Tuner v. DOES and WAMATA

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-AA-1007

SHURON I. TURNER, PETITIONER,

v.

DISTRICT OF COLUMBIA

DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, INTERVENOR.

Petition for Review of a Decision of the Compensation Review Board of the

District of Columbia Department of Employment Services

(CRB-052-17)

(Submitted June 8, 2018 Decided June 20, 2019)

David J. Kapson and Kevin H. Stillman were on the brief for petitioner.

Karl A. Racine, Attorney General for the District of Columbia, Loren L.

AliKhan, Acting Solicitor General at the time the statement was filed, and Stacy L.

Anderson, Acting Deputy Solicitor General, were on the statement in lieu of brief

for respondent.

Sarah O. Rollman and Mark H. Dho were on the brief for intervenor.

Before BLACKBURNE-RIGSBY, Chief Judge, and GLICKMAN and MCLEESE,

Associate Judges.

Opinion for the court by Chief Judge BLACKBURNE-RIGSBY.

2

Dissenting opinion by Associate Judge MCLEESE at page 15.

BLACKBURNE-RIGSBY, Chief Judge: Claimant-petitioner Shuron Turner

injured her right wrist and arm while working as a bus driver for employer-

intervenor Washington Metropolitan Area Transit Authority (“WMATA”). Ms.

Turner requested, and ultimately was awarded, benefits for a thirteen-percent

permanent partial disability to her upper right extremity under the District of

Columbia Workers’ Compensation Act (“Act”). D.C. Code §§ 32-1501 to -1545

(2012 Repl.). Afterwards, Ms. Turner sought reimbursement of attorney’s fees in

connection with her disability claim. See D.C. Code § 32-1530. Before this court

is Ms. Turner’s petition for review of the Compensation Review Board’s (“CRB”)

order affirming the Administrative Law Judge’s (“ALJ”) decision to deny Ms.

Turner’s request for attorney’s fees. We affirm.

I.

Under the Workers’ Compensation Act, a claimant may recover attorney’s

fees from the employer “in only two situations.” Providence Hosp. v. District of

Columbia Dep’t of Emp’t Servs., 855 A.2d 1108, 1111 (D.C. 2004). In the first

situation, a claimant is entitled to recover attorney’s fees “if the employer refuses

to pay any compensation for a work-related injury within thirty days of receiving

3

written notice from the Mayor of a claim for compensation, and the claimant

consequently uses the services of an attorney to prosecute successfully his or her

claim.” Id. (emphasis added) (citations and internal quotation marks omitted); see

also D.C. Code § 32-1530(a). In the second situation, recovery of attorney’s fees

is permitted “if an employer voluntarily pays or tenders compensation without an

award but later refuses to pay the additional compensation claimed by the claimant

within fourteen days of receiving a recommendation by the Mayor that the claim is

justified, and the claimant uses the services of an attorney to recover the full

amount claimed.” Providence Hosp., 855 A.2d at 1112 (emphasis added) (citation

and internal quotation marks omitted); see also D.C. Code § 32-1530(b).

Here, the record reflects the following: after Ms. Turner injured her right

wrist and arm from prolonged driving of a bus in February 2012, she sought

treatment and missed about three weeks of work. WMATA states, and Ms. Turner

does not appear to contest, that WMATA paid Ms. Turner temporary total

disability benefits from February 26, 2012, to December 12, 2012, and paid for her

medical care. Ultimately, Ms. Turner returned to work, received vocational

training, and was promoted to a station manager in January 2015. In June 2015,

Ms. Turner filed a claim for benefits for a thirteen-percent permanent partial

disability to her upper right extremity. A claims examiner with the Office of

4

Workers’ Compensation (“OWC”) held an informal conference and issued a

Memorandum of Informal Conference on July 13, 2015, recommending a seven

percent permanent partial disability award. WMATA received the memorandum

on July 16, and notified OWC within fourteen days that it was accepting OWC’s

recommendation, on July 31. Ms. Turner, on the other hand, informed OWC that it

was rejecting OWC’s recommendation and sought formal review.1 Following a

formal hearing, the ALJ agreed with Ms. Turner and awarded her a thirteen-

percent permanent partial disability to the upper right extremity, which the CRB

affirmed.

