Webb v. D.C. Dep't of Emp't Servs.

204 A.3d 843

Nikeesha WEBB, Petitioner,

v.DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 17-AA-882

District of Columbia Court of Appeals.

Argued September 26, 2018

Decided March 21, 2019

Amended April 11, 2019

Harold L. Levi, with whom Robert Newman, Washington, was on the brief, for petitioner.

Jason Lederstein, Assistant Attorney General, Office of the Solicitor General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Acting Solicitor General at the time the brief was filed, and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for respondent.

Before Fisher and Thompson, Associate Judges, and Greene,^* Senior Judge, Superior Court of the District of Columbia.

Greene, Senior Judge:

Petitioner Nikeesha Webb submitted a claim for public sector workers' compensation disability benefits pursuant to the District of Columbia's Comprehensive Merit Personnel Act of 1978 (CMPA). She asserts that the Compensation Review Board (CRB) erred in modifying the attorney's fee award, arguing, inter alia , that: (1) the Office of Risk Management (ORM) did not have the authority under the CMPA to promulgate rules regarding Department of Employment Services (DOES) public sector hearings and adjudications; (2) the rule regarding attorney-fee awards is inconsistent with the CMPA; (3) the rule regarding attorney-fee awards was improperly applied retroactively to petitioner's pending fee application; and (4) even if ORM did have the authority to promulgate the rules, ORM failed to properly promulgate or extend its "emergency" rules. Because we are persuaded that (1) ORM had authority to promulgate rules regarding DOES public sector hearings and adjudications, (2) the rule regarding attorney-fee awards is consistent with the CMPA, (3) the rule regarding attorney-fee awards was not improperly applied retroactively to petitioner's pending fee application, and (4) petitioner's challenge to the validity of the emergency rulemaking is moot because it was superseded by the final rulemaking, we affirm the CRB's Modification of the attorney's fee award.

I. Procedural History

Petitioner Webb began her employment with the Metropolitan Police Department (MPD) as a police cadet in 1989. In October 2012, she began working in the MPD's Henry J. Daly Building as a Compliance Monitor. Two years later, several water intrusions, due to storm leakage from the building's roof, occurred in Suite 5030 where her office was located. In July 2014, Ms. Webb experienced health issues seemingly related to her work environment, requiring her to use sick leave. In December 2014, a water leak occurred above her desk. Following that leak, she coughed, sneezed, vomited, and experienced headaches and runny eyes. Around December 17, 2014, she lost her voice. In the Matter of Webb v. District of Columbia Metropolitan Police Department , Department of Employment Services Compensation Order, Sept. 26, 2016 (hereinafter, "Compensation Order") Appendix (hereinafter, "App.") at 2-3.

On January 2, 2015, following another period of sick leave, Ms. Webb requested an air quality study. That study revealed that multiple water intrusions had occurred in Suite 5030 during 2014 and had resulted in ceiling tile damage and wet carpeting. The study also indicated that mold, including "aspergillus," was present. Compensation Order, App. at 3.

Ms. Webb consulted with various doctors, including Dr. Maurice A. Wright, Dr. Adriano Salicru, Dr. Sheryl Lucas, and Dr. James A. Mutcherson. She also moved offices to see if that would alleviate her illness. In January 2015, she moved to Room 6028, which also had water damage, dirty carpeting, and a leaky exhaust pipe. In April 2015, she experienced similar problems when she moved offices again. Dr. Wright subsequently diagnosed Ms. Webb with reactive airway disease, allergic conjunctivitis, and allergic rhinitis brought on by work-related allergic reactions. Compensation Order, App. at 3-4.

On July 18, 2016, a full evidentiary hearing took place before Administrative Law Judge (ALJ) Gwenlynn D'Souza. In a September 26, 2016 Compensation Order, ALJ D'Souza concluded that Ms. Webb had proved by a preponderance of the evidence that she sustained injury to her immune and respiratory systems, and that her injury arose during the course of her employment in December 2014. Compensation Order, App. at 8. On March 1, 2017, the CRB's Decision and Order affirmed ALJ D'Souza's Compensation Order. Webb v. District of Columbia Metropolitan Police Department , Compensation Review Board Decision and Order, March 1, 2017 (hereinafter, "CRB Order"), App. at 10-17.

