Kelly v. District of Columbia Department of Employment Services
76 A.3d 948
D.C.2013Background
- Carol Middledorf Kelly, a Hospital employee, suffers a compensable workplace injury and is entitled to permanent total disability benefits calculated from her average weekly wage (AWW).
- Statute generally computes AWW by dividing total wages for 13 consecutive calendar weeks preceding injury by 13; case law allows excluding some pre-injury weeks to better approximate future earning capacity.
- This dispute follows an earlier D.C. Court of Appeals decision (Middledorf Kelly I) remanding for a proper AWW calculation after inclusion of two unpaid weeks was found improper.
- On remand the ALJ excluded additional weeks as illness-related; the CRB rejected excluding weeks when claimant received paid leave and directed an 11-week AWW that included two small accrued-leave payments ($80.20 each) for weeks when she did not work.
- Kelly argued the two accrued-leave weeks/payments should be excluded (they were illness-related and inclusion dilutes her earnings); Hospital and CRB argued paid leave counts as wages and including the weeks reflects her regular attendance/use-of-leave pattern.
- The Court (this opinion) holds one of the two accrued-leave weeks was illness-related (exclude), the other was not proven as illness-related (include); it also holds accrued-leave payments qualify as "wages" for AWW purposes; case remanded for recalculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court’s prior mandate limited ALJ to excluding only the two unpaid weeks referenced in Middledorf Kelly I | Middledorf Kelly: mandate required excluding only the two unpaid weeks and precludes excluding other weeks | Hosp/CRB: ALJ may exclude additional weeks if record supports unavoidable illness or distortion of AWW | Court: Mandate did not bar ALJ from excluding other illness-related weeks; remand instruction was for a proper AWW calculation, not a fixed exclusion list |
| Whether the two $80.20 accrued-leave payments are "wages" under the Act and thus includable in AWW | Kelly: accrued-leave payments are not wages and should be excluded to avoid diluting her earnings record | Hosp/CRB: paid leave is recompense for service and fits statutory wages definition; including reflects regular practice | Court: Affirmed CRB — accrued-leave payments are wages (consistent with prior administrative interpretations) |
| Whether the ALJ’s finding that both accrued-leave weeks were illness-related is supported by substantial evidence | Kelly: ALJ found both weeks illness-related; they should be excluded per Middledorf Kelly I | Hosp/CRB: record does not support illness for one week; inclusion appropriate | Court: Substantial evidence supports excluding the week ending Oct. 9, 1993 (medical note); no substantial evidence for week ending Sept. 25, 1993 — claimant bore burden to prove illness, so that week must be included |
| Whether including the non-illness accrued-leave week unfairly distorts AWW and should nonetheless be excluded to reflect claimant’s practical part-time pattern | Kelly: inclusion understates her earning capacity and inflates benefits; should exclude both accrued-leave weeks | Hosp/CRB: claimant regularly used leave; inclusion prevents converting a part-time record into full-time pay | Court: Evidence shows claimant’s absences were due to health, not a deliberate part-time choice; inclusion of the Sept. 25 week does not distort AWW materially given other anomalous high-pay weeks; but one sick week must be excluded — remand for recalculation |
Key Cases Cited
- UPS v. District of Columbia Dep’t of Emp’t Servs., 834 A.2d 868 (D.C. 2003) (AWW may exclude certain weeks to produce an honest approximation of future earning capacity)
- Washington Hosp. Ctr. v. District of Columbia Dep’t of Emp’t Servs., 983 A.2d 961 (D.C. 2009) (Middledorf Kelly I) (remanded for proper AWW calculation; excluded two unpaid weeks)
- George Hyman Constr. Co. v. District of Columbia Dep’t of Emp’t Servs., 497 A.2d 103 (D.C. 1985) (supporting exclusion of atypical pre-injury weeks to avoid distorting AWW)