FRANCINE FRAZIER, PETITIONER, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, and DISTRICT OF COLUMBIA DEPARTMENT OF PUBLIC SCHOOLS, INTERVENOR.
No. 18-AA-49
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided June 11, 2020
Argued April 30, 2019
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
On Petition for Review of an Order of the Compensation Review Board (CRB-108-17)
David J. Kapson, with whom Kevin H. Stillman was on the brief, for petitioner.
Tonya A. Robinson filed a statement in lieu of brief for respondent.
Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for intervenor.
Before FISHER, THOMPSON, and MCLEESE, Associate Judges.
Opinion for the court by Associate Judge THOMPSON.
Dissenting opinion by Associate Judge MCLEESE at page 27.
Over five years later, petitioner submitted a claim for a schedule award based on permanent disability related to the December 2008 injury.1 The Office of Risk Management
Board (the “CRB“). The instant petition for review followed after the CRB affirmed the OAH dismissal. We affirm the CRB‘s ruling. As we explain below, we do so because the statutory and regulatory scheme makes OAH review unavailable for the type of claim involved here, and because we are unpersuaded by petitioner‘s arguments that this limitation is unlawful, was unfairly retroactive in her case, and denied her due process and equal protection.
I.
OAH acknowledged in its “Compensation Order Dismissing the Case for Lack of Jurisdiction” that it “is the administrative forum with primary jurisdiction over [PSWCP] compensation disputes.” OAH noted, however, that its jurisdiction is limited. OAH went on to identify several statutory and regulatory provisions that it concluded required it to dismiss petitioner‘s case.
First, OAH addressed the assertion petitioner made in submitting her claim for a PPD schedule award: that she was requesting a “determination of whether [she] has a permanent partial disability pursuant to
OAH additionally reasoned that it did not have jurisdiction under the other subparagraphs of
Finally, OAH deferred to the ORM interpretation embodied in
The CRB affirmed the dismissal for lack of jurisdiction for the reasons cited by OAH. It also acknowledged, but did not resolve, petitioner‘s due process and equal protection challenges to
The CRB was “sympathetic” to petitioner‘s argument but concluded that the OAH ruling was in accordance with the law.
II.
As noted above, petitioner commenced her claim for a PPD schedule award by asserting that she was relying on
authority, constitutional, and estoppel claims. She asserts that ORM exceeded its authority in adopting
A. ORM‘s authority to adopt § 156.1
As this court recently stated in Webb v. District of Columbia Dep‘t of Emp‘t Servs., 204 A.3d 843 (D.C. 2019),
Petitioner asserts, however, that
Petitioner also contends that
CRB.)8
Petitioner argues in addition that
which, as the District puts it, are “silent about any appeal rights for the denial of a schedule award.”
We have recognized that an agency “is not precluded from changing its interpretation [of a statute] if it believes that a different interpretation is more consistent with the statutory language and legislative intent” and if it “provide[s] an explanation of the change.” Hensley v. District of Columbia Dep‘t of Emp‘t Servs., 49 A.3d 1195, 1204–05 (D.C. 2012); see also id. at 1205 n.9; Hanson v. District of Columbia Rental Hous. Comm‘n, 584 A.2d 592, 595 (D.C. 1991) (“[I]f an agency‘s regulation is invalid – i.e., [is] in conflict with the statutes, [is] beyond the statutory authority of an agency, or violates jurisdictional doctrines [–] the agency is not bound by its regulations and its decision to depart from the regulations will be upheld.“). In addition, while our review of legal rulings is de novo, we accord deference to an agency‘s reasonable interpretation of the statute it administers. Kelly v. District of Columbia Dep‘t of Emp‘t Servs., 214 A.3d 996, 1000 (D.C. 2019). In light of these principles, we defer to ORM‘s reasonable interpretation that providing for CRO review of denials of requests for schedule awards is more consistent with the Council‘s intent as reflected in the Act than was the prior regulation that provided for appeals to an ALJ.9
B. Retroactivity
Petitioner further argues that even if ORM‘s adoption of
By way of factual background: The rule providing for an appeal only to the CRO was not in effect when petitioner made her request for a schedule award in 2014 (or 2015). ORM‘s amended rules first went into effect as emergency rules that were effective from November 30, 2016, through March 17, 2017. See 64 D.C. Reg. 3959, 4077 (Apr. 28, 2017). The amended
