D.C. Workers' Compensation Defense: Key events every adjuster should know
Written by D. Stephenson Schwinn, David B Stratton, Padraic Keane. Posted on 02/06/2012.
As the Court of Appeals frequently notes in decisions concerning the D.C. Workers’ Compensation Act, the Act is to be liberally construed in keeping with its humanitarian purpose of providing financial and medical benefits to workers who injured in the course of their employment. See, e.g. Grayson v. DOES, 516 A.2d 909, 912 (D.C. 1986). Similarly, the Act is generally applied with a presumption of compensability. See Georgetown Univ. v. DOES, 971 A.2d 909 (D.C. 2009).
From a practical perspective, this means that the employer and carrier are at a disadvantage in the event of a false claim, or in the event a legitimate claim is exaggerated by the claimant. As such, it is critical that the employer and carrier be aware of the critical deadlines that frequently arise in a D.C. Workers’ Compensation claim, both to realize any advantages the time restrictions may impart on the employer and carrier, and to avoid waiving any defenses (or incur unnecessary penalties). The list below sets forth many of those critical deadlines, and establishes the basic framework for the defense of a D.C. workers’ compensation claim.
Within 30 days of Injury: Employee must provide notice of injury within 30 days of the injury, or within 30 days of the awareness of the relationship between employment and injury.
Significance: The employee’s failure to provide timely notice of injury will bar the claim. This defense is waived if not raised in the first hearing on the claim.
Within 10 days of Notice of Injury: Employer must provide written report of any employee injury within ten working days of injury or death.[ii]
Significance: The employee’s time limit for filing a claim shall not begin until a report of injury is filed.
Within 14 working days after notice of injury and relationship to employment: A notice of controversion must be filed within 14 working days after the employer has knowledge of the injury and its relationship to employment. Additionally, a notice of controversion must be filed within 3 working days after workers’ compensation payments to an employee are suspended.[iii]
Within 1 year of Injury: All workers’ compensation claims must be made within one year of: a) injury or death; b) the date of the last voluntary payment; or c) from the end of a tort suit to recover damages, wherein recovery is denied because of the exclusionary remedy provision.[iv]
Significance: This serves as the statute of limitations for D.C. Workers’ Compensation claims. This defense, like the 30 day notice defense, is waived if not raised in the first hearing on the claim.
Within 10 days after Compensation Order is due: If any compensation payable under the terms of an award is not paid within 10 days after it becomes due, a penalty of 20% of the unpaid compensation shall be applied.[v]
Signficance: The “Mailbox Rule” does not apply to payment of an award—the date on which the employee receives the check is the critical date. As such, compensation orders must be addressed immediately to avoid the imposition of penalty.
Within 1 year following date of last payment or rejection of claim: Any petition for Modification of a Compensation Order must be filed prior to one year following the date of last payment or rejection of claim.[vi]
Within 14 days following receipt of Memorandum of Informal Conference: Parties must advise, in writing, within 14 working days after receipt of memorandum of informal conference whether they agree or disagree with the recommendation therein.[vii] To the extent that a party disagrees with the recommendation, that party must file an Application for a Formal Hearing within 34 working days after issuance of the Memorandum, or the Memorandum becomes final and is converted into an order.[viii]
Within 6 months after issuance of Compensation Order, Attorneys’ Fees applications due: An application for attorneys’ fees must be filed by the employee’s attorney within six months after the compensation order is issued (or after claim for benefits has become final, or after all appeals have been exhausted).[ix]
Significance: It is important to note that attorneys’ fees are not recoverable when the employer agrees with the Memorandum of Informal Conference.[x]
Within 30 days of adverse Compensation Order: The Application for Review by the Director must be filed within 30 days from the date shown in the certificate of service accompanying the Compensation Order.[xi]
Significance: The application must be filed within 30 days, meaning it must be received by the Director within the specified time, as the “mailbox rule” is inapplicable.
Within 15 days of receipt of Application for Review: A response to an Application for Review is due within 15 days after receipt of the Application.[xii]
Within 30 days after adverse decision from Director: A petition for judicial review must be filed within 30 days after notice is given of the adverse decision. If notice is by mail, the petitioner has five additional days in which to file the petition.[xiii]
Significance: The 30 day time limit is mandatory and jurisdictional; once the 30 day period is passed, the Court of Appeals is without power to hear the case.
Within 6 months after claimant’s acceptance of compensation: Six months after compensation is accepted by a claimant pursuant to a Compensation Order, any third-party tort suit is assigned, by statute, to the employer/insurer.[xiv]
For further information concerning the defense of workers' compensation claims under the D.C. Act, call Steve Schwinn at Jordan Coyne LLP, 703-246-0900.
D.C. Code Ann. § 32-1513; D.C. Mun. Regs. 7-206; Georgetown Univ. v. DOES, 862 A.2d 387 (D.C. 2004) (Claimant’s interrogatory answers demonstrated she failed to provide timely notice of work-related injury to employer).
[ii] D.C. Code Ann. § 32-1532(f); D.C. Mun. Regs. 7-203.1, 7-203.3.
[iii] D.C. Mun. Regs 7-210.2, 7-209.5.
[iv] D.C. Code Ann. § 32-1514(a); D.C. Mun. Regs. 7-207 (time limitation); see also D.C. Code Ann. § 32-1504 (noting that workers’ compensation is the exclusive remedy for an injured worker as to his or her employer for a work-related injury or death).
[v] D.C. Code Ann. § 32-1515(f); Orius Telecomm., Inc. v. DOES, 857 A.2d 1061 (D.C. 2004).
[vi] D.C. Code Ann. § 32-1522; Sodexho Marriott Corp. v. DOES, 858 A.2d 452 (D.C. 2004).
[vii] D.C. Mun. Regs. 7-219.20.
[viii] D.C. Mun. Regs. 7-219.22.
[ix] D.C. Mun. Regs. 7-224.7.
[x] See Providence Hosp. v. DOES, 855 A.2d 1108, 1112 (D.C. 2004) (noting that attorneys’ fees are only available to employee’s attorney where (a) employer refuses to pay any compensation for a work-related injury within 30 days after receiving written notice from Mayor of claim for compensation, and employee uses services of attorney to successfully prosecute claim, or (b) employer voluntarily pays or tenders compensation without an award, but later refuses to pay compensation claimed by employee within 14 days after receiving Memorandum of Informal Conference, and employee uses services of employee to successfully prosecute claim).
[xi] See D.C. Code. Ann. § 32-1522; Thompson v. DOES, 848 A.2d 593 (D.C. 2004); D.C. WASA v. DOES, 843 A.2d 750 (D.C. 2004).
[xii] D.C. Mun. Regs. 7-258.8.
[xiii] D.C. Code Ann. § 32-1522; D.C. Ct. App. R. 15(a)(2).
[xiv] D.C. Code Ann. § 32-1535; Cunningham v. George Hyman Constr. Co., 603 A.2d 446 (D.C. 1992) (noting that triggering point for the six-month period is an award covering any part of the claimed disability, including a temporary disability award made by the Department of Employment Services); Smith v. Ogden Allied Svcs., 842 F. Supp. 571 (D.D.C. 1994) (following Cunningham, and barring third-party lawsuit where plaintiff filed lawsuit more than six months after accepting a Workers’ Compensation award. The court noted that any award acceptance, including an award for temporary disability, triggers the six-month time limit.).