Dell v. Department of Employment Services, 84-891.

• Decision Date: 30 September 1985
• Docket Number: No. 84-891.,84-891.
• Citation: 499 A.2d 102
• Court: D.C. Court of Appeals
• Parties: Raymond DELL, Petitioner, v. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, International Hotel and Crum & Forster Insurance Company, Intervenors.

499 A.2d 102

Raymond DELL, Petitioner, v. DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, International Hotel and Crum & Forster Insurance Company, Intervenors.

No. 84-891.

District of Columbia Court of Appeals.

Argued March 20, 1985.

Decided September 30, 1985.

COPYRIGHT MATERIAL OMITTED

George E. Swegman, Washington, D.C., for petitioner.

Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Jeffrey W. Ochsman, Washington, D.C., for intervenors.

Before PRYOR, Chief Judge, and NEW-MAN and TERRY, Associate Judges.

TERRY, Associate Judge:

Petitioner seeks review of an order of the Department of Employment Services denying his claim for workers' compensation benefits. We find error in the Department's ruling, and accordingly we reverse.

I

Raymond Dell, the petitioner, was working as a bartender at the International Hotel on August 29, 1982, when he was injured on the job. Having gone to a storeroom for some supplies, Dell found himself standing in a puddle of syrup. In trying to extricate himself from the syrup, he slipped and fell, hitting his back and hip against a partition and a refrigerator.

At the time of his accident, Mr. Dell was not in tip-top physical condition. In 1970 he injured his left knee in an automobile accident, and eventually he had surgery on the knee in April 1977. He applied for Social Security disability benefits due to his knee injury, but was turned down. He was, however, granted limited Social Security retirement benefits, since he was then sixty-three years old.

In 1978 Dell began part-time employment. He went to work for the International Hotel in 1979 as a bartender, working about twenty hours a week. He continued, however, to have medical problems. In June 1982 he had corrective surgery for varicose veins in his legs. He also suffered from pain in his left knee, although this condition did not cause him to miss any work.

On August 20, 1982, Mr. Dell was examined by Dr. Peter Kenmore, a professor of orthopedic surgery at Georgetown University Medical Center. Dr. Kenmore diagnosed Dell's left knee problem as actually stemming from severe arthritis of the left hip. Dell, however, made no complaints about his left hip, and at the hearing below he testified that his hip was not bothering him in August 1982.¹ Nevertheless, Dr. Kenmore told Mr. Dell that his hip would eventually require surgery, which Dell declined for the time being, opting instead for treatment by medication.

Dr. Kenmore examined Mr. Dell again on August 27, two days before his on-the-job injury. The doctor's diagnosis was unchanged, but Dell still refused to have surgery on his hip.

After he was injured on August 29, Mr. Dell continued to work until October 1. When he visited Dr. Kenmore on September 17 for another examination, Dell did not mention his accident, but the doctor did notice some tenderness over Dell's left buttock. Dell did tell Dr. Kenmore about his accident when he saw him again on September 27, complaining of a new pain in the back of the hip. Dr. Kenmore examined him and concluded that he had aggravated the arthritic condition in his hip and had also sustained a new back injury.

On October 1 Mr. Dell was still in pain, so he visited the doctor again to discuss the possibility of an operation. On October 12 he finally had the operation, which included a total replacement of his hip. Post-operative bleeding caused pressure on the sciatic nerve, resulting in a numbness and paralysis of his left foot. He now can walk only with the aid of a brace or a cane.

Mr. Dell filed for benefits under the District of Columbia Workers' Compensation Act, D.C. Code §§ 36-301 through 36-345 (1981 & 1985 Supp.). He testified at a hearing before a hearing examiner, and depositions were received in evidence from both Dr. Kenmore and Dr. Maxwell Hurston, who in August 1983, a year after the injury, examined Mr. Dell and reviewed his medical records. The hearing examiner issued a "Proposed Compensation Order" awarding Dell disability benefits, to which both parties filed exceptions. Dell argued that the evidence entitled him to permanent benefits, even though his claim was only for temporary benefits; his employer, the International Hotel, essentially challenged the sufficiency of the evidence.

