dissenting:
The majority defers to a statutory misconstruction that is plainly unfair to District of Columbia employers. As the Department of Employment Services construes the District, of Columbia Workers’ Compensation Act of 1980,1 an employer is deemed to have actual knowledge of a work-related injury if, without more, the employer, through its agent, witnesses an incident at work that results in no immediately discernible physical harm to the employee, but ultimately produces such harm. *259Properly construed, the statute provides that the mere witnessing of such an incident by an employer does not, of itself, constitute actual knowledge of a work-related injury. I would remand this case for a finding as to whether the employer had actual knowledge based on timely oral notice.
The salient facts are, for the most part, set forth in the majority opinion. I will add only some pertinent details, and will refer to one significant finding of fact that the majority does not seem to take into account. It was undisputed that claimant was sixty-two years old at the time of the incident and had been employed by the law firm of Howrey and Simon for approximately twenty-one months. After she tripped and fell in the office on January 18, 1983, she stated to her supervisor that she was “just shook up” and thought that she was “all right.” She then worked for a bit, went to a room where she was able to lie down for a while, and thereafter returned to work for the remainder of the day. It was not until the end of the following month that the claimant began to feel pain in her hip and leg which she eventually attributed to the incident.2 The hearing examiner made a significant finding about the circumstances of claimant’s fall to which the majority gives no recognition. The examiner found that although claimant’s supervisor “may have seen claimant trip[,] he had no reason to believe she was injured.” She went on to find that the facts of the incident were not such as would “lead a reasonable person to conclude that compensation liability was possible and that he/she ought to investigate the matter.”
Nevertheless, DOES sustained claimant’s award of disability benefits on the grounds that D.C.Code § 36-313(d)(l) (1981) applied because the employer had actual knowledge of claimant’s injury and its relationship to employment and had not been prejudiced by the late filing of a disability claim. According to DOES, an employer has actual knowledge of an injury and its relationship to employment whenever “there is an incident at work witnessed by an employer’s representative which ultimately results in an injury ... [and] both the injured employee and the employee’s representative had underestimated the seriousness of the incident at the time of the incident.” Having so construed D.C.Code § 36-313(d)(1), the Director noted that claimant’s supervisor witnessed her fall and that neither claimant nor supervisor regarded it as significant at the time. Those observations, coupled with a finding that the employer had experienced no prejudice as a result of claimant’s late filing of a disability claim, prompted the Director to uphold the award of disability benefits to claimant.
Where, as here, an agency is charged with implementing a statute, we give due deference to an agency’s reasonable interpretation of that statute. McDaniels v. D.C. Dep’t of Employment Servs., 512 A.2d 990, 991 (D.C.1986) (upholding DOES construction of D.C.Code § 36-308 (1981); accord, Hughes v. D.C. Dep’t of Employment Servs., 498 A.2d 567, 570 (D.C.1985); Gomillion v. D.C. Dep’t of Employment Servs., 447 A.2d 449, 451 (D.C.1982); Hockaday v. D.C. Dep’t of Employment Servs., 443 A.2d 8, 12 (D.C.1982); Thomas v. D.C. Dep’t of Labor, 409 A.2d 164, 169 (D.C.1979). At the same time, we are empowered to set aside any agency action “not in accordance with law.” D.C.Code § l-1510(a)(3)(A) (1987); see, e.g., McDaniels v. D.C. Dep’t of Employment Servs., supra, 512 A.2d at 991; DeLevay v. D.C. Rental Accommodations Comm’n, 411 A.2d 354, 359-60 (D.C.1980) (court will not defer to agency interpretation where contrary to statutory language or legislative history; agency’s interpretation of D.C. Code § 45-1652(g) (1978 Supp.) (repealed 1978) erroneous on grounds of inconsistency with statutory language).
