Significant Case Summaries - 2008
CLAIMANT’S RECEIPT OF AN APPROVAL ORDER FOR SETTLEMENT OF HER WORKERS’ COMPENSATION CLAIM, INITIATED THE RUNNING OF THE SIX MONTH STATUTE OF LIMITATIONS AND BARRED HER FROM FILING A THIRD PARTY CLAIM SEVEN MONTHS LATER
Biratu v. BT Vermont Avenue, LLC
2008 D.C. App. LEXIS 482 (D.C. Ct.App. December 18, 2008)
In Biratu v. BT Vermont Avenue, LLC, the claimant settled her workers’ compensation claim and received an approval order for the lump-sum settlement from the Office of Workers’ Compensation. Approximately seven months later, Claimant filed a third party claim against her employer’s landlord. The Defendant, landlord filed a motion to dismiss on the bases that the six month statute of limitations set forth D.C. Code § 32-1535 (b) (2001) had run because Claimant filed her third party claim more than six months from the date of the order approving her workers’ compensation settlement. The trial judge granted the Defendant, Landlord’s motion for summary judgment, and the Court of Appeals affirmed, reasoning that the settlement approval order from the Office of Workers’ Compensation was an “award of compensation” that began the running of the six month statute of limitations.
Mulatua Goba v. DOES
2008 D.C. App. LEXIS 443 (D.C. November 20, 2008)
Claimant filed a petition for an award of her attorney's fees under D.C. Code § 32-1530(a) (2001). The employer and its carrier, opposed the request. A claims examiner for the DOES denied the claimant's request. The Compensation Review Board (CRB) of the DOES upheld the examiner's ruling. The claimant appealed. The claimant asserted that her employer and its carrier were unwilling to voluntarily pay the benefits the claimant sought until they were prodded to do so by a request from the claimant's attorney for an informal conference. The employer and its carrier contended that they had voluntarily agreed to pay any applicable compensation well before any conference took place. The claimant countered that, although the employer and its carrier promptly accepted her disability claim, their tardy payment entitled her to a fee. On appeal, the court found that for the claimant to have been eligible for an award of attorney's fees the employer or carrier must have declined to pay compensation on the grounds that there was no liability for compensation. Claimant did not dispute the CRB's determination that there was no evidence that the employer or its carrier declined at any time to pay compensation for any reason other than the need to verify the nature and amount of the benefits sought.
Howard Univ. Hosp., et al. v. DOES
2008 D.C. App. LEXIS 440 (D.C. November 20, 2008)
Petitioners, a hospital and a the Claimant, a physician, filed a petition for review of a decision by the CRB, which affirmed the ALJ's finding that the Claimant gave timely notice of the work injury but denied disability compensation and vocational rehabilitation benefits on the basis that the physician suffered no wage loss and was not disabled from the injury. The Claimant suffered a stroke while working in the hospital's residency program. Claimant never gave formal notice of her injury to her Employer, the hospital where she received treatment, but claimed that the treating physician, a co-employee, had knowledge of her condition and it’s relationship to the employment. In its petition, the hospital contended that the DOES erred in excusing the physician's failure to give timely notice of her injury. The appellate court agreed, thus concluding that the physician's claim for disability compensation was barred. Contrary to the opinion of the ALJ, the Court concluded that the physician's failure to furnish timely notice of injury to the hospital was not excused under D.C. Code § 32-1513(d) (2001), as the treating physician could not be deemed an agent of the hospital for notice purposes, as he was not the physician's supervisor, nor was he charged with any duty as a hospital employee to report the physician's work-related injury to his superiors. While the physician's unexcused failure to give timely written notice of her injury did not bar her claims for medical and vocational rehabilitation benefits, the appellate court concluded agreed with the administrative law judge that the physician was not entitled to vocational rehabilitation benefits because the physician suffered no wage loss and was not disabled as a result of her injury.
Shipkey v. DOES
2008 D.C. App. Lexis 382 (D.C. September 4, 2008)
Claimant, a plumber for WMATA, sustained a work-related injury in Maryland. Although Claimant reported to a facility in Greenbelt, MD everyday to receive assignments and get his tools, and completed work in MD, DC, and VA, the majority of his work was done in DC. Claimant sought workers’ compensation benefits in D.C. His claim was denied on the basis that his employment was not localized principally in D.C. The ALJ and the CRB held that the Claimant’s employment was not localized principally in D.C., applying the third prong of the Hughes test (the employee’s base of operations), to find that the Claimant’s base of operations was in MD.
The Court of Appeals reversed, indicating that when applying the Hughes test, preference is given to the first and second prongs of the test [(1) the place of the employer’s business offices or facilities at which or from which the employee performs the principal services for which he was hired, or (2) if there is no such office or facility where the employee works, the employee’s residence, the place where the contract is made, and the place of performance)]. The Court held that although the Greenbelt, MD location was where the Claimant prepped for his work day, his performance of the principal services for which he was hired was in D.C.
Gonzales v. Asylum Company, et al.