Ms. Turner thereafter filed a petition for attorney’s fees with the ALJ,

pursuant to D.C. Code § 32-1530. The ALJ denied Ms. Turner’s petition for

attorney’s fees, and the CRB affirmed. The CRB rejected Ms. Turner’s claim for

attorney’s fees on the basis that she did not meet the requirements of

1

It appears from an attached August 2015 email chain that Ms. Turner was

at first going to accept OWC’s recommendation. In fact, Ms. Turner’s counsel

also asked WMATA to “hold off” issuing the check “until the recommendation is

converted to a final order.” However, Ms. Turner ultimately rejected the

recommendation after counsel for WMATA responded by informing her that

WMATA was going to seek a “credit” for advanced payment of compensation.

Specifically, WMATA believed that it was entitled to a credit in the amount of

$14,303.34, because it paid Ms. Turner that amount for an unrelated award of

sixteen-percent permanent partial disability of the left leg that the CRB had

subsequently vacated. The ALJ and the CRB later rejected WMATA’s claim to a

“credit.”

5

§ 32-1530(b) because she rejected the OWC recommendation after WMATA had

accepted the recommendation. The CRB cited to Providence Hospital, for the

proposition that the claimant is not entitled to attorney’s fees where the employer

did not reject the recommendation. 855 A.2d at 1114. The CRB further observed

that WMATA’s “mere mention of a credit it thought it was owed does not equate

to” a rejection by WMATA of OWC’s recommendation.” This petition for review

followed.

II.

Ms. Turner argues here that, although WMATA notified OWC that it was

accepting OWC’s recommendation on July 31, a subsequent email chain between

WMATA and Ms. Turner in August 2015, where WMATA notified Ms. Turner

that it would seek a “credit” for other payments that it had made to Ms. Turner

constituted a de facto rejection of the informal recommendation by WMATA.

Specifically, in connection with another workers’ compensation case involving Ms.

Turner, WMATA paid an award that was subsequently vacated by the CRB. Ms.

Turner claims that WMATA did not act in “accordance with th[e]

recommendation” by referencing the credit and not paying. Providence Hosp., 855

A.2d at 1113.

6

This court’s review of the CRB’s decision is limited to determining whether

it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” Reyes v. District of Columbia Dep’t of Emp’t Servs., 48 A.3d 159, 164

(D.C. 2012) (citation and internal quotation marks omitted). We will affirm the

CRB (and the ALJ) if “(1) the agency made findings of fact on each contested

material factual issue, (2) substantial evidence supports each finding, and (3) the

agency’s conclusions of law flow rationally from its findings of fact.” Id. (citation

and internal quotation marks omitted).

As stated earlier, attorney’s fees are warranted under § 32-1530, in only two

limited situations. Under § 32-1530(a), a claimant is entitled to attorney’s fees if

the employer refuses to pay any compensation after a claim has been filed, and the

employee, through counsel, is ultimately successful in his/her claim for workers’

compensation. Subsection (a) does not apply because WMATA paid Ms. Turner

temporary total benefits and her medical expenses when she initially filed her

claim for workers’ compensation. WMATA also did not dispute that Ms. Turner

suffered a work-related injury to her right wrist and arm. See Fluellyn v. District of

Columbia Dep’t of Emp’t Servs., 54 A.3d 1156, 1160 (D.C. 2012) (Under

subsection (a), “a claimant may recover attorney’s fees if the employer disputes

liability for the disability . . . .”). Consequently, Ms. Turner’s reliance on

7

subsection (a) is inapposite. Ms. Turner argues that WMATA did not actually pay

her pursuant to the OWC’s recommendation of a seven-percent permanent partial

disability award, and that this fact allows her to recover under subsection (a).

