Howrey & Simon v. Dept. of Emp. Services, 85-1030.

• Decision Date: 17 September 1987
• Docket Number: No. 85-1030.,85-1030.
• Citation: 531 A.2d 254
• Court: D.C. Court of Appeals
• Parties: HOWREY & SIMON, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Edith R. Foster, Intervenor.

531 A.2d 254

HOWREY & SIMON, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Edith R. Foster, Intervenor.

No. 85-1030.

District of Columbia Court of Appeals.

Argued July 1, 1986.

Decided September 17, 1987.

Theresa E. Cummins, with whom Stephen L. Altman, Rockville, Md., was on the brief, for petitioners. Linda Lawrence Stankus, Washington, D.C., also entered an appearance for petitioners.

Beverly J. Burke, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time the memorandum was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the memorandum in lieu of brief, for respondent.

Peter J. Vangsnes, Washington, D.C., for intervenor Edith R. Foster.

Before MACK, NEWMAN and excused for some other reason, such as BELSON, Associate Judges. that notice could not be given.'

MACK, Associate Judge:

Edith Foster is totally disabled as a result of a fall suffered when she tripped over a heavy box left on the floor of the office of her employer, Howrey & Simon. Her claim for workers' compensation was upheld, after exhaustive discovery and a full and fair administrative hearing, at two levels of the District of Columbia Department of Employment Services (DOES). The only issue before this court is whether Ms. Foster's claim should be barred because of untimely notice of the injury to the employer. The agency determined the notice requirement was satisfied because the employer had actual knowledge of her injury. Finding the agency's construction of the statute reasonable, we affirm.

I.

D.C.Code § 36-313 (1981) provides that a claimant must give written notice to the employer within thirty (30) days of first becoming aware of an employment-related injury. There are two exceptions to this rule, however. D.C.Code § 36-313(d)(1) provides that failure to give written notice will not bar a claim if the employer had knowledge of the injury and its relationship to the employment, and the employer has not been prejudiced by failure to give notice. D.C.Code § 36-313(d)(2) provides that the failure to give written notice may be excused for some other reason, such as that notice could not be given.¹

At the first level of the administrative process, a hearing examiner concluded that Ms. Foster's claim should not be barred because her good faith effort to give notice, coupled with the failure of her employer's agent to understand the notice, constituted a satisfactory reason why proper notice was not given. At the second level, the director of DOES disagreed with the hearing examiner's reasoning for excusing failure of timely notice under § 36-313(d)(2), but concluded that because Howrey & Simon had actual notice of the injury and its relationship to the employment and was not prejudiced by the late filing, the employee's claim was not barred because of § 36-313(d)(1). DOES found that an employer has actual knowledge of an injury and its relationship to employment when "there is an incident at work witnessed by an employer's representative which ultimately results in an injury . . . [and] both the injured employee and the employee's representative had underestimated the seriousness of the incident at the time of the incident." The director's interpretation of the "knowledge exception" to the formal notice provision of the Act is not only consistent with the statutory language of the Act, but is also in harmony with the purposes of the notice provision and with the rule preferred in most jurisdictions.² For these reasons, we find the agency's construction of the statute reasonable and affirm.

Edith Foster worked as an accounting clerk for Howrey & Simon. On January 18, 1983, Ms. Foster was carrying some papers when she walked around a file cabinet and tripped over a heavy box. Breaking her fall somewhat with her right hand, she landed on the carpet with a loud crash and with her right thigh over the box. Several people, including Ms. Foster's supervisor, came over and asked her if she was all right. She indicated that she was "shook up," but that she thought she would be all right. Ms. Foster returned to her desk for awhile, but then went upstairs to a room with a bed in it to lie down for awhile.

During the next, month, Ms. Foster began to feel pain in her hip and leg. She sought medical attention for the pain, and was given arthritis medication. Although she continued to work, and her doctor tried different treatments, claimant's pain worsened.

