Hisler v. Dept. of Employment Services, No. 02-AA-670.

• Decision Date: 19 June 2008
• Docket Number: No. 02-AA-670.
• Parties: Fran M. HISLER, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and PMA Insurance Group, et al., Intervenors.
• Court: D.C. Court of Appeals

950 A.2d 738

Fran M. HISLER, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and PMA Insurance Group, et al., Intervenors.

No. 02-AA-670.

District of Columbia Court of Appeals.

Submitted October 31, 2006.¹

Decided June 19, 2008.

Fran M. Hisler, pro se.

Andres K. O'Connell for intervenors.

Robert J. Spagnoletti, Attorney General for the District of Columbia at the time the statement was filed, and Todd S. Kim, Solicitor General, filed a statement in lieu of brief for respondent.

Before RUIZ and FISHER, Associate Judges, and SCHWELB, Senior Judge.

RUIZ, Associate Judge:

Petitioner, Fran M. Hisler, appeals the decision of the Director of the Department of Employment Services (DOES) affirming two Administrative Law Judge (ALJ) orders. The first order, issued by ALJ Fred D. Carney, granted petitioner's requests for reimbursement of certain medical expenses from intervenors, PMA Insurance Group and Gallaudet University ("Gallaudet" or "employer"), but denied reimbursement for others. The second order, issued by ALJ Amelia G. Govan, denied petitioner's request for reimbursement for vocational rehabilitation expenses. We affirm the Director's decision denying reimbursement of the medical expenses, but reverse the Director's decision denying reimbursement for vocational rehabilitation expenses, and remand the case for further proceedings.

Factual Summary

Petitioner was employed as a pediatric occupational therapist at Gallaudet in 1986 when she was diagnosed with chronic fatigue syndrome, a condition characterized by "a severe, incapacitating fatigue that isn't improved by bed rest and that may be exacerbated by physical or mental activity. It's an all-encompassing fatigue that results in a dramatic decline in both activity level and stamina." Department of Health and Human Services, Centers for Disease Control and Prevention, Chronic Fatigue Syndrome, http://www. cdc.gov/cfs/cfssy mptomsHCP.htm. As a result of her injury, petitioner filed a claim for workers' compensation pursuant to D.C.Code §§ 36-301 et seq. (1981).² Employers concede that petitioner's chronic fatigue syndrome "arose out of, and during the course of, her employment [at Gallaudet]." In November of 1998, she and Gallaudet entered into a settlement agreement which, according to its terms, "represent[ed] the entire resolution of the cause of action arising under the DC Workers' Compensation claim."³ Under the settlement agreement, Gallaudet agreed to pay petitioner a lump sump of $100,000 and $700 per month for her lifetime. In addition, the agreement states:

The parties further agree that this settlement is being made without any prejudice to the claimant's right to continue to receive reimbursement from the insurance carrier[⁴] for Chronic Fatigue Syndrome related medical treatment and services[⁵] for a period of 5 years after the settlement is approved.

(Emphasis added)

After executing the settlement agreement, petitioner incurred expenses for a wide array of services she claimed were for treatment of her condition and for rehabilitation purposes. Gallaudet asserted that several of the expenses were not reasonably related to or necessary for treating her condition and refused to reimburse her for some of the incurred costs.

Petitioner filed a claim for workers' compensation with DOES, and an evidentiary hearing was held before ALJ Carney on October 31, 2000. On March 23, 2001, ALJ Carney issued a compensation order concluding that most — but not all — of the expenses for which petitioner was seeking reimbursement were compensable under the D.C. Workers' Compensation Act. Specifically, ALJ Carney concluded that petitioner was entitled to reimbursement for pilates sessions, physical therapy, myofascial releases, nutritional counseling and supplies, food sensitivity screening, visual testing and treatment, an ergonomic chair, psychotherapy/biofeedback, functional cognitive rehabilitation, IV infusions (except for megavitamin infusions), lab work, temporomandibular joint care and chiropractic treatment. The ALJ concluded that petitioner was not entitled to reimbursement for certain other medical goods and services because there was no evidence that these expenses were incurred as a result of her chronic fatigue syndrome. Finally, ALJ Carney found that petitioner was not entitled to reimbursement for vocational rehabilitation, noting that "[t]here is no evidence to support a finding that [the vocational rehabilitation services] are related to claimant's chronic fatigue syndrome."

