Fluellyn v. Dist. of Columbia Dep't of Emp't Servs.

• Decision Date: 28 June 2012
• Docket Number: 10–AA–1025.,Nos. 10–AA–689,s. 10–AA–689
• Parties: Damion FLUELLYN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Washington Metropolitan Area Transit Authority, Intervenor.
• Court: D.C. Court of Appeals

54 A.3d 1156

Damion FLUELLYN, Petitioner,

v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent,andWashington Metropolitan Area Transit Authority, Intervenor.

Nos. 10–AA–689, 10–AA–1025.

District of Columbia Court of Appeals.

Argued May 12, 2011.

Decided June 28, 2012.

Richard W. Galiher, Jr. for petitioner.

Sarah O. Rollman, Associate General Counsel, with whom Carol B. O'Keeffe, General Counsel, Mark F. Sullivan, Deputy General Counsel, and Mark H. Dho, Assistant General Counsel, were on the brief, for intervenor.

Peter J. Nickles, Attorney General for the District of Columbia at the time the statement was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, filed a statement in lieu of brief for respondent.

Before GLICKMAN, Associate Judge, RUIZ, Associate Judge, Retired, ^* and TERRY, Senior Judge.

RUIZ, Associate Judge, Retired:

These consolidated petitions for review ask us to determine whether attorney's fees may be assessed against an employer pursuant to the District of Columbia Workers' Compensation Act, D.C.Code § 32–1501 et seq. (2001), where the parties resolved the contested issues after an informal recommendation from the agency but before a formal adjudication of the matter. We agree with the Compensation Review Board that the statute allows an award of attorney's fees only when compensation has been made by the employer after official adjudication compelling the payment of compensation. As there was no such official award of compensation in this case, we affirm the Board's orders denying petitioner's request for attorney's fees.

I.

Petitioner, Damion Fluellyn, was injured while working for the intervenor, Washington Metropolitan Area Transit Authority (WMATA). He sustained injuries to his neck, back, and elbow resulting from a December 8, 2008 automobile accident, while driving a WMATA bus. Immediately after the accident, WMATA accepted petitioner's claim of a workplace-related disability and paid him disability benefits for several months. However, in March 2009, petitioner and WMATA disagreed over the payment of additional benefits from that point forward. The parties had an informal conference with the Office of Workers' Compensation (OWC), which resulted in a recommendation that WMATA continue to make disability payments to petitioner. WMATA rejected the informal recommendation and filed an application for a formal hearing with the Administrative Hearing Division (AHD). The AHD set a hearing date of November 10, 2009.

Subsequently, on October 26, 2009, after the parties initiated discovery but before the AHD heard the matter, WMATA filed a consent motion to withdraw the application for formal hearing in light of the parties' resolution of the contested issues. The next day, the AHD granted the motion, dismissing the application for formal hearing without prejudice. Pursuant to their agreement, WMATA paid petitioner past-due disability benefits and reinstated by-weekly benefit checks, as had been outlined in the OWC's recommendation from the informal conference.

Petitioner's counsel then filed two petitions for attorney's fees—one with OWC for $2,328.00, and one with AHD for $2,352.00, requesting that both be assessed against WMATA.¹ On January 13, 2010, the OWC issued an order denying petitioner's request for attorney's fees. Citing D.C.Code § 32–1530(b), the OWC noted that no formal hearing had occurred and stated that “[s]ince there was no award/compensation order issued awarding benefits, a fee cannot be assessed against the employer/carrier.” Instead, the OWC assessed the legal fees against petitioner pursuant to § 32–1530(c).

On April 9, 2010, the AHD issued a contrary order granting petitioner's request for attorney's fees and costs. The AHD explained that its order dismissing WMATA's application for formal hearing sufficed to establish AHD's consideration of the matter, and that, therefore, petitioner's counsel was entitled to fees for work performed before the AHD pursuant to § 32–1530(b). Petitioner appealed to the Compensation Review Board (CRB) for review of the OWC order denying his request for attorney's fees, and WMATA filed an application with the CRB for review of the AHD order granting petitioner's request for attorney's fees.

On May 14, 2010, the CRB issued a Decision and Order (CRB–10–58) affirming the OWC order assessing attorney's fees against petitioner in connection with proceedings before the OWC. Interpreting § 32–1530(b) to require compensation that is “awarded” as a precondition to assessment of attorney's fees against the employer, the Board found that the compensation WMATA paid to petitioner “was not made pursuant to a compensation order, an OWC final order, or an OWC order approving what ultimately became a resolution between the parties.” The Board also rejected petitioner's argument that the AHD dismissal order was an award, explaining that “[t]he dismissal order in no way rendered or can be deemed a decision on the merits of the underlying controversy.” Because WMATA had paid petitioner “without an award,” the Board concluded that the compensation paid to petitioner fell outside of § 32–1530(b), which established “the circumstances by which an attorney's fee shall be assessed against an employer,” and it therefore declined petitioner's request that attorney's fees be assessed against WMATA.

