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.

Kelly v. District of Columbia Department of Employment Services

Court of Appeals of The District of Columbia

August 29, 2019

Darryl Kelly, Petitioner,
v.
District of Columbia Department of Employment Services, Respondent, and Potomac Electric Power Company, Intervenor.

          Argued January 16, 2019

          On Petition for Review of an Order of the Compensation Review Board (CRB-110-17)

          Benjamin E. Douglas for petitioner.

          Karl A. 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.

          William H. Schladt for intervenor.

          Before Fisher and Easterly, Associate Judges, and Washington, Senior Judge.

          OPINION

          WASHINGTON, SENIOR JUDGE.

         Workers' compensation claimant Darryl Kelly petitions for review of a decision holding that he cannot recover attorney's fees from his former employer, the Potomac Electric Power Company ("Pepco"), because the conditions precedent to an award of attorney's fees under D.C. Code § 32-1530 were not satisfied. For the reasons discussed below, we affirm.

         I. Factual Background & Procedural Posture

         Kelly 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.

         On 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 occurred.

         The 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 attorney's 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 attorney's 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 law.

         On remand, the ALJ issued an October 20, 2017 order concluding that Kelly was not entitled to attorney's fees because: (1) the arguments raised by Kelly in support of his attorney's 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 attorney's 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.

         In a decision and order issued on December 15, 2017, the CRB affirmed the ALJ's order, rejecting the res judicata rationale, but finding that the ALJ's interpretation of D.C. Code § 32-1530 was correct under this court's jurisprudence and the CRB's past holdings. Kelly then petitioned this court for review of the CRB's decision and order.

         II. Standard of Review

         "Our review of administrative agency decisions is limited." Providence Hosp. v. District of Columbia Dep't of Emp't 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 agency's 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 Dep't of Emp't Servs., 975 A.2d 823, 826 (D.C. 2009). While our review of the CRB's legal rulings is de novo, Fluellyn v. District of Columbia Dep't of Emp't 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 Dep't of Emp't Servs., 806 A.2d 209, 211 (D.C. 2002); Johnson v. District of Columbia Dep't of Emp't Servs., 111 A.3d 9, 11 (D.C. 2015). Indeed, we will "defer to an agency's 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 agency's 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 Soc'y v. District of Columbia Dep't of Emp't 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

         The 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 Dep't of Emp't 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 Repl.).

         A. Claim Procedures

         D.C. 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.).[1] 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.

         Regulation 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 Memorandum's 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 Soc'y, 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.

         B. Attorney's Fees

         Under the Act, a workers' compensation claimant is presumed to be entitled to compensation paid by the employer, but is only allowed to recover attorney's fees from the employer in the two scenarios described in the Act's attorney's fees provision, D.C. Code § 32-1530 (2019 Repl.):

First, [under subsection (a)], a claimant may recover attorney's fees if the employer disputes liability for the disability and the claimant thereafter uses an attorney's services to successfully obtain compensation. . . .
[Second, under subsection (b)], a claimant may recover attorney's 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).[2] 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 attorney's fees. 7 DCMR §§ 224, 269 (2019).

         This court has interpreted § 32-1530 strictly, and has denied applications for attorney's 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 attorney's fees in only two situations," id. at 693, and held that the claimant could not recover attorney's 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 employer paid the full amount claimed within fourteen days of issuance of the Memorandum of Informal Conference, making subsection (b) inapplicable. Id. at 691-92, 697.

         Similarly, in National Geographic, we stated that "[t]he statute is clear and unambiguous in setting forth the circumstances under which a claimant can be awarded attorney's fees." National Geographic Soc'y, 721 A.2d at 621. We found that "[t]he last sentence of [subsection] (b), [which] reads[, ] 'In all other cases any claim for legal services shall not be assessed against the employer or carrier, '" provides "the clearest expression of legislative intent to limit the circumstances under which the claimant may recover attorney fees to those outlined explicitly in the statute." Id. (quoting § 32-1530).[3] We concluded that, because the claimant in that case applied for a formal hearing when no informal conference had been held, thereby terminating all informal procedures, the parties never received a "recommendation by the Mayor" following an informal conference - meaning that the employer could not and did not reject such a recommendation. Id. at 621-22. We held that, because this criterion of subsection (b) was not met, claimant was not entitled to fees, noting that "the language of the statute [] specifies the circumstances under which an award of attorney's fees is authorized and denies such fees in all other circumstances." Id. at 622.