I begin my analysis by examining the relevant portions of D.C.Code § 36-313. The statute provides that “[i]f the employer ... had knowledge of the injury ... *260and its relationship to the employment,” then a claimant’s failure to give written notice of such an injury within thirty days of the injury (or thirty days from the date when the claimant knew or should have known of the relationship between injury and employment) may be excused if the Mayor determines that the employer was not prejudiced thereby. D.C.Code § 36-313(a), (b), (d)(1) (1981) (emphasis added). The validity of DOES’ construction of this statutory exception turns on the proper meaning to be accorded the term “injury.”
According to D.C.Code 36-301 (12) (1981),
“Injury” means accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of third persons directed against an employee because of his employment.
Id. The foregoing definition of “injury” is, in and of itself, more remarkable for its circularity than its clarity. The definition equates an “injury” with an “accidental injury.” This latter term, I note, is one this court has had occasion recently to construe. In WMATA v. D.C. Dep’t of Employment Servs., 506 A.2d 1127 (D.C.1986) (per curiam), issued after DOES’ final compensation order in this case, we upheld DOES’ interpretation of D.C.Code § 36-301 (12) that a person seeking workers’ compensation benefits “need prove only that something unexpectedly went wrong within the human frame,” 506 A.2d at 1128, noting that our courts had repeatedly so construed “accidental injury,” id. at 1129. Accord, Jones v. D.C.Dep’t of Employment Servs., 519 A.2d 704, 708-09 (1987). Thus, after DOES issued its decision in the instant case, it became clear, if it was not before, that the only interpretation of the term “injury” in D.C.Code § 36-313(d)(l) that could be consistent with the established interpretation of “accidental injury” in D.C.Code § 36-301(12) is that “injury” means that “something unexpectedly went wrong within the human frame.”
In light of our decision in WMATA v. DOES, supra, we must construe D.C. Code § 36 — 313(d)(1) to mean that an employer has knowledge of an injury only when the employer is aware, or should be aware, that something has unexpectedly gone wrong within the human frame.3 The occurrence here failed to meet this standard because, as the Hearing Examiner specifically found:
Mr. Richard may have seen claimant trip but he had no reason to believe she was injured. Indeed, the claimant did not suffer ill effects from the fall until late February. The facts of this case would not ... lead a reasonable person to conclude that compensation liability was possible and that he/she ought to investigate the matter.
The record amply supports the hearing examiner’s determination that the circumstances surrounding claimant’s fall would not have led a reasonable person to conclude that compensation liability was possible and that the matter required investigation. I submit that we should reject DOES’ broader interpretation of the term “knowledge of the injury” to encompass awareness of incidents or accidents, where no physical harm reasonably could or should have been discerned by the employer. Rejection of DOES’ attempt to broaden the scope of D.C.Code § 36 — 313(d)(1) should flow not only from the need to promote consistency in statutory interpretation, but also from a conviction that DOEJ position is inconsistent with legislative intent. This court recently summarized the purposes D.C.Code § 36-313 was designed to serve:
Prompt notice to the employer of an on-the-job injury serves several goals. It enables the employer to provide immediate medical diagnosis and treatment, and also facilitates the earliest possible investigation of the facts surrounding the injury. 3 Larson, Workmen’s Compensa-*261txon Law, § 78.10 (1st ed. 1983). Early investigation serves to protect the employer and the carrier from false or fraudulent claims, and also allows for prompt correction of conditions that may have caused, or contributed to, the injury. Good Impressions, Inc. v. Britton, 169 F.Supp. 866, 870 (D.D.C.1958).
Section 313(d)(1) provides that failure to give prompt written notice as required by section 313(a) will not bar a claim if the employer or carrier has knowledge of the injury and has not been prejudiced by the employee’s failure to notify. This section seeks to ameliorate the harsh consequences of a failure to literally comply with section 313(a) while at the same time assuring that the goals of prompt notice can also be met through actual knowledge. See 3 Larson, Workmen’s Compensation Law, § 78.30 (1st ed. 1983).
Madison Hotel v. D.C. Dep’t of Employment Servs., 512 A.2d 303, 307-08 (D.C.1986).
