Petition for Review of a Decision of the District of Columbia Department of Employment Services (DKT 50-02)
Before Schwelb and Reid, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Schwelb, Associate Judge
Argued September 24, 2003
On October 28, 2002, the Director of the District of Columbia Department of Employment Services (DCDOES), reversing a Compensation Order issued by an Administrative Law Judge (ALJ), held that, in calculating claimant-intervenor Randy Brant's average weekly wage (AWW) for purposes of determining the amount of workers' compensation to which Brant was entitled, two weeks during which Brant participated in a strike should be excluded. Brant's employer, United Parcel Service (UPS) and the employer's carrier, Liberty Mutual Insurance Company (collectively "the employer"), have petitioned this court to review the Director's decision. The employer contends that the Director's decision is contrary to the language and purpose of the then applicable provision of the District's Workers' Compensation Act (WCA), D.C. Code § 36-311 (a)(4) (1997). *fn1 We disagree and affirm.
I. PROCEEDINGS BEFORE THE AGENCY
On October 29, 1997, Brant was employed by UPS as a package delivery driver. On that day, he suffered injury from a fall after stepping from his delivery truck. He never returned to his former job. Brant filed a timely claim for workers' compensation.
"Benefits under the Act are set in reference to the claimant's [AWW]." George Hyman Constr. Co. v. District of C olumbia Dep't of Employment Servs., 497 A.2d 103, 107 (D.C. 1985) (hereinafter George Hyman); D.C. Code § 32-1511 (a) (2001). Following the accident, Brant received workers' compensation benefits *fn2 based on an AWW which excluded from consideration two weeks during which Brant participated in a strike. At the hearing before the ALJ, the employer contended that Brant had been overpaid. The employer relied on the text of D.C. Code § 36-311 (a)(4) which provided, in pertinent part, that the AWW "shall be computed by dividing by [thirteen] the total wages the employee earned in the employ of the employer in the [thirteen] consecutive calendar weeks immediately preceding the injury." *fn3
It is undisputed that while the union was on strike, Brant honored the union's picket line and did not report to work. The employer also presented testimony that, during the strike, work would have been available to Brant at UPS' Maryland facility if he had been willing to cross the picket line, as a number of other drivers had done. The ALJ credited this testimony, and he concluded that the time during which Brant was on strike must be included in "the [th irteen] consecutive calendar weeks immediately preceding the injury."
Brant sought review of the ALJ's decision by the Director of DCDOES. The Director reversed the ALJ's decision, ruling in pertinent part as follows:
It is undisputed that during the weeks of August 3 through August 23, 1997, a labor strike against Employer occurred. At the hearing, Claimant contended that he was on leave during the week of August 9, 1997 and then was on strike from August 16 through August 23, 1997. Claimant asserted that the two strike weeks should be excluded from the average weekly wage calculation, as he had no control over his ability to work and work was not available to him. Employer countered by arguing that during those two weeks work was available, unionized employees did show up for work at the Maryland facility and if Claimant had showed up at the facility, he could have worked.
On this issue, the Director has previously held that the calculation of an employee's average weekly wage does not include the weeks that the employee was on strike. See Thomas v. Washington Gas Light Co., Dir. Dkt. No. 88-11 (May 18, 1995). Thus, the two weeks that Claimant was on strike should not have been included in the calculation of his average weekly wage. Thus, the portion of the Compensation Order that dealt with Claimant's average weekly wage must be remanded to the Administrative Judge to recalculate Claimant's average weekly wage. *fn4
In conformity with the earlier decision in Thomas, the D irect or sustain ed Brant's position. In as king this c court to review the D irect or's decision, the employer's sole claim is that the weeks during which Brant was on strike should have been included in determining Brant's AWW.