United Parcel Service v. DC DOES, 02-AA-1288.

• Decision Date: 30 October 2003
• Docket Number: No. 02-AA-1288.,02-AA-1288.
• Citation: 834 A.2d 868
• Parties: UNITED PARCEL SERVICE and Liberty Mutual Insurance Company, Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Randy Brant, Intervenor.
• Court: D.C. Court of Appeals

834 A.2d 868

UNITED PARCEL SERVICE and Liberty Mutual Insurance Company, Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Randy Brant, Intervenor.

No. 02-AA-1288.

District of Columbia Court of Appeals.

Argued September 24, 2003.

Decided October 30, 2003.

Donald P. Maiberger, Rockville, MD, for petitioners.

Charles L. Reischel, Deputy Corporation Counsel at the time the statement was filed, and Arabella W. Teal, Interim Corporation Counsel, filed a statement in lieu of brief for respondent.

Bruce M. Bender, Rockville, MD, for intervenor.

Before SCHWELB and REID, Associate Judges, and PRYOR, Senior Judge.

SCHWELB, Associate Judge:

On October 28, 2002, the Director of the District of Columbia Department of Employment Services (DCDOES), reversing a Compensation Order issued by an Administrative Law Judge (ALJ), held that, in calculating claimant-intervenor Randy Brant's average weekly wage (AWW) for purposes of determining the amount of workers' compensation to which Brant was entitled, two weeks during which Brant participated in a strike should be excluded. Brant's employer, United Parcel Service (UPS) and the employer's carrier, Liberty Mutual Insurance Company (collectively "the employer"), have petitioned this court to review the Director's decision. The employer contends that the Director's decision is contrary to the language and purpose of the then applicable provision of the District's Workers' Compensation Act (WCA), D.C.Code § 36-311(a)(4) (1997).¹ We disagree and affirm.

I. PROCEEDINGS BEFORE THE AGENCY

On October 29, 1997, Brant was employed by UPS as a package delivery driver. On that day, he suffered injury from a fall after stepping from his delivery truck. He never returned to his former job. Brant filed a timely claim for workers' compensation.

"Benefits under the Act are set in reference to the claimant's [AWW]." George Hyman Constr. Co. v. District of Columbia Dep't of Employment Servs., 497 A.2d 103, 107 (D.C.1985) (hereinafter George Hyman); D.C.Code § 32-1511(a) (2001). Following the accident, Brant received workers' compensation benefits² based on an AWW which excluded from consideration two weeks during which Brant participated in a strike. At the hearing before the ALJ, the employer contended that Brant had been overpaid. The employer relied on the text of D.C.Code § 36-311(a)(4) which provided, in pertinent part, that the AWW "shall be computed by dividing by [thirteen] the total wages the employee earned in the employ of the employer in the [thirteen] consecutive calendar weeks immediately preceding the injury."³

It is undisputed that while the union was on strike, Brant honored the union's picket line and did not report to work. The employer also presented testimony that, during the strike, work would have been available to Brant at UPS' Maryland facility if he had been willing to cross the picket line, as a number of other drivers had done. The ALJ credited this testimony, and he concluded that the time during which Brant was on strike must be included in "the [thirteen] consecutive calendar weeks immediately preceding the injury."

Brant sought review of the ALJ's decision by the Director of DCDOES. The Director reversed the ALJ's decision, ruling in pertinent part as follows:

It is undisputed that during the weeks of August 3 through August 23, 1997, a labor strike against Employer occurred. At the hearing, Claimant contended that he was on leave during the week of August 9, 1997 and then was on strike from August 16 through August 23, 1997. Claimant asserted that the two strike weeks should be excluded from the average weekly wage calculation, as he had no control over his ability to work and work was not available to him. Employer countered by arguing that during those two weeks work was available, unionized employees did show up for work at the Maryland facility and if Claimant had showed up at the facility, he could have worked.

On this issue, the Director has previously held that the calculation of an employee's average weekly wage does not include the weeks that the employee was on strike. See Thomas v. Washington Gas Light Co., Dir. Dkt. No. 88-11 (May 18, 1995). Thus, the two weeks that Claimant was on strike should not have been included in the calculation of his average weekly wage. Thus, the portion of the Compensation Order that dealt with Claimant's average weekly wage must be remanded to the Administrative Judge to recalculate Claimant's average weekly wage.[⁴]

In conformity with the earlier decision in Thomas, the Director sustained Brant's position. In asking this court to review the Director's decision, the employer's sole claim is that the weeks during which Brant was on strike should have been included in determining Brant's AWW.

