Snipes v. D.C. Dept. of Employment Services, 87-177.

• Decision Date: 10 June 1988
• Docket Number: No. 87-177.,87-177.
• Parties: Sylvia SNIPES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Hair Lox and Liberty Mutual Insurance Company, Intervenors.
• Court: D.C. Court of Appeals

Page 832

542 A.2d 832

Sylvia SNIPES, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, Hair Lox and Liberty Mutual Insurance Company, Intervenors.

No. 87-177.

District of Columbia Court of Appeals.

Argued March 10, 1988.

Decided June 10, 1988.

Richard W. Galiher, Jr., Washington, D.C., for petitioner.

Charles L. Reischel, Deputy Corp. Counsel, and N. Denise Wilson — Taylor, Asst. Corp. Counsel, Washington, D.C., entered appearances, for respondent.

Robert P. Scanlon, Rockville, Md., for intervenors.

Before PRYOR, Chief Judge, STEADMAN, Associate Judge, and GALLAGHER, Senior Judge.

STEADMAN, Associate Judge:

Petitioner Snipes was injured in an on-the-job accident in late 1982 and received temporary total benefit payments under the District of Columbia Workers' Compensation Act, D.C.Code § 36-301 to -344 (1981) (the "Act"). In May of 1983, the carrier determined that Snipes had fully recovered and terminated payments. After a hearing pursuant to the Act, Snipes's claim for benefits subsequent to the cut-off date was denied in an order which became final on April 1, 1984. No appeal was taken to this court. Several months later, Snipes sought to have the case heard for further review on the ground of "a change of conditions" under D.C. Code § 36-324. The request was denied. Snipes appealed to this court. We affirm the order of denial.

I.

The controlling statutory provision dealing with modification of final decisions under the Act, pursuant to which Snipes made application, is D.C.Code § 36-324, which provides in pertinent part:

[A]t any time prior to 1 year after the rejection of a claim . . . the Mayor may, upon his own initiative or upon application of a party in interest, order a review of a compensation case pursuant to the procedures provided in § 36-320 [governing the evidentiary hearing process] where there is reason to believe that a change of conditions has occurred which raises issues concerning:

1) The fact or the degree of disability or the amount of compensation payable pursuant thereto. . . .

The Mayor has delegated responsibility under the statute to the Director of the Department of Employment Services

("DOES"). Mayor's Order 82-126, D.C. Reg. 21-43 (1982).

Snipes's attempt to seek review of her denied claim to continued benefits began with a letter to DOES from her newly retained counsel on June 20, 1984. An "Application for Formal Hearing" was filed on October 24, 1984, on a DOES form used to request a hearing on workers' compensation claims generally. As completed by Snipes, it gave no indication that a request for review was at issue but simply stated that "claimant suffered a back injury and has been refused medical treatment, and wage loss payments during disability." Nothing was said about changed conditions since the final order denying the claim.

On November 6, 1984, Snipes's employer filed a "Motion to Dismiss Application for Formal Hearing Filed by Claimant." In the motion, the employer pointed out that Snipes's claim for further benefit payments had been denied, following a hearing, by an order that became final on April 1, 1984. It asserted that Snipes was merely seeking to relitigate issues already decided against her and that no allegations of change of conditions in the case had been made.¹

In response to this motion, Snipes promptly filed an opposition asserting that her application involved issues not previously litigated and, inferentially, that a change of condition had occurred. She identified those issues as a) liability for medical expenses of a Dr. Ng which the employer/insurer refused to pay, and b) chronic pain syndrome not considered in arriving at the prior order.

On November 9, 1984, a one-sentence order was entered dismissing the application. Ten days later, on November 19, Snipes filed a "Motion for Reconsideration and Hearing on the Employer/Carrier's Motion to Dismiss Application for Formal Hearing Filed by Claimant" She pointed out that the order was silent on the reasoning and basis why the formal hearing request was dismissed, asserted that DOES had been asked to review whether there were changed conditions, and urged that it was incumbent on DOES either to hold a hearing or issue findings of fact and conclusions of law upon which the claim was dismissed. In response thereto, on November 26, 1984, the same hearing examiner who had conducted the original hearing² issued a formal notice that on December 17, 1984, she would "hear oral argument" on the claimant's motion of November 19.

At the hearing, the employer and Snipes argued their respective positions. Snipes asserted a change of conditions as evidenced by medical reports of Dr. Joseph, her treating physician, Dr. Ng, a specialist in chronic pain, and Dr. Grins, a psychologist. Subsequently, the hearing examiner issued a recommended compensation order essentially rejecting Snipes's assertions.³ Timely exceptions were filed with the Director.

On January 24, 1987, the Director issued a final compensation order which concluded that the hearing examiner had not abused her discretion in denying Snipes's request for a hearing to review her case under the statutory provision. He expressly approved the hearing officer's procedure⁴ followed in this case:

Procedurally a preliminary hearing to determine whether there is sufficient evidence of a nature which could give one reason to believe that a change of conditions had occurred, was a rational productive means of reaching the initial determination required by the Act. By denying Petitioner's request for an evidentiary hearing after a preliminary examination of Petitioner's insufficient, new evidence, the Hearing Officer followed the mandates of the Act and acted within the bounds of Due Process.

II

Before us, Snipes attacks both the procedures followed in reaching the decision to deny further review of her claim and the substantive grounds underlying the decision.

A.

Procedurally, Snipes makes a twoprong challenge. First she asserts that by the terms of the Act and regulations issued thereunder, she is entitled to an evidentiary hearing as provided in D.C.Code § 36-320.

We think the Director has reasonably construed the Act otherwise, to which we pay deference. Hughes v. District of Columbia Department of Employment Services, 498 A.2d 567 (D.C. 1985). Indeed, Snipes's suggested reading would seem a forced one. By the terms of § 36-324 a claimant's right to an evidentiary hearing under § 36-320 is triggered only where there is "reason to believe that a change of conditions has occurred." We see no reason why a claimant should not expect to meet such a threshold test. The hearing given as of right by regulation 3621.1 et seq. seems merely to reflect the statutory command in § 36-320, whose applicability is the very matter at issue.

Second, she asserts that if the December 17 hearing was to examine the issue of whether there existed reason to believe that a change of conditions had occurred, she was not on sufficient notice thereof and that in any event, she should have been allowed to present further evidence. She points out that nowhere has the Director clarified by regulation or otherwise the nature of the preliminary hearing held here. However effective that argument might be on different facts, we think that Snipes had the opportunity to establish her right to an evidentiary hearing by showing there was reason to believe that a change of conditions had occurred. This very issue was directly contested in the papers filed prior to the granting of the December 17th hearing and was...