630 A.2d 699 (D.C. 1993), 90-AA-733, Oubre v. District of Columbia Dept. of Employment Services

Docket Nº:90-AA-733.
Citation:630 A.2d 699
Party Name:Jerome OUBRE, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,and A.A. Beiro Construction Company,and Hartford Accident & Indemnity Company, Intervenors.
Case Date:August 26, 1993
Court:Court of Appeals of Columbia District

Page 699

630 A.2d 699 (D.C. 1993)

Jerome OUBRE, Petitioner,



A.A. Beiro Construction Company,and

Hartford Accident & Indemnity Company, Intervenors.

No. 90-AA-733.

Court of Appeals of Columbia District

August 26, 1993

Argued March 26, 1992.

Page 700

William F. Mulroney, Landover, MD, for petitioner.

Charles L. Resichel, Deputy Corp. Counsel, and John Payton, Washington, DC, Corp. Counsel, filed a memorandum in lieu of brief, for respondent.

William P. Dale, with whom William S. Sands, Jr., Washington, DC, was on the brief, for intervenors.

Before STEADMAN and WAGNER, Associate Judges, and MACK, Senior Judge.

WAGNER, Associate Judge:

This case arises under the District of Columbia Workers' Compensation Act, D.C.Code §§ 36-301 to -345 (1988) (the Act). Petitioner, Jerome Oubre, seeks review of a decision of the Department of Employment Services (DOES) reversing and setting aside a portion of a compensation award as determined by a hearing examiner. The Director of DOES reversed the examiner's decision, concluding that the wage issue had been resolved conclusively in a prior proceeding involving the same accident and parties. Petitioner's principal argument before this court is that res judicata principles do not operate to bar a redetermination of his actual wages under the Act where the earlier ruling was based upon a stipulation reached by the parties as a result of erroneous information provided by the employer. Intervenors, A.A. Beiro Construction Company (Beiro) and Hartford Accident & Indemnity Company (Hartford), and the District of Columbia take the position that the Act does not provide for modification of a prior, final compensation order based upon mutual mistake of fact. We conclude that issue preclusion principles do not apply where there is manifest error in the record of the prior proceeding based upon the parties' mutual mistake in calculating the statutory rate of workers' compensation.


Petitioner sustained a back injury arising out of and during the course of his employment as a carpenter for Beiro. He filed a claim for workers' compensation under the Act. After a full evidentiary hearing on the claim, the Acting Chief Hearing Examiner, Robert C. Baker, entered a compensation order on April 10, 1987 awarding Oubre temporary total disability benefits for

Page 701

the period October 12, 1985 to September 24, 1986. [1] The compensation award was based upon an average weekly wage of $507.28, a figure to which the parties stipulated based upon wage records provided by Beiro. Neither party sought review or reconsideration of the order, and it became final on May 10, 1987.

Subsequently, petitioner filed a claim for additional benefits based upon aggravation of his original injury. Prior to the evidentiary hearing on the subsequent claim, the employer, Beiro, filed a motion to exclude any new evidence of petitioner's average wage unless petitioner could show a "change in condition" as required by D.C.Code § 36-324. Beiro also argued that res judicata principles precluded petitioner from relitigating the issue which was decided in the first proceeding. The hearing examiner denied Beiro's motion and admitted the evidence. Following the hearing, the examiner awarded benefits based upon a corrected average weekly wage of $602.24. [2]

The examiner observed that this wage information was based upon evidence provided petitioner by the employer which was uncontroverted. Further, the examiner stated that the claim under consideration involved an additional period of benefits and therefore, the prior decision had no bearing on the claim. [3] The compensation order required the employer to pay petitioner benefits based on the corrected average weekly wage for the following: (1) temporary partial disability benefits from September 25, 1986 through March 24, 1987; (2) temporary total disability benefits from March 25, 1987 through April 5, 1988; and (3) permanent total disability benefits beginning April 6, 1988. The employer filed an application for review with the Director of DOES. See D.C.Code § 36-322(b)(2).

On appeal at the agency, the employer contended, inter alia, that the hearing examiner's decision to readjudicate petitioner's average weekly wage was contrary to law and precluded by res judicata principles. While acknowledging that the stipulation of wages at the first claim's hearing was based upon erroneous information supplied by the employer and its carrier, applying res judicata principles, the Director of DOES nevertheless held that petitioner could not relitigate the wage issue absent a showing that the information previously provided was "fraudulently tendered-vis-a-vis-tendered as a mistake of fact." Therefore, the Director set aside that portion of the order redetermining petitioner's average weekly wage and affirmed and adopted the remaining findings and decision of the hearing examiner. The Director rejected the employer's and carrier's argument that the claim should have been considered as a modification of the original compensation order on its merits and on the basis that the employer had not made the argument before the hearing examiner.


Petitioner argues that res judicata principles do not bar correction of a mutual mistake of fact which results in the deprivation of benefits to the employee as mandated by the Act. See D.C.Code § 36-311(a). Petitioner...

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