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Orius Telecommunications, Inc. v. District of Columbia Dep't of Employment Services

August 5, 2004


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

Before Ruiz and Washington, Associate Judges, and Kern, Senior Judge.

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

Argued March 16, 2004

Orius Telecommunications, Inc. and Liberty Mutual Insurance Company petition for review of a decision rendered by the director of the District of Columbia Department of Employment Services determining that Orius's employee, Carvellas Sellers, is entitled to a penalty fee under the District of Columbia Workers' Compensation Act of 1979 for petitioners' failure to pay workers' compensation benefits in a timely manner. Petitioners claim that the director misinterpreted the statute and, in any event, that the imposition of a penalty on the particular facts of this case contravenes due process of law.

Notwithstanding the patchy record before us, we conclude on the basis of oral argument, and, in particular, an important concession by petitioners, that the claims lack merit. We accordingly affirm the director's decision.


On July 29, 2002, an administrative law judge (ALJ) entered an order pursuant to the District of Columbia Workers' Compensation Act of 1979, D.C. Code § 32-1501 et seq. (2001) (the Act), awarding Carvellas Sellers workers' compensation benefits for injuries he sustained to his lower back as a result of pushing a cable reel in the course of his employment as a cable installer with Orius Telecommunications, Inc. The certificate of service indicates that copies of the compensation order were mailed to petitioners' and Sellers's respective attorneys on July 30, 2002.*fn1 As Orius's insurance carrier, Liberty Mutual issued an award check which it then mailed to Sellers on August 9 or 10, 2002.*fn2 Sellers received the check the following week on August 13, 2002.

Sometime later, Sellers requested that the ALJ enter an order imposing a twenty percent penalty against petitioners for their failure to pay the compensation award within the statutorily prescribed ten-day time limit. The motion does not appear in the record, but there is no dispute that it was predicated on D.C. Code § 32-1515 (f) (2001), which provides:

If any compensation, payable under the terms of an award, is not paid within 10 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20% thereof, which shall be paid at the same time as, but in addition to, such compensation, unless review of the compensation order making such award is had as provided in § 32-1522 and an order staying payments has been issued by the Mayor or court. The Mayor may waive payment of the additional compensation after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.

(Emphasis added). Petitioners opposed the motion on the ground that the compensation order was not mailed to Liberty Mutual, which according to them, is "a necessary party to this proceeding."*fn3

In an order dated August 30, 2002, the ALJ denied Sellers's motion, finding that Liberty Mutual timely paid the compensation benefits by "issuing the award check on the tenth day of the Order," despite never having received proper notification of the compensation order.*fn4 Unsatisfied with this result, Sellers filed a motion for reconsideration, which was also denied.*fn5

On intra-agency review, the director of the Department of Employment Services (DOES) reversed the ALJ's orders denying Sellers's motion for the assessment of a penalty. The director determined that the dispositive date was not, as the ALJ found, that on which Liberty Mutual issued the award check, but rather the date on which Sellers in fact received the check, namely, August 13. Relying on administrative precedent, the director reasoned that the term "paid" in D.C. Code § 32-1515 (f), see page 3, supra, means receipt of the payment by the claimant within the ten-day statutory time limit. See Imes v. Georgia Brown's Rest., Dir. Dkt. No. 99-44, 2000 D.C. Wrk. Comp. LEXIS 253,*3-4 (June 27, 2000) (holding that the receipt rule applies to § 32-1515 (f)) (citing Dorsey v. ITT/Cont'l Baking, Dir. Dkt. No. 86-19 (May 9, 1989)). The director concluded that because August 13 fell "14 days after the award was due," Sellers was not timely paid within the ten-day period mandated by the Act and "a penalty must [therefore] be assessed against Employer."*fn6 On April 18, 2003, Orius and Liberty Mutual filed a timely petition for review with this court. See D.C. Code § 32-1522 (b)(3) (2001) (authorizing review of petitions filed by any party in interest who is adversely affected or aggrieved by a final agency decision resolving a workers' compensation claim).


Petitioners contend that (1) the director's interpretation of the term "paid" under D.C. Code § 32-1515 (f) as meaning "receipt" by the claimant is contrary to the statute's plain meaning; (2) this court should apply the so-called "mailbox rule," which would mean that payment was made on the date of posting on August 9, which fell on the tenth and final day of the statutory time limit;*fn7 (3) the imposition of a penalty under § 32-1515 (f) violates their rights to due process of law because a copy of the compensation order was never sent to Liberty Mutual as required by 7 DCMR § 228.1 (b), see note 3, supra; and (4) the director's failure to exercise his ...

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