II. LEGAL ANALYSIS

A. Standard of review.

Our now-familiar standard of review of agency decisions in workers' compensation cases is governed by the District's Administrative Procedure Act. D.C.Code §§ 2-501,-510, et seq. (2001). See D.C.Code § 32-1522(b)(3) (2001); George Hyman, 497 A.2d at 107 n. 3; cf. Chevron, USA v. Natural Res. Def. Council, 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)

. We must determine first, whether the Director's findings are supported by substantial evidence on the record as a whole; and second, whether the Director's conclusions flow rationally from those findings and comport with the applicable law. See, e.g., Red Star Express v. District of Columbia Dep't of Employment Servs., 606 A.2d 161, 163 (D.C.1992). For purposes of the present appeal, the facts are not in dispute, and the sole question before us is one of law, namely, whether, given the evidentiary findings of the ALJ, the Director properly excluded from the AWW calculus the period during which Brant was on strike.

"It is emphatically the province and the duty of the judicial department to say what the law is." Harris v. District of Columbia Office of Worker's Comp., 660 A.2d 404, 407 (D.C.1995) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803)). Accordingly, our review of the Director's legal conclusions is de novo. Belcon, Inc. v. District of Columbia Water & Sewer Auth., 826 A.2d 380, 384 (D.C.2003)

.⁵ Recognizing agency expertise, however, we "accord[] great weight to any reasonable construction of [a] regulatory statute by [the] agency charged with its administration." George Hyman, 497 A.2d at 108; see also Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). Indeed, we will defer to an agency's interpretation of a statute that it administers "so long as it is not plainly wrong or inconsistent with the legislature's intent." Red Star Express, 606 A.2d at 163 (citation omitted); see also Totz v. District of Columbia Rental Accommodations Comm'n, 412 A.2d 44, 46 (D.C.1980) (per curiam).

Finally, the deference that courts owe in such cases "is at its zenith where the [agency's] administrative construction has been consistent and of long standing." James Parreco & Son v. District of Columbia Rental Hous. Comm'n, 567 A.2d 43, 48 (D.C.1989); Atwater v. District of Columbia Dep't of Consumer & Regulatory Affairs, 566 A.2d 462, 468 (D.C.1989). In the present case, the Director's position with respect to the question of law now before us has been consistent since the Thomas case decided by the Director eight years ago.

B. The statutory language.

As we have previously noted, Brant's AWW was to be computed by "dividing by [thirteen] the total wages [he] earned in the employ of the employer in the [thirteen] consecutive weeks immediately preceding the injury." D.C.Code § 36-311(a)(4). "[T]he words of the statute should be construed according to their ordinary sense, and with the meaning commonly attributed to them." Parreco, 567 A.2d at 46 (citing Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C.1983) (en banc)). Arguably, Brant was in UPS' employ during the weeks of the strike, in which case a rigidly literal construction of the statute⁶ might be viewed as suggesting that a period during which the employee was on strike (or, indeed, any period during the thirteen weeks when the employee did not work) should be included in the AWW calculus.

In this instance, however, rigorous literalism would surely lead to incongruous or absurd results. Suppose that an employee, having exhausted his leave, lost his wife and children, as well as his home, in a fire, that he was unable to work for four weeks, and that he was compelled to take leave without pay. Workers' compensation is to be so calculated as to "produce an honest approximation of claimant's probable future earning capacity." 5 ARTHUR LARSON, LARSON'S WORKERS' COMPENSATION LAW § 93.01[1][e], at 93-11 (2003); see also Alexander v. Portland Natural Gas, 778 A.2d 343, 347 (Me.2001)

(explaining that the AWW "is intended to provide a fair and reasonable estimate of what the employee in question would have been able to earn in the labor market in the absence of a work-injury"). This purpose would obviously be thwarted if the benefits available to the bereaved father in the foregoing hypothetical were to be calculated by including his earnings during the period of enforced absence—namely, zero.

"We must not, of course, make a fetish out of plain meaning." Parreco, 567 A.2d at 46.

[I]t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Id. (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (Learned Hand, J.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945)). In the present context, "sympathetic and imaginative discovery" of the AWW cannot be accomplished by simply adding up the amounts paid to the claimant over the thirteen weeks...