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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 18-AA-49

                          FRANCINE FRAZIER, PETITIONER,

                                         V.

                          DISTRICT OF COLUMBIA
             DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

                                        and

                          DISTRICT OF COLUMBIA
                 DEPARTMENT OF PUBLIC SCHOOLS, INTERVENOR.

                         On Petition for Review of an Order
                         of the Compensation Review Board
                                   (CRB-108-17)

(Argued April 30, 2019                                    Decided June 11, 2020)

       David J. Kapson, with whom Kevin H. Stillman was on the brief, for
petitioner.

      Tonya A. Robinson filed a statement in lieu of brief for respondent.

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

      Before FISHER, THOMPSON, and MCLEESE, Associate Judges.
      Opinion for the court by Associate Judge THOMPSON.
      Dissenting opinion by Associate Judge MCLEESE at page 27.
                                          2



      THOMPSON, Associate Judge:          In December 2008, petitioner Francine

Frazier, who was then employed by intervenor District of Columbia Public

Schools, sustained on-the-job injuries to her right hip, knee, and foot when she fell

while walking up a flight of stairs. She submitted a claim under the public sector

workers compensation program (“PSWCP” or the “Program”) and thereafter

received temporary total disability (“TTD”) benefits for several months.          She

returned to work full-time in December 2009 (and though she had received TTD

benefits through April 2010, the December 2009 to April 2010 payments were

deemed to have been made in error).




      Over five years later, petitioner submitted a claim for a schedule award

based on permanent disability related to the December 2008 injury. 1 The Office of


      1
          See 7 DCMR §§ 140.1(a) and 140.2(b) (2017) (providing generally that a
claim for permanent disability compensation shall be filed “[a]t any time after the
claimant has been determined to have reached [maximum medical improvement]
and to have a permanent impairment involving the loss of use of a member or
function of the body . . . .”). Petitioner’s brief states that she asked the PSWCP to
make a permanent disability determination in March 2015, while the OAH and
CRB rulings state that the PPD claim was submitted in 2014. We note, however,
that the record indicates that in 2011, petitioner’s then-attorney sent the Program a
February 22, 2011, medical report from an orthopedic surgeon who opined that
petitioner had a “20% right lower extremity impairment.” The record and the
briefs contain no explanation of what became of this 2011 initiative by petitioner’s
counsel or, in particular, whether it was treated as a claim. We conclude that we
                                                                          (continued…)
                                        3

Risk   Management      (“ORM”),    which    “has   oversight   and   administrative

responsibility for the Program,” 7 DCMR § 101.1, denied petitioner’s claim on

May 2, 2017, relying on two Additional Medical Evaluation reports from

orthopedic surgeons who examined petitioner on December 4, 2015, and April 4,

2017, reviewed her medical records, and determined that she had 0% residual

impairment from her 2008 accident.      After ORM denied the claim, petitioner

sought review in the Office of Administrative Hearings (“OAH”), even though

ORM’s Notice of Determination advised that any appeal should be made to

ORM’s Chief Risk Officer (“CRO”). In an October 2, 2017, order, OAH reasoned

that only the CRO had authority to review the adverse determination in petitioner’s

case, and on that basis dismissed petitioner’s appeal for lack of subject matter

jurisdiction.   Petitioner thereafter sought review by the Compensation Review


(…continued)
need not address the matter further because it does not appear that any of the
authorities discussed herein would permit a different resolution of this matter if
petitioner were deemed to have filed her request for a schedule award in 2011. We
note that ORM did not deny petitioner’s claim for a PPD schedule award as
untimely, but denied it on the merits. See also 64 D.C. Reg. 6325, 6333 (July 7,
2017) (ORM statement in rulemaking notice that a claimant may make a claim for
a schedule award “at any time”); 7 DCMR ⸹ 140.2(a) (providing generally that a
claim for permanent disability compensation by a claimant who has reached
maximum medical improvement must be filed within 180 days after the
termination of temporary wage-loss benefits, but providing an exception to the
180-day limit where “there is good cause found by the Program to excuse the
delay”).
                                           4

Board (the “CRB”).       The instant petition for review followed after the CRB

affirmed the OAH dismissal. We affirm the CRB’s ruling. As we explain below,

we do so because the statutory and regulatory scheme makes OAH review

unavailable for the type of claim involved here, and because we are unpersuaded

by petitioner’s arguments that this limitation is unlawful, was unfairly retroactive

in her case, and denied her due process and equal protection.




                                            I.



      OAH acknowledged in its “Compensation Order Dismissing the Case for

Lack of Jurisdiction” that it “is the administrative forum with primary jurisdiction

over [PSWCP] compensation disputes.” OAH noted, however, that its jurisdiction

is limited. OAH went on to identify several statutory and regulatory provisions

that it concluded required it to dismiss petitioner’s case.



