Pannell-Pringle v. DC DOES

• Decision Date: 05 September 2002
• Citation: 806 A.2d 209
• Parties: Peggy D. PANNELL-PRINGLE, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent. Nursing Enterprises, Inc. and Liberty Mutual Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

806 A.2d 209

Peggy D. PANNELL-PRINGLE, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

Nursing Enterprises, Inc. and Liberty Mutual Insurance Company, Intervenors.

No. 01-AA-3.

District of Columbia Court of Appeals.

Argued January 24, 2002.

Decided September 5, 2002.

Benjamin T. Boscolo, Greenbelt, MD, for petitioner.

Anton L. Iamele for intervenors. Donald P. Maiberger, Rockville, MD, was on the brief for intervenors.

Robert R. Rigsby, Corporation Counsel at the time the briefs were filed, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Before TERRY and WASHINGTON, Associate Judges, and KERN, Senior Judge.

TERRY, Associate Judge:

Petitioner, Peggy Pannell-Pringle, seeks review of a final order of the District of Columbia Department of Employment Services ("DOES") which denied her application for workers' compensation benefits for injuries resulting from an automobile accident that occurred in the course of her employment. DOES ruled that petitioner's unauthorized settlement with the driver of the other car barred her claim for compensation under D.C.Code § 32-1535(g) (2001).¹ Petitioner argues that DOES erred in determining that this statute operates as a complete bar to a claim for compensation when no compensation order existed at the time of the settlement. We hold that DOES's interpretation of the statute is reasonable and therefore affirm the order under review.

I

Petitioner was involved in an automobile accident arising in the course of her employment on August 4, 1997. She notified her employer, Nursing Enterprises, Inc., of the accident promptly after it occurred and then went to the hospital. She was diagnosed with a sprained neck and returned to work later that day. Within a week after the accident, and before filing a workers' compensation claim, she entered into an agreement with the driver of the other car in which she settled her claim against him for $1,000. She did not notify either her employer or her employer's insurance carrier, Liberty Mutual Insurance Company, of the settlement.

Over the next nine months, petitioner's neck continued to bother her, but her doctors maintained the original diagnosis of a sprained neck. In March of 1998, however, doctors at Bayview Hospital diagnosed petitioner as having a "Jefferson fracture" in her neck. She underwent several surgeries and was absent from work from April 4, 1999, through August of 1999. She later filed a claim for workers' compensation alleging that her disability was due to the August 1997 accident.

After a hearing on petitioner's claim, a hearing examiner found that the accident happened during the course of petitioner's employment and that it was the cause of her injuries. The examiner also ruled, however, that petitioner was barred from receiving total disability benefits² because her settlement with the third party was not authorized under D.C.Code § 32-1535(g).³ Although the actual language of section 32-1535(g) did not mandate this result, the examiner held that he was bound by Travelers Insurance Co. v. Haden, 418 A.2d 1078 (D.C.1980), which interpreted a nearly identical provision in the Longshoremen's and Harbor Workers' Compensation Act as conclusively presuming prejudice when an employee enters into an unauthorized settlement.⁴ In a lengthy footnote, the examiner stated that his preference would be to inquire into whether the employer was actually prejudiced by an unauthorized settlement because such an inquiry would further the "humanitarian" purpose of the statute. He concluded, however, that "this is a significant policy determination which, under the Act, must be left to the Director by interpretation, or the City Council by statutory revision."

Petitioner appealed from the examiner's decision to the Director of DOES, who affirmed the decision of the hearing examiner because he found that Haden was persuasive. Although the Director acknowledged that an inquiry into prejudice was "attractive," he concluded that there was "simply ... no language in D.C.Code § [32-1535](g) providing for an inquiry into `prejudice' in these cases." The Director reasoned that the drafters of the act had "used such qualifying `prejudice' language when it was intended and deemed appropriate," but noted that they did not use that language here. Petitioner now maintains that the Director's interpretation was contrary to the statutory scheme.

II.

