Turner v. District of Columbia

         Submitted June 8, 2018

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          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 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.

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          I.

         Under 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).

         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 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.^[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 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

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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 review followed.

          II.

         Ms. 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.

          This 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 ...