Hively v. District of Columbia Department of Employment Services

FARRELL, Associate Judge,

dissenting:

I disagree with the denial of a supplemental allowance to Hively. I agree, of course, that if D.C.Code § 36-306(a) (1993) were ambiguous on the point in issue, we would defer to a permissible interpretation of the statute by the Director. But the statutory phrase “totally and continuously ” (emphasis added) is not ambiguous in defining those persons eligible for the supplemental allowance. Its only ambiguity (more precisely: its silence) is as to when the continuous period begins, which establishes the point at which supplemental allowance payments start; as to that issue I would remand for the Director’s interpretation. But the statute, in my view, requires rejection of the Director’s equation of “totally and continuously” with “totally and permanently,” so as to deny Hively a supplemental allowance altogether.

“Permanent disability” is a term of art under the workers’ compensation statute. See, e.g., D.C.Code § 36-308(1) (stating what “constitutefs] permanent total disability”). *1164Had the legislature wanted to employ that concept in § 36-306, it knew how to do so. Instead it used the word “continuously.” In ordinary usage, “continuously” means without interruption, implying temporal extension, whereas “permanent” connotes no temporal limitation.1 The two thus describe very different conditions.2 Moreover, the operative sentence of § 36-305(a) states that “[w]hen the average weekly wage has changed as provided for in § 36-306, any person who has been totally and continuously disabled ... shall receive ... an additional supplemental allowance” (emphasis added). The sentence thus refers to an uninterrupted disability in the past continuing up to the present change in the average weekly wage. Had the sentence instead read, “any person who has been ... permanently disabled,” we would be left scratching our heads as to how a permanent condition can be embedded in a time period of finite duration.

The root word “continue” appears elsewhere in the statute in a manner reinforcing the distinction between “continuous” and “permanent.” Section 36-308 specifies when compensation shall be paid. A person must first be “adjudged” disabled, permanently or temporarily, totally or partially; compensation is then paid only “during the continuance” (emphasis added) of the disability. § 36-308(1). The drafters thus understood and employed the distinction between permanent disability as an “adjudicated]” status or condition and the continuance of that condition.3 Significantly, in prescribing the level of compensation to be paid, § 36-308 treats identically persons with “permanent and total” disability and those with “total ... but temporary” disability: both receive 66 2/3% of the employee’s average weekly wages “during the continuance of’ the disability. § 36-308(1), (2). This identical treatment makes sense because, while a permanent total disability may differ from a temporary total disability in duration, both disabilities have the same effect, i.e., for the duration of the disability the worker is, in the words of § 36-308(1), “unable to earn any wages in the same or other employment.” Thus, the Council recognized that it would be illogical (and counter to the humanitarian purposes of the Act) to treat the two categories of disabled workers differently during the period when the effect of their disabilities is the same. In spite of this, the Director offers no reason why in providing for a supplemental allowance based on recalculation of the general average weekly wage (§§ 36-305, -306), the drafters would have introduced a distinction they had otherwise rejected, denying the allowance to persons with a total and continuous, but not a “permanent,” disability.

In sum, the Director’s interpretation of “continuously” gleans no support from the statute. Instead the Director looked, as does the majority, entirely to the legislative history of § 36-306. But, in general, we do not let such history displace the plain meaning of a statute, and in any case it provides only weak support for the Director’s equation of “continuously” and “permanently.” My colleagues concede that the Council departed from the language of the supplemental allowance provision of the LHWCA, and that normally we assume from such a change “that a change was intended in legislative result.” United States v. Brown, 422 A.2d 1281, 1284 (D.C.1980) (citation omitted). The burden is thus on the Director to show that the Council intended no change by the new language. *1165That burden is not met just by pointing to the lack of an explanation for the change in the Committee reports; in legislation making important changes in the existing coverage for workers’ compensation, see Hughes v. District of Columbia Dep’t of Employment Servs., 498 A.2d 567 (D.C.1985), it is not surprising that a modest change as to supplemental allowances drew little attention. While the Council’s intent generally was indeed to narrow coverage in the new act, id. at 570, that intent is realized in § 36-806 by the imposition of a cap on supplemental allowances not to exceed 5% of the maximum weekly benefit received in the preceding benefit year. § 36-306(d). It does not justify our disregarding the plain language of § 36-306(a).

