Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Webb v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

March 21, 2019

Nikeesha Webb, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent.

          Argued September 26, 2018

          Appeal from the Department of Employment Services Compensation Review Board (CRB No. 17-047)

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

          Jason 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.

          Before Fisher and Thompson, Associate Judges, and Greene [*] , Senior Judge.

          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fee application, and (4) petitioner's challenge to the validity of the emergency rulemaking is moot because it was superseded by the final rulemaking, we affirm the CRB's Modification of the attorney's fee award.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.

         On 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.

         Ms. 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 3-4.

         On 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. In the Matter of Webb v. District of Columbia Metropolitan Police Department, Compensation Review Board Decision and Order, March 1, 2017 (hereinafter, "CRB Order"), App. at 10-17.

         On December 16, 2016, before the CRB Order affirming ALJ D'Souza's Compensation Order, ORM introduced a proposed rulemaking and an emergency rulemaking focused on public sector workers' compensation benefits, including a provision providing for an award of reasonable attorney's fees following the successful prosecution of a claim. The rule regarding attorney's fees contained in both the regular proposed rule and the emergency rule provided that "'Actual benefits secured' for the purpose of Section 2327[1] means the total amount of benefits secured by an attorney in connection with a hearing through the date of the compensation order only and shall not include future benefits." (Emphasis added.) The final rule, which was adopted on June 26, 2017, and became effective on July 7, 2017, similarly provided that "'Actual benefits secured' for the purpose of Section 2327 [of the CMPA] means the total established amount of benefits secured by an attorney in connection with a hearing or court proceeding through the date of the compensation order only, and shall not include future benefits."[2](Emphasis added.)

         Shortly after the Compensation Order in this matter and the CRB Order affirming it became final, petitioner filed fee petitions with the CRB and the Office of Hearings and Adjudications (OHA) for the work petitioner's counsel performed before each body resulting in the successful prosecution of petitioner's claim. App. at 25. On April 12, 2017, ALJ D'Souza granted counsel's petition in part, deciding that counsel should receive 20 percent of the benefit received, as well as 20 percent of future payments until the attorney's fee is satisfied. In the Matter of Webb v. District of Columbia Metropolitan Police Department, Order Regarding Fee Petition, April 12, 2017 (hereinafter, "Fee Petition Order"), App. at 19-23.

         The MPD appealed the Fee Petition Order. In response, the CRB modified the Order on July 20, 2017, and July 27, 2017, determining the attorney's fee award could not exceed 20 percent of the benefits received as of the date of the Compensation Order. Webb v. District of Columbia Metropolitan Police Department, CRB No. 17-047, Compensation Review Board Decision and Order, July 20, 2017 (hereinafter, "CRB Decision and Order"), App. at 24-28, and Webb v. District of Columbia Metropolitan Police Department, CRB No. 16-142(A)(1), Compensation ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.