DARRYL KELLY, PETITIONER, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT, and POTOMAC ELECTRIC POWER COMPANY, INTERVENOR.
No. 18-AA-13
DISTRICT OF COLUMBIA COURT OF APPEALS
August 29, 2019
On Petition for Review of an Order of the Compensation Review Board (CRB-110-17)
Before FISHER and EASTERLY, Associate Judges, and WASHINGTON, Senior Judge. Opinion of the court by Senior Judge WASHINGTON. Dissenting opinion by Associate Judge EASTERLY at page 36.
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.
Argued January 16, 2019
Benjamin E. Douglas for petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor General, filed a statement in lieu of brief in support of respondent.
William H. Schladt for intervenor.
I. Factual Background & Procedural Posture
Kelly was employed by Pepco as an underground linesman helper. He was injured on the job on December 14, 2015, and his injury was aggravated on the job on May 20, 2016. Kelly filed a workers’ compensation claim, and Pepco accepted the claim and began paying him compensation.
On December 27, 2016, Kelly, represented by counsel, applied for an informal conference with the Officer of Workers’ Compensation (“OWC“) of the District of Columbia Department of Employment Services (“DOES“), in order to resolve a controversy that had developed over the amount of compensation to which Kelly was entitled. OWC scheduled the informal conference for February 9, 2017. On January 26, Pepco and its insurer, represented by counsel, applied for a formal hearing before the Administrative Hearings Division (“AHD“) of DOES.
Following this request, Kelly wrote a letter to the chief administrative law judge (“ALJ“) of DOES, dated February 3, in which he asserted that Pepco should not be able to circumvent the informal conference mechanism by applying for a formal hearing after an informal conference had already been scheduled. Pepco responded the same day with its own letter to the chief ALJ, arguing that it was not obligated to participate in the informal conference and was well within its rights to request a formal hearing. On February 16, the chief ALJ issued a letter to Kelly stating that, while he “agree[d]” with Kelly that “the statute favors the informal conference mechanism as a way to avoid litigation costs,” under the applicable regulations, “participation in the informal conference ‘shall be voluntary‘” and “‘all informal procedures shall terminate when an application for formal hearing is filed,’ which [he] consider[ed] controlling in this situation.”
The formal hearing was held before an ALJ on May 15, 2017. On July 14, the ALJ issued an order awarding additional compensation to Kelly. Neither party petitioned the Compensation Review Board (“CRB“) of DOES for review of the compensation order, and Pepco paid Kelly pursuant to the compensation order.
However, Kelly then applied for attorney‘s fees from Pepco, pursuant to
On remand, the ALJ issued an October 20, 2017 order concluding that Kelly was not entitled to attorney‘s fees because: (1) the arguments raised by Kelly in support of his attorney‘s fees application had been considered and rejected by the chief ALJ, and were thus barred by the doctrine of res judicata; and (2) the conditions precedent to obtaining attorney‘s fees from the employer under
In a decision and order issued on December 15, 2017, the CRB affirmed the ALJ‘s order, rejecting the res judicata rationale, but finding that the ALJ‘s interpretation of
CRB‘s decision and order.
II. Standard of Review
“Our review of administrative agency decisions is limited.” Providence Hosp. v. District of Columbia Dep‘t of Emp‘t Servs., 855 A.2d 1108, 1111 (D.C. 2004). In general, we “will not disturb an agency ruling as long as the decision flows rationally from the facts, and the facts are supported by substantial evidence in the record,” id. at 1111, and will “affirm an agency‘s decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Travelers Indem. Co. of Ill. v. District of Columbia Dep‘t of Emp‘t Servs., 975 A.2d 823, 826 (D.C. 2009). While our review of the CRB‘s legal rulings is de novo, Fluellyn v. District of Columbia Dep‘t of Emp‘t Servs., 54 A.3d 1156, 1160 (D.C. 2012); Providence Hosp., 855 A.2d at 1111, we accord deference to its reasonable interpretation of the statute it administers where there is an ambiguity to be resolved. Pannell-Pringle v. District of Columbia Dep‘t of Emp‘t Servs., 806 A.2d 209, 211 (D.C. 2002); Johnson v. District of Columbia Dep‘t of Emp‘t Servs., 111 A.3d 9, 11 (D.C. 2015). Indeed, we will “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.” Travelers, 975 A.2d at 826. Thus, “[u]nless the agency‘s interpretation is plainly wrong or inconsistent with the statute, we will sustain it even if there are other constructions which may be equally reasonable.” National Geographic Soc‘y v. District of Columbia Dep‘t of Emp‘t Servs., 721 A.2d 618, 620 (D.C. 1998). “However, the natural corollary of the agency deference proposition is that we are not obliged to stand aside and affirm an administrative determination which reflects a misconception of the relevant law or a faulty application of
III. The Legal Framework
The D.C. Workers’ Compensation Act (“the Act“),
see also
A. Claim Procedures
claims process,
Regulation 219, entitled “informal procedures,” outlines the process by which OWC conducts informal conferences. If an agreement is reached at an informal conference, OWC must prepare a final order embodying the agreement.
B. Attorney‘s Fees
Under the Act, a workers’ compensation claimant is presumed to be entitled to compensation paid by the employer, but is only allowed to recover attorney‘s fees from the employer in the two scenarios described in the Act‘s attorney‘s fees provision,
First, [under subsection (a)], a claimant may recover attorney‘s fees if the employer disputes liability for the disability and the claimant thereafter uses an attorney‘s services to successfully obtain compensation.
. . .
