Workers' Compensation
Summer 2020

Michael A. Washington v. Arena Football One and Travelers Indemnity Company: Attorney’s Fee Award

This matter was appealed to the Compensation Review Board on Reconsideration of an Award of Attorney’s Fee by Administrative Law Judge Donna J. Henderson.

The parties had attended an informal conference on permanent partial disability (PPD), and a recommendation on PPD was issued.  Claimant, Michael Washington, filed an Application for a Formal Hearing.  Employer, Arena Football One, then submitted a letter accepting the recommendation.

On March 5, 2020, after an evidentiary hearing was held, a Compensation Order was issued, awarding Claimant PPD benefits to his left leg as a result of a work injury sustained.  On April 2, 2020, Claimant filed a petition requesting an award of attorney’s fees against Employer in the amount of $3,480.95.  Employer filed an Opposition.  An ALJ subsequently awarded Claimant’s counsel attorney’s fees based upon the 4% difference between an earlier Recommendation issued and the Compensation Order.  On April 14, 2020, an Order on Reconsideration of Award of attorney fee was issued concluding that Employer had never been ordered to pay Claimant any percentage of permanent disability. Therefore, Employer could not be ordered to pay attorney’s fees.  Claimant appealed.

On appeal, Employer argued that it is not liable to pay Claimant an attorney’s fee of any amount, as it did not refuse to pay Claimant PPD benefits pursuant to the OWC recommendation.  Employer argued that Claimant filed an Application for Formal Hearing and that Employer later submitted a letter accepting the recommendation.  Therefore, it was Claimant who rejected the OWC recommendation.  Further, Employer argues that D.C. Code § 32-1530 (b) is specific in setting forth the requisite conditions for a claimant to recover attorney’s fees: the employer must refuse to pay compensation for a claimant to be awarded attorney’s fees and it denies such fees when the condition is not met.

Claimant argued that because Employer did not pay any PPD benefits despite the recommendation made by the Office of Workers’ Compensation (OWC), Employer de facto refused the recommendation offered by OWC.

The CRB affirmed the April 14, 2020 Order on Reconsideration of Award of Attorney Fee.  The CRB noted that in Providence Hosp. v. DOES, 855 A.2d 1108, 1111 (D.C. 2004), the District of Columbia Court of Appeals stated that “[t]he statute clearly did not apply because [the employer] never rejected the mayor’s recommendation” and thus, the claimant could not recover attorney’s fees.  Id. at 1113.  Further, the District of Columbia Court of Appeals concluded that the statute is specific in setting forth the requisite conditions for Claimant to recover attorney’s fees and leaves no discretion to the agency or court.  Here, neither party argues that Employer formally rejected the recommendation prior to Claimant’s rejection of the Memorandum of the Informal Conference.  Further, when Claimant filed an Application for a Formal Hearing, any subsequent acceptance or failure to reject by Employer is irrelevant. The April 14, 2020 Order on Reconsideration of Award of Attorney Fee was affirmed.

The practical effect of this decision is that there are no de facto rejections.  An employer must expressly reject the recommendation in order for  Claimant to be eligible for attorney’s fees.

Written by associate Marleigh Davis.