September 26, 2018
Amended April 11, 2019
from the Department of Employment Services, Compensation
Review Board (CRB No. 17-047)
L. Levi, with whom Robert Newman, Washington, was on the
brief, for petitioner.
Lederstein, Assistant Attorney General, Office of the
Solicitor General, with whom Karl A. Racine, Attorney General
for the District of Columbia, Loren L. AliKhan, Acting
Solicitor General at the time the brief was filed, and Stacy
L. Anderson, Senior Assistant Attorney General, were on the
brief, for respondent.
Fisher and Thompson, Associate Judges, and
Greene,[*] Senior Judge, Superior Court of the
District of Columbia.
Greene, Senior Judge:
Petitioner Nikeesha Webb submitted a claim for public sector
workers’ compensation disability benefits pursuant to the
District of Columbia’s Comprehensive Merit Personnel Act of
1978 (CMPA). She asserts that the Compensation Review Board
(CRB) erred in modifying the attorney’s fee award, arguing,
inter alia, that: (1) the Office of Risk Management
(ORM) did not have the authority under the CMPA to promulgate
rules regarding Department of Employment Services (DOES)
public sector hearings and adjudications; (2) the rule
regarding attorney-fee awards is inconsistent with the CMPA;
(3) the rule regarding attorney-fee awards was improperly
applied retroactively to petitioner’s pending fee
application; and (4) even if ORM did have the authority to
promulgate the rules, ORM failed to properly promulgate or
extend its "emergency" rules. Because we are
persuaded that (1) ORM had authority to promulgate rules
regarding DOES public sector hearings and adjudications, (2)
the rule regarding attorney-fee awards is consistent with the
CMPA, (3) the rule regarding attorney-fee awards was not
improperly applied retroactively to petitioner’s pending fee
application, and (4) petitioner’s challenge to the validity
of the emergency rulemaking is moot because it was superseded
by the final rulemaking, we affirm the CRB’s Modification of
the attorney’s fee award.
I. Procedural History
Petitioner Webb began her employment with the Metropolitan
Police Department (MPD) as a police cadet in 1989. In October
2012, she began working in the MPD’s Henry J. Daly Building
as a Compliance Monitor. Two years later, several water
intrusions, due to storm leakage from the building’s roof,
occurred in Suite 5030 where her office was located. In July
2014, Ms. Webb experienced health issues seemingly related to
her work environment, requiring her to use sick leave. In
December 2014, a water leak occurred above her desk.
Following that leak, she coughed, sneezed, vomited, and
experienced headaches and runny eyes. Around December 17,
2014, she lost her voice. In the Matter of Webb v.
District of Columbia Metropolitan Police Department,
Department of Employment Services Compensation Order, Sept.
26, 2016 (hereinafter, "Compensation Order")
Appendix (hereinafter, "App.") at 2-3.
January 2, 2015, following another period of sick leave, Ms.
Webb requested an air quality study. That study revealed that
multiple water intrusions had occurred in Suite 5030 during
2014 and had resulted in ceiling tile damage and wet
carpeting. The study also indicated that mold, including
"aspergillus," was present. Compensation Order,
App. at 3.
Webb consulted with various doctors, including Dr. Maurice A.
Wright, Dr. Adriano Salicru, Dr. Sheryl Lucas, and Dr. James
A. Mutcherson. She also moved offices to see if that would
alleviate her illness. In January 2015, she moved to Room
6028, which also had water damage, dirty carpeting, and a
leaky exhaust pipe. In April 2015, she experienced similar
problems when she moved offices again. Dr. Wright
subsequently diagnosed Ms. Webb with reactive airway disease,
allergic conjunctivitis, and allergic rhinitis brought on by
work-related allergic reactions. Compensation Order, App. at
July 18, 2016, a full evidentiary hearing took place before
Administrative Law Judge (ALJ) Gwenlynn D’Souza. In a
September 26, 2016 Compensation Order, ALJ D’Souza concluded
that Ms. Webb had proved by a preponderance of the evidence
that she sustained injury to her immune and respiratory
systems, and that her injury arose during the course of her
employment in December 2014. Compensation Order, App. at 8.
On March 1, 2017, the CRB’s Decision and Order affirmed ALJ
D’Souza’s Compensation Order. Webb v. District of