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Ware v. District of Columbia Department of Employment Services

Court of Appeals of Columbia District

April 13, 2017

Constance Ware, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent.

          Argued February 15, 2017

         Petition for Review of a Decision of the Compensation Review Board of the District of Columbia Department of Employment Services (CRB-98-14 and CRB-143-15)

          Harold L. Levi, with whom Robert P. Newman was on the brief, for petitioner.

          Mary L. Wilson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

          Before Glickman and Fisher, Associate Judges, and Washington, Senior Judge. [*]

          Fisher, Associate Judge

         Petitioner Constance Ware challenges orders of the Compensation Review Board ("CRB") in two separate, but similar, proceedings. In CRB No. 14-098 ("the first proceeding"), the CRB denied the request of petitioner's counsel for attorney's fees incurred during petitioner's successful attempt to have her disability benefits and medical benefits reinstated. In CRB No. 15-143 ("the second proceeding"), the CRB vacated an order of the Office of Hearings and Adjudication ("OHA") that awarded attorney's fees to petitioner's counsel for other work done in the same matter.

         The issue was complicated by the fact that the statute authorizing an award of attorney's fees was repealed from September 24, 2010, to September 14, 2011 ("the gap period"). To address cases in which a portion of the proceedings had taken place during the gap period, the CRB had developed a test focusing on the date of the "necessary first event." See Dixon-Cherry v. District of Columbia Pub. Sch., CRB No. 12-138 (A), 2013 WL 494505, at *2 (Jan. 23, 2013); cf. Rice v. District of Columbia Dep't of Motor Vehicles, CRB No. 08-027, 2007 WL 4712897, at *4 (Dec. 20, 2007). If the necessary first event took place during the gap period, petitioner's counsel would not be entitled to fees. Dixon-Cherry, CRB No. 12-138 (A), 2013 WL 494505, at *2.

         Petitioner argues that the CRB wrongly concluded that the "notice of intent" to terminate petitioner's benefits ("NOI") was the necessary first event; that there is no substantial evidence that the NOI was issued on August 30, 2011, as the CRB claims; and that the CRB improperly raised an issue sua sponte in order to reject her request for fees. We agree that the CRB erred in concluding that the NOI was the necessary first event, and we reverse and remand on those grounds. We need not reach petitioner's arguments regarding the date when the NOI was issued[1] and the actions the CRB took sua sponte. However, we also hold that only the CRB's order in the second proceeding is properly before us, and thus we remand for further proceedings in that matter only.

         I. Background

         In 1991 petitioner suffered a recurrence of a work-related injury that occurred while she was employed by the District of Columbia Department of Corrections (the "Employer"). She received disability benefits until 2011. On August 30 of that year, the Public Sector Workers' Compensation Program ("PSWCP") issued an NOI that stated: "[W]e conclude you are no longer eligible for workers' compensation benefits. Payments will be terminated on September 30, 2011." The NOI was sent to begin the process outlined in D.C. Code § 1-623.24 (d)(1) (2012 Repl.). In order to modify a compensation award, the Mayor must first "provide written notice to the claimant of the proposed modification[.]" Id. § 1-623.24 (d)(1)(A).

         The NOI also informed petitioner that she could either "request[] reconsideration" by the PSWCP or "appeal[]" to OHA. An attached form warned petitioner that she would have thirty days to exercise either option. The reconsideration option corresponded to a statutory requirement that the "claimant shall have at least 30 days to provide the Mayor with written information as to why the proposed modification is not justified[.]" Id. § 1-623.24 (d)(1)(B). The appeal option seemed to draw upon a different statutory provision giving a claimant thirty days to appeal to the OHA if he or she "is not satisfied with a decision" regarding modification. Id. § 1-623.24 (f).

         Petitioner chose the reconsideration option. However, she did not make her request within thirty days, and the PSWCP therefore terminated petitioner's benefits on September 30, 2011. See id. § 1-623.24 (d)(3). Petitioner protested that she had not received the NOI in a timely fashion. After extensive litigation before the PSWCP, the OHA, and the CRB on both the timeliness issue and the merits, the CRB held that failure to give adequate notice tolled the thirty-day period for requesting reconsideration and that petitioner was entitled to reinstatement of her disability and medical benefits. Employer sought review by this court, but it later voluntarily withdrew its appeal. Petitioner thus had successfully prosecuted her claim.[2]

         Petitioner's counsel filed two petitions for attorney's fees. Since September 14, 2011, the District of Columbia has provided by statute that a claimant shall recover "a reasonable attorney's fee, not to exceed 20% of the actual benefit secured, " if the claimant "utilizes the services of an attorney-at-law in the successful prosecution of his or her claim under § 1-623.24(b) or before any court for review of any action, award, order, or decision[.]" Id. § 1-623.27 (b)(2). That provision was also in place from March 8, 2007, until September 24, 2010. See D.C. Law 16-231 § 2 (c), 54 D.C. Reg. 365-66 (Jan. 19, 2007). However-and importantly for purposes of this case-on September 24, 2010, the Council of the District of Columbia repealed the original statute authorizing fee awards. See D.C. Law 18-223 ยง 1062 ...


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