[Second, under subsection (b)], a claimant may recover attorney‘s fees if the employer tenders compensation initially without an award, but later refuses to pay additional compensation recommended by the agency
after an informal conference, and the claimant uses an attorney to recover a greater amount via an award of compensation.
Fluellyn, 54 A.3d at 1160 (discussing
further states: “In all cases, fees for attorneys
This court has interpreted
attorney‘s fees where the criteria set forth in the provision are not satisfied. In C & P Telephone Co. v. District of Columbia Department of Employment Services, 638 A.2d 690, 693 (D.C. 1994), we noted that, under the Act, “a person claiming compensation may be entitled to recover attorney‘s fees in only two situations,” id. at 693, and held that the claimant could not recover attorney‘s fees from the employer because neither situation obtained in that case: the employer initially paid medical benefits and thus did not “recline to pay any compensation,” making subsection (a) inapplicable, id. at 691, 696, and the employer paid the full amount claimed within fourteen days of issuance of the Memorandum of Informal Conference, making subsection (b) inapplicable. Id. at 691-92, 697.
Similarly, in National Geographic, we stated that “[t]he statute is clear and unambiguous in setting forth the circumstances under which a claimant can be awarded attorney‘s fees.” National Geographic Soc‘y, 721 A.2d at 621. We found that “[t]he last sentence of [subsection] (b), [which] reads[,] ‘In all other cases any claim for legal services shall not be assessed against the employer or carrier,‘” provides “the clearest expression of legislative intent to limit the circumstances under which the claimant may recover attorney fees to those outlined explicitly in
the statute.” Id. (quoting
In Providence Hospital, we again stated that “a claimant [can] recover attorney‘s fees in only two situations.” Providence Hosp., 855 A.2d at 1111. In that case, an informal conference occurred and a written recommendation was issued, but the claimant rejected the recommendation and sought a formal hearing. Id. at 1110, 1112. We held that “[t]he statute clearly did not apply because [the employer] never rejected the Mayor‘s recommendation” – and thus the claimant could not recover attorney‘s fees. Id. at 1113. We concluded: “The
fees, and leaves no discretion to the agency or court to decide cases in which all the conditions are not met.” Id. at 1114.
Then, in Fluellyn, we began by noting the “two distinct scenarios” under which attorney‘s fees can be assessed against an employer, Fluellyn, 54 A.3d at 1160, and found that the case did not meet the criteria of either scenario. The employer initially paid compensation to the claimant, the parties participated in an informal conference, OWC issued a written recommendation, and the employer rejected the recommendation and applied for a formal hearing. Id. at 1158. However, the parties reached a settlement before the hearing was held, so the employer withdrew its application for a formal hearing, which was dismissed without prejudice. Id. Because there was no formal hearing and thus no ALJ order awarding compensation to the claimant, the final condition was not met and claimant was not eligible for attorney‘s fees under subsection (b). Id. at 1164-65.
Most recently, in Turner v. District of Columbia Department of Employment Services, 210 A.3d 156 (D.C. 2019), we noted that “attorney‘s fees are warranted under
compensation award. Id. at 158. We concluded that, because the claimant rejected the Memorandum, the claimant “failed to satisfy the ‘express condition’ of subsection (b) that the employer must ‘refuse to accept [the Mayor‘s] written recommendation.‘” Id. at 160 (brackets in original).4 Thus, the claimant was not entitled to receive attorney‘s fees from the employer under
The dissent also argues that we should reverse or else remand to the CRB
IV. Discussion
The parties agree that subsection (a) of
Kelly argues that the facts of this case fit under
applied for a formal hearing before the conference could take place, this action on Pepco‘s part amounted to a rejection of the informal conference and thus a rejection of any possible written recommendation from the Mayor. He argues that the statutory language encompasses not only a situation in which an employer rejects an actual written recommendation issued by OWC after a conference, but also encompasses Pepco‘s actions, which were tantamount to “refus[ing] to accept such written recommendation.”
Kelly further asserts that our decision in National Geographic and the CRB‘s decision in Anderson v. Washington Hospital Center, CRB No. 12-078, 2013 WL 494504 (January 23, 2013), stand for the proposition that a claimant cannot file for a formal hearing before an informal conference is held and then seek to recover attorney‘s fees – but they do not prevent a claimant from recovering attorney‘s fees when it is the employer (not the claimant) who has evaded informal procedures. He also claims that the intent of the Act is to promote informal procedures as a means of inexpensive and efficient dispute resolution, and that the denial of attorney‘s fees to a claimant in his position destroys the parties’ incentives to use informal procedures.
“Section 32-1530(b) specifies that a claimant may recover attorney‘s fees
only where, after making voluntary payments, the employer has rejected the recommendation of the agency . . . after an informal conference, and compensation is thereafter awarded that is greater than the amount of compensation tendered by the employer.” Fluellyn, 54 A.3d at 1161 (internal quotation marks and brackets omitted). It is undisputed that Pepco made voluntary payments and that Kelly was ultimately awarded compensation that was greater than that tendered by Pepco. The question, then, is whether what occurred here can be construed as Pepco “reject[ing] the recommendation of the agency . . . after an informal conference.”
