C & P TELEPHONE v. DEPT. OF EMP. SERV.

• Decision Date: 15 March 1994
• Docket Number: No. 92-AA-40,92-AA-40
• Citation: 638 A.2d 690
• Parties: C & P TELEPHONE COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Patricia Robertson, Intervenor.
• Court: D.C. Court of Appeals

638 A.2d 690

C & P TELEPHONE COMPANY, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENTOF EMPLOYMENT SERVICES, Respondent, Patricia Robertson, Intervenor.

No. 92-AA-40.

District of Columbia Court of Appeals.

Argued November 3, 1993.

Decided March 15, 1994.

James G. Healy, Washington, DC, for petitioner.

Keith W. Donahoe, Washington, DC, for intervenor.

Charles L. Reischel, Deputy Corp. Counsel, and John Payton, Corp. Counsel, for respondent District of Columbia Dept. of Employment Services, adopting intervenor's brief.

Before ROGERS, Chief Judge, and FERREN and WAGNER, Associate Judges.

ROGERS, Chief Judge:

Petitioner, C & P Telephone Company, seeks review of a decision of the District of Columbia Department of Employment Services that petitioner must pay intervenor Patricia Robertson's attorney's fees under the District of Columbia Workers' Compensation Act, D.C.Code § 36-330(a) (Repl. 1993). Petitioner contends that the agency erred as a matter of law in ruling that § 36-330(a) applied where the employer had initially voluntarily provided some compensation, in the form of medical services, but did not pay monetary compensation immediately upon receipt of a doctor's report indicating an opinion on permanency. Petitioner also contends that the agency erred in awarding attorney's fees because intervenor failed to prove that the amount was reasonable. We hold that the agency's interpretation of § 36-330(a) is contrary to the plain language of the statute and the District's statutory scheme, which requires that only one written claim for compensation be filed. Accordingly, we reverse.

I.

On November 7, 1982, intervenor Patricia Robertson injured her left knee in the course of her employment with petitioner C & P Telephone Company. After intervenor timely filed a claim under the District of Columbia Workers' Compensation Act, see D.C.Code § 36-314 (Repl. 1993), petitioner provided medical treatment for intervenor at its clinic and later by Dr. Feffer, to whom she was referred by the clinic. Intervenor did not miss time from work as a result of the injury, however, and petitioner did not pay any temporary total disability benefits.

On May 2, 1985, intervenor, through counsel, requested that the agency schedule an informal conference based on the March 27, 1985, medical report of Dr. Neil Green, who concluded that intervenor had suffered a ten percent permanent partial disability in her left leg. Petitioner received the doctor's report on May 15, 1985. An informal conference was held on June 11, 1985.¹ Thereafter, on July 16, 1985, the claims examiner issued a memorandum of informal conference. The memorandum stated that the claims examiner had concluded that intervenor was entitledto receive compensation for permanent partial disability and recommended payment for ten percent permanent partial disability of the left leg of $11,472.26, which was due and payable. The claims examiner also recommended that petitioner assume liability for medical treatment rendered to intervenor and continue to provide it to her pursuant to D.C.Code § 36-307. The memorandum further reported that petitioner had requested that another doctor be chosen by the agency. By letter of July 23, 1985, to intervenor's counsel, petitioner sent a check to intervenor in the full amount. The check was cashed on July 29, 1985.

On July 25, 1985, intervenor's attorney requested that the agency approve attorney's fees, attaching a listing of legal services provided from April 28, 1983 through July 11, 1985, showing a total of 22.50 hours at $100 an hour, and the cost of the medical services of Dr. Green. The agency ultimately assessed against petitioner the total amount sought "subject to [a maximum of] 20 percent of actual benefits secured by counsel."