Ms. Foster stated that she discussed her condition with her co-workers as well as her supervisor, Mr. Lucien Richard, and Ms. Jan Dietrich, employer's manager. Sometime during the spring of 1983, Ms. Foster told her supervisor that her left hand had been hurting her ever since her fall, though she was not sure if there was a connection, and that one of her legs bothered her. In May 1983, claimant requested part-time employment from Mr. Richard, and discussed her leg and hip problems with reference to the January fall. Ms. Foster also requested part-time work status from Jan Dietrich. Ms. Foster explained that her need to switch to a physically less demanding part-time schedule stemmed from difficulties she was experiencing in sitting in one place for any length of time due to the pain in her back and leg. She told Ms. Dietrich that she thought her leg and hip problems were the result of her January fall.

In mid-June she told Mr. Richard that she was going into the hospital for testing. Claimant testified that she explained to Mr. Richard that the testing was to determine the cause of her physical problems and that the condition might be related to her fall in January. Before the testing could begin, however, claimant's condition deteriorated and she was placed in the hospital in traction. Ms. Foster was referred to an orthopedic specialist by her doctor, and on June 14, 1983, when she was in the hospital, the orthopedist told claimant that her fall in January caused the pain in her leg and hip because she had suffered a back strain.

Upon her return from the hospital, claimant wore a brace. She could not sit up straight or walk straight. Ms. Foster changed office chairs numerous times, and tried to sit with a pillow to ease her pain. She told Mr. Richard that she had been advised by a doctor for the first time that her pain was related to the January injury. Ms. Foster stopped working after about a week.

Richard and Dietrich gave different accounts of claimant's fall and her oral notice. Richard denied that claimant ever spoke to him about her fall after the accident. Dietrich stated that she did not learn that Ms. Foster's injuries were work-related until she received a phone `all from employer's insurer, Atlantic Mutual Insurance Company, on August 16, 1983. This testimony conflicted with Dietrich's earlier testimony that Ms. Foster had spoken with her about a back problem when inquiring about the possibility of part-time work in the spring of 1983. The hearing examiner specifically credited Ms. Foster's testimony concerning her recall of what she had told Richard and Dietrich, calling her a "very credible" witness.³ The examiner rejected Mr. Richard's testimony to the extent it conflicted with Ms. Foster's version of her fall. She noted that Richard had "an interest in trivializing the incident in order to justify his own failure to report the injury."

II

According to Professor Larson in his treatise THE LAW OF WORKMEN'S COMPENSATION, the purpose of notice provisions is two-fold: "First, to enable the employer to provide immediate medical diagnosis and treatment with a view to minimizing the seriousness of the injury; and second, to facilitate the earliest possible investigation of the facts surrounding the injury." A. LARSON, THE LAW OF WORKMEN'S COMPENSATION § 78.10 at 15-81 (1983). Where, as here, the employer actually witnesses the incident, no further investigation is necessary. If the employee ultimately pursues a compensation claim, the employer has all the facts that would be necessary to confirm or controvert the employee's version of what happened and to dispute, if appropriate, the causal connection between the incident and the subsequent disability. Similarly, if the employer knows as much about the symptoms as the claimant does, it has all the facts necessary to consider, when the claim is ultimately made, whether the disability is work-related and whether the extent of the injury is consistent with the facts of the occurrence.

Finally, if both employer and employee underestimate the seriousness of the injury, and neither believes that immediate medical treatment is necessary, the interest of the employer in having the knowledge necessary to facilitate prompt medical attention is not disserved. There is no cognizable prejudice to the employer if the claimant's injury was not aggravated because of the employer's inability to provide an early diagnosis and treatment and the employer was not hampered in making his investigation and preparing the case. Here, there was no apparent reason to seek immediate medical attention (neither Ms. Foster nor Mr. Richard were aware of the extent of her injuries). Moreover, because Mr. Richard actually witnessed the fall, the employer was aware of the circumstances surrounding the injury later discovered, thus obviating the need for an "early investigation.

The better-reasoned decisions in the caselaw cited in Professor Larson's treatise support the finding of actual knowledge here. For example, in Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975), the claimant fell while alighting from his employer's truck. He reported orally to his supervisor that he had fallen, but the supervisor made no inquiry as to the extent of his injury or if he needed to see a doctor. The supervisor stated that he made no written report, nor was he aware that such a report was necessary. Claimant returned to work when scheduled and...