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Asylum Company v. District of Columbia Department

December 23, 2010


Petition for Review of a Decision of the District of Columbia Department of Employment Services (CRB 77-08)

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

Argued September 14, 2010

Before FISHER and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

As the Compensation Review Board (the "CRB") wrote in its decision that petitioners have asked us to review, the issues before us "center on [claimant/intervenor's] status as an undocumented alien."*fn1 Petitioners, Asylum Company and Insurance Designers of Maryland (together, the "Employer"), contend that claimant/intervenor, Palemon Cassarubias Gonzales ("Claimant"), who sustained a workplace injury on June 30, 2005, is not entitled to "compensation for lost wages for temporary total disability after July 17, 2005," the date when the Employer learned of his undocumented-alien status and terminated him. The Employer asks us to hold that the CRB erred in upholding the contrary determination by a Department of Employment Services ("DOES") administrative law judge ("ALJ").

To resolve the specific questions presented by the Employer's petition, we must begin by resolving an issue that is one of first impression in this jurisdiction: whether a worker who is an undocumented alien is covered under the District of Columbia Workers' Compensation Act (the "Act").*fn2 This question requires us to consider (i) whether a worker who is an undocumented alien is an "employee" within the meaning of the Act, and, if so, (ii) whether, for purposes of the Act, the cause of the worker's wage loss following an incapacitating workplace injury may be considered to be the worker's physical (or mental) incapacity, rather than the provision of federal law (IRCA) that makes it unlawful for an employer in the United States who has knowledge of the worker's status to employ the worker. An additional question we must resolve is whether, if an undocumented-alien claimant is eligible to receive benefits under the Act, IRCA has the preemptive effect of precluding a workers' compensation award to such a claimant that is equal to the claimant's average weekly wage. And, finally, we must decide whether the record in this case supports a determination that the Employer is liable for payment of the average-weekly-wage penalty that the Act imposes for an employer's bad-faith delay in paying wage-loss benefits.

We affirm the CRB's ruling as to all but the last of these issues and therefore uphold the determination that Claimant was entitled to temporary total disability benefits for the period June 30, 2005 to January 25, 2006. As to the last issue, relating to imposition of the average-weekly-wage penalty, we reverse and remand, because the record does not support the ALJ's finding that no reason was presented for the Employer's delay in payment of benefits, and because the ALJ did not make credibility determinations or other findings to support an inference of employer bad faith. The CRB's rationale for upholding the average-weekly-wage penalty - rejection of the Employer's argument that it could not lawfully pay wage-loss benefits to Claimant - was not a sufficient basis for concluding that the Employer acted in bad faith.


On June 30, 2005, Claimant was working as a busboy and bar bus at a restaurant and bar owned by petitioner Asylum Company when he was struck in the right eye by a bottle thrown by a customer. Another employee of the establishment took Claimant to the hospital, where he was diagnosed with a dislocated lens. As described in the ALJ's compensation order, the lens of Claimant's right eye "had been dislocated outside of the visual field of the eye causing 100% total loss of vision"of the right eye. In July 2005, Claimant underwent surgery on his eye. Not until January 25, 2006, was Claimant cleared to return to work by his treating physician. During the course of his recovery, Claimant suffered eye pain, elevated eye pressure (glaucoma), and blurred vision.

In the meantime, Claimant's hospital bills, which showed his name as "Palemon Casarrubias Gonzalez," had been sent to the Employer. At the hearing before the ALJ, David Karim - an owner of the establishment where Claimant worked, whose duties included supervision as well as hiring and firing of employees - testified on behalf of the Employer. Karim explained that he was confused when he received hospital bills for services provided to "Palemon Casarrubias Gonzalez," since he knew Claimant as "Armando Casarrubias" or "Armando Casarrubias Gonzalez," the name shown on records in the Employer's personnel files. On July 17, 2005, although not yet cleared to return to work by his treating physician, Claimant returned to the establishment and asked to resume work part-time. According to Karim, it was then that the Employer learned that Claimant had obtained his job by using the name and papers of his cousin (Armando Casarrubias), and that Claimant himself was an undocumented alien.*fn3 Karim testified that he gave Claimant money (a total of $1,000) to help pay his expenses, but told Claimant that he "could not continue to employ [Claimant] because it would be illegal" because of Claimant's undocumented status. Claimant testified that he began working for another employer in February 2006.

