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Brown v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

March 24, 2016

NATHALIA L. BROWN, Petitioner,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, & PEPCO, Intervenor.

          Order File Date June 9, 2016

          Argued March 25, 2015

         On Petition for Review of an Order of the District of Columbia Compensation Review Board (CRB-141-10)

          Matthew Peffer for petitioner.

          Kevin O'Connell, with whom Shawn M. Nolen was on the brief, for intervenor.

          Irvin B. Nathan, Attorney General for the District of Columbia at the time, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, filed a statement in lieu of brief in support of intervenor.

          Before Thompson and Beckwith, Associate Judges, and Farrell, Senior Judge.

         ORDER

         PER CURIAM

         On consideration of the motion, filed by respondent District of Columbia Department of Employment Services, to publish this court's March 24, 2016, memorandum opinion and judgment, regarding the above-referenced matter, and intervenor PEPCO having filed an answer to consent to the motion, it is

         ORDERED that the motion to publish the memorandum opinion and judgment is granted, and that the decision be reissued as a published opinion forthwith.

          BECKWITH, ASSOCIATE JUDGE.

         In an earlier appeal in this workers' compensation case, this court identified some ''unsettled issues concerning the interpretation of the Workers' Compensation Act and the procedural rules that the [Compensation Review] Board follows, '' and remanded the matter to allow the CRB to address two discrete questions in the first instance: (1) whether the Board here had the authority to raise sua sponte a claimant's suspension of benefits under D.C. Code § 32-1507 (d) (2012 Repl.), and (2) whether a claimant who seeks to modify such a suspension may do so only through complying with the Act's modification procedures, including specified time limits, as set out in D.C. Code § 32-1524 (2012 Repl.). See Brown v. District of Columbia Dep't of Emp't Servs., 83 A.3d 739, 742, 747–49, 750–52 (D.C. 2014). The CRB answered both questions in the affirmative. Concluding that the Board has provided a reasonable interpretation of the statute and procedural rule, we affirm the decision below.

         I. Facts

         The facts and procedural history of this case are set out fully in our opinion in Brown, 83 A.3d 739. In brief, appellant Nathalia Brown suffered work-related injuries while working for Potomac Electric Power Company (PEPCO) in 1995, and received temporary total disability benefits from the company. Id. at 742. Ms. Brown then filed a claim for permanent total disability benefits, which Administrative Law Judge (ALJ) Henry W. McCoy denied after concluding that Ms. Brown was not totally disabled, that she had voluntarily limited her income, and that she had unreasonably refused to cooperate with PEPCO's offers of vocational rehabilitation.[1] ALJ McCoy also suspended Ms. Brown's temporary total disability benefits ''until such time as she expresses a willingness to cooperate'' with the vocational rehabilitation. The CRB affirmed. Rather than petition for review or express a willingness to cooperate with the rehabilitation, Ms. Brown filed a separate claim for permanent partial (rather than total) disability benefits. See Brown, 83 A.3d at 743. ALJ Nata K. Brown granted Ms. Brown's request for ...


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