On December 16, 2016, before the CRB Order affirming ALJ D'Souza's Compensation Order, ORM introduced a proposed rulemaking and an emergency rulemaking focused on public sector workers' compensation benefits, including a provision providing for an award of reasonable attorney's fees following the successful prosecution of a claim. The rule regarding attorney's fees contained in both the regular proposed rule and the emergency rule provided that " ‘Actual benefits secured’ for the purpose of Section 2327¹ means the total amount of benefits secured by an attorney in connection with a hearing through the date of the compensation order only and shall not include future benefits ." (Emphasis added.) The final rule, which was adopted on June 26, 2017, and became effective on July 7, 2017, similarly provided that " ‘Actual benefits secured’ for the purpose of Section 2327 [of the CMPA] means the total established amount of benefits secured by an attorney in connection with a hearing or court proceeding through the date of the compensation order only, and shall not include future benefits ."² (Emphasis added.)

Shortly after the Compensation Order in this matter and the CRB Order affirming it became final, petitioner filed fee petitions with the CRB and the Office of Hearings and Adjudications (OHA) for the work petitioner's counsel performed before each body resulting in the successful prosecution of petitioner's claim. App. at 25. On April 12, 2017, ALJ D'Souza granted counsel's petition in part, deciding that counsel should receive 20 percent of the benefit received, as well as 20 percent of future payments until the attorney's fee is satisfied. In the Matter of Webb v. District of Columbia Metropolitan Police Department , Order Regarding Fee Petition, April 12, 2017 (hereinafter, "Fee Petition Order"), App. at 19-23.

The MPD appealed the Fee Petition Order. In response, the CRB modified the Order on July 20, 2017, and July 27, 2017, determining the attorney's fee award could not exceed 20 percent of the benefits received as of the date of the Compensation Order. Webb v. District of Columbia Metropolitan Police Department , CRB No. 17-047, Compensation Review Board Decision and Order, July 20, 2017 (hereinafter, "CRB Decision and Order"), App. at 24-28, and Webb v. District of Columbia Metropolitan Police Department , CRB No. 16-142(A)(1), Compensation Review Board Order Granting an Attorney Fee Award, July 27, 2017 (hereinafter, "CRB Modified Fee Petition Order"), App. at 31-34.

It is from the CRB Decision and Order and the CRB Modified Fee Petition Order that this petition for review followed.

II. Standard of Review

This court's review of agency decisions is limited. Gatewood v. District of Columbia Water & Sewer Auth. , 82 A.3d 41, 50 (D.C. 2013). Pursuant to this limited review, "we must affirm unless we conclude that the agency's ruling was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." King v. District of Columbia Water & Sewer Auth. , 803 A.2d 966, 968 (D.C. 2002) (quoting Olson v. District of Columbia Dep't of Emp't Servs. , 736 A.2d 1032, 1037 (D.C. 1999) ). See also D.C. Code § 2-510 (2012 Repl.). We review questions of law de novo . Owens v. District of Columbia Water & Sewer Auth. , 156 A.3d 715, 719 (D.C. 2017). See also Stevens v. District of Columbia Dep't of Health , 150 A.3d 307, 312 (D.C. 2016) ("Questions of law, including questions regarding the interpretation of a statute or regulation, are reviewed de novo ." (citation omitted) ).

III. Analysis

A. Authority to Issue the Rules

The gravamen of the petition for review is that ORM does not have the statutory authority under the CMPA to promulgate rules regarding DOES public sector hearings and adjudications, including those related to awards of attorney's fees. Although petitioner acknowledges that the CMPA covers (1) workers' compensation wage loss and medical benefits available to D.C. government employees who suffer injuries in the course of their employment, and (2) the awarding of attorney's fees, she asserts that the CMPA does not reference ORM. Moreover, even if ORM had the statutory authority, petitioner argues, ORM did not satisfy the requirements for an emergency rulemaking.

To the contrary, the government asserts ORM did have the necessary authority to issue such a rule. Since the D.C. Council's creation of the public sector workers' compensation program in 1979, the government argues, the D.C. Mayor has possessed the authority to "administer and address and decide all questions arising under" the program, and that authority "has expressly included – indeed required – rule-making." This authority can be – and over the years, has been – delegated by the Mayor to different administrative agencies.

We conclude that ORM had the authority, pursuant to power delegated from the Mayor and D.C. Council, to issue these rules. The CMPA is codified at D.C. Code § 1-623.01 et seq .,³ and the Act addresses the administration of the public sector workers' compensation program, including types of disability, hearings, representation, and attorney's fees. It provides that "The Mayor or his or her designee shall determine and make a finding of facts and an award for or against payment of compensation under this subchapter within 30 days...