Lenarts v. Dest. of Employment Servies

• Decision Date: 18 July 1988
• Docket Number: No. 86-830.,86-830.
• Citation: 545 A.2d 1234
• Parties: Eileen S. LENAERTS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Superior Ironworks and Liberty Mutual Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

545 A.2d 1234

Eileen S. LENAERTS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent Superior Ironworks and Liberty Mutual Insurance Company, Intervenors.

No. 86-830.

District of Columbia Court of Appeals.

Argued February 23, 1988.

Decided July 18, 1988.

Peter J. Vangsnes with whom Robert B. Adams, Washington, D.C., was on the brief, for petitioner.

Edward E. Schwab, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp.

Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Asst. Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Robert P. Scanlon, Rockville, Md., for intervenors Superior Ironworks and Liberty Mut. Ins. Co.

Before PRYOR, Chief Judge, and TERRY and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

This case involves two questions of interpretation of the District of Columbia Workers' Compensation Act of 1979, D.C.Code §§ 36-301 to -345 (1981 & 1987 Supp.) ("the New Act"). First, may a worker who suffers a "schedule award" disability partial in character but permanent in quality opt to recover the worker's actual lost wages, § 36-308(a)(3)(V), in lieu of the fixed amount of compensation provided in the act for such disability, § 36-308(a)(3)(A)-(U)? Second, where an injured worker paid on an hourly basis receives a job promotion during the 13-week period over which the worker's "average weekly wage" is calculated, is an adjustment to be made to the rule otherwise applicable under § 36-311(a)(4)? The Acting Director of the Department of Employment Services ("DOES") answered both questions in the negative. We affirm.

I. The Facts

Petitioner Lenaerts began working for her employer, Superior Ironworks, as an apprentice ironworker in December 1979. On January 6, 1983, approximately two weeks before her injury, she completed her apprenticeship and became a journeyman ironworker, with a considerable hourly wage increase. On January 19, 1983, she suffered an on-the-job injury to her leg, which rendered her incapable of continuing in her new position and occasioned a considerable actual wage loss.

Since she suffered a permanent partial loss of use of her leg, she was entitled to a "schedule award"¹ providing her compensation based on a fraction of her average weekly wage for a fixed period of weeks. Such an award is made without regard to whether any actual wage loss occurred. D.C.Code § 36-308(a)(3)(3), (S).

However, Lenaerts took the position before DOES, as she does before us, that she was entitled to opt, alternatively, to receive compensation measured by her actual wage loss, pursuant to § 36-308(a)(3)(V). That section appears in the New Act following the enumeration of the various sorts of injuries giving rise to schedule awards and provides:

Other cases. In this class of disability the compensation shall be sixty-six and two thirds (66 2/3) percent of the employee's wage loss, payable during the continuance of such disability. Wage loss shall be the difference between the employee's average weekly wage before becoming disabled and the employee's actual wages after becoming disabled.²

She also asserted that since she had received a promotion from apprentice to journeyman ironworker during the 13-week period over which the average weekly wage is computed for a worker paid on an hourly, daily or output basis, only her wages in her new position should be used in the computation under § 36-311(a)(4).

The Acting Director ruled against Lenaerts on both counts. (For informational purposes, a copy of the Acting Director's Final Compensation Order is annexed to this opinion.) Petitioner seeks review in this court. D.C.Code § 36-322(b)(3).

II. The Right of Election

Ordinarily, this would be a straightforward case. We are dealing here with an interpretation of a statute by the administrative agency responsible for its execution, to which we pay deference. We have applied this doctrine to DOES interpretations of the New Act. See, e.g., Reichley v. District of Columbia Department of Employment Services, 531 A.2d 244, 247-48 (D.C. 1987), in which we said, quoting from Lee v. District of Columbia Department of Employment Services, 509 A.2d 100, 102 (D.C. 1986):

[W]e must give great weight to any reasonable construction of a regulatory statute that has been adopted by the agency charged with its enforcement. The interpretation of the agency is binding unless t is plainly erroneous or inconsistent with the enabling statute. Consequently we sustain the agency decision even cases in which other, contrary, constructions may be equally as reasonable as the one adopted by the agency. [Citations omitted.]

