January 16, 2019
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Petition for Review of an Order of the Compensation Review
E. Douglas, Washington, for petitioner.
Racine, Attorney General for the District of Columbia, Loren
L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting
Deputy Solicitor General, filed a statement in lieu of brief
in support of respondent.
H. Schladt for intervenor.
Fisher and Easterly, Associate Judges, and Washington, Senior
opinion by Associate Judge Easterly at page 1013-14.
compensation claimant Darryl Kelly petitions for review of a
decision holding that he cannot recover attorneys fees from
his former employer, the Potomac Electric Power Company
("Pepco"), because the conditions precedent to an
award of attorneys fees under D.C. Code § 32-1530 were not
satisfied. For the reasons discussed below, we affirm.
I. Factual Background & Procedural Posture
was employed by Pepco as an underground linesman helper. He
was injured on the job on December 14, 2015, and his injury
was aggravated on the job on May 20, 2016. Kelly filed a
workers compensation claim, and Pepco accepted the claim and
began paying him compensation.
December 27, 2016, Kelly, represented by counsel, applied for
an informal conference with the Officer of Workers
Compensation ("OWC") of the District of Columbia
Department of Employment Services ("DOES"), in
order to resolve a controversy that had developed over the
amount of compensation to which Kelly was entitled. OWC
scheduled the informal conference for February 9, 2017. On
January 26, Pepco and its insurer, represented by counsel,
applied for a formal hearing before the Administrative
Hearings Division ("AHD") of DOES. Following this
request, Kelly wrote a letter to the chief administrative law
judge ("ALJ") of DOES, dated February 3, in which
he asserted that Pepco should not be able to circumvent the
informal conference mechanism by applying for a formal
hearing after an informal conference had already been
scheduled. Pepco responded the same day with its own letter
to the chief ALJ, arguing that it was not obligated to
participate in the informal conference and was well within
its rights to request a formal hearing. On February 16, the
chief ALJ issued a letter to Kelly stating that, while he
"agree[d]" with Kelly that "the statute favors
the informal conference mechanism as a way to avoid
litigation costs," under the applicable regulations,
"participation in the informal conference shall be
voluntary " and " all informal procedures shall
terminate when an application for formal hearing is filed,
which [he] consider[ed] controlling in this situation."
He concluded that, because Pepco had applied for a formal
hearing, AHD now had jurisdiction over the matter and would
schedule a formal hearing. Thus, no informal conference
formal hearing was held before an ALJ on May 15, 2017. On
July 14, the ALJ issued an order awarding additional
compensation to Kelly. Neither party petitioned the
Compensation Review Board ("CRB") of DOES for
review of the compensation order, and Pepco paid Kelly
pursuant to the compensation order. However, Kelly then
applied for attorneys fees from Pepco, pursuant to D.C. Code
§ 32-1530, and the ALJ issued a summary order denying the
application on August 28. On review of the attorneys fees
order, the CRB vacated and remanded, stating that, because
the order contained no substantive content, it could not
determine whether the order was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the
remand, the ALJ issued an October 20, 2017 order concluding
that Kelly was not entitled to attorneys fees because: (1)
the arguments raised by Kelly in support of his attorneys
fees application had been considered and rejected by the
chief ALJ, and were thus barred by the doctrine of res
judicata; and (2) the conditions precedent to obtaining
attorneys fees from the employer under § 32-1530(b) were not
met in this case - specifically, the employer did not reject
a Memorandum of Informal Conference from OWC, as no informal
conference was held.
decision and order issued on December 15, 2017, the CRB
affirmed the ALJs order, rejecting the res judicata
rationale, but finding that the ALJs interpretation of D.C.
Code § 32-1530 was correct under this courts jurisprudence
and the CRBs past holdings. Kelly then petitioned this court
for review of the CRBs decision and order.
II. Standard of Review
"Our review of administrative agency decisions is
limited." Providence Hosp. v. District of Columbia
Dept of Empt Servs., 855 A.2d 1108, 1111 (D.C. 2004).
In general, we "will not disturb an agency ruling as
long as the decision flows rationally from the facts, and the
facts are supported by substantial evidence in the
record," Id. at 1111, and will "affirm an
agencys decision unless it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law." Travelers Indem. Co. of Ill. v. District of
Columbia Dept of Empt Servs., 975 A.2d 823, 826 (D.C.
2009). While our review of the CRBs legal rulings is de
novo, Fluellyn v. District of Columbia Dept of Empt
Servs., 54 A.3d 1156, 1160 (D.C. 2012); Providence
Hosp., 855 A.2d at 1111, we accord deference to its
reasonable interpretation of the statute it administers where
there is an ambiguity to be resolved. Pannell-Pringle v.
District of Columbia Dept of Empt Servs., 806 A.2d
209, 211 (D.C. 2002); Johnson v. District of Columbia
Dept of Empt Servs., 111 A.3d 9, 11 (D.C. 2015).
Indeed, we will "defer to an agencys interpretation of
a statute or regulation it is charged with implementing if it
is reasonable in light of the language of the statute (or
rule), the legislative history, and judicial precedent."
Travelers, 975 A.2d at 826. Thus, "[u]nless the
agencys interpretation is plainly wrong or inconsistent with
the statute, we will sustain it even if there are other
constructions which may be equally reasonable."