Petitioner filed a subsequent claim for reimbursement for vocational rehabilitation expenses she incurred beginning in August 1, 1999,⁶ and a hearing was held before ALJ Govan on March 2, 2001. A compensation order issued on April 9, 2001, denied petitioner reimbursement for her vocational rehabilitation expenses on two separate grounds. ALJ Govan concluded that the settlement agreement was plain on its face, i.e., only reasonably susceptible of one interpretation, that the term "medical treatment and services" did not include vocational rehabilitation. In the alternative, ALJ Govan concluded that petitioner was not entitled to reimbursement for her vocational rehabilitation expenses because according to a May 2000 Functional Capacity Evaluation, "no additional course work is required for claimant to return to work part time as an occupational therapist."

Petitioner appealed the decisions of both ALJs to the Director of DOES on April 18, 2001. As part of her appeal, on August 7, 2001, she filed a motion for sanctions in which she argued that the Director should impose sanctions "against employer and/or insurance carrier for failing to reimburse [her] in a timely way despite [ALJ Carney's] 3/23/01 order," that she was entitled to reimbursement of a number of her expenses. On September 7, 2001, Gallaudet filed a response to petitioner's application for review of the two ALJ decisions as well as a motion to strike and an opposition to her motion for sanctions. On December 10, 2001, petitioner filed a motion to strike Gallaudet's pleadings as untimely filed.

On May 17, 2002, the Director issued a written order denying petitioner's motion to strike the pleadings as well as her motion for sanctions. With respect to ALJ Carney's decision, the Director noted that ALJ Carney's finding that the "specified medical expenses ... were not causally related to [petitioner's] work injury ... [was] supported by substantial evidence, and ... in accordance with the law." The Director affirmed ALJ Govan's decision denying reimbursement for vocational rehabilitation expenses on the basis that "since vocational rehabilitation services was [sic] not specifically mentioned [in the settlement agreement] the Claimant was not entitled to such service." Petitioner seeks our review of the Director's order. In addition, petitioner raises a number of claims that were not presented to the agency. Specifically, she argues that (1) DOES lacked jurisdiction to hear and adjudicate her workers' compensation claims; (2) DOES erred in approving the settlement agreement; (3) DOES erred in failing to accommodate her disability during the administrative hearings; (4) DOES erred by failing to "promulgate new laws" for expedited insurance reimbursement; and (5) she was denied effective assistance of counsel.

Analysis

Our standard of review in cases arising from the Director of DOES is limited. "The court defers to the determination of the director of DOES as long as the director's decision flows rationally from the facts, and those facts are supported by substantial evidence in the record." Orius Telcoms., Inc. v. D.C. Dep't of Employment Servs., 857 A.2d 1061, 1065 (D.C. 2004). "Where there is substantial evidence to support the Director's findings ... then the mere existence of substantial evidence contrary to that finding does not allow this court to substitute its judgment for that of the Director." McEvily v. D.C. Dep't of Employment Servs., 500 A.2d 1022, 1024 n. 3 (D.C.1985). With respect to issues of law, such as the interpretation of contracts, however, our review is de novo. See Tillery v. D.C. Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C.2006).

Our cases make clear that only in exceptional circumstances will this court entertain claims not raised at the administrative level. See Hill v. District of Columbia Dep't of Employment Servs., 717 A.2d 909, 912 (D.C.1998) ("[I]n the absence of exceptional circumstances, we will not entertain a claim that was not raised before the agency." (citation omitted)); Hughes v. D.C. Dep't of Employment Servs., 498 A.2d 567, 570 (D.C.1985) ("Administrative and judicial efficiency require that all claims be first raised at the agency level to allow appropriate development and administrative response before judicial review." (citations omitted)). Petitioner has not established — or even argued — that any such exceptional circumstances exist for her failure to raise any of these arguments.

"[T]he general rule is that even jurisdictional questions must be put to agencies before they are brought to the reviewing court." D.C. Hous. Auth. v. D.C. Office of Human Rights, 881 A.2d 600, 613 (D.C.2005) (citations omitted). A jurisdictional argument may be considered on appeal for the first time only where a petitioner claims that the agency "had no power to act at all." Id. (quoting R.R. Yardmasters of Am. v. Harris, 232 U.S.App. D.C. 171, 177, 721 F.2d 1332, 1338 (1983)). Even assuming petitioner now argues that DOES "had no power to act at all," this court may still decline to consider the argument "based on the circumstances and the requirements of justice." R.R. Yardmasters of Am., 232 U.S.App. D.C. at 177, 721 F.2d at 1338 (quoting 4 K. DAVIS, ADMINISTRATIVE LAW TREATISE § 26:7, at 444 (2d ed.1983); see also D.C. Hous. Auth., 881 A.2d at 613 n. 16. In this case, the settlement agreement forming the basis of the disputes...