Here, as Lenaerts readily concedes, the Acting Director's interpretation is perfectly reasonable on the face of the statute. Her argument is that when consideration is given to the state of the case law existing at the time of the passage of the New Act, the only reasonable interpretation of the Council's intent in adopting the language under review is in her favor.³

Lenaerts's argument is based principally on the existence of a case decided in the District of Columbia shortly before the Council adopted the Act. Potomac Electric Power Co. (PEPCO) v. Director, Office of Workers' Compensation Programs (OWCP), 196 U.S.App.D.C. 417, 606 F.2d 1324 (1979), rev'd, 449 U.S. 268, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). There, the court was interpreting a provision of the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA") which at that time effectively served as the workers' compensation law for the District of Columbia.⁴ The provision in question, 33 U.S. C. § 908(c), was the model for § 36-308(a)(3) of the New Act and for present purposes may be considered as identical in wording.⁵ The court, in a 2-1 decision, adopted the interpretation urged by Lenaerts before us. Furthermore, Lenaerts asserts, in a number of decisions between 1975 and 1980, the Benefits Review Board had similarly interpreted 33 U.S.C. § 908(c).⁶

Against this legal background, Lenaerts invokes the rule of statutory construction that where a legislature of a state adopts a statutory provision which is modeled after a federal statute or the statute of another state, it is presumed to adopt prior constructions of the statute in the jurisdiction in which it originated. 2A SUTHERLAND, STATUTORY CONSTRUCTION § 52.02 (N. Singer 4th ed. 1984).

The Supreme Court has applied this rule to adoptions by the Congress of statutes drawn from state legislative enactments, see, e.g., Joines v. Patterson, 274 U.S. 544, 549, 47 S.Ct. 706, 708, 71 L.Ed. 1194 (1927) (citing Willis v. Eastern Trust & Banking Co., 169 U.S. 295, 307, 18 S.Ct. 347, 352, 42 L.Ed. 752 (1898)),⁷ and we have at times invoked this rule with respect to enactments by the D.C. Council of provisions borrowed from federal statutes. See Hughes v. District of Columbia Department of Employment Services, 498 A.2d 567, 571 n. 8 (D.C. 1985) (a New Act case, citing Whitt v. District of Columbia, 413 A.2d 1301, 1303-04 (D.C. 1980)).⁸ Thus, argues Lenaerts, with the construction she urges being "well-established" at the time of the adoption of the New Act, the District of Columbia Council must be presumed to have intended to adopt that construction.

On occasion, we have resorted to another analogy interpreting the New Act, that of a legislature reenacting language from its own preexisting statute. See 2A SUTHERLAND, STATUTORY CONSTRUCTION, Supra, § 49.09. In Washington Metropolitan Area Transit Authority v. District of Columbia Department of Employment Services, 506 A.2d 1127 (D.C. 1986), a question existed as to the meaning of the phrase "accidental injury" as used in the New Act. D.C.Code § 36-301(12) (1981). The LHWCA had contained the same phrase, 33 U.S.C. § 902(2), and we noted that decisions under the LHWCA had repeatedly held that the requirement of "accidental injury" was satisfied "if something unexpectedly goes wrong within the human frame." We then said:

In enacting [the New Act], the Council made no change to the language of the [LHWCA] regarding "accidental injury." This course of action leads us to conclude that the Council was satisfied with the interpretation the courts had placed on those words. See Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 869-70, 55 L.Ed.2d 40 (1978) (when legislature reenacts statutory provision it is deemed to adopt prior judicial interpretations); see also 2A Sutherland Stat. Const. § 49.09 (4th ed. 1984) (when legislature reenacts earlier statute, presumption is that legislature approves prior judicial constructions of that statute)

Id. at 1129.

However, under either analogy, as Lenaerts's argument itself indicates, the presumption operates only where the judicial interpretation of the existing law is firm. See, e.g., Hartford Accident & Indemnity Co. v. Hoage, 66 App.D.C. 154, 156, 85 F.2d 411, 413 (1936) (citing, inter alia, Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873 (1899) ("a known and settled" construction of a state law is deemed adopted by Congress)); United States v. Raynor, 302 U.S. 540, 551-52, 58 S.Ct. 353, 358-59, 82 L.Ed. 413 (1938) ("One [circuit court] decision construing an act [later codified] does not approach the dignity of a well settled interpretation").⁹

This presents a serious problem to Lenaerts's argument. The very decision relied upon by Lenaerts was not even final at the time the D.C. Council acted. The chronology of events went as follows. On February 15, 1979, the first draft of what turned out to be the New Act was introduced in the D.C. Council, On August 24, 1979, the D.C. Circuit rendered its split opinion.¹⁰ On February 19, 1980, the Supreme Court granted certiorari in the case. On May 6, 1980, the D.C. Council passed the New Act. Thus, at the moment of passage, the correctness and finality of the D.C. Circuit's opinion had already been drawn into question.¹¹ Indeed, on ...