However, Ms. Turner appears to ignore that WMATA did not contest that Ms.

Turner suffered a work-related injury and paid temporary total disability benefits

and her medical expenses. Because WMATA did not initially “decline[] to pay

any compensation . . . [after] a claim for compensation ha[d] been filed,”

subsection (a) does not apply.

Further, Ms. Turner has failed to meet the requirements of subsection (b) to

recover attorney’s fees. 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. In interpreting § 32-

1530(b), we have said that we adhere to the plain language of the statute and will

allow recovery “only when the express conditions of the statute are met, including

the employer’s rejection of the Mayor’s written recommendation in the case.”

Providence Hosp., 855 A.2d at 1114. Here, it is undisputed that WMATA notified

OWC that it was accepting its recommendation, while Ms. Turner notified OWC

8

that it was rejecting its recommendation. Accordingly, Ms. Turner failed to satisfy

the “express condition” of subsection (b) that the employer must “refuse to accept

[the Mayor’s] written recommendation[.]” D.C. Code § 32-1530(b). In

Providence Hospital, we held that:

32-1530 (b) requires that an employer/insurer reject the

Mayor’s recommendation before attorney’s fees may be

awarded to the claimant. Because it was the claimant in

this case, and not the employer, who rejected the

Mayor’s recommendation, the DOES decision to affirm

an award of attorney’s fees was plainly erroneous and

inconsistent with the statute and with our prior case law.

855 A.2d at 1110 (emphasis added). Providence Hospital clarifies that the “plain

language of the statute clearly mandates that an employer’s rejection of the

Mayor’s written recommendation is a prerequisite to the claimant recovering

attorney’s fees.” Id. at 1113. Consequently, “[i]f the employer agrees with the

Mayor’s recommendation and acts in accordance with that recommendation, the

claimant is barred from recovering attorney’s fees.” Id.

While subsection (b) 2 does appear to envision a scenario where an employee

who “refuses to accept” what the employer tenders may be awarded attorney’s

2

The relevant portion of subsection (b) states:

If the employer or carrier refuse to accept such written

recommendation, within 14 days after its receipt by them,

(continued…)

9

fees, this scenario is limited to where the employer both refuses to accept the

Mayor’s recommendation in full and tenders less than what the Mayor

recommended or nothing at all. Consequently, by negative implication, and under

the canon of expressio unius est exclusio alterius, where (as here) the employer did

accept the recommendation in full and (as the record reflects) intended to tender

the full amount recommended by the Mayor, the employee who rejects that tender

is not entitled to attorney’s fees by statute.3 “In all other cases any claim for legal

services shall not be assessed against the employer or carrier.” See D.C. Code

(…continued)

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 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.

3

The dissent argues that, per § 32-1530 (b), an employer who believes that

an informal recommendation is excessive or unwarranted can choose to make

lesser payments or none at all. Post at 25. But if the employer chooses to make a

lesser payment or none at all, then the employer would be deemed to have rejected

the informal recommendation, thereby opening itself up to a claim for attorney’s

fees. See § 32-1530 (b) (“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.”).

10

§ 32-1530(b); see generally District of Columbia v. Reid, 104 A.3d 859, 867 (D.C.

2014).

We agree with the CRB that the fact that WMATA merely advised Ms.

