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Travelers Indemnity Company of Illinois v. District of Columbia Dep't of Employment Services

July 9, 2009

TRAVELERS INDEMNITY COMPANY OF ILLINOIS, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT AND VERTRANS, INC., INTERVENOR.



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

On Petition for Review of a Decision of the Compensation Review Board (CRB No. 03-56)

Argued March 20, 2007

Before WASHINGTON, Chief Judge,RUIZ, Associate Judge, and FARRELL, Senior Judge.*fn1

Petitioner, Travelers Indemnity Company of Illinois ("insurer"), the workers' compensation insurance carrier for intervenor, Vertrans, Inc. ("employer"), seeks our review of the order of the Compensation Review Board ("CRB") dismissing the employer's appeal of an order issued by the Office of Workers' Compensation ("OWC"). The OWC had issued an order, at the insurer's request, adopting the recommendation of a Memorandum of Informal Conference ("Memorandum") issued by the Claims Examiner. In that Memorandum, the insurer was found not to have an obligation under the insurance contract to pay benefits to claimant; as a result, according to the Claims Examiner, benefits were payable by the employer. The CRB dismissed the employer's appeal for lack of jurisdiction, because there was no valid final order to review once the employer had rejected the Memorandum and filed an application for a formal hearing with the Office of Hearings and Adjudication ("OHA") at the D.C. Department of Employment Services ("DOES"). Because the CRB reasonably interpreted the regulations governing the procedures for informal conferences as terminating upon the filing of an application for a formal hearing, we affirm its decision to dismiss the appeal for lack of jurisdiction.

I.

These proceedings arose out of a claim for workers' compensation benefits filed pursuant to the District of Columbia Workers' Compensation Act of 1979 (codified as amended in D.C. Code § 32-1501 to -1545(2001)). Claimant Jerry Russell performed escalator maintenance work for the employer in the District of Columbia for over eight years.*fn2 In May 2002, claimant suffered an injury to his back, neck, and right shoulder while performing maintenance work which required lifting, pulling, and removing escalator steps which weighed 32 pounds each. Claimant sought medical treatment, and was diagnosed on May 10, 2002, with right trapezius syndrome and lower-back strain.

Claimant sought total temporary disability benefits from May 10, 2002, to the present and continuing. The employer conceded that claimant's injury was work-related, but it and the insurer disputed whether the insurance contract provided coverage for his claim. The insurer maintained that employer did not have workers' compensation coverage for injury related to work in the District of Columbia because employer's assigned risk policy for the period when the claim arose provided coverage only for employees in the state of Virginia.*fn3

Employer, on the other hand, argued that the policy covered the workers' compensation claim because claimant had been hired in Virginia and was working in D.C. on a temporary basis.

Claimant, the insurance company and the employer submitted their dispute to the Office of Workers' Compensation for resolution. On September 3, 2002, the Claims Examiner conducted an informal conference among the parties. Applying the District of Columbia Workers' Compensation Act, and after evaluating the parties' contentions and documentary evidence, including the contract of insurance, the Claims Examiner issued a Memorandum dated September 24, 2002, in which she found that the claimant's employment was "localized principally in the District of Columbia," and that "claimant worked in, [and] the injury occurred in" the District. See D.C. Code § 32-1503 (a) (2001). The Claims Examiner interpreted the insurance policy as covering only claims related to employment in Virginia. Thus, the Claims Examiner recommended that the employer -- not the insurer -- should be liable to pay Mr. Russell's disability claim.

The Memorandum contained a section titled "Appeal Rights," which stated that the parties had fourteen days to indicate whether they agreed or disagreed with the Claims Examiner's recommendation. If a party disagreed with the recommendation, it was required to file an application for a formal hearing with the OHA within thirty-four working days after the issuance of the Memorandum. If an application was not timely filed, the Memorandum would become final and binding on the parties.

On October 17, 2002, employer rejected the Claims Examiner's recommendation, and on November 13, 2002, it filed a timely application for a formal hearing. However, on February 4, 2003, the day before the hearing was scheduled, the employer withdrew the application. As a result, the application for a formal hearing was dismissed without prejudice and the case was remanded to OWC "for such further action as may be warranted."

On February 20, 2003, the insurer filed with OWC a "Motion to Enforce the Informal Conference Decision." The OWC granted the motion on March 25, 2003, adopting the Memorandum of Informal Conference as the Final Order in this case.

Employer appealed the OWC's Final Order to the Compensation Review Board, which rendered its decision on October 7, 2005. The CRB dismissed the appeal on jurisdictional grounds without reaching the merits. It held that once the employer rejected the Claims Examiner's recommendation, the Memorandum was rendered null and void and the OWC, therefore, could not convert the Memorandum into a Final Order. Accordingly, the CRB concluded that it, in turn, lacked jurisdiction to resolve the issues raised by the appeal because there was no final decision to review. The insurer timely filed in this court for review of the CRB's decision.

Several months after the CRB's decision in this case, and while this appeal was pending, the CRB announced that it was conducting an en banc review of another case that raised substantially similar issues, Gooden v. Nat'l Children's Ctr., CRB Nos. 03-137 & 03- 142, 2006 DC Wrk. Comp. LEXIS 485 (Apr. 14, 2006). In Gooden the full CRB panel held that in the absence of express authority requiring or otherwise permitting remand to OWC, the dismissal of an Application for Formal Hearing neither reinvests OWC with jurisdiction over a previously filed claim [with OWC] nor reinvests a ...


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