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Dillon v. District of Columbia Dep't of Employment Services

December 14, 2006

SLATEL DILLON, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.
DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY AND PMA MANAGEMENTCORPORATION, INTERVENORS.



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

Argued November 17, 2006

Before FARRELL, RUIZ, and FISHER, Associate Judges.

This petition for review is from a decision and order of the Department of Employment Services (DOES) Compensation Review Board (the CRB or Board)*fn1 upholding an Administrative Law Judge's denial of workers' compensation to petitioner on the ground that he failed to give timely notice of his work-related injury. See D.C. Code §§ 32-1513 (a)-(d) (2001). For the reasons that follow, we remand the case to DOES for consideration by the ALJ of a portion of the testimony he did not address and of a document he erroneously excluded.

I.

Petitioner (hereafter Dillon) injured his lower back while trying to lift a motor during his work as an electric repair mechanic with the District of Columbia Water and Sewer Authority (WASA). The date of the injury was September 16, 2003. When Dillon subsequently sought compensation for the injury, WASA resisted payment on grounds that have since narrowed to one: Dillon had failed to notify the employer of his injury within the thirty days and in the manner required by § 32-1513 (a) & (b), and WASA had not otherwise acquired knowledge of the injury within that time. Section 32-1513 (d)(1). At an evidentiary hearing before an ALJ, Dillon testified, first, that he had informed both his WASA supervisor, Asa Chapman, and a WASA risk management analyst, Tonya Deleon, of the injury and its work-relatedness within thirty days of September 16. The ALJ, however, discredited Dillon's testimony on that point, and in this court Dillon does not take issue with that finding. See Br. for Pet. at 15 ("As he had authority to do, the ALJ credited [Chapman's and Deleon's] testimony that Dillon did not give them timely notice over Mr. Dillon's testimony that he had."). But Dillon also testified that he had told another of his supervisors, Terrence Rigby, about the injury:

A. I went back to the job, saw my regular supervisor at that time, who had came back from vacation, when he saw - when I filled out the leave slip at that time, he specifically asked me, why am I filling out sick leave injured on the job or incapacitated due to injury and I mentioned to him what had happened. He told me that at that time, that was none of his business.

Q: And who's speaking at this point?

A: Terrence Rigby . . . my original supervisor.

Q: Is he on the same level as Mr. Chapman?

A: Then, yes, now he's not.

The ALJ made no finding with respect to this testimony; indeed, he did not mention it. On review, the CRB likewise made no reference to it.

After Dillon and WASA had each called all of their witnesses, Dillon was allowed to resume the stand in rebuttal, and his attorney sought to question him about a leave slip that Dillon had submitted in October (apparently within thirty days of the injury) which bore a handwritten comment by Chapman and his signature and which, according to Dillon, reflected knowledge of the injury and its job-relatedness on WASA's part. However, the ALJ excluded the leave slip as evidence because Dillon had not confronted Chapman with it during his testimony (i.e., had not "impeach[ed]" him with it) and because Dillon could not proffer sufficiently how the contents of the slip "undercut[] Mr. Chapman's testimony that he had no discussions about Mr. Dillon's condition . . . prior to November of 2003," well beyond the thirty-day limit.

Following the hearing, the ALJ found that Dillon had not given WASA timely notice of the injury as required,*fn2 and thus rejected his claim for benefits. The CRB affirmed. It upheld exclusion of the leave slip as notice, ultimately on the ground that it did not contain the specific information required by § 32-1513 (b). And it concluded generally that "substantial evidence . . . supports the ALJ's [finding] of untimely notice." In so concluding, the Board rejected Dillon's invocation of a statutory presumption of timely notice, see D.C. Code § 32-1521 (2), explaining that "neither the Court of Appeals, the ...


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