(including
Application of a new rule to a pending case has retroactive effect if it “would impair rights a party possessed when [s]he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed.” Holzsager v. District of Columbia Alcoholic Beverage Control Bd., 979 A.2d 52, 57 (D.C. 2009) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). “[W]ith respect to the impact of [a] new law on the rights of parties, the fact that the new law merely alters the procedure by which a petitioner may obtain its objectives weighs in favor of applying the new law, unless [a party has] reasonably and significantly altered [her] circumstances in reliance on the prior law.” Id. at 58 (internal quotation marks and brackets omitted); see also Landgraf, 511 U.S. at 275 (“Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.“); Bell v. New Jersey, 461 U.S. 773, 777 n.3 (1983) (noting that because “a change of forum ‘takes away no substantive right’ [it] can apply retroactively“). Although “[t]he general rule is that [the adjudicator] must apply the law in effect at the time it renders its decision,”10 the principles articulated in Landgraf dictate that “the law in effect at the time a decision is rendered shall not be applied where ‘doing so would result in manifest injustice[.]‘” Holzsager, 979 A.2d at 57 (quoting Scholtz P‘ship v. District of Columbia Rental Accommodations Comm‘n, 427 A.2d 905, 914 (D.C. 1981)).
Under the foregoing principles,
does not constitute a retroactive application of these rules[,]” 64 D.C. Reg. at 6327, and that “there can be no retroactive application because the ‘new’ legal consequences under the final rules are derived from a correct application of existing statutes that were previously misapplied[,]”
Further, and in any event,
C. Equal protection
Petitioner argues that
Under the rational-basis standard, a law “is constitutionally valid so long as the challenged classification is rationally related to a legitimate governmental purpose.” Id. “A statutory classification will not be set aside if any set of facts reasonably may be conceived to justify it.” Id. (internal quotation marks omitted). “The party challenging the constitutionality of such a classification must make a clear showing of arbitrariness and irrationality, and must negat[e] every conceivable basis which might support it.” Id. (internal quotation marks and citation omitted) (bracket in original). Where no suspect classification is involved, the government is “entitled to ‘a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality[,]‘” Hessey v. Burden, 615 A.2d 562, 575 (D.C. 1992), a presumption that “extends to administrative regulatory action as well[.]” Steffan v. Perry, 41 F.3d 677, 685 (D.C. Cir. 1994). Moreover, “a legislature or govern[ment] decisionmaker [need not] actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger v. Hahn, 505 U.S. 1, 15 (1992).
We have little trouble conceiving of a rational basis for permitting some injured public sector workers to appeal adverse disability determinations to an ALJ while limiting others to a review by an agency review officer. For example, claimants who have been receiving TTD benefits for at least 448 weeks, see
Petitioner asserts that review by the CRO is “at best . . . an ‘on the record’ determination,” [Petitioner‘s Br. at 9] but nothing in ORM regulations describes the parameters of the CRO review or precludes, for example, the CRO‘s consideration of additional medical opinions beyond those that ORM considered before issuing its Notice of Determination. The CRB has observed (albeit prior to issuance of § 156.1) that “[t]here are no ‘proceedings’ before ORM, nor is a ‘record’ created.” Downing v. District of Columbia Pub. Sch., 2012 D.C. Wrk. Comp. LEXIS 522 (Nov. 28, 2012). Further, the form (“Form 9-A Appeal to the Chief Risk Officer“) that ORM‘s Notice of Determination advised should be used to Appeal to the CRO (available at DC.gov/orm/attachments, last visited March 29, 2020), directs the claimant to
For all these reasons, we reject petitioner‘s equal protection argument.
D. Due process
Petitioner also contends that the new regulation, § 156.1, “unfairly deprived [her] of her day in court” and therefore violates due process. She argues that under the tests set out in Mathews v. Eldridge, she was entitled to an evidentiary hearing on her claim.
