Short v. DISTRICT OF COLUMBIA DOES, 97-AA-1504.

• Decision Date: 30 November 1998
• Docket Number: No. 97-AA-1504.,97-AA-1504.
• Citation: 723 A.2d 845
• Parties: Stephen SHORT, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and Washington Metropolitan Area Transit Authority, Intervenor.
• Court: D.C. Court of Appeals

723 A.2d 845

Stephen SHORT, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and Washington Metropolitan Area Transit Authority, Intervenor.

No. 97-AA-1504.

District of Columbia Court of Appeals.

Submitted October 22, 1998.

Decided November 30, 1998.

Carolyn McKenney, Washington, DC, was on the brief, for petitioner.

Jo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Michael D. Dobbs, with whom Ann Wittik-Bravmann, Bowie, MD, was on the brief, for intervenor.

Before TERRY and REID, Associate Judges, and NEWMAN, Senior Judge.

NEWMAN, Senior Judge:

In an August 15, 1997 decision, the Director of the Department of Employment Services ("Director") affirmed a Hearing Examiner's compensation order denying Stephen Short a modification of benefits. Mr. Short appealed, contending: (1) that the Hearing Examiner did not accord the proper weight to the treating physicians' testimony; and (2) that the Hearing Examiner failed to apply the statutory presumption that the injury comes under the District of Columbia Workers' Compensation Act, D.C.Code § 36-301, et seq. (1997) ("the Act"). Washington Metropolitan Area Transit Authority ("WMATA") filed as an intervenor, contending: (1) that the Director erred by denying a motion to dismiss based on Mr. Short's failure to file a memorandum of points and authorities; and (2) that the doctrine of res judicata precludes Mr. Short from receiving compensation. We reverse and remand for further consideration.

I.

Mr. Short worked as a metrobus operator for WMATA. On November 2, 1985, the seat of Mr. Short's bus snapped back, and Mr. Short sustained injuries. Mr. Short began to see an orthopedist, Dr. Rida Azer, complaining of low back pain, with pain radiating into his legs and feet. Dr. Azer diagnosed Mr. Short with a herniated disc at L5-S1, and documented a possible radiculopathy¹ through an electromyogram.² Dr. Azer referred Mr. Short to Dr. Juan Jammes, a neurologist. Dr. Jammes diagnosed Mr. Short with diabetes mellitus after performing a glucose tolerance test. Dr. Jammes concluded that Mr. Short was suffering from a diabetic neuropathy,³ and not a radiculopathy. The neuropathy was determined to be the cause of the pain and numbness in Mr. Short's legs and feet.

Mr. Short filed a claim for workers' compensation benefits for his back injury and asserted that his diabetes and diabetic neuropathy were work-related. A claim examiner from the Office of Workers' Compensation referred Mr. Short to Dr. Harvey Rubenstein for an evaluation in 1986. Dr. Rubenstein diagnosed Mr. Short with diabetes mellitus, and concluded that the work-related injury did not cause the diabetes. In an order dated May 29, 1987, a Hearing Examiner awarded benefits for a closed period from August 17, 1986 to October 19, 1986 for the back injury, but concluded that Mr. Short's diabetes and diabetic neuropathy were not caused by the work-related accident.

Mr. Short returned to work in 1987. Mr. Short continued to be treated by Dr. Azer, and began treatments with Dr. Rubenstein. Between 1987 and 1995, Mr. Short missed work for two brief periods due to muscle spasms in his lower back and pain in his lower back, legs and feet. During those periods, Mr. Short received disability benefits. Due to increased pain and numbness in his feet, however, Mr. Short stopped working in December 1995. Mr. Short is currently unable to work as he no longer has full use of his feet.

Mr. Short filed for a review of benefits, seeking a modification of the May 29, 1987 compensation order, to award him benefits beginning December 11, 1995. Mr. Short presented evidence from Dr. Azer and Dr. Rubenstein that his symptoms involving the lower extremities and feet were not related to his diabetes, but to his November 2, 1985 work-related injury. Dr. Azer diagnosed Mr. Short with bilateral tarsal tunnel syndrome.

In an order dated January 27, 1997, a Hearing Examiner denied Mr. Short's request for a modification of the May 29, 1987 compensation order. The Hearing Examiner concluded that "the complaints which claimant admits to disabling him from his employment are similar in kind, if not degree, to those complaints made at the time of the original hearing. . . ." Short v. Washington Metro. Area Transit Auth., H & AS No. 87-44A, OWC No. 083016, at 6 (Compensation Order, January 27, 1997). The Hearing Examiner stated that the doctrine of res judicata barred Mr. Short's request for modification. Id.