         In Providence Hospital, we again stated that "a claimant [can] recover attorney's fees in only two situations." Providence Hosp., 855 A.2d at 1111. In that case, an informal conference occurred and a written recommendation was issued, but the claimant rejected the recommendation and sought a formal hearing. Id. at 1110, 1112. We held that "[t]he statute clearly did not apply because [the employer] never rejected the Mayor's recommendation" - and thus the claimant could not recover attorney's fees. Id. at 1113. We concluded: "The statute is specific in setting forth the requisite conditions for a claimant to recover attorney's fees, and leaves no discretion to the agency or court to decide cases in which all the conditions are not met." Id. at 1114.

         Then, in Fluellyn, we began by noting the "two distinct scenarios" under which attorney's fees can be assessed against an employer, Fluellyn, 54 A.3d at 1160, and found that the case did not meet the criteria of either scenario. The employer initially paid compensation to the claimant, the parties participated in an informal conference, OWC issued a written recommendation, and the employer rejected the recommendation and applied for a formal hearing. Id. at 1158. However, the parties reached a settlement before the hearing was held, so the employer withdrew its application for a formal hearing, which was dismissed without prejudice. Id. Because there was no formal hearing and thus no ALJ order awarding compensation to the claimant, the final condition was not met and claimant was not eligible for attorney's fees under subsection (b). Id. at 1164-65.

         Most recently, in Turner v. District of Columbia Department of Employment Services, 210 A.3d 156 (D.C. 2019), we noted that "attorney's fees are warranted under § 32-1530 in only two limited situations." Id. at 159. In Turner, an informal conference was held and a Memorandum of Informal Conference was issued, but the claimant rejected the Memorandum, sought a formal hearing, and received a compensation award. Id. at 158. We concluded that, because the claimant rejected the Memorandum, the claimant "failed to satisfy the 'express condition' of subsection (b) that the employer must 'refuse to accept [the Mayor's] written recommendation." Id. at 160 (brackets in original).[4] Thus, the claimant was not entitled to receive attorney's fees from the employer under § 1530(b), as "the plain language of the fee award statute . . . expressly excludes 'all other cases' than those that meet the criteri[a] of either subsection (a) or (b)." Id. at 162.[5]

         IV. Discussion

         The parties agree that subsection (a) of § 32-1530 does not apply, as Pepco initially paid on Kelly's claim and did not "decline to pay any compensation." The parties disagree, however, regarding whether subsection (b) applies. This is a question of statutory interpretation, which we review de novo, but we will defer to the CRB's reasonable interpretation of an ambiguous provision of the Act.

         Kelly argues that the facts of this case fit under § 32-1530(b), as Pepco initially paid him compensation without an award, Pepco then (effectively) refused to pay additional compensation recommended by DOES, and Kelly then used an attorney to recover a greater amount via an award of compensation from an ALJ. He contends that, while an informal conference did not occur because Pepco applied for a formal hearing before the conference could take place, this action on Pepco's part amounted to a rejection of the informal conference and thus a rejection of any possible written recommendation from the Mayor. He argues that the statutory language encompasses not only a situation in which an employer rejects an actual written recommendation issued by OWC after a conference, but also encompasses Pepco's actions, which were tantamount to "refus[ing] to accept such written recommendation."

         Kelly further asserts that our decision in National Geographic and the CRB's decision in Anderson v. Washington Hospital Center, CRB No. 12-078, 2013 WL 494504 (January 23, 2013), stand for the proposition that a claimant cannot file for a formal hearing before an informal conference is held and then seek to recover attorney's fees - but they do not prevent a claimant from recovering attorney's fees when it is the employer (not the claimant) who has evaded informal procedures. He also claims that the intent of the Act is to promote informal procedures as a means of inexpensive and efficient dispute resolution, and that the denial of attorney's fees to a claimant in his position destroys the parties' incentives to use informal procedures.

