Black v. District of Columbia Department of Employment ServicesBlack v. District of Columbia Department of Employment Services
Jerry Black petitions for review of a Decision of the Director of the Department of Employment Services (DOES) affirming a Hearing and Appeals Examiner’s decision to “suspend payment of temporary total disability benefits.... ” Hе contends that (1) the evidence was insufficient to support suspension of a previously issued compensation order; (2) he was improperly denied payments for temporary total disability benefits while incarcerated; and (3) the Director erred in granting the employer credit for temporary total disability overpayments against any future award for wage loss. With respect to the first two contentions, we affirm. We remand for further consideration on thе third.
I.
Black was awarded temporary total disability (“TTD”) benefits and payment of causally related medical expenses for a work-related back injury he sustained on October 30, 1995, in a compensation order dated April 18, 1997. In late 1999, the employer moved to suspend TTD payments for the period from January 1, 1999 to October 22, 1999, based on Black’s asserted failure to cooperate with vocational rehabilitation efforts and because Black vоluntarily limited his income.
At the hearing on the motion to suspend, Nancy Forest, a vocational- consultant for First Rehabilitation Resources, testified that claimant refused to participate in the Job Club program which prepares individuals prior to commencing a job search. Job Club required no physical exertion. In a letter dated June 18, 1999, Dr. Azer, Black’s primary care physician, diagnosed Black as unable to return to his former position; however, he had reached maximum medical improvement. After receiving the physician’s release, Black again refused to participate in Job Club. Finally, Black testified that he was taking care of his ill father from mid-July through October 1999 in South Carolinа and was thus unable to participate in rehabilitation programs. It was revealed, however, that this testimony was false and that Black was in fact incarcerated in a correctional facility in Lorton, Virginia from July 14, 1999 to October 8,1999, pursuant to a order by the District of Columbia Superior Court.
The examiner issued a compensation order finding that TTD payments should have been suspended from February 25, 1999 to July 14, 1999, because of Black’s failure to cooperatе with employer’s vocational rehabilitation efforts. In addition, the examiner ruled' that TTD benefits should have been suspended while Black was incarcerated from July 14, 1999 through October 8, 1999 on the ground that the fact of incarceration barred benefits. Finally, the examiner concluded that the employer was entitled to credit for any TTD benefits paid from February 25, 1999 through July 14, 1999, against any future wage loss benefits, should they be awarded. The Director affirmed the compensаtion order with respect to the suspension of benefits for Black’s refusal to cooperate with vocational rehabilitation and with respect to the ruling regarding credit against a future award. However, on the payment during incarceration issue, the Director affirmed on different grounds. The Director
II.
Before us, Black first contends that the evidence in the record was insufficient to support modification of the prior compensation order on the ground that he failed tо participate in the vocational rehabilitation program. We disagree. On appeal we review agency orders under the “substantial evidence” standard.
Harris v. District of Columbia Office of Worker’s Compensation,
In this case, the hearing examiner found that commencing with a missed appointment for vocational assessment on February 25, 1999, Jerry Black failed to cooperate with vocational rehabilitation pursuant to
We next consider Black’s contention that he was incorrectly denied payments for TTD benefits while incarcerated solely because of the incarceration. While the hearing examiner found that Black was not entitled to benefits while he was in prison on that ground, the Director concluded that Black should be denied benefits during that period bеcause “[u]nder the facts of this case, even if Claimant had not been incarcerated, he would not have been entitled to benefits as of July 14, 1999, as Claimant’s temporary total disability benefits were already suspended prior tо his incarceration.” It is the Director’s ruling that is before us for review, not the hearing examiner’s.
.... If at any time during such period the employee unreasonably refuses ... to accept vocational rehabilitation the Mayor shall, by order, suspend the payment of further compensation, medical payments, and health insurance coverage during such period, unless the circumstances justified the refusal.
III.
Finally, Black contends that the Director erred in affirming the hearing examiner’s conclusion that an overpayment of TTD benefits entitled the employer to a credit against any future wage loss benefit award. As with the issue regarding suspension of benefits because of incarсeration discussed above, the governing statutes neither allow nor forbid granting credit against subsequent awards. The agency, however, concluded that such credit may be applied. Because we are not satisfied that the Director has provided sufficient reasons for so concluding, we remand for further consideration.
The scope of review for agency decisions is well established. The DOES Director’s decision must be affirmed “unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Clark v. District of Columbia Dep’t of Employment Servs.,
In the compensation order of December 22, 1999, the Hearing Examiner stated:
Claimаnt has not proffered any applicable case law or provision in our Act which prohibits employer from taking credit for overpaid wage loss benefits against future wage loss payment. Therefore, employer shall be entitled to take credit for the overpayment of compensation against any future wage loss benefits due claimant.
The Director, after quoting this passage, stated: “The Director can find no error in the Hearing Examiner finding that Em
No deference is appropriate ... where the agency has failed to identify the question of statutory construction to be addressed ... It would be incongruous to accord substantial weight to an agency’s interpretation of a statute where the record is barren of any indication that the agency gave any consideration at all to the statutory language or to the structure or purpose of the provisions which were ostensibly being construed.
Because the construction of the statutory provision by the Director is inadequate to serve our purрoses, we remand the case to the agency for an authoritative interpretation of the language of the statute, its legislative history, and DOES precedent.
The decisions of the Director and the hearing examiner arе affirmed in part, but the case is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
. Jerry Black’s neurosurgeon, Dr. Guy Garg-our, wrote a prescription for an exercise program and vocational rehabilitation on Jаnuary 20, 1999.
. We note that the governing statute is silent on the issue of suspension of payment due to incarceration. Other jurisdictions are divided on whether benefits may be suspended solely due to incarceration. However, where thе applicable statute is silent on that question, the majority of courts have concluded that disability benefits should be paid to an incarcerated claimant.
See Bowen v. Smith,