Providence Hosp. v. DIST. OF COLUMBIA DOES, No. 03-AA-129.

• Decision Date: 29 July 2004
• Docket Number: No. 03-AA-129.
• Citation: 855 A.2d 1108
• Parties: PROVIDENCE HOSPITAL, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Veronica Gourzong-Rose, Intervenor.
• Court: D.C. Court of Appeals

855 A.2d 1108

PROVIDENCE HOSPITAL, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Veronica Gourzong-Rose, Intervenor.

No. 03-AA-129.

District of Columbia Court of Appeals.

Argued January 28, 2004.

Decided July 29, 2004.

Alan D. Sundburg, with whom Jeffrey W. Ochsman, Washington, DC, was on the brief, for petitioner.

Charles L. Reischel, Deputy Corporation Counsel at the time the briefs was filed, filed a statement in lieu of brief, for respondent.¹

Benjamin T. Boscolo, for intervenor.

Before STEADMAN and WASHINGTON, Associate Judges, and PRYOR, Senior Judge.

WASHINGTON, Associate Judge:

Petitioner Providence Hospital ("Providence") seeks review of a decision of the District of Columbia Department of Employment Services ("DOES") requiring Providence to pay intervenor Veronica Gourzong-Rose's ("Gourzong-Rose") attorney's fees pursuant to D.C.Code § 32-1530(b)(2001).² Providence contends that the DOES erred in awarding attorney's fees under § 32-1530(b), arguing that the agency's decision was contrary to the plain language of the statute. Specifically, Providence argues that an award of attorney's fees under § 32-1530(b) is contingent upon a specific sequence of events, including an employer's rejection of the Mayor's written recommendation in the case. Providence contends that, because it did not reject the Mayor's recommendation in this case, Gourzong-Rose was not entitled to attorney's fees. We agree with Providence and hold that § 32-1530(b) requires that an employer/insurer reject the Mayor's recommendation before attorney's fees may be awarded to the claimant. Because it was the claimant in this case, and not the employer, who rejected the Mayor's recommendation, the DOES' decision to affirm an award of attorney's fees was plainly erroneous and inconsistent with the statute and with our prior case law. See National Geographic Soc'y v. District of Columbia Dep't of Employment Servs., 721 A.2d 618 (D.C.1998). Accordingly, we reverse the decision of the DOES and remand the case with directions to modify the award to conform to this opinion.³

I.

In 2000, Gourzong-Rose sought compensation benefits from her employer Providence for back injuries she sustained during her tenure as a critical care technician at the hospital. Providence accepted Gourzong-Rose's claim for compensation and paid her temporary total disability benefits. In an effort to seek additional benefits, however, Gourzong-Rose filed a claim and requested an informal conference with the Office of Workers' Compensation. On October 10, 2000, a few weeks after an informal conference was held, a claims examiner issued a written recommendation denying Gourzong-Rose her claim for additional benefits. Gourzong-Rose then rejected the recommendation and requested a formal hearing with the Office of Hearings and Adjudications.

On March 15, 2001, an Administrative Law Judge ("ALJ") issued a Compensation Order awarding Gourzong-Rose temporary partial disability. The ALJ ordered Providence "to pay the above-referenced compensation in addition to the compensation that it had already voluntarily paid to Claimant in connection with her work injury." On September 14, 2001, Gourzong-Rose's counsel petitioned for attorney's fees pursuant to § 32-1530(b). When asked to show cause why attorney's fees should not be granted, Providence argued that the circumstances in this case did not fall within the parameters of § 32-1530(b). On January 10, 2002, the ALJ issued an order awarding attorney's fees to Gourzong-Rose. Providence filed an application for review of the ALJ's order with the Office of the Director of DOES.

On January 17, 2003, the Director affirmed the ALJ's order. In his decision, the Director interpreted § 32-1530(b) according to what he thought was its plain meaning, stating, "it is apparent that the purpose of this code provision is to enable an employee to recover attorney's fees in the event that she successfully engages in litigation for the purpose of obtaining additional compensation (above and beyond any initial voluntarily-paid compensation)." The Director rejected Providence's interpretation of the statute, because in his view, Providence's interpretation would have rendered superfluous a later portion of the statute, which provides that:

If the employee refuses to accept such payment or tender of compensation and thereafter utilizes the services of an attorney-at-law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation.

