May 06, 2004
ANTONIO THOMPSON, PETITIONER,
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.
On Petition for Review of a Decision of the District of Columbia Department of Employment Services (Dir. Dkt. 03-03)
Before Schwelb, Ruiz and Washington, Associate Judges.
The opinion of the court was delivered by: Ruiz, Associate Judge
Argued April 20, 2004
Antonio Thompson petitions for review of a decision of the director of the District of Columbia Department of Employment Services dismissing as untimely his application for review of a disability compensation order denying his claim for workers' compensation benefits. Petitioner contends that the director's decision was in error because he (petitioner) relied on information provided to him by the Department of Employment Services Office of the General Counsel advising him that his application would be considered timely so long as it was mailed within thirty days of the filing of the compensation order. Because petitioner did not give the director notice of the argument he now raises before us, and the record is insufficient to support it, we must deny his petition.
On November 29, 2002, in Docket No. 03-03, Administrative Law Judge Anand K. Verma issued a compensation order denying petitioner his request for benefits based upon a finding that the alleged emotional injury did not arise out of and in the course of employment. The certificate of service shows that the order was mailed to petitioner on that date. On December 30, 2002, petitioner mailed an application for review, which was *fn1 received by the director on January 14, 2003. On January 29, 2003, intervenor moved to dismiss the application for review as untimely, having been filed more than thirty days from the date of the compensation order. Petitioner did not oppose the motion to dismiss. The director dismissed the application for review as untimely, noting that petitioner had until December 30, 2002, to file an application for review. See D.C. Code § 32-1522 (b)(2) (2001). Petitioner then petitioned this court for review.*fn2
In this court, petitioner argues for the first time that his application for review was timely filed based on information given to him by the Office of the General Counsel advising him that his application for review would be considered timely so long as he mailed it within thirty days from the date of the compensation order. In support of his argument, petitioner attempts to introduce evidence on appeal - specifically, a fax sent by the Office of the General Counsel and copies of several post office receipts - that would show that he mailed the application for review on December 30, 2002, relying on what he was told in a phone conversation with a person in the Office of the General Counsel. We have held in an analogous context that a jurisdictional bar cannot be invoked if the agency has not provided notice that was "reasonably calculated to apprise petitioner of the decision of the claims deputy and an opportunity to contest that decision through an administrative appeal." Ploufe v. District of Columbia Dep't of Employment Servs., 497 A.2d 464, 465 (D.C. 1985) (citation omitted). Petitioner did not respond to intervenor's motion to dismiss, and at no point prior to his petition for review in this court has petitioner addressed the timeliness issue, nor has he submitted to the agency the evidence he claims supports his argument that he acted in accordance with the agency's advice. Because petitioner did not give the director notice of the argument he now raises before us, it was not adequately preserved for our review. See Hill v. District of Columbia Dep't of Employment Servs., 717 A.2d 909, 912 (D.C. 1998).
Considering petitioner's claim on the basis of the record before the director, we conclude that there is substantial evidence to support the director's decision that the application for review was untimely. Petitioner argues that the thirty-day period to file an application for review begins to run on the date that he received the compensation order. Petitioner's reliance on 7 DCMR § 228.4 (1986) for this proposition is misplaced. That provision states: "Whenever the [Workers' Compensation] Act or this chapter provides a time period during which an action is to be taken, unless otherwise expressly provided, the time period shall run from the actual receipt of a document." Id. (emphasis added). Falling into the exception for expressly contrary provisions, D.C. Code § 32-1522 (b)(2) provides that "[a]pplication for . . . review [of a compensation order] shall be made . . . within 30 days from the date a compensation order is filed as provided in § 32-1520." See Greenwood's Transfer & Storage Co., Inc. v. District of Columbia Dep't of Employment Servs., 553 A.2d 1246, 1247 n. 1 (D.C. 1989). Section 32-1520 (e) specifies that "[t]he order rejecting the claim or making the award (referred to in this chapter as a compensation order) shall be filed with the Mayor, and a copy thereof shall be sent by registered or certified mailed to the claimant and to the employer at the last known address of each." D.C. Code § 32-1520 (e) (2001). In Williams v. Town Ctr. Mgmt., Dir. Dkt. No. 97-39, 1997 D.C. Wrk. Comp. LEXIS 216,* (Aug. 27, 1997), the director interpreted the term "filed with the Mayor" as used in § 32-1520 (e) to mean "filing with the director." Id. at * 3. In addition, the director explained that "the compensation order shall be deemed filed as of the date the compensation order is certified as having been mailed to the parties." Id. We have already upheld the director's interpretation of the statutory requirement in the Williams case. See Washington Hosp. Ctr. v. District of Columbia Dep't of Employment Servs., 743 A.2d 1208, 1211 (D.C. 1999). The record shows that the compensation order was filed with the director and mailed to petitioner on November 29, 2002. Therefore, under D.C. Code § 32-1522 (b)(2) petitioner had until December 30, 2002 to "make" his application for review with the director. The *fn3 director has interpreted § 32-1522 (b)(2) as requiring receipt by the director within the statutory thirty-day period. See West v. Washington Hosp. Ctr., Dir. Dkt. No. 99-97, 2000 D.C. Wrk. Comp. LEXIS 99, * 1-2 (Mar. 30, 2000). The director's interpretation focusing on receipt is consistent with 7 DCMR § 228.4, because pursuant to D.C. Code § 32-1522 (b)(2) the application for review commences the forty-five day period during which the director must act, or the compensation order will be considered a final decision. As petitioner's application for review was not received by the director until January 14, 2003, the director properly dismissed it as untimely.*fn4
Therefore, for the reasons set forth above, the director's decision is Affirmed.