Turner, informally, and by email, that it “may” seek a “credit” for payments

already tendered to Ms. Turner in a different case, without more, is insufficient to

demonstrate that WMATA was rejecting OWC’s recommendation, or that it was

acting not “in accordance with [OWC’s] recommendation.” Providence Hosp.,

855 A.2d at 1113. Our dissenting colleague argues that WMATA did not act “in

accordance” with OWC’s recommendation to pay Ms. Turner because WMATA

did not actually make any payments in accordance with the recommendation. Post

at 18-19. However, WMATA cannot be faulted for failing to pay under the

recommendation because, once Ms. Turner rejected the recommendation and filed

a hearing petition, the recommendation no longer became binding. WMATA

therefore lacked the opportunity to get the benefit of the settlement bargain by

paying in accordance with the recommendation. We have previously said that

OWC’s recommendation only “becomes binding if the recommendation is not

timely rejected within fourteen days and an application for a formal hearing is not

filed within thirty-four days after issuance of the recommendation.” Travelers

Indem. Co. of Ill. v. District of Columbia Dep’t of Emp’t Servs., 975 A.2d 823, 826

11

(D.C. 2009). This is because the informal recommendation is “in effect, a

recommendation for settlement — which the parties can either accept or reject,”

and thus the recommendation “acquires the force of law only if it is ‘accepted by

the parties.’” Id. at 829. Moreover, rejection of the recommendation by one party

divests OWC “of jurisdiction to further consider the matter.” Fluellyn, 54 A.3d at

1164; see also 7 DCMR § 219.23 (“All informal procedures shall terminate when

an application for formal hearing is filed.”). To assess attorney’s fees on the

employer when it was the employee who rejected the recommendation would be

equivalent to incongruously treating the employer as bound by a settlement that the

employee rejected. A settlement is supposed to settle the dispute.

Moreover, we have said that “when claimants decline to use th[e] informal

procedure in favor of the formal claims procedure, they do so at the risk of

increased expense to themselves and to the system.” Nat’l Geographic Soc. v.

District of Columbia Dep’t of Emp’t Servs., 721 A.2d 618, 622 (D.C. 1998).4 Our

colleague’s interpretation is contrary to this basic principle.

4

Our dissenting colleague’s attempt to distinguish National Geographic

Society on factual grounds is inapposite. Post at 26. Our decision in National

Geographic is clearly applicable here because Ms. Turner seeks attorney’s fees,

despite the fact that it was she who declined the informal procedure in favor of the

formal claims process. Ms. Turner therefore bears the risk of choosing this more

expensive route, and it would be contrary to the Workers’ Compensation Act and

(continued…)

12

The situation might potentially have been different had WMATA informed

OWC that it would be formally seeking a credit. In such an instance, we can

envision this action as constituting a de facto rejection of the recommendation.

However, that is not what occurred here, and we cannot say that WMATA could

fairly be characterized as having rejected the recommended award or failed to act

in accordance with the award simply by informally emailing Ms. Turner of the

possibility that it would seek a credit.

We further reject the dissent’s claim that § 32-1530(b) does not, by its terms,

“tie the availability of a fee award to the claimant’s decision to accept or contest

the recommended award.” Post at 23. This argument has essentially already been

rejected in Providence Hospital. We agreed with the employer in Providence

Hospital that attorney’s fees should not have been awarded to claimant because

“[t]he statute is specific in setting forth the requisite conditions for a claimant to

recover attorney’s fees, and leaves no discretion to the agency or court to decide

cases in which all the conditions are not met.” 855 A.2d at 1114. Consequently,

by the plain language of the fee award statute that expressly excludes “all other

cases” than those that meet the criterion of either subsection (a) or (b), Ms.

(…continued)

the intent of § 32-1530 (b) for her to seek reimbursement of her attorney’s fees

from WMATA, when WMATA never sought to go down that route.

13

Turner’s rejection of the recommendation, where WMATA accepted the

recommendation, constitutes a bar to recovery. Neither the agency nor this court

has any discretion to consider whether attorney’s fees is warranted in

circumstances other than those expressly provided by § 32-1530.