The Director is thus left to rely upon a single reference in the section-by-section analysis of the original bill submitted by the Committee on Housing and Economic Development (“HED”), in which the Committee stated that § 7 of Bill 3-106 “allows for adjustments in benefits for permanently disabled employees....” HED Report at 14 (emphasis added). This, the majority says, “clearly equates the words ‘totally and continuously’ with ‘permanently.’ ” Ante at 1163 (emphasis added). The “clarity,” however, becomes obscured when we look to other portions of the HED Report. Earlier in the report, the HED Committee discussed the compliance of the proposed D.C. Workers’ Compensation Act with the nineteen “essential recommendations” for a viable workers’ compensation system set forth in the 1972 report of the National Commission on State Workmen’s Compensation Laws (“National Commission”). HED Report at 5. In its analysis, the HED Committee asserted that the proposed Act for the District was in “full compliance” with the following recommendation of the National Commission:

We recommend that total disability benefits be paid for the duration of the worker’s disability or for life, without any limitation as to dollar amount or time.

HED Report at 8 (emphasis added). The National Commission thus made no distinction between permanent and temporary total disabilities.4 The duration, but not the amount, of benefits would depend on the duration of the disability. Indeed, the Commission made it clear that no limitation as to the dollar amount of benefits would be appropriate in the case of total disabilities. Under the interpretation urged by the Director and the majority, however, such a limitation would be imposed on those with temporary total disabilities, because they would not be eligible for the benefit adjustment represented by the supplemental allowance. That would not be “full compliance” with the Commission’s recommendation.5

The majority also cites the section-by-section analysis of the proposed D.C. Act included in the report of the Committee on Public Services and Consumer Affairs (“PS/CA”). The majority explains that while the PS/CA *1166analysis of the benefit adjustment provision recommended changes with regard to the proposed waiting period and cap on such adjustments, on which a compromise ultimately was reached, the “ ‘totally and continuously’ language of the original bill was not changed.” Ante at 1163. But the majority does not mention that the PS/CA Committee expressed its understanding that the benefit adjustment provision, as explained in the HED Report, applied to “totally disabled persons.” See PS/CA Report at 10-11. No distinction was made between the treatment to be accorded workers with temporary, as opposed to permanent, total disabilities.

Thus, the legislative history is inconclusive at best, and suggests no reason for us to depart from the unambiguous meaning of the statutory word “continuously.” I therefore would reverse the Director’s denial of benefits based upon equating “totally and continuously” with “totally and permanently” and remand the case solely for the Director’s determination of the point from which, under § 36-306(a), the period of continuous total disability should be measured.

. See, e.g., Webster's New Twentieth Century Dictionary (1978) ("permanent”: "lasting or intended to last indefinitely without change”; “continuous”: "without cessation or interruption").

. See Fort Chaplin Park Assocs. v. District of Columbia Rental Hous. Comm'n, 649 A.2d 1076, 1080-81 (D.C.1994) (rejecting agency definition of "habitability” and giving term its plain meaning where term was undefined in statute and explaining that "[i]f the [D.C.] Council intended any meaning other than the ordinary meaning, the Council could have indicated as much within the Act”). See also Bates v. District of Columbia Bd. of Elections & Ethics, 625 A.2d 891, 894 (D.C.1993) (explaining that "words of common use are generally construed according to the natural, plain and ordinary meaning").

. The drafters also recognized that both permanent and temporary total disabilities could be "continuous.” See § 36-308(1) (providing that benefits for permanent total disabilities “shall be paid to the employee during the continuance thereof”) (emphasis added); § 36-308(2) (providing that benefits for temporary total disabilities "shall be paid to the employee during the continuance thereof”) (emphasis added).

. Moreover, this recommendation immediately followed the Commission's recommendations that permanent and temporary total disabilities be compensated at the same rate, 66%% of the worker’s gross weekly wage, which again suggests that identical treatment was contemplated for each class of disability. See HED Report at 7-8. The HED Committee emphasized that the proposed D.C. Act was in "full compliance” with these recommendations as well. See id.

. Later, as cited by the majority, the HED Committee described in detail the "significant differences” between the proposed D.C. Act and its predecessor, the Longshoremen's and Harbor Workers’ Compensation Act. See ante at 1162. The majority is correct that, although the LHWCA expressly limited benefit adjustments to those workers with a permanent total disability, the only significant change noted by the HED Committee was the imposition of a cap on the amount of the adjustment. The majority fails to discuss the fact, however, that in the same section, the HED Committee mischaracterized the persons to whom the adjustment was available under the LHWCA. Specifically, the HED Committee stated that

[ujnder the [Longshoremen's and Harbor Workers’ Compensation] Act, benefits received for death or total disability are annually adjusted by the percentage increase in the National Average weekly wage.

HED Report at 10 (emphasis added). This characterization standing alone would imply that workers afflicted with temporary total disabilities also would be entitled to adjustments. The fact that it may well have been a mistake only reiterates the risk of placing dispositive weight on a single statement of meaning or intent within a committee report to determine the meaning of an unambiguous statutory term.