Shuron I. TURNER, Petitioner,
v.
DISTRICT OF COLUMBIA, Department of Employment Services, Respondent and Washington Metropolitan Area Transit Authority, Intervenor.
Submitted
June 8, 2018
Page 157
Petition for Review of a Decision of the Compensation Review
Board of the District of Columbia Department of Employment
Services (CRB-052-17)
David
J. Kapson and Kevin H. Stillman were on the brief for
petitioner.
Karl A.
Racine, Attorney General for the District of Columbia, Loren
L. AliKhan, Acting Solicitor General at the time the
statement was filed, and Stacy L. Anderson, Acting Deputy
Solicitor General, were on the statement in lieu of brief for
respondent.
Sarah
O. Rollman and Mark H. Dho were on the brief for intervenor.
Before
Blackburne-rigsby, Chief Judge, and Glickman and Mcleese,
Associate Judges.
OPINION
Dissenting
opinion by Associate Judge Mcleese at pages 162-63.
Blackburne-Rigsby,
Chief Judge:
Claimant-petitioner
Shuron Turner injured her right wrist and arm while working
as a bus driver for employer-intervenor Washington
Metropolitan Area Transit Authority ("WMATA"). Ms.
Turner requested, and ultimately was awarded, benefits for a
thirteen-percent permanent partial disability to her upper
right extremity under the District of Columbia Workers
Compensation Act ("Act"). D.C. Code § § 32-1501 to
-1545 (2012 Repl.). Afterwards, Ms. Turner sought
reimbursement of attorneys fees in connection with her
disability claim. See D.C. Code § 32-1530. Before
this court is Ms. Turners petition for review of the
Compensation Review Boards ("CRB") order affirming
the Administrative Law Judges ("ALJ") decision to
deny Ms. Turners request for attorneys fees. We affirm.
Page 158
I.
Under
the Workers Compensation Act, a claimant may recover
attorneys fees from the employer "in only two
situations." Providence Hosp. v. District of
Columbia Dept of Empt Servs., 855 A.2d 1108, 1111
(D.C. 2004). In the first situation, a claimant is entitled
to recover attorneys fees "if the employer refuses to
pay any compensation for a work-related injury
within thirty days of receiving written notice from the Mayor
of a claim for compensation, and the claimant consequently
uses the services of an attorney to prosecute successfully
his or her claim." Id. (emphasis added)
(citations and internal quotation marks omitted); see
also D.C. Code § 32-1530(a). In the second situation,
recovery of attorneys fees is permitted "if an employer
voluntarily pays or tenders compensation without an award but
later refuses to pay the additional compensation
claimed by the claimant within fourteen days of receiving a
recommendation by the Mayor that the claim is justified, and
the claimant uses the services of an attorney to recover the
full amount claimed." Providence Hosp., 855
A.2d at 1112 (emphasis added) (citation and internal
quotation marks omitted); see also D.C. Code §
32-1530(b).
Here,
the record reflects the following: after Ms. Turner injured
her right wrist and arm from prolonged driving of a bus in
February 2012, she sought treatment and missed about three
weeks of work. WMATA states, and Ms. Turner does not appear
to contest, that WMATA paid Ms. Turner temporary total
disability benefits from February 26, 2012, to December 12,
2012, and paid for her medical care. Ultimately, Ms. Turner
returned to work, received vocational training, and was
promoted to a station manager in January 2015. In June 2015,
Ms. Turner filed a claim for benefits for a thirteen-percent
permanent partial disability to her upper right extremity. A
claims examiner with the Office of Workers Compensation
("OWC") held an informal conference and issued a
Memorandum of Informal Conference on July 13, 2015,
recommending a seven percent permanent partial disability
award. WMATA received the memorandum on July 16, and notified
OWC within fourteen days that it was accepting OWCs
recommendation, on July 31. Ms. Turner, on the other hand,
informed OWC that it was rejecting OWCs recommendation and
sought formal review.[1] Following a formal hearing, the ALJ
agreed with Ms. Turner and awarded her a thirteen-percent
permanent partial disability to the upper right extremity,
which the CRB affirmed.
Ms.
Turner thereafter filed a petition for attorneys fees with
the ALJ, pursuant to D.C. Code § 32-1530. The ALJ denied Ms.
Turners petition for attorneys fees, and the CRB affirmed.
The CRB rejected Ms. Turners claim for attorneys fees on
the basis that she did not meet the requirements of §
32-1530(b) because she rejected the OWC recommendation after
WMATA had accepted the recommendation. The CRB cited to
Providence Hospital, for the proposition that the
claimant is not entitled
Page 159
to attorneys fees where the employer did not reject the
recommendation. 855 A.2d at 1114. The CRB further observed
that WMATAs "mere mention of a credit it thought it was
owed does not equate to" a rejection by WMATA of OWCs
recommendation." This petition for review followed.
II.
Ms.
Turner argues here that, although WMATA notified OWC that it
was accepting OWCs recommendation on July 31, a subsequent
email chain between WMATA and Ms. Turner in August 2015,
where WMATA notified Ms. Turner that it would seek a
"credit" for other payments that it had made to Ms.
Turner constituted a de facto rejection of the informal
recommendation by WMATA. Specifically, in connection with
another workers compensation case involving Ms. Turner,
WMATA paid an award that was subsequently vacated by the CRB.
Ms. Turner claims that WMATA did not act in "accordance
with th[e] recommendation" by referencing the credit and
not paying. Providence Hosp., 855 A.2d at 1113.
This
courts review of the CRBs decision is limited to
determining whether it was "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law." Reyes v. District of Columbia Dept of Empt
Servs.,48 A.3d 159, 164 (D.C. 2012) (citation and
internal quotation marks omitted). We will affirm the CRB
(and the ALJ) if "(1) the agency made findings of fact
on each contested material factual issue, (2) substantial
evidence supports each finding, and (3) the agencys
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