The Director of the Department of Employment Services (hereafter "the Director") rejected the hearing examiner's proposed order, ruling that it was not supported by substantial evidence. He also found Dell's disability not to be permanent. Dell now asks this court to reverse the Director's decision and to award him the benefits he seeks.

II

Our principal task here is to determine the correct standard by which the Director may review the findings of a hearing examiner in a workers' compensation case. Petitioner argues that the Director was limited to a substantial evidence review of the hearing examiner's proposed compensation order, and that the Director exceeded his authority by considering the matter de novo and rejecting the examiner's findings, which were supported by substantial evidence.

The right to a hearing in a workers' compensation case is granted by statute to "any interested party." D.C.Code § 36-320 (c) (1981) provides in pertinent part: The Mayor shall make or cause to be made such investigations as he considers necessary in respect of the claim [for compensation], which may include processing the claim through a central system in order to give the Mayor an advisory opinion on the rate and degree of disability. Upon application of any interested party, the Mayor shall order a hearing within a reasonable time. . . . Within twenty days after such hearing is held, the Mayor shall by order reject the claim or make an award in respect of the claim based upon substantial evidence before him. If no hearing is ordered . . . the Mayor shall, by order, reject the claim or make an award in respect of the claim based upon substantial evidence before him.

The Mayor has delegated all his functions under the Workers' Compensation Act to the Director of the Department of Employment Services. Mayor's Order No. 82-126, 29 D.C. Reg. 2843 (1982). The Director, in turn, has issued regulations governing workers' compensation proceedings. The regulations pertinent to this case are as follows:

3626.2. Where Application for Hearing has been made by an interested party or where a hearing has been ordered by the Office [of Workers' Compensation] on its own initiative, a compensation order shall be issued by a Hearing or Attorney Examiner within twenty (20) working days after the impartial hearing is concluded.

3626.3. Where an interested party seeks review of a compensation order issued by the Office without a hearing, the Director shall provide administrative review under section 23(b)(2) of the Act [D.C.Code § 36-322(b)(2) (1981)].

3626.4. The Director shall affirm the compensation order if it is supported by substantial evidence in the record.

29 D.C.Reg. 5565 (1982) (emphasis added). The italicized language, compelling the Director to affirm any compensation order which is based on substantial evidence, provides strong support for petitioner's argument. The Department maintains, however, that this regulation has no bearing on petitioner's case. According to the Department, section 3626.4 applies only to those compensation orders issued without a hearing.²

This court is fully aware of the deference that it must ordinarily give to an agency's interpretation of its own regulations. As the Supreme Court has said, an agency's interpretation "becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945); accord, e.g., Dupont Circle Citizens Ass'n v. District of Columbia Zoning Commission, 431 A.2d 560, 565 (D.C. 1981). In this case, however, we conclude for two reasons that the Department plainly erred in interpreting section 3626.4 as inapplicable to the present case.

First, the court cannot accept an interpretation which contradicts the plain language of the regulation itself. In Dankman v. District of Columbia Board of Elections and Ethics, supra note 2, the Board had invalidated the signatures on several petitions on the sole ground that the persons circulating the petitions were not qualified electors in the District of Columbia. But the Board's ruling contradicted one of its own regulations, which specifically stated that the failure of a circulator to be a qualified elector did not invalidate the signatures of persons who were qualified electors. The Board attempted to justify its position by injecting — through interpretation — several qualifiers into the plain meaning of the regulation. We held that the Board's interpretation "served to qualify the rule into oblivion" and was plainly erroneous. 443 A.2d at 514.

Similarly, the regulation at issue here, section 3626.4, contains no qualifiers. Nowhere does it state that it applies only to those compensation orders issued without a hearing. Although the immediately preceding regulation, section 3626.3, refers to orders issued without a hearing, the regulation before that, section 3626.2, deals with orders issued after a hearing has been held. There is nothing in the language of section 3626.4 that limits its application to one type of compensation order rather than the other. Nor does section 3626.4 differentiate between a hearing examiner's "recommended" or "proposed" order and a "final" order. Section 3626.2 refers to the hearing examiner's decision as a "compensation order," and the regulations do not suggest that this order is different in any way from the "compensation order" mentioned in section 3626.4.³ Consequently, we cannot accept...