A. The Plain Language of the Attorney‘s Fees Provision
Subsection (b) states that “the Mayor shall recommend in writing a disposition of the controversy,” and it authorizes attorney‘s fees “[i]f the employer or carrier refuse[s] to accept such written recommendation, within 14 days after its receipt by them.” It appears that, for reasons that are not entirely clear, “written recommendation” is not defined in the Act or the regulations. Nor does the statute itself refer to the informal conference; the informal conference and Memorandum of Informal Conference are discussed in
the controversy” – to implicate the informal conference described in Regulation 219, meaning that the Mayor‘s “written recommendation” referred to in the statute is the Memorandum of Informal Conference described in the regulation. Turner, 210 A.3d at 158-59; Fluellyn, 54 A.3d at 1158, 1161, 1164; Providence Hosp., 855 A.2d at 1110, 1113-14; National Geographic Soc‘y, 721 A.2d at 621-22; see also Travelers, 975 A.2d at 829; Anderson, 2013 WL 494504, at *2-3.6
As is clear from the discussion of our case law above, we have construed
particularly so in “within 14 days after its receipt,”
and one can only receive something that actually exists. Further, the regulation states that this refusal must be submitted “in writing.”
(. . . continued)
recommendation does not exist,” id. at 49 – but the regulation and our case law clearly do envision such a world. See, e.g., Providence Hosp., 855 A.2d at 1113-14; National Geographic Soc’y, 721 A.2d at 621-22.
As we discuss in note 6, supra, we do not reach the apparent tension between the statute and the regulation because the issue was not presented to us. The dissent would excuse Kelly’s failure to challenge the statute (and, presumably, the regulation) before this court because Kelly argued – and our dissenting colleague agrees – that the plain language of the statute supports his position. Post at 49 n.11. But, as explained in this section, logic and our precedents establish that it does not. Moreover, Kelly had, in fact, raised the potential invalidity of the regulation in his brief before the CRB, presumably at least in part because the chief ALJ expressly relied on the regulation in his letter to the parties – but, for whatever reason, Kelly chose to abandon this argument when petitioning for review to this court.
While the dissent asserts that a statute must control over a conflicting a regulation, post at 49 n.11, we cannot simply ignore a regulation based on a putative inconsistency that has not been presented to this court. On the contrary, the issue must be raised on appeal in order for the court to address and, if necessary, remedy it. See, e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (discussing the role of a court in considering a “challenge”
to an agency action taken pursuant to a statute).
here, and this case therefore falls into the category of “all other cases [in which] any claim for legal services shall not be assessed against the employer or carrier.”
“In all cases, fees for attorneys representing the claimant shall be approved in the manner herein provided.”
). Hence, the CRB’s holding that attorney’s fees are not authorized in this case was reasonable in light of the language of the statute and judicial precedent.8
The Ninth Circuit has allowed a claimant to recover attorney’s fees in the absence of a written recommendation. National Steel & Shipbuilding Co. v. U.S. (continued . . .)
While Kelly may argue that this outcome is formalistic or even harsh, we are bound by the plain language of the statute, and we have held that “the plain language of
Providence Hosp., 855 A.2d at 1114. As we stated in response to a “humanitarian purpose”
of the Act:
In applying the Act, we are aware of the principle that workers’ compensation laws are to be liberally construed for the benefit of the employee. While that principle allows doubts to be resolved favorably to the employee, it does not relieve the courts of the obligation to apply the law as it is written and in accordance with its plain meaning. The plain language of [subsection] (b) makes
(. . . continued)
Dep’t of Labor, Office of Workers’ Comp. Programs, 606 F.2d 875, 882 (9th Cir. 1979); see also Matulic v. Director, Office of Workers’ Comp. Programs, 154 F.3d 1052, 1060-61 (9th Cir. 1998); Todd Shipyards Corp. v. Director, Office of Workers’ Comp. Programs, 950 F.2d 607, 610-11 (9th Cir. 1991). However, the other circuits have rejected this approach. Andrepont, 566 F.3d at 420 (noting that the Fourth, Fifth, and Sixth Circuits have “rejected the Ninth Circuit’s ‘legislative intent’ approach, . . . [and] conclud[ed] that one of section 928(b)’s explicit prerequisites for an attorneys’ fees award is that the employer must reject the recommendations that emerge from the informal conference”
); Pittsburgh & Conneaut Dock Co., 473 F.3d at 267 (noting that “there is little, if any, support for the Ninth Circuit’s position, even in the legislative history”
). Moreover, in examining the Ninth Circuit’s position, this court has noted that “[t]he difficulty with the analysis in National Steel is that the court resorted to legislative intent without addressing the statutory language or determining whether the statute was clear and unambiguous.”
National Geographic Soc’y, 721 A.2d at 622 n.3.
an award of attorney’s fees appropriate, insofar as it is relevant here, only where a controversy develops over additional compensation and the employer declines to accept the Mayor’s recommendation for resolution within fourteen days of its receipt. That did not occur here.
National Geographic Soc’y, 721 A.2d at 622 (citation, internal quotation marks, and footnote omitted).
On a related note, Kelly’s contention that the workers’ compensation regime favors informal resolution of disputes may well be true, as the chief ALJ acknowledged in his February 2017 letter to the parties. But we look to statutory intent only when the statutory language is ambiguous.
In interpreting a statute, we first look to its language; if the words are clear and unambiguous, we must give effect to its plain meaning. The intent of the legislature is to be found in the language used. The burden on a litigant who seeks to disregard the plain meaning of the statute is a heavy one, and this court will look beyond the ordinary meaning of the words of a statute only where there are persuasive reasons for doing so.