D.C.Code § 32-1530(b). Because in his view, Providence's interpretation could not be reconciled with this provision of the statute, the Director affirmed the ALJ's decision. Providence appeals to this court.

II.

A. Standard of Review

Our review of administrative agency decisions is limited. See Oubre v. District of Columbia Dep't of Employment Servs., 630 A.2d 699, 702 (D.C.1993). We must affirm an agency decision unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Clark v. District of Columbia Dep't of Employment Servs., 772 A.2d 198, 201 (D.C.2001). We will not disturb an agency ruling as long as the decision flows rationally from the facts, and the facts are supported by substantial evidence in the record. See Oubre, 630 A.2d at 702.

In our review of DOES decisions, we review the decision of the Director, not the hearing examiner. See St. Clair v. District of Columbia Dep't of Employment Servs., 658 A.2d 1040, 1044 (D.C.1995). We review the Director's legal conclusions de novo. See Mills v. District of Columbia Dep't of Employment Servs., 838 A.2d 325, 329 (D.C.2003). "Recognizing agency expertise, however, we accord great weight to any reasonable construction of a statute by the agency charged with its administration." Id. "The interpretation of the agency is binding unless it is plainly erroneous or inconsistent with the enabling statute." Lee v. District of Columbia Dep't of Employment Servs., 509 A.2d 100, 102 (D.C. 1986). Therefore, we generally sustain the agency's interpretation of the statute even though there may be alternative, reasonable constructions. See id.

Our first step when interpreting a statute is to look at the language of the statute. See National Geographic, 721 A.2d at 620. We are required to give effect to a statute's plain meaning if the words are clear and unambiguous. See Office of People's Counsel v. Public Serv. Comm'n., 477 A.2d 1079, 1083 (D.C.1984). "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used." Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C.1983). Furthermore, "in examining the statutory language, it is axiomatic that `the words of the statute should be construed according to their ordinary sense and with the meaning commonly attributed to them.'" Peoples Drug Stores, 470 A.2d at 753 (quoting Davis v. United States, 397 A.2d 951, 956 (D.C.1979)).

B. Analysis

The D.C. Workers' Compensation Act authorizes a claimant to recover attorney's fees in only two situations. First, "if the employer refuses to pay `any compensation' for a work-related injury within thirty days of receiving written notice from the Mayor of `a claim for compensation,' and the claimant consequently uses the services of an attorney to prosecute successfully his or her claim." C & P Tel. Co. v. District of Columbia Dep't of Employment Servs., 638 A.2d 690, 693 (D.C.1994) (quoting D.C.Code § 36-330(a)(1981), recodified at D.C.Code § 32-1530(a)(2001)). Second, a claimant may recover attorney's fees if an employer voluntarily pays or tenders compensation without an award "but later refuses to pay the additional compensation claimed by the claimant within fourteen days of receiving a recommendation by the Mayor that the claim is justified, and the claimant uses the services of an attorney to recover the full amount claimed." C & P Tel. Co.,638 A.2d at 693.

It is undisputed that the determination of attorney's fees in this case is governed by D.C.Code § 32-1530(b). The statute provides:

If the employer or carrier pays or tenders payment of compensation without an award pursuant to this chapter, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the Mayor shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within 14 days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation and thereafter utilizes the services of an attorney-at-law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney's fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation. The foregoing sentence shall not apply if the controversy relates to degree or length of disability, and if the employer or carrier offers to submit the case for evaluation by physicians employed or selected by the Mayor, as authorized in § 32-1507(e), and offers to tender an amount of compensation based upon the degree or length of disability found by the independent medical report at such time as an evaluation of disability can be made. If the claimant is successful in review proceedings before the Mayor or court in any such case, an award may be made in favor of the claimant and against the employer or

...