Shuron I. Turner, Petitioner,
District of Columbia Department of Employment Services, Respondent, and Washington Metropolitan Area Transit Authority, Intervenor.
Submitted June 8, 2018
Petition for Review of a Decision of the Compensation Review
Board of the District of Columbia Department of Employment
J. Kapson and Kevin H. Stillman were on the brief for
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
O. Rollman and Mark H. Dho were on the brief for intervenor.
Blackburne-Rigsby, Chief Judge, and Glickman and McLeese,
BLACKBURNE-RIGSBY, CHIEF JUDGE.
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 attorney's fees in connection with her
disability claim. See D.C. Code § 32-1530.
Before this court is Ms. Turner's petition for review of
the Compensation Review Board's ("CRB") order
affirming the Administrative Law Judge's
("ALJ") decision to deny Ms. Turner's request
for attorney's fees. We affirm.
the Workers' Compensation Act, a claimant may recover
attorney's fees from the employer "in only two
situations." Providence Hosp. v. District of
Columbia Dep't of Emp't Servs., 855 A.2d 1108,
1111 (D.C. 2004). In the first situation, a claimant is
entitled to recover attorney's 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 attorney's 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).
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 OWC's
recommendation, on July 31. Ms. Turner, on the other hand,
informed OWC that it was rejecting OWC's recommendation
and sought formal review. 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.
Turner thereafter filed a petition for attorney's fees
with the ALJ, pursuant to D.C. Code § 32-1530. The ALJ
denied Ms. Turner's petition for attorney's fees, and
the CRB affirmed. The CRB rejected Ms. Turner's claim for
attorney's 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 to attorney's fees where the employer did not
reject the recommendation. 855 A.2d at 1114. The CRB further
observed that WMATA's "mere mention of a credit it
thought it was owed does not equate to" a rejection by
WMATA of OWC's recommendation." This petition for
Turner argues here that, although WMATA notified OWC that it
was accepting OWC's 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.
court's review of the CRB's 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 Dep't of
Emp't 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 agency's
conclusions of law flow rationally from its findings of
fact." Id. (citation and internal quotation
stated earlier, attorney's fees are warranted under
§ 32-1530, in only two limited situations. Under §
32-1530(a), a claimant is entitled to attorney's fees if
the employer refuses to pay any compensation after a
claim has been filed, and the employee, through counsel, is
ultimately successful in his/her claim for workers'
compensation. Subsection (a) does not apply because WMATA
paid Ms. Turner temporary total benefits and her medical
expenses when she initially filed her claim for workers'
compensation. WMATA also did not dispute that Ms. Turner
suffered a work-related injury to her right wrist and arm.
See Fluellyn v. District of Columbia Dep't of
Emp't Servs., 54 A.3d 1156, 1160 (D.C. 2012) (Under
subsection (a), "a claimant may recover attorney's
fees if the employer disputes liability for the disability .
. . ."). Consequently, Ms. Turner's reliance on
subsection (a) is inapposite. Ms. Turner argues that WMATA
did not actually pay her pursuant to the OWC's
recommendation of a seven-percent permanent partial
disability award, and that this fact allows her to recover
under subsection (a). However, Ms. Turner appears to ignore