Our dissenting colleague also believes that this case should be remanded for

the CRB to consider whether Ms. Turner’s rejection of the informal

recommendation and the filing of an application for a formal hearing, in of itself, is

a sufficient basis to deny her claim for attorney’s fees. Post at 20. For the reasons

already stated, we disagree that § 32-1530 (b) could be read as requiring the

employer to pay under the (non-binding) recommendation, or face attorney’s fees,

if it is the employee who rejects the recommendation and files an application for a

formal hearing. The dissent claims that we are affirming on a rationale that the

CRB did not rely on in its order. Post at 21. However, we maintain that the CRB

implicitly agreed with this proposition largely relying on our decision in

Providence Hospital.

14

III.

Nothing in our opinion should be read to suggest that an employer can

merely “utter the words” of acceptance, but not actually pay the award once the

recommendation converts to a final order, a situation that did not occur here.

Finally, although the Act clearly contemplates that the employee is entitled to

recourse where the employer fails to pay or unreasonably delays payment, here, no

such relief is warranted because the employer did not fail to pay under a final order

or unreasonably delay payment. See D.C. Code § 32-1528 (b) (stating that the

District will assess penalties on the employer or carrier who delays payment of an

award in bad faith).

The CRB did not err in concluding that WMATA’s acceptance of OWC’s

recommendation for compensation of a seven percent permanent partial disability

award precludes Ms. Turner’s claim for attorney’s fees under D.C. Code § 32-

1530. We further agree with the CRB that WMATA’s informal email to Ms.

Turner referencing that it might seek a potential credit does not constitute a

“refusal” by WMATA to act in accordance with the recommendation. For these

reasons, we

15

Affirm.

MCLEESE, Associate Judge, dissenting: Petitioner Shuron Turner seeks an

award of attorney’s fees in connection with her worker’s compensation claim. I

agree with the court that Ms. Turner is not entitled to a fee award under D.C. Code

§ 32-1530(a) (2012 Repl.). Ante at 6-7. The court also holds that Ms. Turner is

not entitled to a fee award under D.C. Code § 32-1530(b). Ante at 7-15. In my

view, the court should remand that issue to the Compensation Review Board

(CRB) for further consideration. I therefore respectfully dissent.

Section 32-1530(b) provides in certain circumstances for an award of

attorney’s fees to a successful claimant in a worker’s compensation proceeding.

For the claimant to be eligible for an award, the employer or insurance carrier must

“refuse to accept” an informal administrative recommendation as to the amount of

compensation to which the claimant is entitled. D.C. Code § 32-1530(b). In the

present case, a claims examiner recommended that Ms. Turner be compensated for

a seven-percent permanent partial disability to the right upper extremity, with a

recommended overall award of $10,552.40. The employer, respondent

Washington Metropolitan Area Transit Authority (WMATA), initially submitted a

letter indicating that it accepted that recommendation. Ms. Turner also initially

16

indicated that she intended to accept the recommendation, and she asked WMATA

to hold off on paying Ms. Turner until the claims examiner converted the jointly

accepted recommendation into a final order. WMATA subsequently took the

position, however, that it was entitled to set off the recommended award against

payments WMATA had made to Ms. Turner in connection with an unrelated

worker’s compensation award that was subsequently vacated. The amount of the

claimed set off was $14,303.34. Ms. Turner thereafter rejected the

recommendation. Ms. Turner claims, and WMATA does not dispute, that

WMATA made no payments pursuant to the recommended award in this case. In

subsequent formal administrative proceedings, Ms. Turner established that she was

entitled to compensation for a thirteen-percent permanent partial disability and that

WMATA was not entitled to a set-off.

Ms. Turner then applied for attorney’s fees. An Administrative Law Judge

(ALJ) denied the application. The ALJ gave two reasons for its ruling: (1)

WMATA submitted a letter accepting the recommended award; and (2) Ms. Turner

herself rejected the recommended award and filed a formal application for an

administrative hearing. The ALJ did not address Ms. Turner’s contention that

WMATA made no payments pursuant to the recommended award.