DOES’ construction of D.C.Code § 36-313(d)(1) will assure neither prompt notice, written or oral, nor actual knowledge that something unexpectedly had gone wrong within the frame of an employee. Either would at least make the employer aware that further investigation was warranted. If DOES’ interpretation of D.C.Code § 36-313(d)(1) prevails, then under circumstances like those present here, an employee could learn that an incident at work had later ripened into a work-related injury yet fail to notify the employer either in writing or orally after learning she was injured, thus keeping the employer in the dark, whether intentionally or unintentionally, until the filing of a claim for disability benefits. I think that D.C.Code § 36-313(d)(1) does not contemplate a result so contrary to the evident statutory goals to be served by requiring prompt notice.
At the time of the agency’s final decision, of course, DOES did not have the benefit of our decisions in WMATA v. DOES, supra, and Madison Hotel, supra. DOES relied exclusively on two passages from 3 A. Larson, Workmen’s Compensation Law (1983) to reach its result. Examination of the passages cited and the accompanying cases underscores that even before our opinions in WMATA and Madison Hotel, DOES was on shaky ground in adopting its construction of D.C.Code § 36-313(d)(1).
The first passage DOES cited read as follows: “The mere witnessing of claimant’s mishap or symptoms by a supervisory employee has often been held adequate notice to the employer.” 3 A. Larson, supra, § 78.31(a) at 15-85 to -86. At first glance, this passage seems quite helpful to DOES’ position. The reference to “mishap or symptoms,” however, suggests that not every incident suffices to put an employer on notice that further investigation is warranted. Professor Larson’s meaning is further illuminated when the foregoing passage is read in context with the sentences which follow it.
In the typical case, claimant suffers certain pains and symptoms, has to rest or lie down, complains to the foreman, and is taken to the first aid room and observed by a company nurse or doctor. Through the foreman or doctor or both the employer is usually held to have obtained as complete notice as the injured worker could give, since he could provide no more details of the circumstances and manifestations of his injury than the others witnessed. It is not enough, however, that the employer, through his representatives, be aware that claimant “feels sick,” or has a headache, or fell down, or walks with a limp, or has a pain in his back, or shoulder, or is in the hospital, or has a blister, or swollen thumb, or has suffered a heart attack. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.
3 A. Larson, supra, § 78.31(a) at 15-86 to -109 (emphasis added) (footnotes omitted). As the foregoing passage makes clear, Professor Larson did not state that an employer knows of an “injury” whenever a fall is *262observed, particularly where, as here, the fall does not produce immediately discernible pain or symptoms. I note again that the hearing examiner found that the fall here was not sufficient to “lead a reasonable person to conclude that compensation liability was possible and that he/she ought to investigate the matter,” a prerequisite, according to Professor Larson, for adequate notice of an injury.
Any possibility that Professor Larson envisioned as broad a definition of knowledge of injury as DOES has adopted is erased when one examines certain of the cases cited in the footnotes accompanying the preceding excerpt. See, e.g., Bagley v. Hotel Florence Co., 165 Mont. 145, 146-50, 526 P.2d 1372, 1373-74 (1974) (claimant testified that immediately after an unwit-nessed fall she told employer’s claims representative that she had fallen and that she “was shook up, but that’s all”; "no indication given to [the employer] that claimant had suffered any injury”) (emphasis in original); Kresge v. Holley, 104 Ga.App. 144, 146-47, 121 S.E.2d 182, 184 (1961) (“mere fact that the employer's agent saw the claimant fall” insufficient to put employer on notice of injury, as distinguished from notice of accident); Monks Excavating & Redi-Mix Cement v. Kopsa, 148 Colo. 586, 590-91, 367 P.2d 321, 323 (1961) (fact that employer personally witnessed claimant “knocked to the ground” proves only notice of accident, not notice of injury; only notice of the latter requires employer to do anything).