Petitioner maintained, however, that it was not liable for attorney's fees under either §§ 36-330(a) or 36-330(b) because it had paid compensation to intervenor before thirty days had expired after demand for payment was made by intervenor and never controverted the claim. Additionally, petitioner argued that the fees, if properly awarded, were without foundation and unreasonable. On December 14, 1987, a hearing was held at which the parties stipulated that intervenor had filed a timely claim and that petitioner had made payment for permanent partial impairment on July 22, 1985, pursuant to an informal conference recommendation. Petitioner also presented testimony regarding what had occurred at the informal conference, namely that its representative, Ms. Hunter, had requested that another physical examination be conducted by a physician chosen by the agency, because she "did not agree with the permanent disability rating," and that she had agreed to pay intervenor for the degree of disability found by the independent physician.²

The Hearing Examiner issued a compensation order on February 12, 1988, finding that prior to the informal conference petitioner stated that it accepted responsibility for the injury but not the disability rating, and that petitioner made payment to intervenor on July 22, 1985, pursuant to the informal conference recommendation.³ Significantly, the Examiner rejected petitioner's argument that attorney's fees were not due because its payment of medical expenses was the payment of compensation, making § 36-330(b) applicable. The Hearing Examiner appeared to reject this argument because petitioner had failed to demonstrate why it did not obtain an examination by an independent doctor between May 15, 1985, when it received the disability rating, and June 11, 1985, the date of the informal conference. Apparently, for this reason, the Examiner did not accept petitioner's position that it did not refute liability, but instead had exercised its right to an independent medical examination. Finally, the Examiner determined that § 36-330(b) was inapplicable because "compensation was not being paid to [intervenor]." Instead, the Examiner found that petitioner did not pay any permanent partial disability benefits until ordered to do so by an informal conference recommendation. The Examiner noted that in Nima v. Katania Bakery, H & AS No. 86-161, July 16, 1988, the agency had rejected arguments similar to those presented by petitioner. Therefore, because petitionerdid not pay permanent disability compensation before intervenor secured counsel and counsel had prepared for the case, the Examiner concluded that petitioner was liable for intervenor's attorney's fees under § 36-330(a) and that the fee was reasonable under the factors in 7 DCMR 3625.2 (1986).

Petitioner appealed, and the Director affirmed. The Director noted that petitioner had not paid any compensation for intervenor's permanent partial disability prior to the informal conference or at the conference, and that although petitioner did not file a Notice of Controversion, "the record indicates that petitioner did not acknowledge liability for compensation, until the claims examiner issued the recommended decision." In the Director's view, "[t]he fact that employer never filed a notice [of controversion] is not controlling, as under D.C.Code § 36-330(a), the key is that the employer never acknowledged liability for compensation and did not pay within thirty days [of receiving the doctor's disability rating]."

II.

Petitioner contends that the agency erred as a matter of law in ruling that D.C.Code § 36-330(a), and not § 36-330(b), was applicable. Petitioner argues that it had paid some compensation in the form of medical treatment shortly after intervenor's injury and had timely paid the recommended permanency compensation within fourteen days after the informal conference. More particularly, in its reply brief, petitioner maintains that the agency erred in treating intervenor's May 15, 1985, request for permanent partial disability compensation as a "claim for compensation" for purposes of triggering § 36-330(a)'s thirty-day limitation period. Rather, petitioner maintains, it had already responded to intervenor's claim for compensation by paying her timely medical benefits; accordingly, petitioner should not have been penalized for failing to pay intervenor compensation within thirty days of receiving the disability rating from Dr. Green on May 15, 1985, because the term "claim for compensation" refers to initial claims for benefits only, not subsequent requests.

Under the D.C. Workers' Compensation Act, a person claiming compensation may be entitled to recover attorney's fees in only two situations: first, 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, D.C.Code § 36-330(a);⁴ and second, if an employer "pays or tenders payment of 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. D.C.Code § 36-330(b).⁵ The Act provides for attorney's feesfor review proceedings before the Mayor or court as well, and places a cap on fees in excess of twenty percent of "the actual benefits secured through the efforts of an attorney. . . ." See D.C.Code § 36-330(c)-(d), & (f).

Sections 36-330(a) and (b) of the Act are virtually identical to the comparable provisions of the federal Longshore and Harbor Workers Act. See 33 U.S.C. § 928(a) and (b) (1989). Consequently, petitioner, in maintaining that the agency erred as a matter of law in ruling that D.C.Code § 36-330(a) and not § 36-330(b) applied, urges the court to be guided by the interpretations of the federal act. Petitioner relies on two decisions by the United States Court of Appeals for the Fifth Circuit.

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