National Geographic Soc’y, 721 A.2d at 620 (citations, internal quotation marks,
and brackets omitted).9 We have repeatedly held that the text of “the plain language of the fee award statute”
); Fluellyn, 54 A.3d at 1161, 1164 (noting this court’s holdings that the language of “clear,”
“unambiguous,”
and “plain”
); Providence Hosp., 855 A.2d at 1113 (discussing the court’s “rel[iance] on the plain language”
); National Geographic Soc’y, 721 A.2d at 621-22 (discussing “the clear[,] unambiguous,”
and “plain language”
); C & P Tel. Co., 638 A.2d at 696-97 (applying “the plain language of the provision”
).10 And we have rejected a similar argument in a related context:
[T]he insurer argues that unless the OWC’s jurisdiction is continued after a formal hearing application is withdrawn, there will be little incentive to use the OWC’s informal proceedings, which are more cost-effective and accessible to claimants, and a necessary prerequisite for a claimant’s entitlement to receive attorney’s fees. See
D.C. Code § 32-1530(b) (2001) ;
Nat’l Geographic Soc’y, 721 A.2d at 622. These policy-based concerns cannot, however, trump the clear language of the regulations.
Travelers, 975 A.2d at 829. Kelly has simply not met his heavy burden to persuade us to disregard the language of the statute and look beyond the ordinary meaning of its words in order to reach the interpretation he is urging.11
In any event, the legislative history that the dissent cites does not speak with any clarity to this issue, discussing in only the briefest, most general terms the role of attorney’s fees awards in “penalizing insurance companies for not paying valid claims”
and “discouraging dilatory action by companies.”
D.C. Council, Comm. on Public Servs. and Consumer Affairs, Report on Bill 3-106, “D.C. Workers’ Comp. Act of 1979,”
at 17 (Jan. 16, 1980). See also National Geographic Soc’y, 721 A.2d at 622 (rejecting claimant’s reliance on the same report because the report “simply urges the retention of a provision of the law which authorized attorney’s fees ‘where a claim is contested and not voluntarily paid by the employer and insurance carrier . . . .’ Nothing in the cited provision provides a persuasive reason for ignoring the plain language of [subsection] (b).”
).
Moreover, this court has noted that legislative history contemporaneous and complementary to that cited by the dissent confirms that the “overall objective [of the Act] was to reduce employer and carrier expenses resulting from workers’ compensation claims.”
Baghini v. District of Columbia Dep’t of Emp’t Servs., 525 A.2d 1027, 1030 (D.C. 1987) (discussing D.C. Council, Comm. on Hous. and Econ. Dev., Report on Bill 3-106, “D.C. Workers’ Comp. Act of 1979”
(Jan. 29, (continued . . .)
B. The Purpose and Effect of the Attorney’s Fees Provision
Kelly’s argument regarding unfairness to claimants is likewise unavailing. Kelly is correct that it was the claimants in National Geographic and Anderson who bypassed the informal conference and proceeded directly to a formal hearing. National Geographic Soc’y, 721 A.2d at 622; Anderson, 2013 WL 494504, at *3. Similarly, in Providence Hospital, it was the claimant who received and rejected the Memorandum of Informal Conference and sought a formal hearing. Providence Hosp., 855 A.2d at 1110. And we did indeed state in National Geographic that “[w]hen claimants decline to use that informal procedure in favor of the formal claims procedure, they do so at the risk of increased expense to themselves and to the system.”
National Geographic Soc’y, 721 A.2d at 622.
(. . . continued)
1980)). After years of operating under the federal statute, see supra note 6, the D.C. Council passed the Act in 1980 to create its own workers’ compensation regime because “coverage and compensation under the prior law was unduly broad and generous.”
Id. (citation omitted); see also Comm. on Hous. and Econ. Dev., Report on Bill 3-106, at 2-5. Thus, while “put[s] a ceiling on what may be regarded as ‘reasonable’”
attorney’s fees because doing so “ensures that the Act’s main purpose of reducing employer and carrier expenses is fulfilled.”
Baghini, 525 A.2d at 1030. Accordingly, even if we were to bypass the plain language of the statute and examine the legislative history, that history casts significant doubt on the dissent’s attempts to relax the preconditions to obtaining employer-paid attorney’s fees under
But the claimants in those cases were not denied attorney’s fees as punishment for refusing to participate in an informal conference; they were denied attorney’s fees because the statutory preconditions were not met. This case is not meaningfully distinguishable from those cases, as it is immaterial whether it is the claimant or the employer who chooses to forgo the informal conference. There is simply no basis in the statute for distinguishing between cases in which the claimant forgoes an informal conference and cases in which an employer forgoes an informal conference. The statute, read in conjunction with the regulation, dictates that the employer must reject the Mayor’s written recommendation – the Memorandum of Informal Conference – in order for the claimant to recover attorney’s fees. No exceptions or variations are permitted.
Moreover, to the extent that there is a strategic disparity between claimants and employers vis-à-vis the use of informal procedures, it is created by the statute itself, read in conjunction with the regulation. It may (or may not) be that, given the strictures of
and thus reduce its exposure to liability for attorney’s fees.12 Yet we must give
There is nothing in our case law to suggest that employers must proceed to formal adjudication to protect their interests with respect to modification of awards. To the contrary, relevant authority indicates that settlement agreements, informal conference agreements, and Memoranda of Informal Conference will serve as the equivalent of compensation orders for the purposes of the statute of limitations under “These settlements [approved by the
(continued . . .)
meaning and effect to statutory language unless doing so would lead to an absurd or unreasonable result. See, e.g., Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) (en banc). No such result obtains here.
A strategic disparity between the parties would not be absurd because parties to litigation have no inherent right to recover attorney’s fees, and are permitted to do so only in particular situations in which the recovery of such fees is specifically authorized for policy reasons. See, e.g., 20 Am. Jur. 2d Costs § 48 (2019) (explaining the “American Rule”
that, “absent statutory authority or a contractual agreement between the parties, each party to litigation must bear its own attorney’s fees and may not recover those fees from an adversary”
); 22 Am. Jur. 2d Damages § 444 cmt. (2019) (“The ‘American rule’ as to litigants being responsible for their own attorney’s fees has been observed from the earliest days of the Republic.”