17

Ms. Turner sought review before the CRB, contesting both of the ALJ’s

conclusions. The CRB affirmed, relying solely on the conclusion that WMATA’s

“mere mention of a credit it thought it was owed” did not constitute a rejection of

the recommended award. The CRB did not address Ms. Turner’s contention that

WMATA made no payments pursuant to the recommended award. The CRB also

did not address the ALJ’s conclusion that Ms. Turner was barred from recovering

attorney’s fees because she eventually rejected the recommended award and

applied for a formal hearing.

The court appropriately disavows the ALJ’s apparent view that merely

writing a letter stating that an award is accepted suffices to qualify as acceptance of

the award for purposes of § 32-1530(b), even if no payment is actually made. Ante

at 14. In my view, such an approach would be contrary to both law and common

sense. As far as law goes, we have previously indicated that it is not enough under

§ 32-1530(b) for an employer to say that it accepts a recommended award; rather,

the employer must “act[] in accordance with that recommendation.” Providence

Hosp. v. District of Columbia Dep’t of Emp’t Servs., 855 A.2d 1108, 1113 (D.C.

2004); see id. at 1112 (focusing on whether employer “refuses to pay”) (internal

quotation marks omitted). As far as common sense goes, § 32-1530(b)’s evident

purpose is to authorize a fee award when a claimant is required to use the services

18

of an attorney in order to get compensation because the employer declines to

provide compensation in conformity with a recommended award. See Fluellyn v.

District of Columbia Dep’t of Emp’t Servs., 54 A.3d 1156, 1160 (D.C. 2012) (“[A]

claimant may recover attorney’s fees if the employer . . . 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.”) (citing D.C. Code § 32-1530(b)). It would not make sense to

permit employers to frustrate that purpose by simply purporting to accept a

recommended award but then refusing to actually make payments in accordance

with the recommended award.

It is undisputed that WMATA never actually made any payments pursuant to

the recommended award, and WMATA thus did not act “in accordance with th[e]

recommendation.” Providence Hosp., 855 A.2d at 1113. It therefore would seem

at first blush that WMATA should be viewed as having rejected the recommended

award. The court instead repeatedly characterizes WMATA as having accepted the

recommended award. E.g., ante at 9. I disagree with the court’s analysis in

several respects.

19

First, the court’s analysis depends critically on repeated characterizations of

WMATA as only having tentatively raised the possibility of a credit. Ante at 10

(“WMATA merely advised Ms. Turner, informally, and by email, that it ‘may’

seek a ‘credit’”), 12 (describing WMATA as “simply . . . informally emailing Ms.

Turner of the possibility of that it would seek a credit”), 14 (WMATA said “that it

might seek a potential credit”). The CRB similarly characterized WMATA’s

position, referring to WMATA as making a “mere mention of a credit it thought it

was owed.” These repeated characterizations are indisputably inaccurate. In fact,

WMATA stated unequivocally that it “is going to allege a credit.” Moreover,

WMATA acted in accordance with its clearly stated position, making no payments

pursuant to the recommended award. WMATA’s actual position and conduct thus

squarely contradict the court’s statement that “the record reflects” that WMATA

“accept[ed] the recommendation in full” and “intended to tender the full amount

recommended by the Mayor.” Ante at 9.

Second, the court suggests that it is really Ms. Turner’s fault that WMATA

rejected the recommended award, because Ms. Turner also rejected the award.

Ante at 13. As is discussed infra at 21-25, the CRB did not rely on such a theory.

In any event, the court’s suggestion seems to me to misunderstand the sequence of

events. WMATA communicated its refusal to make payments pursuant to the

20

recommended award first, before Ms. Turner rejected the award. Ms. Turner

therefore cannot reasonably be viewed as responsible for WMATA’s rejection of

the recommended award.