CRB No. 08-077, AHD No. 06-224 (August 22, 2008)
The CRB has delineated the effect of an illegal alien’s status on his/her entitlement to workers’ compensation benefits as follows:
(1) An illegal alien falls under the definition of an “employee” under the Act and is entitled to receive workers’ compensation temporary total and medical benefits;
(2) An Employer is not required to prove the existence of suitable gainful employment or offer vocational rehabilitation services to an undocumented alien;
(3) An undocumented alien’s inability to legally obtain employment is sufficient to break the chain of causal connection between the work injury and the ongoing wage loss when the wage loss is partial in nature. However, in a case of permanent total disability, it would not be sufficient to break the chain of causation.
Ramey v. Potomac Electric Power Company
CRB No. 06-38(R), AHD No. 03-35C (July 24, 2008)
The CRB articulates a new standard for evaluation of mental-mental stress claims in light of the recent Court of Appeals decisions in McCamey v. DOES and Ramey v. DOES. The CRB has officially rejected the objective standard set forth in Dailey v. DOES. The new standard is as follows:
The Claimant will receive the benefit of a statutory presumption of compensability if he/she can show a by competent medical evidence a psychological injury and actual workplace conditions or events which could have caused or aggravated the psychological injury. The ALJ must make findings that the work place events or conditions existed or occurred, and must make findings on credibility in order to make a finding that the Claimant has invoked the presumption. If the presumption is invoked, the burden shifts to the Employer to show, through substantial evidence, the psychological injury was not caused or aggravated by workplace conditions or events. If the Employer succeeds, the presumption drops out of the case entirely and the burden reverts to the Claimant to establish by a preponderance of the evidence that the workplace conditions or events caused or aggravated the psychological injury.
McCamey v. DOES
2008 D.C. App. LEXIS 239 (D.C. May 15, 2008)
Claimant sustained physical injuries at work resulting from a slip and fall. Claimant later began to suffer from depression which she claimed as a consequential injury. The Employer/Carrier denied the claim for psychiatric treatment on the basis of causal relationship, as Claimant had a significant preexisting psychiatric condition. Both the ALJ and the CRB held that Claimant’s psychiatric condition was not causally related to the work injury, following the Dailey standard. The Dailey standard has been traditionally applied to mental-mental and physical-mental claims by the CRB, and requires a Claimant with a preexisting psychiatric condition to establish a causal connection between the alleged psychiatric condition and the employment by showing that a person that was not predisposed to a psychiatric condition would have sustained the same injury as the Claimant if exposed to the same stressor.
Claimant appealed to the Court of Appeals, which held that in physical-mental claims, Claimant must only show that the psychiatric condition is causally related to the primary work injury (i.e. a direct and natural result of the compensable primary physical injury). The Court explained that if Claimant has a preexisting psychiatric condition, then she only must show that the condition has worsened as a result of the primary work injury. The Court went on to state in dicta that it will no longer uphold the application of the objective Dailey standard, and that the Compensation Review Board must revisit the standard to be applied to mental-mental cases.
Howard University Hospital v. DOES
2008 D.C. App. LEXIS 233 (D.C. May 8, 2008)
The Employer/Insurer appealed a decision of the CRB which held that the Claimant was entitled to concurrent awards of permanent total disability (attributable to an injury to the left hip) and scheduled member permanency (attributable to the right knee). This issue has previously been addressed by the CRB, which has held that Claimant may receive both in order to avoid a conflict with a prior Court of Appeals decision, Morrison, which held that Claimant could receive concurrent awards of permanent partial wage loss and permanent partial scheduled member benefits. The Court of Appeals did not decide the merits of the Howard University Hospital case, but remanded to the CRB with the clarification that the Morrison decision is distinguishable and not binding on the facts in Howard University Hospital.
The Court of Appeals directed the CRB to make a finding on remand that a Claimant cannot receive concurrent awards of permanent total disability and permanent partial scheduled member benefits because Claimant should not ever be awarded permanency for more than 100% of the whole person (which is permanent total).
Hiligh v. D.C. Dep't of Empl. Servs.
935 A.2d 1070 (D.C. 2007)
The Board properly held that based on the statute's legislative history, the minimum compensation rate of § 32-1505(c) did not apply to TTD claims. The Board erred in holding that the compensation rate should be the employee's actual average weekly wage. D.C. Code § 32-1508(2) (2001) stated that in TTD cases, sixty-six and two-thirds percent of an employee's average weekly wages should be paid.
Smith v. D.C. Dep't of Empl. Servs.
934 A.2d 428 (D.C. 2007)
Court of Appeals upheld Department of Employment Services’ application of two part manifestation rule to cumulative trauma injury.
Colbert v. D.C. Dep't of Empl. Servs.
933 A.2d 817 (D.C. 2007)
Claimant, who received workers’ compensation benefits after being injured in an auto accident, was barred from receiving further benefits where she compromised her third party claim against the driver of the other vehicle without the employer’s authorization.
Any questions regarding these cases can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com