Petition for Review of a Decision of the District of Columbia Department of Employment Services.
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL and REID, Associate Judges, and SCHWELB, Senior Judge.
D.C. Code § 32-1515 (f) (2001) provides that "[i]f any [worker's] 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 . . . ." The statute further states as relevant here, that an employer late in paying compensation may be relieved of the 20% penalty only if the Mayor (through his agent, the Department of Employment Services (DOES)) elects to "waive payment of the additional compensation after a showing by the employer" that the underlying compensation could not be timely paid "owing to conditions over which [the employer] had no control."
In the case before us, DOES ordered the petitioner-employer to pay the 20% penalty because only a "clerical error on [the employer's] part," i.e., its failure to heed actual or constructive notice of the claimant's current home address, had caused the compensation payment to be made outside the statutory 10-day period. We affirm that decision, observing that while DOES may choose to establish formal procedures by which a compensation recipient must notify the agency (or the employer) of an address change, it has not done so; and the record supports the agency's determination that petitioner was adequately informed of the recipient's address so that, but for its own lack of care, it would have made payment within the statutory period. For the same reason, we conclude that the Director was not required to waive imposition of the penalty in the circumstances of this case.
Intervenor Jerome McGinnis ("McGinnis") was entitled to receive worker's compensation pursuant to a settlement agreement between himself and Hard Rock Café, his employer. The agreement, which provided for a lump-sum payment of $63,051.57 (after deduction of attorney's fees and expenses), was approved by a DOES claims examiner on August 16, 2004, and mailed to the parties and the employer's insurance carrier the same day. The Certification of Filing and Service contained a notation that "[t]his award becomes due and payable on the date received by the insurer" and "must be paid within 10 days of said date." The Certification listed McGinnis's address as 7709 Random Run Lane, Apt. 102, Falls Church, Virginia, 22042.
On August 19, 2004, the employer's carrier, Liberty Mutual Insurance Company, mailed a check to McGinnis in the settlement amount but to an address, listed in its records, where he had formerly resided. On September 2, 2004, McGinnis's attorney informed Liberty Mutual by telephone that he had not received the settlement payment. After stopping payment on the first check, the company sent McGinnis a new check on September 14, 2004, at his correct address, which he received.
Through his attorney, McGinnis then requested an order "declaring default" and directing an award of a 20% penalty under D.C. Code § 32-1515 (f). A DOES claims examiner rejected the request, concluding that because the agency had "no record of receiving an official change of address from [McGinnis] or from [his] attorney . . . nor . . . an official copy of [any] notice that [McGinnis] . . . mailed to . . . the employer/carrier . . . indicating that [his] address [had] been changed," the circumstances did not warrant a penalty award under the statute. DOES's Compensation Review Board ("CRB") reversed that decision, however, concluding that the employer and its carrier had received actual or constructive notice of McGinnis's current address, and that the failure to make timely payment of the settlement amount was not owing to circumstances over which the employer lacked control, but rather was "due to clerical error on [its] . . . part." The CRB pointed out that as early as February 12, 2004, McGinnis, through counsel, had filed with the Office of Workers' Compensation an Application for Informal Conference regarding compensation,*fn1 see 7 DCMR § 219 (1986), with copies to the employer and Liberty Mutual, listing McGinnis's current address at Random Run Lane. The CRB further noted that the Memorandum of Informal Conference issued by the claims examiner on April 12, 2004, summarizing the results of the meeting and recommending compensation, listed McGinnis's current address on the certificate of service to the parties and Liberty Mutual. Finally, the CRB pointed out that "the draft certificate of service attached to the draft of the settlement signed by the counsel for the parties and [McGinnis], which was approved by the [claims examiner], listed [McGinnis's] address as '7709 Random Run Lane, Apt. 102, Falls Church, Virginia 22042.'"*fn2
For these reasons, the CRB ruled that the employer was liable for the 20% penalty called for by the statute. Petitioner seeks reversal of that decision.
Our review here has two aspects: first, interpretation of the governing statute, and second, examination (necessarily deferential) of DOES's application of that statute to the record before it. As to the first:
The intent of the legislature is to be found in the language used. The burden on a litigant who seeks to disregard the plain meaning of the statute is a heavy one, and this court will look beyond the ordinary meaning of the words . . . only where there are persuasive reasons for doing so.
National Geographic Soc'y v. District of Columbia Dep't of Employment Servs., 721 A.2d 618, 620 (D.C. 1998) (citation, internal quotation marks, and brackets omitted). As to the second: We "must affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." White ...