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

September 4, 2008

ARTHUR SHIPKEY, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, AND WASHINGTON METROPOLITAN AREA TRANSITAUTHORITY, INTERVENOR.



On Petitionfor Review of a Decision of the District of Columbia Department of Employment Services (No. CRB56-06).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued January 16, 2008

Before KRAMER, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

Petitioner Arthur Shipkey contests the denial of his claim for temporary total disability benefits. He seeks review of the Compensation Review Board's ("CRB") decision upholding the Administrative Law Judge's ("ALJ") denial of his claim on the grounds that jurisdiction was lacking under the District of Columbia Workers' Compensation Act of 1979*fn1 ("Act").

Although Mr. Shipkey was injured in Maryland, he may be eligible for compensation under the Act if his employment was "localized principally" in the District of Columbia ("the District"). See D.C. Code § 32-1503 (a)(2). Mr. Shipkey contends that the ALJ and the CRB did not properly apply the agency's "localized principally" test because they did not properly consider Mr. Shipkey's place of work performance in determining that his employment was not "localized principally" in the District, and, thus, their decisions were not in accordance with the law. The District responds that the ALJ and CRB correctly applied the "localized principally" test and that the test itself and its application were not "clearly contrary to legislative intent." Washington Metropolitan Area Transit Authority ("WMATA"), the employer and intervenor in this case, argues that the place of performance of the principal service (plumbing) for which Mr. Shipkey was hired is not dispositive and should not be accorded greater weight than the other factors in the determination of where a claimant's employment is "localized principally." We conclude that the CRB erred in upholding the ALJ's incorrect analysis of Mr. Shipkey's claim on the first prong of the "localized principally" test,*fn2 interpreting the term "localized principally" to require a greater than 50% of time in cases involving three or more jurisdictions, and resolving his claim on the third prong of the test. Accordingly, we reverse and remand the case for further proceedings not inconsistent with this opinion.

I.

Mr. Shipkey has been an employee of WMATA for the past twenty-three years. He applied in the District for his initial job as a laborer and was assigned to a location in the District, where he performed the majority of his duties. Mr. Shipkey does not recall where he entered into his employment contract with WMATA. For the three years prior to his injury, he worked as a plumber for WMATA. His duties included clearing drains and repairing plumbing, fire systems, fixtures, and leaks at WMATA facilities in the District, Virginia, and Maryland.

At the beginning of each work day, Mr. Shipkey drove from his home in Gambrills, Maryland, to the WMATA facility in Greenbelt, Maryland ("Greenbelt facility"), to park his car, report for work, wait for his assignments from his supervisor, and load his WMATA truck with tools, supplies, and parts needed for his assigned job sites for the day. Whenever a WMATA facility required service, the central WMATA office, which was located in Washington, D.C., would generate a work order called a Facility Service Request ("FSR"), which would then be routed to the appropriate service facility. These FSRs would determine where Mr. Shipkey was assigned to work on a particular day. At the end of each work day, he would return to the Greenbelt facility to park and unload the WMATA truck, record his hours, replace his tools, and complete a Daily Activities Report ("Daily Report") before driving home. On July 23, 2003, Mr. Shipkey injured his right rotator cuff while installing a water fountain at a WMATA facility in Rockville, Maryland.

Mr. Shipkey gave WMATA adequate and timely notice of his injury. WMATA voluntarily paid Mr. Shipkey temporary total disability benefits for the period of July 24, 2003, through December 3, 2003. However, WMATA suspended his benefits due to an alleged failure on Mr. Shipkey's part to accept prompt and reasonable medical care subsequent to December 3, 2003.

Mr. Shipkey brought a claim for temporary total disability benefits for the period of December 4, 2003, through the present. Additionally, he sought the imposition of penalties against WMATA under D.C. Code § 32-1528 (b) (Supp. 2000) for its alleged bad faith delay in making payments to him from July 24 through September 29, 2003.*fn3 After timely notice, a full evidentiary hearing was held on March 4, 2004, before ALJ Brown. Three witnesses testified at the hearing: Mr. Shipkey, his WMATA supervisor Bruce Rowe, and WMATA's Third-Party Administrator workers' compensation claims representative Kellie Griffin. The ALJ denied Mr. Shipkey's claim, concluding that because Mr. Shipkey's employment was principally located in Maryland, and not in the District, jurisdiction under the Act was lacking, and, therefore, the ALJ did not consider Mr. Shipkey's other contentions. In so finding, the ALJ relied upon an exhibit summarizing Mr. Shipkey's hours worked at various WMATA locations, which was compiled from the time logs by his supervisor, Bruce Rowe.This summary represented the twenty-six week period preceding Mr. Shipkey's injury, not his three-year tenure in his current position at WMATA.

Mr. Rowe acknowledged during his testimony that the allocation of the hours on the time logs, which formed the basis of his summary report, was not completely accurate because they were generally made in increments of two or four hours regardless of the precise number of hours Mr. Shipkey worked, and, therefore, did not accurately represent the time Mr. Shipkey spent in each jurisdiction. The ALJ recognized and noted that the time Mr. Shipkey spent at the Greenbelt facility at the beginning of the day was credited to the jurisdiction of the first job site and the time spent in Greenbelt at the end of the day was credited to the jurisdiction of the last job site, and thus, the logs "as they are maintained do not exactly detail the actual time spent at such sites." Despite noting these inaccuracies, the ALJ relied upon the summary report that Mr. Rowe had created from the time logs in making his factual finding that Mr. Shipkey worked 391.5 hours in the District, 233.5 hours in Virginia, and 193 hours in Maryland.

On appeal, the CRB affirmed the ALJ's Order, finding that it was supported by substantial evidence in the record and in accordance with the law. This petition for review followed.

II. ...


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