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Goba v. Dist. of Columbia Dep't of Employment Services

November 20, 2008


Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB No. 07-87).

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

Argued October 7, 2008

Before RUIZ, GLICKMAN, and FISHER, Associate Judges.

Petitioner Mulatua Goba seeks review of a decision by the Compensation Review Board ("CRB") of the Department of Employment Services ("DOES") denying her request for an award of attorney's fees she incurred in connection with her worker's compensation claim. Because Goba did not meet the statutory criteria for a fee award, we affirm.

Goba suffered temporarily disabling head and neck injuries when a set of pots fell on her while she was working at Au Bon Pain. She filed her claim for workers' compensation benefits on December 6, 2005. On or about that same date, Goba retained the law firm of Chasen & Boscolo to assist her with her claim. A few days later, Au Bon Pain's insurance carrier notified Goba's attorney that her claim was accepted. The carrier requested Goba's medical records and wage loss documentation in order to determine what compensation to pay her.

Apparently because the carrier had difficulty obtaining the documents it sought, its payment of Goba's compensation was delayed.*fn1 Accordingly, on January 11, 2006, Goba's attorney asked the Office of Workers' Compensation to schedule an informal conference on her claim. On March 6, 2006, shortly before the informal conference was to have been held, Goba started receiving her compensation payments.

Asserting that Au Bon Pain and its carrier (hereinafter "Intervenors") had been "unwilling to voluntarily pay the benefits [she] sought" until they were prodded to do so by her attorney's request for an informal conference, Goba petitioned DOES for an award of her attorney's fees under D.C. Code § 32-1530 (a) (2001).*fn2 Intervenors opposed the request, contending that they had "voluntarily agreed to pay any applicable compensation well before any conference took place." A claims examiner denied Goba's request to assess Intervenors for her fees. Goba appealed to the CRB, which upheld the examiner's ruling.

Although Intervenors promptly accepted her disability claim, Goba contended that their tardy payment (approximately 90 days after they were notified of her claim) entitled her to a fee award under D.C. Code § 32-1530 (a). The CRB disagreed for two reasons. First, as it construed the statute, a claimant is not eligible for an award of attorney's fees unless her employer (or its carrier) "decline[d]" to pay compensation because it denied liability under the Workers' Compensation Act. In agreement with the claims examiner, the CRB found "no evidence" that Intervenors had "'declined' at any time to pay compensation for any reason other than the need to verify the nature and amount of the benefits sought." As the CRB explained, D.C. Code § 32-1530 (a) "does not concern itself with mere late payment, or with delays in payment, whether reasonable or unreasonable;" unlike other provisions of the Workers' Compensation Act, the fee-shifting statute "is intended to encourage voluntary payment of benefits, not timely payments."

Second, the CRB held, D.C. Code § 32-1530 (a) does not authorize an award of attorney's fees unless the claimant has obtained (through the successful efforts of her attorney) an "award of compensation," i.e., a compensation order. Such an award, the CRB explained, "can only come about as a result of Agency action (after a'successful prosecution') through the issuance of a Memorandum or Recommendation issued by the Office of Workers' Compensation (OWC) following an informal conference which thereafter becomes a final order, or following a formal hearing conducted by the Administrative Hearings Division (AHD)." In this case, there was no award of compensation, because no informal conference or formal hearing proved to be necessary.

In her petition for review in this court, Goba does not challenge the factual findings on which the CRB relied, but only its interpretation of D.C. Code § 32-1530 (a). The question is one of law and our review is de novo,*fn3 though our policy--in deference to the agency's expertise and responsibilities--is to accept the CRB's interpretations of the Workers' Compensation Act if they are reasonable in light of the statutory language, the legislative history, and judicial precedent.*fn4

We agree with the CRB's first reason for rejecting Goba's request, that a claimant is not eligible for an award of attorney's fees under § 32-1530 (a) unless the employer (or carrier) disputed liability. That is not merely a reasonable interpretation, it is the only interpretation compatible with the unambiguous statutory language. We therefore find it unnecessary to address the CRB's second reason, that an "award of compensation" in a compensation order is a prerequisite to a fee award.

By the plain language of § 32-1530 (a), the mere failure to pay compensation within thirty days of receiving written notice of a claim is not enough to expose an employer or carrier to an attorney's fee award. Rather, fees may be awarded only "[i]f the employer or carrier declines to pay any compensation... on the grounds that there is no liability for compensation...."*fn5 Thus, while other provisions of the Workers' Compensation Act address tardy payment of compensation,*fn6 § 32-1530 (a) addresses a different matter--the employer's (or carrier's) decision to contest liability and require the employee "thereafter [to] utilize[] the services of an attorney-at-law in the successful prosecution of his claim" for disability benefits.*fn7 Goba's alternative interpretation of the statute--that every failure to pay compensation within thirty days may support a fee award, regardless of the reason--ignores the express requirement that the employer's or carrier's refusal to pay must be "on the grounds" of lack of liability. An interpretation of the statute that nullifies some of its language is neither reasonable nor permissible.*fn8

In order to dispute liability, the employer should file a timely notice setting forth "the grounds upon which the [employee's] right to compensation is controverted."*fn9 But an employer cannot "evade [attorney's] fee liability" for refusing to pay compensation by the simple expedient of remaining silent and "failing to decline payment formally."*fn10 Where an employer fails to pay compensation but is silent as to the reason (or, conceivably, advances an invalid, pretextual justification), the fact finder should be able to infer that the employer declined to pay because it denied liability.

The history of § 32-1530 (a) only confirms the CRB's reading. The statute is derived from, and is "virtually identical to," the fee-shifting provision in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 928 (a).*fn11 Judicial construction of the federal statute supports the CRB's interpretation that ยง 32-1530 (a) applies only if the employer or carrier disputes liability. As one federal court has stated, "[t]he fee-shifting provision of the LHWCA contemplates four triggering events for assessing fees against the employer: (1) formal notice, (2) employer controversion of the claim, (3) successful prosecution by the claimant, and (4) use of an attorney to ...

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