Mr. Short filed an application for review with the Director, but did not file a memorandum of points and authorities. WMATA filed a motion to dismiss for failure to file a memorandum of points and authorities. In an August 15, 1997 order, the Director denied the motion to dismiss. Short v. Washington Metro. Area Transit Auth., Dir. Dkt. 97-20, H & AS No. 87-44A, OWC No. 083016, at 3 (Director's Decision, August 15, 1997). The Director then affirmed the January 27, 1997 compensation order. Id.

II.

As an initial matter, WMATA claims that the Director should have granted its motion to dismiss because Mr. Short failed to file a memorandum of points and authorities. We disagree. As an appellate court, we give deference to an agency's interpretation of the regulations which govern it, so long as that interpretation is not unreasonable or inconsistent with the language of the statute or its legislative history. Robinson v. Smith, 683 A.2d 481, 488 (D.C.1996); Kalorama Heights Ltd. Partnership v. District of Columbia Dep't of Consumer and Regulatory Affairs, 655 A.2d 865, 868 (D.C.1995). The regulation in question requires a party to file a memorandum of points and authorities in addition to an application for review. 7 DCMR § 230.2 (1986).⁴ The requirement of a memorandum of points and authorities, however, is not found in the language of the statute. The statute states in part, "The Mayor is authorized to establish an administrative procedure for review of compensation orders raising a substantial question of law or fact. Application for such review shall be made by any party within 30 days from the date a compensation order is filed as provided in § 36-320." D.C.Code § 36-322(b)(2) (1997).

A memorandum of points and authorities is analogous to a brief filed with this court. We note that while the rules of this court require briefs to be filed by the parties, if a party fails to file a brief, the court may nonetheless choose to move ahead with the case. D.C.App. R. 31(c).

The failure to file a memorandum of points and authorities does not automatically require a dismissal of the case by the Director. See, e.g., Armstrong v. Howard Univ., Dir. Dkt. No. 91-110, H & AS No. 91-272 (Director's Decision, April 16, 1992) (granting leave to file memorandum when a party has failed to do so); Lopez v. Allied Maintenance Corp., H & AS No. 86-254 (Director's Decision, July 7, 1987) (extending time to file memorandum). Like a brief, the memorandum is a useful tool for the Director, as it focuses the Director's attention to the legal and factual issues the parties desire to argue. Because the memorandum benefits the Director, if the Director chooses to waive the requirement and review the case without the memorandum, this court will not reverse on that basis.

III.

WMATA contends that res judicata precludes Mr. Short's request for a modification of the May 29, 1987 compensation order. We disagree.

Res judicata ("claim preclusion") precludes a party from relitigating an entire claim that has already reached a final judgment on the merits. See Oubre v. District of Columbia Dep't of Employment Servs., 630 A.2d 699, 703 (D.C.1993)

(citing Gilles v. Ware, 615 A.2d 533, 538 (D.C.1992); Henderson v. Snider Bros., 439 A.2d 481, 485 (D.C.1981)). "[O]nce a claim is finally adjudicated, the doctrine of claim preclusion will operate to prevent the same parties from relitigation of not only those matters actually litigated but also those which might have been litigated in the first proceeding." Stutsman v. Kaiser Found. Health Plan of the Mid-Atlantic States, Inc., 546 A.2d 367, 369-70 (D.C.1988) (citations omitted). In order for claim preclusion to apply, the current case and the original case must arise from "a common nucleus of facts." Faulkner v. Government Employees Ins. Co., 618 A.2d 181, 183 (D.C.1992). Further, res judicata does not apply to a situation where the basis for a second claim could not have been discovered with due diligence. See Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 887 (D.C.1998).

Collateral estoppel ("issue preclusion") precludes the relitigation of specific facts or issues that have actually been decided in a previous case when those issues are essential to the case. Oubre, supra, 630 A.2d at 703. Collateral estoppel does not apply if the issues are not identical, even if the issues are similar. Hutchinson v. District of Columbia Office of Employee Appeals, 710 A.2d 227, 236 (D.C.1998) (citing 18 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 132.02[2][a] (3d ed.1997)).

While both res judicata and collateral estoppel apply in administrative agency procedures, see Oubre, supra, 630 A.2d at 703,

the Act creates a specific procedure to revisit issues previously decided by a compensation order. Up to one year after the last disability payment, the compensation order may be reviewed and modified "where there is reason to believe that a change of conditions has occurred." D.C.Code § 36-324(a) (1997). This includes a change as to "fact or the degree of disability." Id. § 36-324(a)(1). Thus, when a claimant injures himself, returns to work, but the original injury worsens (e.g., new symptoms manifest themselves), causing him to be unable to work again, the claimant may avail himself of a review procedure to modify the compensation order and seek additional benefits. See id.

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