                             District of Columbia
                              Court of Appeals
No. 15-AA-648
                                                                  DEC 29 2016
JOSEPHINE REYES.,
                                  Petitioner,

          v.                                                      CRB-158-14

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES,
                        Respondent.


                      On Petition for Review from an Order of the
                             Compensation Review Board

         BEFORE: EASTERLY and MCLEESE, Associate Judges; and NEBEKER, Senior
Judge.

                                   JUDGMENT

              This case came to be heard on the administrative record, a certified copy of
the agency hearing transcript and the briefs filed, and was argued by counsel. On
consideration whereof, and as set forth in the opinion filed this date, it is now hereby

             ORDERED and ADJUDGED that the matter is remanded to the
Compensation Review Board so it can address the merits of the Administrative Law
Judge’s determination that petitioner’s right knee condition was causally related to her
January 2011 workplace injury.

                                   For the Court:




Dated: December 29, 2016.

Opinion issued Per Curiam.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-AA-648                          12/29/16
                                                                         /
                           JOSEPHINE REYES, PETITIONER,

                                         V.

                           DISTRICT OF COLUMBIA
              DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT.

                    On Petition for Review from an Order of the
                           Compensation Review Board
                                   (CRB-158-14)

(Argued June 3, 2016                                   Decided December 29, 2016)

      Michael J. McAuliffe for petitioner.

      Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and
Loren L. AliKhan, Deputy Solicitor General, were on the brief, for respondent.

      Before EASTERLY and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.

      PER CURIAM:       Dr. Josephine Reyes, the petitioner, is challenging the

Compensation Review Board’s (CRB) determination that a Department of

Employment Services (DOES) Administrative Law Judge (ALJ) lacked

jurisdiction to consider her claim, based on an injury to her right knee, for workers’

compensation benefits under the Public Sector Workers’ Compensation Program
                                         2

(“the Program”). Although Dr. Reyes had given the Program notice of other

claims in connection with a workplace injury, she did not give notice of her right

knee claim.    Nonetheless the Program reviewed the right knee claim and

determined that it was not causally related to her work place injury, denying her

benefits. The DOES ALJ reversed this determination. The CRB then reversed the

DOES ALJ, concluding that the ALJ did not have jurisdiction under D.C. Code

§ 1-623.24 (b)(1) (2014 Repl.) to hear this claim, even though the Program actually

adversely decided the causal relationship issue, because petitioner had not given

the Program proper notice of that claim. We conclude that the CRB, mistakenly

relying on an inapposite and unpublished decision from this court, misinterpreted

the jurisdictional requirements of D.C. Code § 1-623.24 (b)(1). Thus we reverse

and remand.


                            I.    Procedural History



      In January 2011, Dr. Reyes, a psychiatrist at St. Elizabeths Hospital,

suffered a workplace injury after she was attacked by a patient. She filed a claim

for temporary total disability benefits with the Program and provided written notice

of multiple injuries to her face, head, and back, but did not at the outset note her

right knee pain. Dr. Reyes was awarded temporary total disability benefits. Dr.
                                           3

Reyes did not return to work until August 2011; thereafter she was notified that her

disability benefits had been terminated.



      In October 2012, Dr. Reyes received notice that the Program was closing her

workers’ compensation claim and that all benefits would be terminated. The

Program relied primarily on an independent medical examination conducted by Dr.

Stanley Rothschild, who assessed Dr. Reyes’s assertion that her right knee was

injured in connection with the assault on January 2011. Dr. Rothschild opined that

Dr. Reyes’s “current complications to the knee [were not] related to the accident.”

After the Program denied her workers’ compensation benefits on this basis, Dr.

Reyes requested reconsideration.           The Program denied her request for

reconsideration, issuing a Final Decision upholding its determination to terminate

her benefits.



      Dr. Reyes requested and received a formal hearing before a DOES ALJ.

The ALJ issued an order concluding that Dr. Reyes’s right knee condition was

causally related to the January 2011 work incident and ordering continued payment

of benefits. The District of Columbia Office of the Attorney General (OAG), on

behalf of Dr. Reyes’s employer, the Department of Mental Health (DMH),

appealed to the CRB, arguing that the ALJ had no jurisdiction to make such a
                                           4

determination because appellant had failed to notify the Program of her right knee

condition in her initial claim for benefits.



      The CRB identified D.C. Code § 1-623.24 (b)(1)1 as the statutory provision

that defines the DOES ALJ’s jurisdiction,2 and noted that it had previously

“interpreted this provision to require issuance of a Final Determination [of a claim]

by [the Program].” The CRB acknowledged that the Program had made a final

determination of Dr. Reyes’s claim when it concluded that her right knee condition

was not causally related to her workplace injury in its Final Decision on

Reconsideration. But the CRB then indicated that it believed this court, in an

unpublished decision, District of Columbia Hous. Auth. v. District of Columbia

Dep’t of Emp’t Servs. (Jackson), No. 12-AA-1824, Mem. Op. & J. (D.C. Mar. 31,

2014), to have rejected the CRB’s “liberal interpretation” of this statutory

provision. The CRB understood this court to have held in Jackson that a DOES

ALJ only has jurisdiction to hear claims for which the claimant had given timely

      1
          “Before review under § 1-623.28 (a), a claimant for compensation not
satisfied with a decision of the Mayor or his or her designee under subsection (a) of
this section is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on the claim before a Department of
Employment Services Disability Compensation Administrative Law Judge.” D.C.
Code § 1-623.24 (b)(1).
      2
        In challenging the jurisdiction of the ALJ, the OAG did not cite to D.C.
Code § 1-623.24 (b)(1).
                                          5

notice and for which the Program had issued a final decision. Although the CRB

acknowledged that Jackson, as an unpublished decision, “is not to be viewed as

having precedential authority,” it felt “obligated to adopt” what it understood to be

the court’s reasoning therein. Accordingly, the CRB concluded that the ALJ

lacked jurisdiction to adjudicate Dr. Reyes’s claim, and vacated the ALJ’s

compensation order. Dr. Reyes then filed the petition for review now before us.



