Adjei v. DEPT. OF EMPLOYMENT SERVICES, 01-AA-1580.

• Decision Date: 20 February 2003
• Docket Number: No. 01-AA-1580.,01-AA-1580.
• Citation: 817 A.2d 179
• Parties: Justice ADJEI, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Colonial Dodge, Inc., and Universal Underwriters Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

817 A.2d 179

Justice ADJEI, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Colonial Dodge, Inc., and Universal Underwriters Insurance Company, Intervenors.

No. 01-AA-1580.

District of Columbia Court of Appeals.

Argued January 16, 2003.

Decided February 20, 2003.

Richard W. Galiher, Jr., Rockville, MD, for petitioner.

Thomas G. Hagerty, Washington, DC, for intervenors.

Robert R. Rigsby, Corporation Counsel at the time, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Before WAGNER, Chief Judge, and REID and GLICKMAN, Associate Judges.

GLICKMAN, Associate Judge:

Justice Adjei asks us to reverse a decision by the Department of Employment Services (DOES) denying his claim for workers' compensation benefits on the ground that he and his employer were exempted from the provisions of the District of Columbia Workers' Compensation Act by the exception to the Act's coverage set forth in D.C.Code § 32-1503(a-3) (2001). Adjei contends that DOES misconstrued the scope of the coverage exception and misapplied it by disregarding substantial evidence in the record. We conclude otherwise and affirm the denial of Adjei's claim.

I.

Adjei worked for Colonial Dodge, Inc., as a "parts driver," delivering automotive parts and supplies to service stations and other locations in Maryland, Virginia and the District of Columbia. Adjei claimed that he sustained a cumulative back injury carrying cases of antifreeze on three separate delivery runs, the first two in Maryland and the last in the District. Adjei filed for workers' compensation benefits in both the District and Maryland.

At the time of his injury, Adjei was a resident of Maryland. Colonial Dodge was headquartered in Maryland and was licensed and registered to do business there. Adjei had entered into his employment contract with Colonial Dodge in Maryland, and Colonial Dodge furnished coverage for its employees, including Adjei, under the workers' compensation law of Maryland.¹ Daily delivery run records for the two-week period leading up to the date of Adjei's injury showed that most of his deliveries were in Maryland, and only a handful of delivery runs—thirteen out of two hundred thirty, or fewer than six percent—were in the District of Columbia. The runs into the District were comparable in duration to the runs elsewhere.

The DOES hearing examiner concluded on these undisputed facts that subsection (a-3)² of D.C.Code § 32-1503 exempted Adjei and Colonial Dodge from the coverage of the District of Columbia Workers' Compensation Act. The examiner considered the sole point in contention to be whether Adjei worked in the District only "intermittently" within the meaning of subsection (a-3). Adjei argued that the term "intermittently" signified employment that was temporary, part-time or seasonal. The examiner rejected this argument on the ground that the term is used in the statute "to qualify and quantify the actual time in the District of Columbia as opposed to describing claimant's employment as a whole." Since "intermittently" is not defined in the Act, the examiner referred to the dictionary definition of "intermittent" as meaning "coming and going at intervals: not continuous; also occasional."³ Using this definition, the examiner concluded that Adjei's deliveries in the District were occasional and hence intermittent under the Act.

Adjei appealed the hearing examiner's denial of his claim to the Director of the Department of Employment Services. While his appeal was pending, the Maryland Workers' Compensation Commission disallowed the claim for benefits that Adjei had filed under Maryland law based on its finding that Adjei did not sustain an accidental injury arising out of and in the course of employment.⁴

Thereafter, the Director of DOES affirmed the hearing examiner's denial of Adjei's claim. The Director concluded that "[a]s Claimant only made a few trips in the District, when compared to the trips Claimant made in Maryland, Claimant was properly classified as working only intermittently in the District of Columbia" for purposes of D.C.Code § 32-1503(a-3). Deeming the other requirements of subsection (a-3) satisfied as well, the Director agreed with the examiner that the District of Columbia did not have "jurisdiction" over Adjei's claim.

After filing his petition for review in this court, Adjei moved to remand the case for DOES to consider whether the District had a substantial interest in awarding benefits to him in light of Maryland's denial of benefits for the same injury. Intervenors Colonial Dodge and its workers' compensation insurance carrier opposed a remand, though DOES did not, and Adjei's motion for remand was denied. Adjei represents that his appeal from the decision of the Commission in Maryland has been stayed pending the outcome of his appeal here.

