Riley v. Dist. of Columbia Dep't of Emp't Servs.
| Decision Date | 09 September 2021 |
| Docket Number | No. 19-AA-974,19-AA-974 |
| Citation | 258 A.3d 834 |
| Parties | Moses C. RILEY, Petitioner, v. District of Columbia DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and D.C. Water and Sewer Authority, et al., Intervenors. |
| Court | D.C. Court of Appeals |
David M. Snyder was on the brief for petitioner.
Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief for respondent.
Douglass A. Datt was on the brief for intervenors.
Before McLeese and Deahl, Associate Judges, and Ferren, Senior Judge.
This case presents the unusual question whether this court should accept for review an interlocutory appeal from the denial of an interlocutory appeal by an administrative agency. The petitioner, Moses C. Riley, seeks interlocutory review of a Compensation Review Board (CRB) order dismissing his application for interlocutory review of the denial of his motion to dismiss his employer's request for a formal hearing by an administrative law judge (ALJ) from the Administrative Hearings Division (AHD) of the Department of Employment Services (DOES). Riley's workers’ compensation claim allegedly arose out of a work-related injury he suffered while employed as a maintenance mechanic for intervenor, D.C. Water and Sewer Authority (WASA). He argues that his petition meets this court's criteria for interlocutory review because, without it, he "will be precluded from asserting" WASA's liability for statutory attorney's fees "when a permanent partial disability award is issued." We agree with Riley, reverse, and remand the case for further proceedings.
While working for WASA on September 21, 2017, Riley was tightening straps to pull a belt on a pallet when he felt discomfort in his left shoulder. He underwent an arthroscopic evaluation, resulting in a distal clavicle resection
to repair a rotator cuff tear for which WASA voluntarily paid Riley temporary total disability benefits. On June 19, 2018, Riley returned to work without restriction, after which he underwent a permanency evaluation by his physician, who concluded that Riley had a thirty-three percent permanent partial impairment to his left arm.
On March 8, 2019, Riley emailed WASA requesting permanent partial disability benefits of "33% to the left arm." He then applied to the DOES Office of Workers Compensation (OWC) for an "informal conference" to resolve the matter, if possible—a conference that, pursuant to statute and regulations, would trigger a written recommendation from the Mayor.1 OWC issued a notice the next day, scheduling the conference for April 10, 2019. On March 26, 2019, however, WASA sought to bypass the scheduled conference. It filed an application with the Hearing and Adjudications Section of the AHD, requesting instead a "formal hearing" before an ALJ to challenge Riley's claim for compensation, thereby terminating the informal conference process and its related Mayoral recommendation. WASA alleged "a lack of medical and/or legal causation" of Riley's injury and also contested the "nature and extent" of his disability. WASA further maintained that, because Riley had returned to his previous position without restriction and was earning more than he had at the time of his injury, he suffered no economic loss, and thus was not entitled to a permanent disability award.
In response, on April 15, 2019, Riley filed a motion to dismiss WASA's request for a formal hearing, arguing that the AHD had no "subject matter jurisdiction" over the request because WASA had no standing to bring a worker's compensation claim on Riley's behalf. Riley also asserted that WASA could not seek a formal hearing in any event without "exhaust[ing]" the informal conference process, which he characterized as a "mandatory administrative remed[y]" that is a "statutory prerequisite for a formal hearing."
On July 10, 2019, an ALJ from the AHD denied Riley's motion to dismiss, stating that neither the District's Workers’ Compensation Act (WCA)2 nor the related regulations "mandate a party first seek an informal conference prior to filing an application for a formal hearing." Riley then sought interlocutory review of the ALJ's ruling by the CRB, whereupon the AHD held the scheduled formal hearing in abeyance pending Riley's CRB petition.