                                   II.   Analysis



      “‘Our standard of review of agency decisions in workers’ compensation

cases is governed by the District’s Administrative Procedure Act.’” Fluellyn v.

District of Columbia Dep’t of Emp’t Servs., 54 A.3d 1156, 1159 (D.C. 2012)

(quoting Mills v. District of Columbia Dep’t of Emp’t Servs., 838 A.2d 325, 328

(D.C. 2003)); D.C. Code §§ 2-501, 32-1522 (b)(3) (2012 Repl.). When presented

with such decisions, “[w]e review the CRB’s legal rulings de novo, recognizing

that this court is the final authority on issues of statutory construction.” Fluellyn,

54 A.3d at 1160 (internal quotation marks omitted). When confronted with an
                                          6

ambiguous statutory provision, however, we will defer to an agency’s reasonable

interpretation of that provision. Id.3



      Here the CRB correctly identified the controlling provision in the Public

Sector Workers’ Compensation Statute, D.C. Code § 1-623.24 (b)(1), which

provides that “a claimant for compensation not satisfied with a decision of the

Mayor or his or her designee under subsection (a) of this section is entitled, [upon

a timely request] to a hearing on the claim before a [DOES ALJ].” On its face the

statute indicates only that the Mayor or his designee—here the Program—must

issue a “decision” before a claimant may seek review by a DOES ALJ. And it

appears that until its decision in this case, the CRB interpreted the statute only to

require that the Program issue a final decision in order for jurisdiction to vest with

the ALJ. That seems to be the only correct interpretation of the text of D.C. Code

§ 1-623.24 (b)(1).




      3
         See generally MorphoTrust USA, Inc. v. District of Columbia Contract
Appeals Bd., 115 A.3d 571, 583 (D.C. 2015) (explaining that “[i]n accordance with
the Supreme Court’s decision in Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984), before we afford some deference to an
agency’s interpretation of the statute that it administers at least two conditions
must be met: (1) the statutory language in question must be ambiguous, and (2)
the agency’s interpretation must be reasonable”).
                                          7

      Despite the seemingly plain meaning of the text of D.C. Code § 1-

623.24 (b)(1), we acknowledge that the Public Sector Workers’ Compensation

statute elsewhere requires a claimant to provide timely written notice of her claims

in order to obtain review by the Program. See D.C. Code § 1-623.21 (a)(1); see

also 7 DCMR § 111.9.4 But even if we were to discern some ambiguity in D.C.

Code § 1-623.24 (b)(1) by reading it in conjunction with D.C. Code § 1-623.21, we

would conclude that the CRB’s reinterpretation of the jurisdictional requirements

of D.C. Code § 1-623.24 (b)(1) by reference to our unpublished decision in

Jackson was unreasonable.5



      The procedural history of Jackson is distinguishable and the CRB

misunderstood the nature of our decision in that case. See Nunnally v. District of

Columbia Metro. Police Dep’t, 80 A.3d 1004, 1012 (D.C. 2013) (“An agency’s

interpretation of our case law does not trigger an obligation of deference on our

      4
         But see D.C. Code § 1-623.21 (b) (providing that the “Mayor may waive
paragraphs (3) through (6) of subsection (a) of this section [requiring inter alia that
claims be submitted on a form approved by the Mayor and contain all information
required by the Mayor] for reasonable cause shown”).
      5
         This decision, although unpublished, is now part of the record in this case,
because the OAG, in light of D.C. App. R. 28 (g) (generally prohibiting citation to
unpublished opinions), filed a motion for permission to cite to Jackson “to explain
the CRB’s reliance on it and to respond to petitioner’s arguments about it.” As our
internal operating procedures likewise prohibit citation to unpublished decisions,
IOP IX.D, we discuss Jackson only for the limited purpose of explaining why it
should have had no bearing on the CRB’s jurisdictional analysis.
                                           8

part.”). In Jackson, the CRB upheld an ALJ’s review of a request for benefits

never presented to or decided by the Program, reasoning that the Program had

failed to challenge the ALJ’s jurisdiction and had thus waived any such argument.

This court reversed the CRB, pointing out that Jackson’s back claim was never

asserted to DCHA. Jackson had no occasion to address, and thus did not decide,

the question of whether an initial failure to allege an injury to a specific part of the

body creates a jurisdictional bar even if the agency thereafter considers that alleged

injury and decides on the merits that the alleged injury does not provide a basis for

an award. This case presents that question, because Dr. Reyes did ask the Program

to consider her right knee claim (in a motion for reconsideration, and the Program

in fact did consider and reject that claim in its Final Decision on Reconsideration.

Jackson is thus inapposite.
                                        9

      Therefore, we conclude that the CRB’s determination that the ALJ lacked

jurisdiction to hear Dr. Reyes’s right knee claim was erroneous. We remand this

matter to the CRB so it can address the merits of the ALJ’s determination that

petitioner’s right knee condition was causally related to Dr. Reyes’s January 2011

workplace injury.




                                            So ordered.