In sum, I see no adequate basis for the CRB’s conclusion that WMATA did

not reject the recommended award. I therefore would vacate the order of the CRB

and remand for the CRB to address the other bases upon which WMATA argues

against a fee award. The court, however, goes on to address and decide one of

those alternative bases: that Ms. Turner’s subsequent decision to reject the

recommended award by itself precludes a fee award. Ante at 8-15. In my view,

affirming on that basis is impermissible under well-settled principles of

administrative law. The CRB did not decide whether Ms. Turner’s fee claim was

barred by Ms. Turner’s subsequent rejection of the recommended award, and

although the ALJ did seem to rely on that theory, the ALJ provided no explanation

or analysis on the point.

The court suggests that the CRB did decide this issue, ante at 5, 13-14, but I

do not agree. First, the court describes the CRB as having rejected Ms. Turner’s

claim for attorney’s fees “because she rejected the . . . recommendation after

WMATA had accepted the recommendation.” Ante at 5. I see no support for this

21

description of the CRB’s decision. The sole basis for the CRB’s decision, found

on page four of the CRB’s decision, is that WMATA did not reject the

recommended award. On page three of its opinion, the CRB does quote

WMATA’s argument that Ms. Turner rejected the recommended award, but the

CRB does not adopt or express approval of that argument. Second, the court states

that the CRB “implicitly agreed” with the theory that Mr. Turner was foreclosed

from a fee award because she rejected the recommended award. Ante at 14.

According to the court, the CRB signaled its implicit acceptance of that theory by

“largely relying on our decision in Providence Hospital.” Id. This is a puzzling

line of reasoning, because Providence Hospital involved a very different issue

from the issue in the present case. In Providence Hospital, the employer never

rejected the recommended award. 855 A.2d at 1110. As the court explained, in

such cases an express statutory requirement under D.C. § 32-1530(b) is not met.

Id. at 1110, 1112-13. The court in Providence Hospital thus had no occasion to

consider what should happen where, as in the present case, an employer first

rejects a recommended award, the claimant thereafter rejects the recommended

award, and the claimant subsequently establishes an entitlement to compensation

greater than the recommended award.

22

We ordinarily must remand for the agency to determine whether to accept an

alternative rationale and to explain the agency’s reasoning. See, e.g., M.C. Dean,

Inc. v. District of Columbia Dep’t of Emp’t Servs., 146 A.3d 67, 75 (D.C. 2016)

(remanding case to CRB because the ALJ “failed to explain its reasoning”)

(brackets and internal quotation marks omitted); Apartment & Office Bldg. Ass’n v.

Pub. Serv. Comm’n, 129 A.3d 925, 930 (D.C. 2016) (“Generally, an administrative

order cannot be upheld unless the grounds upon which the agency acted in

exercising its powers were those upon which its action can be sustained.”) (internal

quotation marks omitted); Brown v. District of Columbia Dep’t of Emp’t Servs., 83

A.3d 739, 751-52 (D.C. 2014) (“In accordance with our usual practice, we will not

attempt to construe the statutory provisions before the agency charged with

administering them has done so; we think it inadvisable for this court to attempt to

review the issue on this record without a clearer exposition by the agency of its

statutory analysis in light of the facts of this case and the broader considerations

presented by the issue.”) (internal quotation marks omitted); Hensley v. District of

Columbia Dep’t of Emp’t Servs., 49 A.3d 1195, 1205 (D.C. 2012)

(“acknowledg[ing] the CRB’s expertise and responsibility for administering the

Workers’ Compensation Act, [court] conclude[s] that the appropriate course is to

remand the case to enable the CRB to consider [a statutory interpretation issue] in

23

the first instance”) (brackets, ellipses, citation, and internal quotation marks

omitted).

There are exceptions to the general rule against affirming agency action on

grounds that the agency did not rely upon and adequately explain. E.g., Apartment

& Office Bldg. Ass’n, 129 A.3d at 930 (such affirmance is permissible where

remand would be futile because (a) it is clear agency would reach same result or

(b) agency could permissibly reach only one conclusion). The court does not

invoke any such exception in this case, and none is apparent to me. To the

contrary, I see no permissible basis for this court to decide for itself, without input

from the CRB, whether Ms. Turner’s subsequent rejection of the recommended

award precludes a fee award. To the contrary, it seems to me unclear whether Ms.