In reviewing an agency interpretation of a statute, this court follows the two-part test set out by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see, e.g., Timus v. District of Columbia Dep't of Human Rights, 633 A.2d 751, 758-759 (D.C. 1993) (en banc)

. "First, the reviewing court must determine whether the meaning of the statute is clear." Columbia Realty Venture v. District of Columbia Rental Housing Comm'n, 590 A.2d 1043, 1046 (D.C.1991). If it is, "that is the end of the matter." Chevron, 467 U.S. at 842,

104 S.Ct. 2778. If the statute is ambiguous, however, we must defer to the agency's interpretation of the statutory language so long as it is reasonable. Id. at 842-843, 104 S.Ct. 2778; see Smith v. District of Columbia Dep't of Employment Services, 548 A.2d 95, 97 (D.C.1988) ("The agency's interpretation of the statute it administers is binding on this court unless it conflicts with the plain meaning of the statute or its legislative history").

A. The Plain Meaning of Section 32-1535

Before 1980, persons employed in the District of Columbia were covered by workers' compensation under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 et seq. See Triplett v. George Hyman Construction Co., 565 A.2d 83, 84-85 (D.C. 1989)

; D.C.Code §§ 36-501, 36-502 (1973). In 1980, however, the Council of the District of Columbia enacted the District of Columbia Workers' Compensation Act ("the Act"), which borrowed heavily from the LHWCA. Nguyen v. Liberty Mutual Insurance Co., 611 A.2d 541, 544 (D.C. 1992). Section 36 of the Act, now codified at D.C.Code § 32-1535, was virtually identical to section 33 of the LHWCA (33 U.S.C. § 933) before that section was amended in 1984. As a result, cases interpreting 33 U.S.C. § 933 prior to 1984 may be treated as "`persuasive' precedent" in determining the meaning of D.C.Code § 32-1535. Nguyen, 611 A.2d at 544 (citation omitted); accord, e.g., Grayson v. District of Columbia Dep't of Employment Services, 516 A.2d 909, 911 n. 2 (D.C.1986) (federal cases interpreting provisions of the LHWCA that are "virtually identical" to corresponding sections of the Act are "persuasive authority").

D.C.Code § 32-1535 allows a worker injured on the job by a third party to sue the third party without forfeiting the right to workers' compensation from his or her employer, so long as the amount recovered from the third party is less than the entitled employer compensation. D.C.Code § 32-1535(a), (b), and (f). Section 32-1535(g), however, prohibits the injured employee from recovering workers' compensation benefits if the suit against the third party is settled without the written approval of the employer.⁵ Although petitioner in this case settled her claim without the approval of her employer, she argues that D.C.Code § 32-1535, when read in its entirety, does not bar her claim because it does not apply to settlements when no compensation order has been filed.

Section 32-1535 states, in relevant part:

Compensation for injuries where third persons are liable.

(a) If, on account of a disability or death for which compensation is payable under this chapter, the person entitled to such compensation determines that some person other than those enumerated in § 32-1504(b) is liable for damages, he need not elect whether to receive such compensation or to recover damages against such third person.

(b) Acceptance of such compensation under an award in a compensation order filed with the Mayor shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within 6 months after such award.

* * * * * *

(f) If the person entitled to compensation institutes proceedings within the period ascribed in subsection (b) of this section, the employer shall be required to pay as compensation under this chapter a sum equal to the excess of the amount which the Mayor determines is payable on account of such injury or death over the amount recovered against such third person.

(g) If compromise with such third person is made by the person entitled to compensation or such representative of an amount less than the compensation to which such person or representative would be entitled under this chapter, the employer shall be liable for compensation as determined in subsection (f) of this section, only if the written approval of such compromise is obtained from the employer and his insurance carrier by the person entitled to compensation or such representative at the time of or prior to such compromise in a form and manner prescribed by the Mayor.

Petitioner's argument focuses on the language in subsection (g) stating that the employer shall be liable for compensation "as determined in subsection (f) of this section." She maintains that this phrase limits the applicability of subsection (g) to situations in which, under subsection (f), persons "entitled to compensation institute[] proceedings within the period ascribed in subsection (b)...." Subsection (b), in turn, states that a person may institute proceedings against a third party within six months of accepting "compensation under an award in a compensation order filed with the Mayor." Petitioner reads these three sections together to mean that an employee is not barred from receiving...