Petition for Review of a Decision of the District of Columbia Department of Employment Services
Before Schwelb, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
For the second time in this case, we are obliged to reverse a decision of the Director of the District of Columbia Department of Employment Services (DOES) and remand for further proceedings. The issue before the agency and this court throughout has been whether intervenor, Ethel Johnson, a recipient of workers' compensation benefits, unreasonably failed to cooperate with vocational rehabilitation services offered by her employer (hereafter Epstein). See D.C. Code § 32-1507 (d) (2001). In the latest decision on remand, the Director adopted and applied a requirement of notice and opportunity to cure not expressed in any statute or existing regulation, or foreshadowed in any prior decision of the Director (at least none cited to us in this case). We hold that application of this requirement to Epstein denied it basic procedural fairness. We remand for determination of the remaining -- and dispositive -- issue of whether Johnson unreasonably refused to accept vocational rehabilitation within the meaning of § 32-1507 (d).
The facts related to Johnson's award of compensation are summarized in Epstein, Becker & Green v. District of Columbia Dep't of Employment Servs., 812 A.2d 901, 902 (D.C. 2002) (Epstein I). Epstein originally moved to suspend Johnson's receipt of benefits on the ground primarily that she had failed to cooperate in the process of securing suitable alternative employment. A DOES hearing examiner agreed with Epstein.*fn1 The Director reversed that decision, concluding that Johnson had not failed to cooperate because the vocational rehabilitation counselor had discontinued working on her case and instead closed the file, thereby precluding her cooperation. Id. This court in turn reversed, holding that "there [was] not substantial evidence in the record . . . that the file was closed in the present case, in the sense that the claimant was left without access to vocational rehabilitation services," id. at 904; rather, evidence showed that the counselor had "closed the file merely until Johnson cooperated with vocational rehabilitation efforts." Id. at 903. We remanded the case for consideration by the Director of the other arguments made by Johnson, including:
(1) that she did not unreasonabl[y] fail to cooperate with the employer's offered vocational rehabilitation services and (2) [that] because she was not given notice that her actions constituted a failure to cooperate, she was improperly denied an opportunity to cure, contrary to the rehabilitative intent of
On remand, the Director agreed with Johnson on the second issue. He found "no evidence" that "either before or after [vocational rehabilitation] services were terminated by [the e]mployer, . . . she was notified [of the employer's opinion that she was failing to cooperate with rehabilitation] and given the opportunity to cure the alleged failure"; and he determined that without that opportunity she was denied the means "to satisfy her obligations under the Act to cooperate with vocational rehabilitation." Without "notice and the opportunity to cure any alleged deficiency," the Director reasoned,
[c]laimant was punished without being informed, in any manner, that she was perceived to be defiant. The Director does not believe that such an approach satisfies the spirit and strong humanitarian purpose of the Act. See Hensley v. Washington Metropolitan Area Transit Authority, [210 U.S. App. D.C. 151, 154-55,] 655 F.2d 264, 267-68 (1981). Moreover, suspending benefits without notice would seem to be contrary to the rehabilitative intent of the vocational rehabilitation provisions of the Act.
Epstein filed this petition for review, arguing that the Director's retroactive application to this case of a novel "notice and opportunity to cure" requirement denied it basic procedural fairness.
D.C. Code § 32-1507 imposes reciprocal obligations on an employer and an employee in respect to vocational rehabilitation. Sections 32-1507 (a) & (c) require the employer to furnish vocational rehabilitation services "designed, within reason, to return the employee to employment at a wage as close as possible to the wage that the employee earned at the time of injury." Conversely, § 32-1507 (d) provides that "[i]f at any time [while receiving worker's compensation] the employee unreasonably refuses to . . . accept vocational rehabilitation[,] the Mayor shall . . . suspend the payment of further compensation . . . during such period, unless the circumstances justified the refusal." An employer requesting suspension of payment on this ground does so by filing a motion under D.C. Code § 32-1524 to modify the compensation award based on "a change of ...