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

April 19, 2007

WILLIAM FURTICK, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.
AGRICULTURAL COOPERATIVE DEVELOPMENT INTERNATIONAL AND AIG WORLDSOURCE INSURANCE, INTERVENORS.



On Petition for Review of a Decision of the Compensation Review Board (CRB45-04).

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

Argued March 7, 2007

Before WASHINGTON, Chief Judge, and REID and THOMPSON, Associate Judges.

Petitioner William Furtick seeks review of a decision of the District of Columbia Department of Employment Services ("DOES"), Compensation Review Board ("CRB") which affirmed an Administrative Law Judge's ("ALJ") compensation order under the District of Columbia Workers' Compensation Act ("the Act" or "WCA"). Mr. Furtick challenges the conclusion of the ALJ, affirmed by the CRB, that DOES has no jurisdiction in his case because his employment at the time of his workplace injury was not principally located in the District of Columbia since his employment duties were performed while he was in Tblisi, Republic of Georgia. We affirm the agency decision.

FACTUAL SUMMARY

The record on review shows that from the late 1980s to 1992, Mr. Furtick was employed by the United States Agency for International Development, which is headquartered in the District of Columbia, and lived in Virginia. In 1992, he began work for the Agricultural Cooperative Development International ("ACDI"), an international organization whose main office is located in the District of Columbia; he and his wife maintained their residence in Virginia. He spent years at ACDI's office in the District before accepting an assignment in Tblisi, the Republic of Georgia. On February 5, 1996, Mr. Furtick executed a Letter of Assignment, which was prepared by ACDI, and was signed and dated (January 31, 1996) by the President of ACDI. The term of the assignment was January 1, 1996 to July 31, 1997.*fn1 Mr. Furtick was assigned to an ACDI project funded by Save the Children. He recalled receiving the Letter of Assignment during a visit to his son in California, and signed the agreement either in California or Virginia. ACDI paid his salary by depositing a bi-weekly check into his designated bank account. His Letter of Assignment specified that District of Columbia law would govern the employment agreement.

The parties stipulated that Mr. Furtick was injured in the Republic of Georgia on October 23, 1996.*fn2 He tried to cross a small irrigation ditch, lost his balance, fell on his right shoulder and suffered an injury. The parties also stipulated that the employer voluntarily paid Mr. Furtick temporary total disability benefits from October 24, 1996 through March 30, 2003, "and after April 1, 2004 [] reduced its voluntary payments from the compensation rate as determined by the Act and commenced voluntary payments in the amount of $170.00 per week." Mr. Furtick and his employer further "agree[d] that the amount of reimbursement and medical bills to be paid in the event of an award are not in dispute." His initial treatment occurred in the District, but by the end of October 1997, he had changed his residence to California, to the home of his son.

After the employer's payments of disability benefits stopped, Mr. Furtick filed a claim for "causally related medical care." In its March 14, 2006 decision and order, the CRB affirmed the ALJ's February 27, 2004, determination "that there is no jurisdiction for [Mr. Furtick's] claim under the Act." Specifically, the CRB concluded that "the ALJ's finding that [Mr. Furtick] carried out all of his duties while physically located in and around Tblisi, Republic of Georgia and therefore his employment was not principally located in the District of Columbia [is] supported by substantial evidence." The ALJ declared, in part:

[T]he evidence is uncontradicted that the contract provided that [Mr. Furtick] perform all of his employment duties in the Georgian Republic, and that he had been so performing the contract exclusively in Georgia for approximately ten months when he was injured, with no intervening visits to the United States during that period. Further, with the possible exception [of] some very brief administrative wrapping up duties upon his return to the United States upon the termination of the contract (necessitated by his having become incapacitated by the injury), [Mr. Furtick] spent no time and expended no efforts on Employer's behalf in the District of Columbia, or elsewhere.

ANALYSIS

Mr. Furtick contends that the Council of the District of Columbia "did not intend to preclude District of Columbia jurisdiction under the[] circumstances" here where (1) his "employment with ACDI had a 'legitimate relationship' with the District of Columbia"; (2) "[h]is employer . . .[,who] was based in the District, drafted and executed [his] employment contract [] in the District, and included in that contract a District of Columbia choice of law provision"; (3) his "employment relationship had more significant ties to the District than any other U.S. jurisdiction"; and (4) "there has been no showing that [he] has any remedy whatsoever under the laws of the Republic of Georgia or elsewhere." He relies mainly on Gustafson v. International Progress Enterprises, 266 U.S. App. D.C. 25, 832 F.2d 637 (1987) to support his contention.

ACDI maintains that reliance on Gustafson is misplaced because that case was based upon a predecessor federal act which allowed claims for "the injury or death of an employee of an employer carrying on any employment in the District of Columbia irrespective of the place where the injury or death occurs," D.C. Code § 36-501 (1973); and that when the Act was enacted in 1979, the Council intentionally changed that provision to provide coverage in the event of injury or death outside the District only if the "employment is localized principally in the District of Columbia," D.C. Code § 36-303 (a)(2) (1981), recodified at D.C. Code § 32-1503 (a)(2) (2001).

We defer to an agency's decision "so long as [it] is supported by substantial evidence." Washington Post v. District of Columbia Dep't of Employment Servs., 853 A.2d 704, 706 (D.C. 2004) (citation omitted). "Substantial evidence means evidence that a reasonable person would consider adequate to support a conclusion." Id. (citing Dell v. District of Columbia Dep't of Employment Servs., 499 A.2d 102, 108 (D.C. 1985)). We also defer to "an agency's interpretation of a statute it administers unless that interpretation is unreasonable in light of prevailing law." Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Employment Servs., 515 A.2d 740, 741 (D.C. 1986) (citations omitted); see also Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 570 (D.C. 1985) ("Particularly where there is broad delegation of authority to an administrative agency, we must give deference to a reasonable construction of the regulatory statute made by the agency.") (citations omitted). "Indeed, we must sustain the agency's interpretation even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance." Smith v. District of Columbia Dep't of Employment Servs., 548 A.2d 95, 97 (D.C. 1988).

The basic threshold issue in this case is whether the agency had subject matter jurisdiction over Mr. Furtick's claim, or to state the issue in another way, whether the WCA applies to Mr. Furtick's claim. This issue is distinct from whether the presumption of compensability (or presumption of coverage), which is explicitly set forth in the WCA, should apply in this case. We do not get to the issue of whether the presumption of compensability should apply until we first determine that the agency has jurisdiction over the claim. As the District of Columbia Circuit observed in resolving a matter under the LHWCA, "the presumption of coverage is not * * * particularly helpful in determining where the line should be drawn between employment covered by the LHWCA and employment not so covered . . . . [O]nce the line has been drawn, the presumption come(s) into play in ruling on cases near the border." Director, Office of Workers' Comp. Programs v. National Van Lines, Inc., 198 U.S. App. D.C. 239, 247, 613 F.2d 972, 980 (1979) ...


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