On August 15, 2005, Claimant filed a claim for workers' compensation benefits. Although the workers' compensation statute requires an employer either to make prompt payment of wage-loss benefits or to file a timely notice controverting the worker's claim, the Employer neither began paying benefits nor filed a notice of controversion. The matter eventually went to hearing, and in an August 1, 2007 compensation order, the ALJ determined that Claimant was temporarily and totally disabled and entitled to benefits for the June 30, 2005 -- January 26, 2006 period. The ALJ found that Claimant's wage loss for that period was attributable to his workplace injury and that Claimant's attempt to return to work on July 17, 2005, had been against medical advice. The ALJ also found that the Employer had failed to file a timely notice of controversion and had withheld payment of compensation in bad faith. Upon the finding of bad faith, the ALJ awarded Claimant wage-loss benefits in the amount of Claimant's average weekly wage ($362.66), as provided in D.C. Code § 32-1528 (b) (2001).*fn4 The ALJ also awarded Claimant an additional ten percent as a penalty on the Employer for failure to timely file a notice of controversion,*fn5 as well as interest on accrued benefits. The Employer sought review by the CRB, which affirmed the compensation order in a decision dated August 22, 2008. The Employer's petition to this court followed.


Our review of administrative agency decisions is limited, and we must affirm an agency decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Providence Hosp. v. District of Columbia Dep't of Emp't Servs., 855 A.2d 1108, 1111 (D.C. 2004). In workers' compensation cases, we review the decision of the CRB and not that of the ALJ, but "we cannot ignore the compensation order which is the subject of the Board's review." Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., 922 A.2d 1276, 1280 (D.C. 2010) (quoting Georgetown Univ. Hosp. v. District of Columbia Dep't of Emp't Servs., 916 A.2d 149, 151 (D.C. 2007)). We review the CRB's legal rulings de novo, recognizing that this court is "the final authority on issues of statutory construction." Georgetown Univ. Hosp., 929 A.2d at 869 (citation and internal quotation marks omitted). However, "we acknowledge [the CRB's] expertise and . . . responsibility for administering the Workers' Compensation Act," and thus "we ordinarily must defer to [its] reasonable interpretations of ambiguous provisions in that legislation." Howard Univ. Hosp. v. Dep't of Emp't Servs., 960 A.2d 603, 606 (D.C. 2008); see also Howard Univ. Hosp. v. District of Columbia Dep't of Emp't Servs., 994 A.2d 375, 377 (D.C. 2010) (explaining that we defer to the CRB's interpretation of the Act "unless the interpretation is unreasonable or in contravention of the language or legislative history of the statute," and "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" (internal quotation marks and citation omitted)).


We turn first to the issue of whether unauthorized aliens may be covered at all under the District's workers' compensation statute. Although the Employer purports not to raise this underlying issue, it emphasizes that the Act's definition of "employee" makes no mention of "illegal aliens" and implies that, in concluding that coverage under the Act extends to Claimant, the CRB improperly re-wrote the Act. And, regardless of the Employer's position on the issue of coverage, resolution of this issue is a logical precursor to resolving the issues that the petition presents.

The ALJ concluded summarily that Claimant's immigration status "[had] no application to his eligibility for workers compensation benefits." The CRB addressed the issue more expansively, noting that the Act defines "employee" as "every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied, in the District of Columbia." Gonzalez v. Asylum Co., CRB No. 08-077, AHD No. 06-224, OWC No. 617421, 2008 DC Wrk Comp LEXIS 352 at *16-17 (Aug. 22, 2008) (citing D.C. Code § 32-1501 (9) (2001)) (emphasis added by the CRB). The CRB also noted that while the Act "sets forth certain exceptions to the definition, . . . none of them reference[s] an undocumented alien"; and that "[a]lthough the . . . Council [of the District of Columbia] has amended the definition of 'employee' over the years, the legislative history reveals no legislative intent to exclude an undocumented or illegal alien from the definition of 'employee.'"*fn6 Gonzalez, 2008 DC Wrk Comp LEXIS 352 at *17. The CRB also took into account that "[i]n this jurisdiction, it is well-settled the Act is to be interpreted so as to effect its humanitarian purpose." Id. (citing Vieira v. District of Columbia Dep't of Emp't Servs., 721 A.2d 579, 584 (D.C. 1998)). The CRB concluded that "based upon the plain meaning of the language in the Act and the legislative intent, an undocumented or illegal alien is an 'employee' as defined in the Act." Id.

Reviewing the matter de novo but according due deference to the CRB's construction of the Act, we have little difficulty agreeing with the CRB's conclusion. It is consistent with the language of the Act, specifically, D.C. Code § 32-1501 (9) (2001), which excepts certain specified categories of workers from the definition of "employee,"*fn7 but otherwise sets out a broad definition that neither excludes undocumented aliens nor makes a worker's immigration status relevant. See Report on Bill 3-106 at 10 (referring to the legislation's "all[-]inclusive delineation of coverage"). As the CRB recognized, the Council has made repeated amendments to the definitional section of the Act, including amendments to the provision defining the term "employee."*fn8 Although the Council made some of these changes in the wake of a DOES decision interpreting the Act to cover undocumented aliens (see Castano v. American Painting and Gen. Contractors, Inc., H&AS No. 93-115, OWC No. 221684, 1993 DC Wrk. ...

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