On August 19, 2010, the CRB issued a Decision and Order (CRB–10–101) reversing the AHD's order assessing petitioner's attorney's fees against WMATA. As in the companion case, the CRB noted that “[s]ection 32–1530 of the Act specifically provides for an attorney's fee to be assessed against the employer when the employer declines to pay compensation or when the employer pays or tenders payment of compensation after an award.” The CRB then explained that these predicate conditions for an award of attorney's fees were not present in this case because petitioner had been paid “compensation without an award,” finding “but one conclusion that can be reached—an award only can be assessed against [petitioner].” The CRB reversed the AHD order assessing attorney's fees against WMATA, and, instead, assessed the attorney's fees and costs for legal services rendered in connection with the AHD proceedings against petitioner.²

Petitioner filed a petition with this court for review of the two CRB orders: CRB–10–58 (Appeal No. 10–AA–689) and CRB–10–101 (Appeal No. 10–AA–1025). We granted petitioner's motion to consolidate the petitions.

II.

Petitioner argues that the CRB erred in denying his two requests that attorney's fees be assessed against WMATA because “[a] compensation order is not a prerequisite for holding an employer liable for an attorney fee” and the procedural posture of this case otherwise meets the requirements of D.C.Code § 32–1530(b). WMATA responds that petitioner's requests were properly denied because there was no final order that awarded compensation to petitioner and thus petitioner did not meet the requirements of the statute.

“Our standard of review of agency decisions in workers' compensation cases is governed by the District's Administrative Procedure Act.” Mills v. District of Columbia Dep't of Emp't Servs., 838 A.2d 325, 328 (D.C.2003). In reviewing the CRB decision, “we will affirm the ruling unless it is arbitrary, capricious, or otherwise an abuse of discretion and not in accordance with the law.” Washington Metro. Area Transit Auth. v. District of Columbia Dep't of Emp't Servs., 992 A.2d 1276, 1280 (D.C.2010). The CRB's findings must be “supported by substantial evidence on the record” and its conclusions must rationally flow from these findings. Mills, 838 A.2d at 328. “ ‘Substantial evidence is relevant evidence such as a reasonable mind might accept as adequate to support a conclusion.’ ” Id. (quoting Black v. District of Columbia Dep't of Emp't Servs., 801 A.2d 983, 985 (D.C.2002)).

“We review the CRB's legal rulings de novo, recognizing that this court is ‘the final authority on issues of statutory construction.’ ” Asylum Co. v. District of Columbia Dep't of Emp't Servs., 10 A.3d 619, 625 (D.C.2010) (quoting Georgetown Univ. Hosp. v. District of Columbia Dep't of Emp't Servs., 929 A.2d 865, 869 (D.C.2007)). “Recognizing agency expertise, however, we accord great weight to any reasonable construction of a statute by the agency charged with its administration.” Mills, 838 A.2d at 329. We will sustain the agency's interpretation “even if a petitioner advances another reasonable interpretation of the statute or if we might have been persuaded by the alternate interpretation had we been construing the statute in the first instance.” Smith v. District of Columbia Dep't of Emp't Servs., 548 A.2d 95, 97 (D.C.1988). Yet, on the other hand, “[w]e will not affirm an administrative determination that ‘reflects a misconception of the relevant law or a faulty application of the law.’ ” Washington Metro. Area Transit Auth., 992 A.2d at 1280 (quoting Georgetown Univ. v. District of Columbia Dep't of Emp't Servs., 971 A.2d 909, 915 (D.C.2009)).

The District of Columbia Workers' Compensation Act authorizes assessment of attorney's fees against the employer in two distinct scenarios. SeeD.C.Code § 32–1530; see also Providence Hosp. v. District of Columbia Dep't of Emp't Servs., 855 A.2d 1108, 1111 (D.C.2004) (“The District of Columbia Workers' Compensation Act authorizes a claimant to recover attorney's fees in only two situations.”). First, 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. SeeD.C.Code § 32–1530(a).³ This section of the statute is not implicated in this case because WMATA initially acknowledged liability and made payments. Alternatively, a claimant may recover attorney's fees if the employer tenders compensation initially without an award, but later...