District of Columbia Public Schools v. District of Columbia Department of Employment Services and Gloria Mitchell

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11-AA-1396

DISTRICT OF COLUMBIA PUBLIC SCHOOLS, PETITIONER,

V.

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

AND

GLORIA MITCHELL, INTERVENOR.

On Petition for Review of an Order of the
Compensation Review Board of the District of Columbia
Department of Employment Services
(CRB-007-11)

(Argued March 19, 2014 Decided August 27, 2015)

Mary L. Wilson, Senior Assistant Attorney General, with whom Irvin B.
Nathan, Attorney General for the District of Columbia at the time the brief was
filed, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General,
and Donna M. Murasky, Deputy Solicitor General, were on the brief, for petitioner.

Ronald Wick, with whom Jonathan M. Grossman and Chad E. Kurtz, were
on the brief, for intervenor.

Tonya A. Sapp filed a statement in lieu of brief for respondent.

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and REID,
Senior Judge.
 2

WASHINGTON, Chief Judge: This appeal arises out of a workers’

compensation claim filed by intervenor, Gloria Mitchell (“Ms. Mitchell”), against

her former employer, District of Columbia Public Schools (“DCPS”). On April 9,

2008, while working for DCPS as a special education teacher, Ms. Mitchell slipped

on baby oil that a student had spilled on the floor. Ms. Mitchell was unable to

work for a period of time as a result of her injuries and received temporary total

disability (“TTD”) benefits, including wages and medical services, for over two

years. In the summer of 2010, two independent medical evaluations determined

that Ms. Mitchell had reached maximum medical improvement, could return to

work, and needed no additional treatment. DCPS notified her that it would be

terminating her benefits, and Ms. Mitchell appealed to the Department of

Employment Services (“DOES”). After a hearing, the Administrative Law Judge

(“ALJ”) determined that Ms. Mitchell was still temporarily totally disabled and

ordered reinstatement of her benefits “to the present and continuing, causally

related medicals, and interest.” DCPS appealed to the DOES Compensation

Review Board (“CRB”) contesting only the award of interest, and the CRB

affirmed. DCPS now appeals only the interest award to this court.

The question before the court is whether, if the District terminates a

claimant’s disability compensation benefits and the claimant subsequently wins
 3

reinstatement of the terminated benefits on appeal, DOES is permitted to award

interest on accrued benefits that were not paid to the employee pending the appeal.

In deciding this question, we must determine whether the CRB’s construction of

the Compensation Merit Personnel Act (“CMPA”), D.C. Code § 1-623.01 et seq.

(2012 Repl.), is reasonable and consistent with the statute’s language and purpose.

We hold that the CRB’s interpretation of the CMPA as authorizing interest to be

paid on workers’ compensation benefits is not inconsistent with the statute, or our

case law, and we therefore affirm.

I. Facts

The undisputed facts are as follows. On April 9, 2008, Ms. Mitchell was

working as a special education teacher for DCPS when she slipped and fell on a

hallway floor, sustaining injuries to her head and shoulders. DCPS began paying

Ms. Mitchell temporary total disability benefits from the date of her injury. On

July 20, 2010, the Office of Risk Management (“ORM”), which administers the

District’s disability benefits program for public-sector employees, 7 DCMR

§ 3100.1, sent Ms. Mitchell a notice indicating that the District intended to

terminate her benefits on August 20, 2010. DCPS made the decision to terminate

the benefits after two independent medical evaluations concluded that Ms. Mitchell
 4

had attained maximum medical improvement, could return to work without

restriction, and did not require any further treatment. The notice also explained

that she could either ask for reconsideration of that decision or appeal to DOES.

Ms. Mitchell chose to appeal to DOES, which ultimately credited her treating

physician’s opinion that she remained temporarily totally disabled as a

consequence of the injuries to her head, and thus ordered reinstatement of her

benefits. In so doing, the ALJ awarded Ms. Mitchell TTD benefits “to the present

and continuing, causally related medicals, and interest.”1 DCPS appealed only the

portion of the award ordering it to pay interest, and the CRB affirmed. The District

now seeks this court’s review of the CRB’s decision affirming the interest award.2

II. Standard of Review

On appeal, this court’s review of an administrative agency decision is

“limited,” and the court “must affirm an agency decision unless it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.”