         "Section 32-1530(b) specifies that a claimant may recover attorney's fees only where, after making voluntary payments, the employer has rejected the recommendation of the agency . . . after an informal conference, and compensation is thereafter awarded that is greater than the amount of compensation tendered by the employer." Fluellyn, 54 A.3d at 1161 (internal quotation marks and brackets omitted). It is undisputed that Pepco made voluntary payments and that Kelly was ultimately awarded compensation that was greater than that tendered by Pepco. The question, then, is whether what occurred here can be construed as Pepco "reject[ing] the recommendation of the agency . . . after an informal conference."

         A. The Plain Language of the Attorney's Fees Provision

         Subsection (b) states that "the Mayor shall recommend in writing a disposition of the controversy," and it authorizes attorney's fees "[i]f the employer or carrier refuse[s] to accept such written recommendation, within 14 days after its receipt by them." It appears that, for reasons that are not entirely clear, "written recommendation" is not defined in the Act or the regulations. Nor does the statute itself refer to the informal conference; the informal conference and Memorandum of Informal Conference are discussed in Regulation 219, which outlines informal procedures. 7 DCMR § 219.18-.22. Nevertheless, our case law has read the language in § 32-1530(b) - "the Mayor shall recommend in writing a disposition of the controversy" - to implicate the informal conference described in Regulation 219, meaning that the Mayor's "written recommendation" referred to in the statute is the Memorandum of Informal Conference described in the regulation. Turner, 210 A.3d at 158-59; Fluellyn, 54 A.3d at 1158, 1161, 1164; Providence Hosp., 855 A.2d at 1110, 1113-14; National Geographic Soc'y, 721 A.2d at 621-22; see also Travelers, 975 A.2d at 829; Anderson, 2013 WL 494504, at *2-3.[6]

          As is clear from the discussion of our case law above, we have construed § 32-1530(b) narrowly and have denied applications for attorney's fees when the conditions described in that subsection are not fully satisfied. The language of the statute, read in conjunction with the regulation, dictates that the employer must reject the Mayor's written recommendation - the Memorandum of Informal Conference - in order for the conditions of subsection (b) to be satisfied.[7] This is particularly so in light of the fact that the statute requires that the employer reject the written recommendation "within 14 days after its receipt," and one can only receive something that actually exists. Further, the regulation states that this refusal must be submitted "in writing." 7 DCMR § 219.20. Thus, there can be no constructive refusal to accept a written recommendation, as Kelly urges. Rather, Pepco must have actually received a written recommendation from DOES and refused to accept it - in writing - within fourteen days. That is not what occurred here, and this case therefore falls into the category of "all other cases [in which] any claim for legal services shall not be assessed against the employer or carrier." § 32-1530(b); see also § 32-1530(c) ("In all cases, fees for attorneys representing the claimant shall be approved in the manner herein provided."). Hence, the CRB's holding that attorney's fees are not authorized in this case was reasonable in light of the language of the statute and judicial precedent.[8]

         While Kelly may argue that this outcome is formalistic or even harsh, we are bound by the plain language of the statute, and we have held that "the plain language of § 32-1530(b) authorizes an award of attorney's fees only when the express conditions of the statute are met, including the employer's rejection of the Mayor's written recommendation in the case." Providence Hosp., 855 A.2d at 1114. As we stated in response to a similar argument regarding the "humanitarian purpose" of the Act:

In applying the Act, we are aware of the principle that workers' compensation laws are to be liberally construed for the benefit of the employee. While that principle allows doubts to be resolved favorably to the employee, it does not relieve the courts of the obligation to apply the law as it is written and in accordance with its plain meaning. The plain language of [subsection] (b) makes an award of attorney's fees appropriate, insofar as it is relevant here, only where a controversy develops over additional compensation and the employer declines to accept the Mayor's recommendation for resolution within fourteen days of its receipt. That did not occur here.

National Geographic Soc'y, 721 A.2d at 622 (citation, internal quotation marks, and footnote omitted).

         On a related note, Kelly's contention that the workers' compensation regime favors informal resolution of disputes may well be true, as the chief ALJ acknowledged in his February 2017 letter to the parties. But we look ...


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.