“In order to invoke the Fifth Amendment‘s procedural due process protections, [a party] must show that a protected liberty or property interest is implicated.” (J. David) Leonard v. District of Columbia, 794 A.2d 618, 623 (D.C. 2002). Assuming without deciding that petitioner has such a protected interest in receipt of permanent disability schedule award, we resolve petitioner‘s claim on the basis of the principle that “[d]ue process is a flexible concept[.]” Kelly v. Parents United, 641 A.2d 159, 167 (D.C. 1994) (internal quotation marks omitted). What it requires is “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333 (internal quotation marks omitted). What due process requires in an administrative decision-making process depends on factors such as “the degree of potential deprivation that may be caused by a particular decision,” id. at 341, the risk of erroneous deprivation, and the fiscal and administrative burdens that additional or substitute procedural requirements would entail, id. at 335. “[A]n evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances.” Id. at 348.
The same facts discussed in the equal protection section above persuade us that petitioner has not shown a due process violation. There is no evidence that the denial of PPD benefits that petitioner has done without for many years, and which she first sought years after her treating orthopedic surgeon assigned her a 20% disability rating in 2011, worked a grievous deprivation, and similarly no persuasive evidence that the denial of benefits was erroneous.12 Moreover, having forgone a review by the CRO and a further review by the Superior Court of any adverse CRO decision, petitioner cannot even show that the process that § 156.1 made available to her was inadequate to avoid the assertedly erroneous ORM determination. In particular, petitioner has not shown that a substitute procedural mechanism was needed to afford her an meaningful opportunity to be heard on the issue of whether she has a permanent impairment qualifying for a schedule award – an issue that is a predominately medical one, and one as to which evidence can be meaningfully presented through written submissions by the doctors who have examined petitioner and reviewed her medical records.
E. Estoppel
Finally, petitioner argues that because ORM unjustifiably delayed the
Although petitioner has shown delay (from 2014 or 2015, to 2017) in resolving her claim, she has not shown or even alleged misrepresentation or concealment. On this record, she also has not shown that affording her an evidentiary hearing before OAH is necessary to promote the public interest or to prevent injustice or an egregiously unfair result. See supra n.14. Nor, having forgone a review by the CRO, has she shown that she suffered the injury she complains of (denial of a schedule award) because of the change in ORM‘s regulations. In addition, petitioner could not have “relied on the former rule” because there was no way of knowing whether petitioner would have needed to appeal ORM‘s determination at the time she filed her claim. And, having failed to show that ORM‘s interpretation that its prior regulation authorizing an OAH hearing conflicted with the statutory intent, petitioner also has not shown that her reliance on that prior regulation was reasonable. We therefore reject petitioner‘s estoppel argument.
Accordingly, the CRB order affirming the OAH dismissal of petitioner‘s appeal is
Affirmed.
MCLEESE, Associate Judge, dissenting: It is undisputed that Ms. Frazier suffered a work-related injury in 2008 while working for the District of Columbia Public Schools; that she appropriately was awarded temporary total disability benefits for a time; and that after she was able to return to work in 2009, the temporary disability payments ceased. Approximately five years later, Ms. Frazier submitted a claim seeking permanent partial disability benefits relating to the original injury. Specifically, Ms. Frazier contended that the workplace injury ultimately caused her to permanently lose partial use of one of her legs, warranting an award of benefits pursuant to the compensation schedule in
I.
In determining that it lacked jurisdiction to review the denial of Ms. Frazier‘s claim, OAH relied on
Fully assessing the jurisdictional issue presented in this case would require fighting through a complicated thicket of statutory provisions, regulations, and case law. E.g.,
In trying to chart a path through this thicket, the natural first step would be to figure out what statutory provision (if any) authorized ORM to decide the merits of Ms. Frazier‘s claim for permanent partial disability benefits. Surprisingly, ORM, OAH, the CRB, and the opinion for the court all skip that step. ORM decided the claim on the merits without explaining what provision authorized it to do so. OAH and the CRB concluded that certain provisions were not applicable to Ms. Frazier‘s claim, but expressed no view as to what provision, if any, authorized ORM to decide the claim on the merits. This court takes the same approach.