Riley urged the CRB to employ the "collateral order" doctrine to exercise interlocutory jurisdiction over the AHD's order. More specifically, he argued that, in correctly applying the three required doctrinal criteria: (1) the AHD had conclusively determined a "disputed question of law" by ruling that the parties need not have exhausted the informal conference process before WASA sought a formal hearing; (2) the AHD had resolved an "important issue ... separate from the merits" of Riley's disability claim, namely, that WASA had standing to apply for a formal hearing in lieu of "informal procedures" to resolve the dispute; and (3) the AHD's grant of WASA's application for a formal hearing—eclipsing Riley's request for the informal procedure—unlawfully imposed "unreviewable" litigation burdens on Riley, including a lost opportunity to seek statutory attorney's fees from WASA if his disability claim was successful. In sum, Riley argued that, because WASA had bypassed the informal conference process by requesting—and receiving—a scheduled formal hearing on Riley's claim, WASA had failed to "exhaust[ ] its administrative remedies."
On September 20, 2019, the CRB rejected Riley's arguments and issued an order dismissing his application for interlocutory review. On October 17, 2019, Riley filed a petition with this court for interlocutory review of the CRB's dismissal order. WASA then sought dismissal of Riley's petition, observing that it had been taken from a non-final order and, in any event, did not meet the criteria for interlocutory review.
On January 29, 2020, this court denied without prejudice WASA's motion to dismiss, requesting the parties to file briefs addressing whether the CRB's order met our requirements for interlocutory review under the collateral order doctrine. This court's order specifically referenced the traditional three-part test for interlocutory review reflected in Riley's petitions to the CRB and, subsequently, to this court: "(1) [the order] must conclusively determine a disputed question of law, (2) it must resolve an important issue that is separate from the merits of the case, and (3) it must be effectively unreviewable on appeal from a final judgment."3
The WCA4 outlines the procedures an employee must follow when filing a claim of injury, as well as the corresponding obligations of DOES. The applicable regulations elaborate the claims process, including an informal settlement procedure. Regulation 7 D.C.M.R. § 211.2 (1986) provides that OWC "may utilize ... non-adjudicative fact finding procedures including informal conferences under § 219 of this chapter to narrow issues, encourage voluntary payment of claims, and encourage agreement between interested parties."
Regulation 7 D.C.M.R. § 219.2 (1994) states that participation in an informal conference is "voluntary." If the parties reach a settlement, OWC then prepares a final compensation order that embodies the agreement.5
"If at the close of an informal conference, the parties have not reached an agreement on all of the disputed issues, the Office shall evaluate all the available information and prepare a Memorandum of Informal Conference containing recommendations."6 The parties then have fourteen days to state in writing whether they agree with the recommendations.7 If they agree, OWC issues a final compensation order in line with the agreement.8 If the parties do not agree, either party may seek a formal hearing.9 If neither party requests a formal hearing within fourteen days of the Memorandum of Informal Conference, it becomes a final compensation order.10
Alternatively, once a party files a claim for compensation, "any interested party"—claimant or employer—may apply to the AHD for a formal hearing before an ALJ.11 "Upon application of any interested party the Mayor shall order a hearing within 90 days, unless the Mayor grants a special extension of time for the development of facts."12 "An original application for formal hearing shall be in writing, signed by the moving party, and filed with [the AHD]."13 Central to this proceeding, once a party applies for a formal hearing, "[a]ll informal procedures shall terminate."14
At the heart of Riley's argument for interlocutory review is the related fee-shifting statute. D.C. Code § 32-1530 entitles a claimant to attorney's fees in two, limited circumstances. First , a claimant is entitled to attorney's fees if an employer refuses to pay after an employee files a claim for compensation, and if the employee, through counsel, thereafter obtains a compensation award.15 Second , a claimant also may recover attorney's fees if: (1) the employer tenders "compensation without an award"; (2) "a controversy develops over the amount of additional compensation, if any," the employee should receive; and (3) an "informal conference" fails to resolve the matter.16 At that point, D.C. Code § 32-1530(b) says "the Mayor shall recommend in writing a disposition of the controversy."17 The Mayor's written recommendation "is not defined in the [WCA] or the regulations," but this court has construed it to mean the "Memorandum of Informal Conference" (described above in regulation 219.18)18 prepared by the OWC after the parties have failed to "reach[ ] an agreement on all of the disputed issues."19
Attorney's fees are then awardable to an employee who "uses an attorney to recover a greater amount via an award of compensation."20
"In all ...
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