Long v. DEPT. OF EMPLOYMENT SERVICES
| Decision Date | 27 August 1998 |
| Docket Number | No. 97-AA-1728.,97-AA-1728. |
| Parties | Alvin W. LONG, Jr., Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Plaza Realty Investors and CNA Insurance Company, Intervenors. |
| Court | D.C. Court of Appeals |
Benjamin T. Boscolo, Greenbelt, MD, for petitioner.
Stuart L. Plotnick, Silver Spring, MD, for intervenors.
Jo Anne Robinson, Interim Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.
Before TERRY, KING, and RUIZ, Associate Judges.
Petitioner, Alvin Long, seeks review of a decision by the Department of Employment Services ("DOES") granting him a supplemental allowance under D.C.Code § 36-306 but limiting it to the annual percentage increases in the maximum compensation rate as determined under D.C.Code § 36-305. Intervenors, Plaza Realty Investors and its insurance carrier (collectively "the employer"), agree that DOES erred in calculating Long's supplemental allowance, but contend that D.C.Code § 36-306(d) imposes a cap on the amount that Long may receive for 1992 and all subsequent years. Because the agency's reading of D.C.Code § 36-306 does not enable us properly to review its decision, we remand the case to DOES so that it may construe the statute in the first instance.
In 1979 Mr. Long went to work for Plaza Realty as a boiler engineer. While at work on September 2, 1986, he fell off a ladder and injured his shoulder. As a result of that injury, Mr. Long has not been able to return to work. Beginning on the date of the injury, Long received temporary total disability benefits in the amount of $320.00 per week.1 On April 26, 1993, a DOES hearing examiner found him to be permanently and totally disabled and awarded him permanent and total benefits, still in the amount of $320.00 per week,2 from April 16, 1991, to the present and continuing.
On June 4, 1997, another hearing examiner awarded Mr. Long a supplemental allowance from 1992 to the present and continuing. However, instead of determining Long's allowance in the manner prescribed by D.C.Code § 36-306 (1997), the examiner ruled that the yearly percentage increases in the maximum rate for all compensation awards "govern claimant's entitlement to supplemental allowance beginning in the year 1992 to the present and continuing." The Director, without construing the applicable statutory provisions, affirmed the hearing examiner's order.
This case involves the interpretation of two separate statutes, D.C.Code § 36-305 and D.C.Code § 36-306. Section 36-305 provides in part:
Therefore, after fixing a claimant's compensation rate under D.C.Code § 36-308, DOES must ensure that the rate does not exceed the maximum allowable award. D.C.Code § 36-305 establishes the means to determine that maximum award, which is calculated on a yearly basis according to the average weekly wage for insured employees in the District of Columbia. DOES has prepared a table listing the maximum compensation rates from 1982 through 1996 and the percentage amount by which the maximum rate increased from year to year.3 That table provides the following maximum compensation rates and their percentage increases:
MAX. PERCENTAGE
YEAR COMP INCREASE
RATE
1/01/86 $431.70 4.46208%
1/01/91 $584.10 5.9%
1/01/92 $613.09 5.0%
1/01/93 $647.84 5.668%
1/01/94 $679.17 4.836%
1/01/95 $701.52 3.29078%
1/01/96 $723.34 3.11038%
1/01/97 $748.83 3.5%
Once a person's award has been calculated, it remains fixed and is not adjusted to reflect the yearly increases in the maximum compensation rate. Instead, under D.C.Code § 36-306, persons who have been adjudged to be totally and permanently disabled4 receive an additional allowance designed to supplement their total award in order to account for increases in the average weekly wage. D.C.Code § 36-306 provides:
Because Mr. Long's original benefit rate ($320.00) was less than the maximum amount at the time the award was made ($431.70), his supplemental allowance should have been calculated under subsection (c) of D.C.Code § 36-306.
The hearing examiner, however, instead of using the formula set forth in section 36-306(c), concluded that the applicable calculation "does not comport with the provisions of § 36-306, which is controlling in the instant case," and ordered that Mr. Long's allowance be based on the yearly percentage increases contained in the maximum compensation rate table.5 Therefore, under the examiner's method of calculation, Mr. Long would receive an additional allowance in the amount of 5 percent of $320.00 in 1992, 5.6 percent of $320.00 in 1993, 4.83 percent in 1994, and so on. The Director affirmed the examiner's order without analyzing the language of either D.C.Code § 36-305 or § 36-306.6
We ordinarily give considerable deference to an administrative agency's interpretation of a statute that it administers. E.g., Smith v. District of Columbia Dep't of Employment Services, 548 A.2d 95, 97 (D.C. 1988) (citing cases); Lee v. District of Columbia Dep't of Employment Services, 509 A.2d 100, 102 (D.C.1986). At the same time, however, if it appears that the agency has not made an attempt to construe a statutory provision, we will not defer to its legal conclusions relating to the statute.
No deference is appropriate ... where the agency has failed to identify the question of statutory construction to be addressed.... It would be incongruous to accord substantial weight to an agency's interpretation of a statute where the record is barren of any indication that the agency gave any consideration at all to the statutory language or to the structure or...
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