Those cases cited in connection with the preceding excerpt from 3 A. Lauson, supra, where employer knowledge was found, involved discernible harm to the employee and are therefore inapposite to this case. See, e.g., Nagy v. Nat’l Can Co., 277 A.D. 1083, 100 N.Y.S.2d 807, 808-9 (1950) (claimant lost control of metal pressing machine, “because frightened, nervous and broke into profuse perspiration”; foreman saw him assisted away by fellow workers, whereupon claimant received medicine at first aid room and was sent home; claimant’s “sudden and acute illness” held adequate notice to employer “of the accident and injury”); Nat’l Malleable & Steel Casting Co. v. Indus. Comm’n, 406 Ill. 480, 483, 94 N.E.2d 352 (1950) (claimant fell two feet to cement pavement, striking his shoulder; claimant told foreman about the accident “and received treatment [of the shoulder from the company physician] frequently after the accident”; evidence held sufficient to support finding of notice).
The second passage from 3 A. LaRSON, supra, quoted in DOES’ final decision also does not bear the weight DOES would place on it. The second passage reads as follows:
... it is not reasonable to expect an employer to launch an investigation every time a foreman hears someone complain of a pain or sees someone get a bump, and such knowledge does not therefore satisfy the objectives of the notice statute. On the other hand, if the employer’s representatives are aware of the circumstances surrounding the occurrence of the injury and know as much about the symptoms as claimant himself could report, the knowledge will be deemed sufficient even if the employer and employee both underestimate the seriousness of the injury.
Id., § 78.31(a) at 15-113. Four cases are cited to exemplify what is meant by this excerpt. All four are distinguishable from the case at bar, because each involved physical harm to the claimant that the employer either observed or should have discovered because of the nature of the accident. See Ragland Brick Co. v. Campbell, 409 So.2d 443, 445 (Ala.Civ.App.1982) (upheld finding of actual knowledge of injury because claimant informed his supervisor that he had fallen and that “his back hurt”); Stratton-Warren Hardware v. Parker, 557 S.W.2d 494, 496 (Tenn.1977) (claimant gave adequate notice when, upon learning that his respiratory problems were work-related, he timely presented his employer with a letter from his physician so indicating); Blue Bird Mining Co. v. Litteral, 314 Ky. 709, 710-13, 236 S.W.2d 936, 937-38 (1951) (when foreman saw fist-sized lump of coal fall from height of over twenty feet onto claimant’s head and knock his helmet off, employer had notice of injury *263because “[i]t is common knowledge that a severe lick on the head may be followed by serious injury”; claimant also sought to visit company’s camp physician the next morning after noticing a bloody discharge from his ear, and was eventually seen by him three days later); Miller v. Peterson Constr. Co., 229 Minn. 22, 25-29, 38 N.W.2d 48, 50-51 (1949) (claimant gave “notice of a claimed aggravation” when he told foreman that “he had a pain in his leg [that] ‘got worse from raising the staging’”).
Given the hearing examiner’s finding that claimant’s supervisor had no reason to believe that claimant was injured, a finding fully supported by the evidence, I submit that the incident itself did not give the employer actual knowledge of a work-related injury. That being so, the employee’s claim should fail for lack of notice unless she gave the employer notice in some other way. As the majority opinion sets forth, ante at 256, there was a factual dispute with respect to whether the claimant gave her supervisors oral notice of her injury. The hearing examiner credited the claimant’s testimony that she told two of the employer’s representatives about the connection between her fall and the pain in her leg and hip. But the hearing examiner also found that those representatives of the employer “did not get the message,” and “they did not have actual knowledge that claimant suffered a work-related injury” until August 16,1983, when they received a telephone call from an insurance carrier. In effect, the hearing examiner stated that the claimant said something to the employer’s representatives, but they did not hear it. Such a failure of communication is exceptional, although certainly not impossible. Because I regard this particular factual determination as crucial to the outcome of the claim, I think that in the interest of a fair adjudication, we should remand the case to DOES with the instruction that amplified findings be made on this particular point.
For the reasons stated above, I respectfully dissent.
. D.C.Code § 36-301 to -345 (1981 & 1987 Supp.).
. In this regard, the majority opinion states, ante at 256, "During the next month, Ms. Foster began to feel pain in her hip and leg.”
. The text of pertinent portions of D.C.Code § 36-313 is set forth in the majority opinion, ante at 255 n. 1.