Travelers Indemn. of Illinois v. Dc. Does, No. 05-AA-1290.

Citation975 A.2d 823
Decision Date09 July 2009
Docket NumberNo. 05-AA-1290.
PartiesTRAVELERS INDEMNITY COMPANY OF ILLINOIS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent and Vertrans, Inc., Intervenor.
CourtD.C. Court of Appeals

Before WASHINGTON, Chief Judge, RUIZ, Associate Judge, and FARRELL, Senior Judge.*

RUIZ, Associate Judge:

Petitioner, Travelers Indemnity Company of Illinois ("insurer"), the workers' compensation insurance carrier for intervenor, Vertrans, Inc. ("employer"), seeks our review of the order of the Compensation Review Board ("CRB") dismissing the employer's appeal of an order issued by the Office of Workers' Compensation ("OWC"). The OWC had issued an order, at the insurer's request, adopting the recommendation of a Memorandum of Informal Conference ("Memorandum") issued by the Claims Examiner. In that Memorandum, the insurer was found not to have an obligation under the insurance contract to pay benefits to claimant; as a result, according to the Claims Examiner, benefits were payable by the employer. The CRB dismissed the employer's appeal for lack of jurisdiction, because there was no valid final order to review once the employer had rejected the Memorandum and filed an application for a formal hearing with the Office of Hearings and Adjudication ("OHA") at the D.C. Department of Employment Services ("DOES"). Because the CRB reasonably interpreted the regulations governing the procedures for informal conferences as terminating upon the filing of an application for a formal hearing, we affirm its decision to dismiss the appeal for lack of jurisdiction.

I.

These proceedings arose out of a claim for workers' compensation benefits filed pursuant to the District of Columbia Workers' Compensation Act of 1979 (codified as amended in D.C.Code § 32-1501 to -1545 (2001)). Claimant Jerry Russell performed escalator maintenance work for the employer in the District of Columbia for over eight years.1 In May 2002, claimant suffered an injury to his back, neck, and right shoulder while performing maintenance work which required lifting, pulling, and removing escalator steps which weighed 32 pounds each. Claimant sought medical treatment, and was diagnosed on May 10, 2002, with right trapezius syndrome and lower-back strain.

Claimant sought total temporary disability benefits from May 10, 2002, to the present and continuing. The employer conceded that claimant's injury was work-related, but it and the insurer disputed whether the insurance contract provided coverage for his claim. The insurer maintained that employer did not have workers' compensation coverage for injury related to work in the District of Columbia because employer's assigned risk policy for the period when the claim arose provided coverage only for employees in the state of Virginia.2 Employer, on the other hand, argued that the policy covered the workers' compensation claim because claimant had been hired in Virginia and was working in D.C. on a temporary basis.

Claimant, the insurance company and the employer submitted their dispute to the Office of Workers' Compensation for resolution. On September 3, 2002, the Claims Examiner conducted an informal conference among the parties. Applying the District of Columbia Workers' Compensation Act, and after evaluating the parties' contentions and documentary evidence, including the contract of insurance, the Claims Examiner issued a Memorandum dated September 24, 2002, in which she found that the claimant's employment was "localized principally in the District of Columbia," and that "claimant worked in, [and] the injury occurred in" the District. See D.C.Code § 32-1503(a) (2001). The Claims Examiner interpreted the insurance policy as covering only claims related to employment in Virginia. Thus, the Claims Examiner recommended that the employer—not the insurer—should be liable to pay Mr. Russell's disability claim.

The Memorandum contained a section titled "Appeal Rights," which stated that the parties had fourteen days to indicate whether they agreed or disagreed with the Claims Examiner's recommendation. If a party disagreed with the recommendation, it was required to file an application for a formal hearing with the OHA within thirty-four working days after the issuance of the Memorandum. If an application was not timely filed, the Memorandum would become final and binding on the parties.

On October 17, 2002, employer rejected the Claims Examiner's recommendation, and on November 13, 2002, it filed a timely application for a formal hearing. However, on February 4, 2003, the day before the hearing was scheduled, the employer withdrew the application. As a result, the application for a formal hearing was dismissed without prejudice and the case was remanded to OWC "for such further action as may be warranted."