The District of Columbia Department of Public Schools (DCPS) takes the position that claims such as Ms. Frazier‘s are properly understood as requests to reopen the initial temporary disability award, and thus are governed by
In my view, it is not possible to reach a reasoned conclusion in this case without addressing the question whether permanent partial disability claims such as Ms. Frazier‘s, if factually supported and promptly presented, are cognizable under the applicable statutes and regulations. Imagine a public-sector employee who suffers a workplace injury resulting in a temporary disability that subsides, so that the employee returns to work and temporary disability payments end. If the injury flares up several years later, to the point that it becomes permanently disabling, there is a substantial argument from general principles that compensation for the permanent disability should be available, assuming that the employee sought such compensation promptly after the flare-up. The CRB has taken that view in the private-sector setting. See Capitol Hill Hosp. v. District of Columbia Dep‘t of Emp‘t Servs., 726 A.2d 682, 686 (D.C. 1999) (deferring to CRB‘s conclusion that claimant can bring claim for permanent partial disability award under compensation schedule despite having previously obtained temporary benefits; court states that it would “make[] no sense” to interpret statutory time limits to make claimant ineligible to obtain permanent disability benefits before claimant became eligible for them). I realize that the private-sector workers’ compensation provisions vary in some respects from the public-sector provisions, so that a holding from one context does not necessarily carry over to the other. We have held, though, that the public-sector workers’ compensation statute should be read broadly to advance its humanitarian purposes. See generally Brown-Carson v. District of Columbia Dep‘t of Emp‘t Servs., 159 A.3d 303, 307 (D.C. 2017) (private-sector statute and public-sector statute have “similar humanitarian purpose,” so court interprets provisions to be consistent even where statutory language is not identical); cf. Newell-Brinkley v. Walton, 84 A.3d 53, 56-57 (D.C. 2014) (workers’ compensation provisions, including provisions applicable to District of Columbia police officers and firefighters, are typically given “liberal construction by the courts to effectuate [their] humanitarian purposes“).
It is possible that DCPS is correct, and the best reading of the applicable statutes and regulations is that District of Columbia employees are simply out of luck if they suffer a workplace injury and receive temporary disability benefits, they then improve so that those temporary benefits end, and several years later their injury worsens into a permanent partial disability. Critically, however, ORM and the CRB have not indicated whether they agree or disagree with DCPS on this point. For that reason, the court has no idea whether upholding the CRB‘s ruling in this case will have the logical consequence of barring recovery by claimants with otherwise seemingly meritorious permanent partial disability claims. I would remand for the CRB (and perhaps ORM) to address that issue in the first instance. See generally, e.g., Fred F. Blanken & Co. v. District of Columbia Dep‘t of Emp‘t Servs., 825 A.2d 894, 901 (D.C. 2003) (remanding for Director of DOES to address “important” issue in first instance).
I recognize that there is language in Sheppard, 993 A.2d at 528, suggesting that
II.
Because I would remand for further proceedings, I view it as premature to decide the other issues addressed in the court‘s opinion. I do wish to briefly discuss one topic touched on by the court: the applicable standard of review.
The court states in passing that it is deferring to the view of ORM. Supra at 15. Assuming for the moment that we would generally owe deference to ORM and/or the CRB, neither agency has expressed a clear position on what I view as a critical question: what is the proper statutory basis for permanent partial disability claims such as that brought by Ms. Frazier? Cf., e.g., D.C. Appleseed Ctr. for Law & Justice, Inc. v. District of Columbia Dep‘t of Ins., Sec., & Banking, 54 A.3d 1188, 1216 (D.C. 2012) (“Explanation in sufficient detail also is required for meaningful judicial review and for there to be a basis for judicial deference to agency determinations.“) (internal quotation marks omitted).
More generally, it appears to me to me to be unsettled under District of Columbia law which agency, if any, would be entitled to deference in deciding whether the Chief Risk Officer of ORM or OAH has jurisdiction to review ORM‘s initial decision of permanent partial disability claims such as Ms. Frazier‘s. On the latter point, I note that (1) this court does not appear to have ever previously accorded deference to
I see no need to belabor the issue of deference, because in my view the court should remand to the CRB. Because the court instead affirms, I respectfully dissent.