Asylum Co. & Ins. Designers v. District of Columbia Dep’t of Emp’t Servs., 10

1
The ALJ’s ruling provided that Ms. Mitchell was entitled to payment of
benefits from August 20, 2010, the date that ORM terminated her benefits.
2
The District does not challenge the CRB’s conclusion that Ms. Mitchell
(continued . . .)
 5

A.3d 619, 624 (D.C. 2010); see also Muhammad v. District of Columbia Dep’t of

Emp’t Servs., 34 A.3d 488, 491 (D.C. 2012). We review questions of law de novo,

and the judiciary is the final authority on issues of statutory construction.

Washington Metro. Area Transit Auth. v. District of Columbia Dep’t of Emp’t

Servs., 683 A.2d 470, 472 (D.C. 1996). However, “we defer to an agency’s

interpretation of the statute and regulations it is charged by the legislature to

administer, unless its interpretation is unreasonable or is inconsistent with the

statutory language or purpose.” District of Columbia Office of Human Rights v.

District of Columbia Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012) (citations

omitted) [hereinafter “OHR v. DOC”]. We will defer to an agency’s interpretation

“so long as it is not plainly wrong or inconsistent with the legislature’s intent.”

Howard Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs., 952 A.2d 168,

173 (D.C. 2008) (citation omitted). Further, this court “must sustain the agency’s

interpretation even if a petitioner advances another reasonable interpretation of the

statute or if we might have been persuaded by the alternate interpretation had we

been construing the statute in the first instance.” Id.

Here, the CRB’s determination that the CMPA authorizes an ALJ to award

(. . . continued)
was still disabled and entitled to TTD benefits.
 6

interest to a successful claimant is a question of law which we review de novo.

However, because DOES is an administrative agency that we have recognized as

having “expertise . . . and responsibility for administering” the CMPA, we will

affirm its interpretation unless it is unreasonable or inconsistent with the statutory

language or purpose. Asylum Co., 10 A.3d at 625 (citation omitted).

III. Analysis

The CMPA, D.C. Code § 1-623.01 et seq., establishes a compensation

program for employees in the District of Columbia who are disabled as a result of

injuries suffered in the performance of their work duties. The District provides

compensation for an individual who is temporarily totally disabled as a result of an

on-the-job injury in the amount of 66 2/3% of her pay for the period that she is

disabled,3 and additionally provides the services of a physician to treat the injury.4

The CMPA is silent as to the District’s obligation to pay interest on an award of

workers’ compensation.

3
D.C. Code § 1-623.05.
4
D.C. Code § 1-623.03.
 7

In this case, after finding that Ms. Mitchell continued to be temporarily

totally disabled from the period of August 20, 2010, to the present, the ALJ

awarded her TTD benefits, including medical expenses plus interest on the award,

and the CRB affirmed. In its 2-1 decision, the CRB correctly recognized that it

had never before addressed whether an employer can be ordered to pay interest on

a workers’ compensation award pursuant to the CMPA. However, the CRB

identified a series of prior cases in which the court upheld the agency’s authority to

award interest on accrued workers’ compensation disability benefits pursuant to

the private workers’ compensation statute,5 even though that statute, like the

CMPA, is silent concerning interest awards. Thus, the CRB reasoned that because

the parallel public and private workers’ compensation statutes are substantially

similar and serve the same purpose, and because it could “discern nothing within

the public-sector Act that dictate[d] following any other course than that endorsed

under the private-sector statute,” the authority to assess interest on accrued benefits

under the public-sector statute was similarly permissible.

Appellant’s primary argument is that the District of Columbia enjoys

sovereign immunity from an award of interest unless it has waived immunity by

5
District of Columbia Workers’ Compensation Act of 1979, D.C. Code
§ 32-1051 et seq. (2012 Repl.) [hereinafter “WCA”].
 8

explicitly authorizing payment of interest. Appellant contends that because the

CMPA’s provisions are silent concerning interest, interest awards are not

authorized and are prohibited by the District’s sovereign immunity, citing Library

of Congress v. Shaw, 478 U.S. 310 (1986), and District of Columbia v. Brown, 739

A.2d 832 (D.C. 1999). Shaw acknowledged the “no-interest” rule, holding that the

United States is immune from an interest award in the absence of an express

statutory waiver of immunity by Congress. See 478 U.S. at 314-15. In Brown, the

court denied interest on a back pay award under the pre-1987 Federal Back Pay

Act, a statute which contained no authority for an award of interest. 739 A.2d at