);
(. . . continued)
Mayor] . . . shall be a final binding compensation order.“); “Following an informal conference at which an agreement is reached, [OWC] shall . . . prepare a Final Order which embodies the agreement”
); “If at the close of an informal conference, the parties have not reached an agreement on all of the disputed issues, [OWC] shall . . . prepare a Memorandum of Informal Conference containing recommendations.”
“If the parties agree with the Memorandum of Informal Conference . . . and submit . . . a joint statement . . . indicating their acceptance of the terms . . . and their intent to be bound . . . [OWC] shall issue a Final Order.”
). Thus, to the extent employers are concerned about the finality of awards, there is nothing to discourage them from engaging in informal, non-adjudicatory processes to dispose of claims efficiently and cost-effectively.
6921 Georgia Ave., N.W., Ltd. P’ship v. Universal Cmty. Dev., LLC, 954 A.2d 967, 971 (D.C. 2008) (“The responsibility for paying attorneys’ fees stemming from litigation, in virtually every jurisdiction, is guided by the settled general principle that each party will pay its respective fees for legal services. However, this American Rule is subject to exception premised upon statutory authority, contractual agreement, or certain narrowly defined common law exceptions.”
).13
Here, the D.C. Council created a regime in which workers’ compensation claimants can only recover attorney’s fees from their employers in the scenarios described in subsections (a) and (b) of
U.S. 726, 729 (1963) (“[I]t is up to legislatures, not courts, to decide on the wisdom and utility of legislation.”
); Vanderhoof v. District of Columbia, 269 A.2d 112, 115 (D.C. 1970) (“Courts will not inquire into the wisdom of such enactments when the measures used are not arbitrary or discriminatory.”
); Bogen v. Green, 239 A.2d 154, 155 (D.C. 1968) (“[I]t is our function to say what the law is, rather than what it should be.”
); Hurley v. Reed, 288 F.2d 844, 847 (D.C. Cir. 1961) (“Courts do not sit to determine the expediency and wisdom of statutes, but to see that the directions and authorizations of the legislative body within its constitutional powers are adhered to.”
).15 Thus, to the extent that claimants, attorneys, or others (including our dissenting colleague, post at 37-38, 53-54, 56-58) are concerned that employers may use the language of subsection (b) to engage in gamesmanship, these concerns must be addressed to the D.C. Council.
In addition, we note that the Act already contains a provision designed to penalize employers for bad faith delays in the payment of compensation. “the cost and time advantages of the informal OWC route remain as incentives for most parties.”
Finally, and perhaps most fundamentally, our holding today amounts to a logical application of the plain language of
workplace injuries in all cases, but it only requires them to pay attorney’s fees in particular cases where particular conditions are satisfied: under subsection (a), the employer must decline to pay any compensation, and, under subsection (b), a specific sequence of events involving an informal conference must occur, as described above. These conditions were simply not satisfied in this case.18
(. . . continued)
does not depend on the attorney’s fees authorization found in “describe the universe where the employer forces an employee to litigate and then loses,”
the provision “is a critical lever to promote the core objectives of the workers’ compensation scheme: voluntary, prompt compensation.”
Post at 45. Even assuming this were true, it is for the D.C. Council to determine the size and scope of that universe. It has already done so through “the plain language of the statute,”
which – as our dissenting colleague has elsewhere recognized – “we assume best reflects the intent of the legislature.”
Johnson, 111 A.3d at 10.
C. Costs
Because Kelly is not entitled to recover attorney’s fees under subsections (a) or (b) of “In cases where an attorney’s fee is awarded against an employer . . . there may be further assessed against such employer . . . costs.”
).
V. Conclusion
The plain language of
So ordered.
(. . . continued)
Pepco paid Kelly pursuant to that order. On the whole, then, the statutory scheme appears to have operated as it was intended to in this case.
EASTERLY, Associate Judge, dissenting: The District’s workers’ compensation scheme is based on the premise that employee injuries are a cost of doing business and should be absorbed by the employer, not the employee. The employer benefits from this scheme by gaining protection from tort liability. It is critical to the functioning of this safety net for workers injured on the job that employers voluntarily and promptly pay the benefits due. The statute thus provides multiple inducements for voluntary, prompt payment. Key among these is the one-sided, employee-only attorney’s fee statute,
In particular, the subsection at issue in this case, shall recommend in writing a disposition of the controversy.
Under the plain language of the statute, informal procedures before the OWC are mandatory; the employer cannot bypass the OWC to avoid accepting or rejecting its recommendation and thereby insulate itself from an attorney’s fee award. Accordingly, I cannot agree with my colleagues in the Majority that the employer in this case defeated Mr. Kelly’s right to attorney’s fees by taking such evasive action.
To reach their conclusion, my colleagues purport to rely on the plain language of
injured employees. In short, the Majority Opinion not only is incorrect as a matter of law, but also deals a serious blow to the District’s safety net for injured workers.
I. The District’s Workers’ Compensation Act Favors Voluntary, Prompt Payments, and the Attorney’s Fee Provision Furthers that Goal.
The District’s Workers’ Compensation Act recognizes that employers are generally liable for the injuries their employees receive while at work, and it is meant to provide an “inexpensive mechanism to pursue claims against employers.”
