her claim for causally related medical expenses. The director concluded that the employer did not have "actual notice" of McIntyre's injury, thereby affirming the finding of untimely notice, but agreed that the claim for causally related medical expenses was not barred by the untimely notice and thus remanded the case to the Office of Hearings and Adjudication (OHA) for further findings on that issue.
On October 18, 2002, the ALJ issued a compensation order on remand that, in accordance with the findings of the Director, ordered the employer to provide McIntyre with medical expenses causally related to the work injury. Thereafter, the employer filed an application for review of the compensation order on remand with the Director. The Director did not issue a final opinion within forty-five days, rendering the compensation order on remand a "final decision for purposes of appeal," pursuant to D.C. Code § 32-1522 (b)(2) (2001). The employer now petitions for review of the final compensation order on remand granting McIntyre causally related medical expenses irrespective of her untimely notice of injury to the employer.
In reviewing an administrative agency's construction of a statute, we "accord great deference to the interpretation of the agency charged with its adm inistration, particularly if the interpretation is of long standing and has been consistently applied. Immigration & Naturalization Serv. v. Cardoza Fonseca, 480 U.S. 421, 445-46 (1987); North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982). Less deference is appropriate where the interpretation lacks these attributes." Atwater v. District of Columbia Dep't of Consumer & Regulatory Affairs, 566 A.2d 462, 468 (D.C. 1989).
Alternatively, as we have said on another occasion, "an agency's interpretation becomes of controlling weight unless it is plainly erroneous or inconsistent with the [statute] . . . . " Dell v. Dep't of Employment Servs., 499 A.2d 102, 106 (D.C. 1985) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)); accord Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 570 (D.C. 1985); Weaver Bros. v. District of Columbia Rental Hous. Comm'n, 473 A.2d 384, 388 (D.C. 1984). It is to this deferential task th at we now turn.
In order to receive compensation under the Act an employee must comply with the requirements of D.C. Code § 32-1513 (a) (2001), which provides in pertinent part:
Notice of any injury or death in respect of which compensation is payable under this chapter shall be given within 30 days after the date of such injury or death, or 30 days after the employee or beneficiary is aware or in the exercise of reasonable diligence should have been aware of a relationship between the injury or death and the employment. Such notice shall be given to the Mayor and to the employer.
D.C. Code § 32-1513 (a) (2001). This subsection requires only that an employee provide "notice of any injury or death in respect of which compensation is payable. . . ." Id.
Therefore, the Director must determine whether causally related medical expenses are considered "compensation" for the purposes of this notice provision of the statute.
The statute defines compensation as "the money allowance payable to an employee or to his dependents as provided for in this chapter, and includes funeral benefits provided herein." D.C. Code § 32-1501 (6) ...