837-40. However, the cases upon which appellant relies make it clear that in order

for the federal government to waive its liability for interest there must be an

explicit waiver with respect to the government’s immunity from interest payments

in the statute. The Supreme Court subsequently indicated that its ruling requiring

an explicit statutory waiver before the government can be ordered to pay interest

on an award applies only when a successful plaintiff or claimant challenges the

federal government’s immunity from interest payments, and that the ruling does

not apply to states: “That rule, which is applicable to the immunity of the United

States . . . , provides an ‘added gloss of strictness,’ only where the United States’

liability for interest is at issue.” Missouri v. Jenkins, 491 U.S. 274, 281 n.3 (1989)

(quoting Shaw, 478 U.S. at 318); see also McDonough v. City of Quincy, 353 F.
 9

Supp. 2d 179, 191 n.9 (D. Mass 2005) (observing that the Court in Jenkins

declined to extend the “no-interest” rule to state immunity); Bailey v. District of

Columbia, 839 F. Supp. 888, 893 (D.D.C. 1993) (“Unlike the federal government,

the District of Columbia does not enjoy sovereign immunity from interest

awards.”); Jones v. Washington Metro. Area Transit Auth., 205 F.3d 428 (D.C. Cir.

2000) (citing Jenkins and upholding an interest award on back pay after concluding

that “the no interest rule does not apply to state liability”). By enacting the CMPA,

the District of Columbia waived its immunity by consenting to suit by employees

seeking to recover workers’ compensation awards. Thus, because the District has

opened itself up to liability for employee injury and disability claims, and because

the federal “no-interest” rule is not at play, we are not persuaded that the District is

shielded from paying interest under the doctrine of sovereign immunity and that an

explicit waiver of immunity from paying interest is required to authorize an

interest award under the CMPA.

Appellee asserts that an agency in the District of Columbia is authorized to

award interest even lacking an express statutory provision permitting such an

award, citing, inter alia, OHR v. DOC, 40 A.3d at 923. In that case, a former

employee sued the D.C. Department of Corrections for violations of the District of

Columbia Human Rights Act (“DCHRA”), but the D.C. Office of Human Rights
 10

concluded that it lacked authority to award interest on the award because the

controlling statute was silent concerning interest. The Superior Court reversed,

and this court agreed, rejecting the proposition that if a statute does not explicitly

award interest, such an award is prohibited. See id. at 928; see also Riggs Nat’l

Bank v. District of Columbia, 581 A.2d 1229, 1253 (D.C. 1990) (“A statutory

obligation may bear interest even though the statute makes no provision

therefor.”); Burke v. Groover, Christie & Merritt, 26 A.3d 292, 306 (D.C. 2011)

(“Significantly, the obligation to pay pre-judgment interest arises under the

common law and may be payable even in the absence of a statutory authorization

to that effect.”). The court in OHR v. DOC reasoned that interest is “part and

parcel” of an award and that its purpose is to “preserve the value of the damages

awarded.” Id. The same reasoning has been applied in the CRB’s workers’

compensation rulings. In upholding the interest award in the present case, the CRB

cited a series of cases6 in which the agency authorized payment of accrued benefits

6
See Edward Hill, Jr. v. Greyhound Line, Inc., Dir. Dkt. No. 96-39, H&AS
No. 87-759(B), OWC No. 0115712 (January 31, 1997); Woodward v. Central
Investig. Bureau, Dir. Dkt. No. 91-104 (January 28, 1992); Goyins v. Max Factor,
Inc., H&AS No. 83-234 (Decision of the Director, June 6, 1986). The CRB also
cited to Bolden v. Embassy Dairy, H&AS No. 83-192, OWC No. 001777
(February 15, 1984), which was a decision by a Hearing Examiner on which Hill
and Woodward both relied. Due to the age of these cases, the adjudicative bodies
involved are the Hearing Examiner (initial) and the Director of DOES (appeal
level) rather than DOES and the CRB.
 11

under the District of Columbia Workers’ Compensation Act of 1979 (“WCA”), the

“private” workers’ compensation statute. Noting that the disability benefit award

provisions of the statutes parallel one another,7 the Board held that there was not a

discernible reason that an ALJ applying the CMPA should not similarly be

authorized to award interest on accrued benefits under the CMPA. The District

argues that the private-sector cases are not instructive because they do not

implicate sovereign immunity, but in light of our conclusion that sovereign

immunity does not bar interest payments under the CMPA, we disagree. As a

matter of statutory construction, the CRB’s conclusion that the public and private