On February 20, 2003, the insurer filed with OWC a "Motion to Enforce the Informal Conference Decision." The OWC granted the motion on March 25, 2003, adopting the Memorandum of Informal Conference as the Final Order in this case.

Employer appealed the OWC's Final Order to the Compensation Review Board, which rendered its decision on October 7, 2005. The CRB dismissed the appeal on jurisdictional grounds without reaching the merits. It held that once the employer rejected the Claims Examiner's recommendation, the Memorandum was rendered null and void and the OWC, therefore, could not convert the Memorandum into a Final Order. Accordingly, the CRB concluded that it, in turn, lacked jurisdiction to resolve the issues raised by the appeal because there was no final decision to review. The insurer timely filed in this court for review of the CRB's decision.

Several months after the CRB's decision in this case, and while this appeal was pending, the CRB announced that it was conducting an en banc review of another case that raised substantially similar issues, Gooden v. Nat'l Children's Ctr., CRB Nos. 03-137 & 03-142, 2006 WL 4583383, 2006 DC Wrk. Comp. Lexis 485 (Apr. 14, 2006). In Gooden the full CRB panel held that

in the absence of express authority requiring or otherwise permitting remand to OWC, the dismissal of an Application for Formal Hearing neither reinvests OWC with jurisdiction over a previously filed claim [with OWC] nor reinvests a claims examiner with authority to enter a Final Order dispositive of the parties' right based upon a previously issued Memorandum of Informal Conference.

Gooden, slip op. at 7. In the Gooden opinion the CRB specifically referred to and reaffirmed (based on a different analysis, discussed infra) its prior disposition in this case dismissing the appeal for lack of jurisdiction.2

II.

This court must affirm an agency's decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See D.C.Code § 2-510(a)(3)(A) (2001). We also defer to an agency's interpretation of a statute or regulation it is charged with implementing if it is reasonable in light of the language of the statute (or rule), the legislative history, and judicial precedent. See Wash. Metro. Area Transit Auth. v. D.C. Dep't of Employment Servs., 825 A.2d 292, 294 (D.C. 2003). The CRB has, since February 5, 2005, replaced the Director of the Department of Employment Services "in providing administrative appellate review and disposition of workers' and disability compensation claims arising under" the D.C. Workers' Compensation Act. Russell v. Vertrans, Inc., CRB No. 03-56, slip op. at 1 n. 1 (Oct. 7, 2005) (citing Administrative Policy Issuance No. 05-01 (Feb. 5, 2005) (implementing D.C.Code §§ 32-1521.01 & -1522 (2005))).3

The issue before this court, therefore, is whether to uphold the CRB's interpretation that the filing of an application for a formal hearing after a Memorandum of Informal Conference has been rejected— even if the application is later withdrawn—divests OWC of jurisdiction to enter a final order in a workers' compensation proceeding. We hold that the CRB's interpretation of the relevant regulations is reasonable and affirm its dismissal of the employer's appeal for lack of jurisdiction.

Under the Workers' Compensation Act, a claimant may obtain adjudication of a claim either by 1) requesting an informal conference with the Office of Workers' Compensation, or 2) directly filing an application for a formal hearing with the DOES Office of Hearings and Adjudication. See Nat'l Geographic Soc'y v. D.C. Dep't of Employment Servs., 721 A.2d 618, 621-22 (D.C.1998). The regulations implementing such procedures are set forth in 7 DCMR § 219 (informal conference) and 7 DCMR § 220 (formal adjudication).

If a claimant chooses the informal route, OWC acquires jurisdiction over the matter. A Claims Examiner's recommendation becomes binding if the recommendation is not timely rejected within fourteen days and an application for a formal hearing is not timely filed within thirty-four days after the issuance of the recommendation. "Once an application for a formal hearing is filed, however, all informal procedures must be terminated." Nat'l Geographic Soc'y, 721 A.2d at 622 (citing 7 DCMR § 219.23). The DOES Office of Hearings and Adjudication then assumes exclusive jurisdiction over the workers' compensation claim.

On August 25, 2003, the Director of the Department of Employment Services (now the CRB) established an exception to this rule in Sacko v. Radio Shack, CRB No. 02-89, 2003 WL 22952723, *3, 2003 DC Wrk. Comp. Lexis 310, *8-9 (Aug. 25, 2003). The exception would be...

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