Turner’s rejection of the recommended award should by itself preclude a fee

award, even if WMATA had already refused to make payments pursuant to the

recommended award. Section 32-1530(b) by its terms does not tie the availability

of a fee award to the claimant’s decision to accept or contest the recommended

award. The court appears to conclude that § 32-1530(b) implicitly precludes a fee

award whenever the claimant contests the recommended award, even if the

employer had previously refused to make payments pursuant to the recommended

award and (as in this case) the claimant later establishes an entitlement to benefits

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in an amount greater than the recommended award. Ante at 8-15. In reaching that

conclusion, the court decides an issue of statutory construction that the court

should not decide without getting the benefit of the CRB’s expertise.

Although I would leave this issue to be decided by the CRB in the first

instance, I note briefly that I have a number of reservations about the points the

court makes in support of its conclusion that a claimant’s decision to contest a

recommended award by itself precludes a fee award, even if the employer has

previously rejected the recommended award. Ante at 9-14.

(1) I agree that a recommended award does not become binding unless

accepted by the parties, and that once a recommended award has been rejected the

informal process ends. Ante at 10-11. It does not logically follow from either of

these propositions, however, that a claimant’s decision to contest a recommended

award precludes a fee award if the employer refuses to make payments pursuant to

a recommended award and the claimant later establishes a right to compensation in

an amount greater than was recommended. For example, when an employer

completely rejects a recommended award and refuses to make any payment, the

award does not become binding and the informal process ends. Nevertheless, the

employer will be liable to pay attorney’s fees if the claimant later establishes an

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entitlement to an award. Thus, the obligation to pay attorney’s fees can arise even

if the recommended award never became binding and the informal process ended.

(2) I do not understand the court’s apparent concern that employers might

be effectively forced to make unwarranted payments pursuant to a recommended

award, out of a fear that they would be held liable for a fee award because they

rejected the recommended award. Ante at 9-10 n.3. Section 32-1530(b) authorizes

a fee award only if the amount awarded after a hearing “is greater than the amount

paid or tendered” by the employer pursuant to the recommended award. Thus, an

employer who believes that a recommended award is excessive or unwarranted can

choose to make lesser payments or none at all, and if the employer’s position is

later upheld after a formal hearing, the employer will not be responsible for

attorney’s fees under § 32-1530(b).

(3) Permitting recovery of fees in a case such as the present one also would

not be “incongruously treating the employer as bound by a settlement that the

employee rejected.” Ante at 11. Rather, it would create an incentive for

employers, during the period of further litigation, to pay at least the recommended

amount, in order to avoid the possibility of having to pay attorney’s fees if the

claimant later were able to establish an entitlement to an award that was even

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greater than the recommended amount. Such an approach may or may not on

balance be good policy and may or may not be the best reading of the applicable

provisions. Those are issues that I would leave to the CRB in the first instance.

But such an approach is not reasonably described as treating the recommended

award as in some sense binding on the employer but not the claimant.

(4) National Geographic Society v. District of Columbia Department of

Employment Services, 721 A.2d 618 (D.C. 1998), is readily distinguishable from

this case. In National Geographic, a claimant sought a fee award under § 32-

1530 (b) (then codified at D.C. Code § 36-330(b)) even though the claimant had

never sought an informal recommendation and the employer therefore had never

refused to make payments pursuant to such a recommendation. 721 A.2d at 621.

The court correctly concluded that a fee award was unavailable in those

circumstances, under the plain language of what is now § 32-1530(b). Id. at 621-

22. That holding sheds little light on the different question presented in this case,

in which a recommended award was issued, the employer refused to make

payments pursuant to that recommendation, and the claimant subsequently

established an entitlement to an award greater than what was recommended.

For the foregoing reasons, I respectfully dissent.