Nat’l Geographic Soc’y v. District of Columbia Dep’t of Emp’t Servs., 721 A.2d 618, 622 (D.C. 1998). “The justification for workmen’s compensation is best expressed in terms of law and economics.”
District of Columbia Workers’ Compensation Act of 1979, D.C. Council, Committee on Public Services and Consumer Affairs, Report on Bill 3-106 at 5 (Jan. 16, 1980) (“Committee Report”
). The premise is that
[d]isabling injuries by accident and disease are inevitable results of the economic activities which make modern civilization possible. . . . People who are crippled in the production of the community’s wealth, and the dependents of those who are killed, have a right to indemnification from the public who consume the fruits of their labor. The economic cost of work injuries are treated as a direct expense of doing business, similar to wages, machinery[,] and materials. If the employer is held responsible for death or disability in the course of
employment he will insure against the loss and price his goods and services accordingly. This method ensures the widest, and least burdensome[,] distribution of the cost of work-related accidents and diseases.
Id. at 6. As the Majority Opinion acknowledges, both employees and employers stand to gain from a workers’ compensation scheme. Employees gain “assured compensation regardless of negligence or fault”
; employers avoid costly civil litigation and potentially large damages awards. Ante at 6-7 (quoting Ferreira v. District of Columbia Dep’t of Emp’t Servs., 531 A.2d 651, 654-55 (D.C. 1987)); see also “exclusive”
remedy for employees “otherwise entitled to recover damages from such employer at law on account of . . . injury or death”
).1
As injured employees have no choice but to rely on workers’ compensation, the success of the District’s workers’ compensation scheme turns on voluntary, prompt payment by employers.2 The Majority Opinion does not acknowledge the central import of voluntary, prompt payment, and allows only that it “may well be true”
“that the workers’ compensation regime favors informal resolution of disputes.”
Ante at 24. But it is plain from the text of the statute that voluntary, prompt payment is employers’ default obligation and swift, informal resolution of any compensation disputes is highly favored. Attorney’s fee awards made statutorily available only to employees, and only when employers opt to formally litigate and lose, promotes this goal.
Under the statute, both injured employees and their employers have initial reporting obligations to the OWC, thereby ensuring everyone is on notice that a compensable injury may have occurred.
“[c]ompensation under this chapter shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability to pay compensation is controverted by the employer.”
The Majority Opinion mistakenly relies on
The only way an employer may legitimately decline to pay compensation is by filing a “Notice of Controversion” form with the OWC within a certain time period. See
An employer who controverts an employee‘s right to compensation, however, exposes itself to financial risk. This risk comes in the form of a one-sided, employee-only attorney‘s fee provision.5 If an employer rejects at the outset a legitimate request to pay benefits, subsection (a) makes an award of attorney‘s fees mandatory:
If the employer or carrier declines to pay any compensation on or before the 30th day after receiving written notice from the Mayor that a claim for compensation has been filed, on the grounds that there is no liability for compensation within the provisions of this chapter, and the person seeking benefits thereafter utilizes the services of an attorney-at-law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney‘s fee against the employer or carrier in an amount approved by the Mayor, or court, as the case may be, which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.
Even when an employer voluntarily pays benefits to an employee, subsection (b) mandates an award of attorney‘s fees if a controversy subsequently arises about the
If the employer or carrier pays or tenders payment of compensation without an award pursuant to this chapter, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the [OWC] shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within 14 days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation and thereafter utilizes the services of an attorney-at-law, and if the compensation thereafter awarded [by an ALJ] is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney‘s fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation.
(emphasis added).6
The Majority Opinion repeatedly emphasizes that an employee is “only allowed to recover attorney‘s fees . . . in the two scenarios described in [§ 32-1530],” ante at 9; see also id. at 12, 13, 14, 15, 31, 33-34, suggesting the attorney‘s fee provision does not do much work in the workers’ compensation regime. But the Majority Opinion fails to appreciate that these two provisions describe the universe where the employer forces an employee to litigate and then loses. Thus the attorney‘s fee provision is a critical lever to promote the core objective of the workers’ compensation scheme: voluntary, prompt payment of compensation.7 It does this not only by creating a financial inducement for employers to voluntarily (. . . continued) statute makes this process explicit in its analogue to
pay compensation that is legitimately due, but also by empowering employees who might
When the District first considered enacting its own workers’ compensation scheme, the Housing and Economic Development Committee wrote the first draft of legislation and proposed, inter alia, departing from the LHWCA and discarding fee-shifting in the D.C. act. See Committee Report at 7, 17. In response, the Public Services and Consumer Affairs Committee forcefully defended its inclusion. The Committee explained that “assessing attorney‘s fees and penalizing insurance companies for not paying valid claims is a method [of] discouraging dilatory action by companies to force an injured employee to settle for less than the statutorily established rate of compensation” and that, without an attorney‘s fee provision, it would be “extremely difficult for an injured worker to obtain competent counsel.” Committee Report at 17. The Committee Report also indicated that ensuring access to counsel by awarding attorney‘s fees would further promote voluntary compliance by leveling the playing field, noting that employees would be fighting against “the specialized legal counsel the insurance companies hire.” Id. The Council rejected the omission of fees proposed by the Housing and Economic Development Committee and adopted the Public Services and Consumer Affairs Committee recommendation on fees nearly verbatim. Compare Committee Report at 69-73 with
My colleagues in the Majority dismiss these statements as “brief” and “general.” Ante at 26 n.11. The legislative history speaks for itself.
II. The Majority Opinion Ignores the Plain Language of the Statute and Threatens to Render the Attorney‘s Fee Provision Entirely Ineffective as an Incentive to Promote Prompt, Voluntary Payment of Worker‘s Compensation Benefits.
