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Young v. District of Columbia Dept. of Employment Services

Court of Appeals of Columbia District

November 7, 2013

David YOUNG, Petitioner
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Institute for Public-Private Partnership, et al., Intervenors.

Submitted Oct. 31, 2013.

Benjamin T. Boscolo, Greenbelt, was on the brief for petitioner.

Page 636

Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, and Michael Milwee, Senior Assistant Attorney General, were on the statement in lieu of brief for respondent.

Roger S. Mackey was on the brief for intervenors.

Before GLICKMAN and EASTERLY, Associate Judges, and FARRELL, Senior Judge.

EASTERLY, Associate Judge:

David Young petitions for review of an order by Respondent District of Columbia Department of Employment Services (DOES) Compensation Review Board (CRB) affirming the final compensation order issued by DOES Administrative Law Judge Jeffrey P. Russell (ALJ). Mr. Young asserts the CRB erred, first in directing the ALJ to calculate his average weekly wage (AWW) so as to disregard the amount his employer was contractually obligated to pay him in the form of a housing allowance, and then, after remand, in upholding the ALJ's AWW calculation based on the CRB's directive.[1] We agree and hold that Mr. Young's AWW must be calculated based on his annual salary and the $1,200 a month housing allowance provided in his one-year employment contract.

I. Facts

In March 2006, Mr. Young was working for Intervenor Institute for Public-Private Partnership (IP3) as the regional representative for the Middle East and Northern Africa. He was soon to be permanently relocated to Jordan, but on March 26, 2006, he was seriously injured in a car accident while traveling on business in Malawi. Mr. Young suffered a spinal cord injury, leaving him without the use of both his legs and only limited use of his arms.

Mr. Young filed a worker's compensation claim and the DOES ALJ found that he was permanently and totally disabled as of the date of the accident. That ruling was not challenged by IP3.[2] A dispute arose, however, regarding the calculation of Mr. Young's AWW, which would serve as the basis for his compensation.[3]

Mr. Young had been promoted to the position of regional representative at the beginning of January 2006, a few months prior to his accident.[4] At that time, he was awarded a corresponding pay raise, giving him an annual salary of $48,000. In addition, his 12-month employment contract gave him a housing allowance of up to $1,200 per month. In anticipation of his move to Jordan, Mr. Young found an apartment there to rent for the amount of his housing allowance. IP3 signed a one-year lease on his behalf that was set to

Page 637

begin on April 15, 2006. In the five weeks before the date of the accident, between February 18 and March 25, 2006, IP3 put Mr. Young up at hotels in Malawi, Zambia, Egypt and Jordan.[5]

Before the ALJ, the following question arose: should a housing allowance written into Mr. Young's employment contract constitute a figure to be included within the AWW calculation where the lease IP3 signed on Mr. Young's behalf pursuant to his contract had not yet begun, and IP3 had not yet made any rent payments? [6] The ALJ's first compensation order, dated September 9, 2010, determined that because IP3 had agreed to pay $1,200 per month for housing, and had in fact already paid for Mr. Young's lodging in hotels while in Africa and the Middle East, his wage calculation properly included the value of the lease in Jordan. This amount, combined with his $48,000 annual salary, resulted in an ...


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