National Geographic Socy v. District of Columbia Dept
of Empt Servs., 721 A.2d 618, 620 (D.C. 1998).
"However, the natural corollary of the agency deference
proposition is that we are not obliged to stand aside and
affirm an administrative determination which reflects a
misconception of the relevant law or a faulty application of
the law," Id. (citation, internal quotation
marks, and emphasis omitted), as "this court is the
final authority on issues of statutory construction."
Fluellyn, 54 A.3d at 1160 (citation and internal
quotation marks omitted).
III. The Legal Framework
D.C. Workers Compensation Act ("the Act"), D.C.
Code § § 32-1501-1545, creates a comprehensive scheme for
workers to recover wage loss and medical benefits from their
employers for injuries sustained on the job. It is an
exclusive and mandatory regime - one that includes a
"statutory presumption of compensability" - because
"[e]mployees and employers were both thought to gain by
a system in which common law tort remedies were discarded for
assured compensation regardless of negligence or fault."
Ferreira v. District of Columbia Dept of Empt
Servs., 531 A.2d 651, 654-55 (D.C. 1987); see
also D.C. Code § § 32-1503 ("Coverage"), -1504
("Exclusiveness of liability and remedy"), -1521
("Presumptions"), -1538 ("Insurance
policies"), -1539 ("Failure to secure payment of
compensation"), -1542.04 ("Compliance") (2019
Code § 32-1520 outlines the procedures an employee must
follow to file a claim of injury, as well as the obligations
of the Mayor (through DOES) to provide notice of the claim to
the employer, investigate the claim, and provide an
opportunity for a hearing on the claim. D.C. Code § 32-1520
(2019 Repl.). The regulations promulgated pursuant
to the Act elaborate upon various aspects of the claims
process, 7 DCMR § § 203-212 (2019), and state that OWC
"may utilize ... non-adjudicative fact finding
procedures including informal conferences under § 219 of this
chapter to narrow issues, encourage voluntary payment of
claims, and encourage agreement between interested
parties." 7 DCMR § 211.2.
219, entitled "informal procedures," outlines the
process by which OWC conducts informal conferences. If an
agreement is reached at an informal conference, OWC must
prepare a final order embodying the agreement. 7 DCMR §
219.16 (2019). If an agreement is not reached at an informal
conference, OWC must prepare a Memorandum of Informal
Conference containing recommendations, and the parties have
fourteen working days to indicate in writing whether they
accept or reject its terms. 7 DCMR § 219.18-.20. Once the
Memorandum is issued, if the parties submit a joint statement
to OWC within fourteen working days accepting its terms and
indicating their intent to be bound by it, and if neither
party applies for a formal hearing within thirty-four working
days, the Memorandum becomes final and OWC must
issue a final order to that effect. 7 DCMR § 219.21-.22;
see Travelers, 975 A.2d at 829 ("[T]he
Memorandums legal force derives from its acceptance by the
parties."). Participation in the conference is
voluntary, 7 DCMR § 219.2, and, if either party applies for a
formal hearing, informal procedures must terminate. 7 DCMR §
219.23; see National Geographic Socy, 721
A.2d at 622 ("Once an application for a formal hearing
is filed ... all informal procedures must be
terminated." (citing 7 DCMR § 219.23));
Travelers, 975 A.2d at 829 ("[T]he initial
filing of an application for a formal hearing [is] the point
when the informal procedures terminate. " (citing 7
DCMR § 219.23)). The regulations also outline the process by
which AHD conducts formal hearings, 7 DCMR § § 220-223
(2019), and state that the Memorandum cannot be admitted as
evidence at a hearing. 7 DCMR § 223.3.
the Act, a workers compensation claimant is presumed to be
entitled to compensation paid by the employer, but is only
allowed to recover attorneys fees from the employer in the
two scenarios described in the Acts attorneys fees
provision, D.C. Code § 32-1530 (2019 Repl.):
First, [under subsection (a) ], a claimant may recover
attorneys fees if the employer disputes liability for the
disability and the claimant thereafter uses an attorneys
services to successfully obtain compensation.
[Second, under subsection (b) ], a claimant may recover
attorneys fees if the employer tenders compensation
initially without an award, but later refuses to pay
additional compensation recommended by the agency after an
informal conference, and the claimant uses an attorney to
recover a greater amount via an award of compensation.
Fluellyn, 54 A.3d at 1160 (discussing D.C. Code §
32-1530). Subsection (c) further states:
"In all cases, fees for attorneys
representing the claimant shall be approved in the manner
herein provided." D.C. Code § 32-1530(c). The
regulations, in turn, set forth the content, contours, and
logistical requirements of applications for attorneys fees.
7 DCMR § § 224, 269 (2019).
court has interpreted § 32-1530 strictly, and has denied
applications for attorneys fees where the criteria set forth
in the provision are not satisfied. In C & P Telephone
Co. v. District of Columbia Department of Employment
Services,638 A.2d 690 (D.C. 1994), we noted that, under
the Act, "a person claiming compensation may be entitled
to recover attorneys fees in only two situations," id.
at 693, and held that the claimant could not recover
attorneys fees from the employer because neither situation
obtained in that case: the employer initially paid medical
benefits and thus did not "decline to pay any
compensation," making subsection (a) inapplicable,
Id. at 691, 696, and the ...