Having voluntarily paid temporary total disability benefits, ante at 34 n.18, the employer in this case did not make voluntary prompt payment of permanent partial disability (PPD) benefits legitimately due. Instead the employer forced Mr. Kelly to litigate his right to these benefits at a formal (and more costly) hearing before a DOES Administrative Law Judge (ALJ).9 This is precisely the course of action the attorney‘s fee provision of
The Majority Opinion asserts that it is “bound” by the plain language of
The flaw in this analysis is that the statute, by its plain language, does not envision a world where the OWC‘s recommendation does not exist. To the contrary, as the Majority Opinion acknowledges, the preceding sentence of
(. . . continued) member of a sentence, but must look to the provisions of the whole law, and to its object and policy.” (internal quotation marks omitted)).
My colleagues in the Majority further suggest the real problem exposed by this case is that (1) the workers’ compensation statute conflicts with the regulations promulgated under that statute, ante 19 n.6, 20 n.7 (discussing
The actual foundation of the Majority Opinion is not the plain language of
The Majority Opinion principally relies on National Geographic, 721 A.2d 618. In that case, we held that an employee could not get an attorney‘s fee award where he “decline[d]” to use the OWC‘s informal procedures and “chose to commence formal proceedings,” id. at 622, thereby depriving the employer of the safe harbor from an attorney‘s fees award afforded by
My colleagues in the Majority also rely on Providence Hospital, 855 A.2d 1108; Fluellyn v. District of Columbia Dep‘t of Emp‘t Servs., 54 A.3d 1156 (D.C. 2012); and Turner v. District of Columbia Dep‘t of Emp‘t Servs., 210 A.3d 156 (2019), but no attempt to bypass informal resolution by the OWC was made in any of those cases. In Providence Hospital and Turner, we held that an employee could not get an award of attorney‘s fees under
Until now, this court has not confronted a situation where an employer has bypassed an informal resolution of a benefits controversy by the OWC, and then used that maneuver to justify the denial of an attorney‘s fee award after the employee prevailed at a formal hearing before a DOES ALJ. The plain language of
(. . . continued) The one exception is Lincoln v. Dir., Office of Workers’ Comp. Programs, 744 F.3d 911, 915 (4th Cir. 2014), which provides no guidance as to how to interpret
If we do not reverse outright, we should at the very least remand this case to the
The Majority‘s decision to choose a third path – to depart from the plain language of
The consequences are predictable. There is no rational reason an employer will not choose to bypass informal proceedings before the OWC and opt instead to litigate an employee‘s entitlement to benefits in a formal hearing before an ALJ in order to cut off an employee‘s ability to obtain attorney‘s fees from her employer. More aggressive litigation tactics will almost certainly be accompanied by offers of lowball settlements or refusals to pay entirely, because employers – who are likely to have counsel and the resources to litigate – will know that that their employees will either be paying for counsel out-of-pocket or fighting for their benefits alone.16
My colleagues in the Majority respond that “had the parties successfully reached agreement through informal procedures . . . [Mr. Kelly‘s attorney] (continued . . .) certainly would not have been entitled to recover attorney‘s fees from Pepco,” ante at 33 n.16. This argument is not only incorrect, see
Access to attorney‘s fees under
Notes
“[Our] amendment [to draft legislation replacing the federal law]. . . incorporates changes that demonstrably will result in cost savings; however, [it] does not include changes in the law which will result in a loss of benefits or inequities to workers.”Committee Report at 5.
(. . . continued)(a) If the employer or carrier declines to pay any compensation on or before the 30th day after receiving written notice from the Mayor that a claim for compensation has been filed, on the grounds that there is no liability for compensation within the provisions of this chapter, and the person seeking benefits thereafter utilizes the services of an attorney-at-law in the successful prosecution of his claim, there shall be awarded, in addition to the award of compensation, in a compensation order, a reasonable attorney‘s fee against the employer or carrier in an amount approved by the Mayor, or court, as the case may be, which shall be paid directly by the employer or carrier to the attorney for the claimant in a lump sum after the compensation order becomes final.
(b) If the employer or carrier pays or tenders payment of compensation without an award pursuant to this chapter, and thereafter a controversy develops over the amount of additional compensation, if any, to which the employee may be entitled, the Mayor shall recommend in writing a disposition of the controversy. If the employer or carrier refuse to accept such written recommendation, within 14 days after its receipt by them, they shall pay or tender to the employee in writing the additional compensation, if any, to which they believe the employee is entitled. If the employee refuses to accept such payment or tender of compensation and thereafter utilizes the (continued . . .)
services of an attorney-at-law, and if the compensation thereafter awarded is greater than the amount paid or tendered by the employer or carrier, a reasonable attorney‘s fee based solely upon the difference between the amount awarded and the amount tendered or paid shall be awarded in addition to the amount of compensation. The foregoing sentence shall not apply if the controversy relates to degree or length of disability, and if the employer or carrier offers to submit the case for evaluation by physicians employed or selected by the Mayor, as authorized in § 32-1507(e), and offers to tender an amount of compensation based upon the degree or length of disability found by the independent medical report at such time as an evaluation of disability can be made. If the claimant is successful in review proceedings before the Mayor or court in any such case, an award may be made in favor of the claimant and against the employer or carrier for a reasonable attorney‘s fee for claimant‘s counsel in accordance with the above provisions. In all other cases any claim for legal services shall not be assessed against the employer or carrier.
“employer”to refer to both the actual employer and its insurance carrier, which is often the real party in interest.
