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Daly v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

August 6, 2015

ERIC DALY, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, and RJ REYNOLDS, ET AL., INTERVENORS

 Submitted June 23, 2015

Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services. (CRB-048-14).

Michael J. Kitzman was on the brief for petitioner.

Karl A. Racine, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the statement in lieu of brief for respondent.

Tony D. Villeral was on the brief for intervenors.

Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and STEADMAN, Senior Judge.

OPINION

Page 1258

Blackburne-Rigsby, Associate Judge

Petitioner Eric Daly challenges the Compensation Review Board's (" CRB" ) decision affirming the denial of his request for a twenty-percent penalty to be levied on intervenors RJ Reynolds and ACE ESIS, Inc. (" ACE" ), the employer and insurer, respectively. Daly claims that a penalty is warranted because intervenors failed to pay him the amount owed within ten days after it became due as required by the District of Columbia Workers' Compensation Act (" Workers' Compensation Act" or " Act" ). See D.C. Code § 32-1515 (f) (2012 Repl.) ( " If any compensation . . . is not paid within 10 days after it becomes due, there shall be added to such unpaid compensation an amount equal to 20% thereof . . . ." ). We affirm.

I. Factual Background

Daly claimed to have suffered a work-related injury during the course of his employment with RJ Reynolds. The parties entered into a settlement agreement in which intervenors agreed to pay Daly a lump sum amount in exchange for Daly releasing intervenors from further liability. On July 31, 2012, the Office of Workers' Compensation (" OWC" ) approved the settlement agreement, and copies of OWC's approval order were mailed by certified mail to the parties the next day on August 1, 2012. Daly received his lump sum payment from intervenors on August 17, 2012. On August 20, 2012, Daly filed a motion requesting OWC to assess a twenty-percent penalty on top of the lump sum payment because intervenors had failed to pay him within ten days of payment being due as required by D.C. Code § 32-1515 (f). Specifically, he claimed that payment was

Page 1259

due by August 10th, ten days after OWC mailed the approval order. He also claimed that his counsel emailed a copy of the order to intervenors' counsel on August 3rd, and sent a follow-up email on August 13th regarding the status of payment. Intervenors opposed, chiefly arguing that, by law, payment was due within ten days of them receiving the approval order, not ten days upon OWC's issuance of the order. In support of their claim that payment was timely, intervenors submitted a date stamped copy of the approval order marked August 7, 2012, as proof of when they received the order from OWC. Consequently, no penalty was warranted, intervenors argued, because the date of payment, August 17th, was within ten days of intervenors receiving notice on August 7th.

In a written order, OWC denied Daly's motion to assess a penalty on intervenors. The claims examiner implicitly agreed with intervenors' argument that the clock started to run upon intervenors' receipt of the approval order, not upon issuance of the order as Daly had argued. Thus, because intervenors did not receive a certified copy until August 7, 2012, their payment on August 17th was not untimely. Notably, the claims examiner admitted that OWC could not find the " certified card" indicating the date of receipt within its own records, but nonetheless found it " reasonable" that the document would have been ...


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