statutes should be similarly construed as permitting interest on accrued benefits,

notwithstanding the lack of explicit authority to do so, is not unreasonable or

inconsistent with the purpose of the CMPA.8 See Luck v. District of Columbia,

7
Both the “public” and “private” statutes provide compensation in the
amount of 66 2/3% of an employee’s average pay during the period of total
disability. Compare Comprehensive Merit Personnel Act, D.C. Code § 1-623.05,
with District of Columbia Workers’ Compensation Act of 1979, D.C. Code § 32-
1508 (2). Neither statute explicitly provides for interest awards on accrued
benefits.
8
Other jurisdictions similarly award interest under their workers’
compensation statutes, despite a lack of explicit statutory authorization. See, e.g.,
Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1191-92 (Alaska 1984)
(stating that although the workers’ compensation act “does not expressly provide
for interest[,] [i]n view of its purpose, the inference that such omission is equal to
an exclusion cannot be made”); Tisdale v. Industrial Comm’n of Ariz., 751 P.2d
527, 528-29 (Ariz. 1988) (stating that “there is no reason why the general interest
(continued . . .)
 12

617 A.2d 509, 514 (D.C. 1992) (quoting United States v. Freeman, 44 U.S. 556,

564-65 (1845) (“if divers statutes relate to the same thing, they ought all to be

taken into consideration in construing any one of them . . . .”)).

Finally, appellant argues that “the equities” do not support an award of

interest in the present case because terminating Ms. Mitchell’s benefits was

“reasonable” and was not done “irresponsibly.” This argument misapprehends the

interest award as a form of penalty for either bad faith or negligent termination.

We do not consider the District’s intent or level of care in deciding whether

interest may be awarded under the statute. On the contrary, an interest award on

accrued disability benefits, as with interest generally, merely recognizes the time-

value of money, and in doing so affords the worker the full value of benefits due

for her injuries under the statute. The District suggests that awarding interest

would impermissibly provide benefits above and beyond the 66 2/3% of the

worker’s salary designated as a worker’s “exclusive” remedy in the statute. See

(. . . continued)
statute in Arizona would not apply” to a claimant’s workers’ compensation
benefits not timely paid); Parker v. Brinson Constr. Co., 78 So. 2d 873, 876 (Fla.
1955) (“During the period [workers’] compensation is withheld, the carrier or
employer should pay for the use of the money which it is using and has wrongfully
withheld . . . [and] the beneficiary should be compensated for the same amount of
money which at least theoretically, and most times actually, he is forced to hire to
sustain himself.”).
 13

D.C. Code § 1-623.16 (c). However, we are persuaded that without an interest

award on the unpaid benefits, Ms. Mitchell would effectively receive benefits in an

amount less than provided for in the statute given her lost opportunity interest in

the money during the period between termination of her benefits and the date she

successfully appealed and the benefits were reinstated. See Bragdon v. Twenty-

Five Twelve Assocs., 856 A.2d 1165, 1171 (D.C. 2004) (“[W]here the plaintiff has

lost the use of his money, a denial of pre-judgment interest would deny full

compensation to the [plaintiff] . . . .”); Nolen v. District of Columbia, 726 A.2d

182, 185 (D.C. 1999) (“Where there has been such a deprivation, pre-judgment

interest is an element of complete compensation for the loss of use of such money

from the time the claim accrues until judgment is entered, thereby achieving full

compensation for the injury those damages are intended to redress.” (internal

quotation marks and citation omitted)). Accordingly, awarding interest on accrued

benefits is consistent with the purpose of the CMPA by fully and promptly

compensating an injured worker during the period of her disability to the amount

set by the statute. See Darden v. District of Columbia Dep’t of Emp’t Servs. 911

A.2d 410, 417 (D.C. 2006) (“[T]he purpose of the Workers’ Compensation Act is

to advance the humanitarian goal to provide compensation to employees for work-

related disability reasonably expeditiously . . . .”).
 14

In sum, having recognized DOES’s expertise in and responsibility for

applying the CMPA, and having examined pertinent case law from this jurisdiction

and elsewhere, we are satisfied that the CRB’s ruling that DOES is authorized to

award interest on accrued worker’s compensation disability benefits is neither

“plainly wrong” nor inconsistent with the purpose of the statute. Howard Univ.

Hosp., 952 A.2d at 173.

Accordingly, the CRB’s order is

Affirmed.