We also note that
“[T]aken together, § 928(a) and (b) mandate fee-shifting in certain defined circumstances, but plainly do not provide for attorneys’ fee awards in every case in which the claimant is successful.”(citation and internal quotation marks omitted)); Virginia Int’l Terminals, Inc. v. Edwards, 398 F.3d 313, 318 (4th Cir. 2005) (
“The failure to hold an informal conference or issue a written recommendation is fatal to a claim for attorney’s fees under the plain terms of section 928(b).”); Carey v. Ormet Primary Aluminum Corp., 627 F.3d 979, 982 (5th Cir. 2010) (
“[S]ection 928(b) requires all of the following: (1) an informal conference, (2) a written recommendation . . . , (3) the employer’s refusal to adopt the written recommendation, and (4) the employee[ hiring] a lawyer to achieve a greater award than what the employer was willing to pay after the written recommendation.”(citation omitted)); Andrepont v. Murphy Expl. & Prod. Co., 566 F.3d 415, 421 (5th Cir. 2009) (
“[T]he plain language . . . requires that an employer must refuse to accept the informal recommendation before attorneys’ fees are shifted”;
“[W]e [cannot] elevate the purposes of the statute above the plain text reading.”); Pittsburgh & Conneaut Dock Co. v. Director, Office of Workers’ Comp. Programs, 473 F.3d 253, 266 (6th Cir. 2007) (
“We adopt the approach taken by the Fourth and Fifth Circuits”because
“[t]he language of subsection (b) plainly states that in order for fees to be assessed under its terms there must be a written recommendation.”). As the Majority Opinion rightly observes, this court looks primarily to the text of the statute to discern the legislature‘s objective. Ante at 12-13 (quoting Nat‘l Geographic, 721 A.2d at 621). But we need not ignore that the legislative history reinforces the plain text in this case. See Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) (en banc) (noting “there is wisely no rule of law forbidding resort to explanatory legislative history no matter how clear the words may appear on superficial examination” (internal quotation marks omitted)).
“[W]hen a statute speaks with clarity to an issue[,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.”(citation omitted)). The employer took the position it owed Mr. Kelly nothing in the way of PPD benefits. The ALJ disagreed and ordered the employer to pay approximately $10,140 in PPD benefits, which the employer then paid by check.
“If the meaning of the statute is plain on its face, resort to legislative history or other extrinsic aids to assist in its interpretation is not necessary.”(citation omitted)). Although the Majority Opinion suggests that Mr. Kelly did not make a plain language argument to this court, ante at 20 n.7, Mr. Kelly has argued at every step of this litigation – before DOES, the CRB, and this court – that he is entitled to attorney‘s fees under the plain language of
In Levy, on instructions from this court on remand, the CRB interpreted “award”
in “complete and final settlement”
under
“[A] literal reading of [33 U.S.C. § 928(b), see supra note 6] subjects claimants . . . to the presumptive and generally applicable American Rule . . . [u]nder [which] a fee-shift is allowed only if there is some ‘specific and explicit’ statutory exception.”(citation omitted)). Seeking to counter this point, the Majority Opinion cites Baghini v. District of Columbia Dep‘t of Emp‘t Servs., 525 A.2d 1027, 1030 (D.C. 1987), for the proposition that this court has already recognized that the Council meant to limit the availability of attorney‘s fees. Baghini addressed an entirely different issue. When the Council enacted the D.C. Workers’ Compensation Act, there was an attempt to get rid of the fee-shifting provisions of the LHWCA requiring employers to pay fees whenever they opt to formally litigate and lose. See Committee Report at 17. But it failed. The Council imported the LHWCA fee-shifting provisions into the D.C. act nearly verbatim. The only nod to concern about employer costs regarding attorney‘s fees was the imposition of a statutory (continued . . .) cap on fee awards. This was the subject of the litigation in Baghini. Baghini provides no support, however, for the proposition that the Council meant to limit access to employer-paid fees though
“[B]ased on the plain text of Section 928(b) . . . fee-shifting is unavailable here . . . . [Claimant’s] policy arguments are therefore best addressed to Congress, not the courts.”). See Goba, 960 A.2d at 594-95 (indicating that it would be unreasonable to interpret the “decline[d] to pay any compensation” language in
“third path”that
“depart[s] from the plain language of § 32-1530.”Post at 56. We are similarly puzzled by the dissent’s speculative pronouncements regarding the impact of today’s decision on the workers’ compensation scheme and on the plight of claimants. Id. at 37-38, 57-58 & n.16. Claimants’ attorneys have never been guaranteed attorney’s fees paid by the employer. Indeed, the dissent itself notes that Kelly’s attorney was apparently concerned from the outset about receiving fees, id. at 57 n.16 – and yet he proceeded to represent Kelly throughout the entirety of the proceedings, despite receiving no upfront guarantee that he would ultimately be entitled to fees paid by the employer under
“acknowledge the central import of voluntary, prompt payment,”post at 40; rather, because voluntary, prompt payment occurred in this case, there was no need to examine it here.) Kelly then requested an informal conference to seek permanent partial disability (PPD) benefits, but Pepco applied for a formal hearing before the informal conference was held. The evidence presented at the hearing showed that one of the physicians who had examined Kelly opined that he had a 21% impairment rating, while Pepco’s independent medical examiner opined that he had 0% impairment. After the hearing, the ALJ issued a compensation order awarding Kelly 7% PPD. (This amount was apparently greater than what Pepco initially paid to Kelly voluntarily, though how much greater is unclear from the record.) Neither party petitioned for review of the compensation order and (continued . . .)