II.

Adjei argues that D.C.Code § 32-1503(a-3), supra footnote 2, did not exempt him and Colonial Dodge from the coverage of the D.C. Workers' Compensation Act for two reasons: because the Maryland Workers' Compensation Commission denied his claim for benefits under Maryland law, and because three months' worth of daily run records showed that he continuously made deliveries in the District several days each week as part of his job. In support of his first reason, Adjei argues that subsection (a-3) should not be construed to apply where the employee has not received and is not entitled to receive benefits under the workers' compensation scheme of another jurisdiction for the work-related injury that the employee suffered in the District. Claiming that subsection (a-3) is ambiguous on this point, Adjei renews his request that we remand the case for DOES to construe the exemption in light of his proposed construction and the purpose and legislative history of the statute as a whole. In support of his second reason, Adjei argues that because he made periodic, regular and repeated deliveries in the District, he was not working just "temporarily or intermittently" in the District within the meaning of subsection (a-3). In this connection, Adjei faults the hearing examiner for basing her decision on delivery run records for only a two-week period rather than the full three-month period that the records covered.

We disagree with each of Adjei's contentions. As to the first, we conclude that no remand is necessary because the statute will not admit of the construction that Adjei advances. As to Adjei's second contention, we reject it because the agency adopted a reasonable interpretation of subsection (a-3), the finding that Adjei worked in the District only intermittently was supported by substantial evidence and consideration of Adjei's deliveries over a period of three months, rather than two weeks, would not have changed the outcome.

A.

Subsection (a-3) of D.C.Code § 32-1503 is one of three narrow exceptions to the coverage of the D.C. Workers' Compensation Act.⁵ The three exceptions were included in the original version of the Act that took effect in 1980. See D.C.Code § 36-303(a)(1-3) (1981). At that time, the Act applied, subject to the exceptions, to employee injuries or deaths irrespective of where they occurred, but only so long as the employment was "principally localized" in the District of Columbia. Id.; see Petrilli v. District of Columbia Dep't of Employment Servs., 509 A.2d 629, 632 (D.C. 1986)

. In 1991 the Council amended the Act to remove the "principally localized" limitation where the injury or death occurs within the District, though the Council kept that limitation for injuries or deaths occurring outside the District. See King v. District of Columbia Dep't of Employment Servs., 742 A.2d 460, 466-67 (D.C. 1999). While the Council thereby expanded the availability of workers' compensation coverage for employees injured in the District, it nonetheless retained without substantive change the three original exceptions to coverage, which are now set forth in subsections (a-1) through (a-3) of D.C.Code § 32-1503.⁶

Subsection (a-3) exempts an employee and his or her employer who are not residents of the District of Columbia and whose employment contract was entered into in another state from the provisions of the D.C. Workers' Compensation Act "while such employee is temporarily or intermittently within the District of Columbia doing work for such nonresident employer," so long as the employer "has furnished workers' compensation insurance coverage under the workers' compensation or similar laws of such other state, so as to cover such employee's employment while in the District of Columbia." It is agreed in the present case that Adjei and Colonial Dodge were not residents of the District and that Adjei entered into his employment contract with Colonial Dodge in Maryland. It is also agreed that Colonial Dodge had furnished workers' compensation insurance coverage under the workers' compensation laws of Maryland, and that this insurance covered Adjei's employment while he was on delivery runs in the District of Columbia.

Although Adjei's employment was covered under Maryland law, the Maryland Workers' Compensation Commission decided that Adjei did not sustain a compensable injury in a work-related accident and denied him benefits. But this denial of benefits did not mean that subsection (a-3) was inapplicable to Adjei's claim in the District, even if the basis for the denial was that Maryland workers' compensation law does not recognize cumulative injuries as accidental the way the District's law does. See footnote 4, supra. As a general rule, it would be quite cumbersome and, indeed, unworkable to require DOES to evaluate whether an injury is compensable under the law of another jurisdiction, or to await the ultimate outcome of the employee's claim for compensation in another jurisdiction, as a precondition to deciding whether the employee and the employer are exempt under subsec...