      First, OAH addressed the assertion petitioner made in submitting her claim

for a PPD schedule award: that she was requesting a “determination of whether

[she] has a permanent partial disability pursuant to D.C. Code § 1-623.06a[.]”

OAH acknowledged that under § 1-623.06a, it has jurisdiction to make permanent

disability benefits determinations in the circumstance described in that provision.
                                          5

See D.C. Code § 1-623.06a(a) (2016 Repl.). OAH correctly noted, however, that §

1-623.06a(a) pertains to permanent disability determinations sought within the last

52 weeks of temporary benefits by claimants who are approaching the end of the

500-week period during which temporary benefits are available. Id. OAH also

cited its regulation at 1 DCMR § 2950.3(d), which similarly specifies that the cases

that “OAH shall hear” include “[r]equests for determinations of whether a claimant

has a permanent disability pursuant to D.C. Official Code § 1-623.06a”; as well as

the ORM regulation at 7 DCMR § 155.2 (2017), which went into effect as a final

regulation a few months before the OAH ruling and which states that “[r]equests

for determination of whether claimant has a permanent disability pursuant to

Section 2306a [of the Comprehensive Merit Personnel Act of 1978 (“CMPA”), i.e.,

D.C. Code § 1-623.06a(a)] shall be made to the Office of Administrative Hearings

(OAH).” OAH concluded that the foregoing authorities did not empower it to

make a permanent disability determination in petitioner’s case because she was not

currently receiving temporary disability benefits.



      OAH also found that petitioner’s claim was not among the types of claims

described in D.C. Code § 1-623.24(b) and in 7 DCMR § 155.1 (2017) and 1

DCMR § 2950.3 (2017) and as to which OAH has jurisdiction. Section 155.1(a)

states that “[i]nitial awards for or against compensation benefits pursuant to
                                         6

Section 2324(b) of the Act” (i.e., D.C. Code § 1-623.24(b)) “shall be appealed to

[OAH]” beginning December 1, 2016. 1 DCMR § 2950.3(a) states that OAH

“shall hear” appeals from ORM pertaining to initial awards under § 1-623.24(b).

Citing Sheppard v. District of Columbia Dep’t of Emp’t Servs., 993 A.2d 525 (D.C.

2010) (per curiam), OAH cited this court’s case law stating that the claims

discussed in § 1-623.24 (and referenced in §§ 155.1(a) and § 2950.3(a)) are “initial

claims for benefits . . . accompanied by a supervisor’s report and not . . .

subsequent claims arising from the same work-related injury[.]” Sheppard, 993

A.2d at 528 (deferring to this “longstanding” agency interpretation of the statute).

OAH explained (and the CRB agreed) that in petitioner’s case, § 1-623.24

governed her 2008 claim for TTD benefits, but not her instant claim for a

permanent-disability schedule award.



      OAH additionally reasoned that it did not have jurisdiction under the other

subparagraphs of 1 DCMR § 2950.3, which authorize appeals to OAH from

utilization-review decisions (see § 2950.3(b)) 2 and decisions on appeals pertaining

to “[m]odifications of awarded benefits pursuant to D.C. Official Code § 1-

      2
         The District’s brief notes that ORM has repealed the provision that was
designated as 7 DCMR § 155.1(b) to recognize that the CMPA (specifically D.C.
Code § 1-623.23(a-2)(4)) provides for appeals from utilization-review decisions to
go to the Superior Court rather than to an ALJ. OAH has not amended § 2950.3(b)
to make a corresponding change.
                                         7

623.24(d)[,]” § 2950.3(c). Regarding § 2950.3(c) and § 1-623.24(d), we note that

petitioner’s claim for a permanent-disability schedule award is not a

“modification[] of awarded benefits” because that statutory term refers to a

reduction in or terminations of benefits “because of a change to the claimant’s

condition,” D.C. Code § 1-623.24(d)(3)(A)–(D), or to an corrective compensation

decision where there is “strong compelling evidence that the initial decision was in

error,” id. ⸹ 1-623.24(d)(3)(E).    None of the foregoing provisions applies in

petitioner’s circumstance, which involves neither utilization review, nor a proposed

reduction in awarded benefits, nor a claim that the initial benefit award to

petitioner was in error.



      Finally, OAH deferred to the ORM interpretation embodied in 7 DCMR §

156.1 (2017), which establishes that “[a] claimant who is dissatisfied with any

other decision issued by the Program may only appeal the decision to the Chief

Risk Officer.” 3 See also 7 DCMR § 140.6(c)(2) (2017) (providing that a claimant

whose request for a schedule award is denied shall be advised or her right to appeal

the Program’s decision to the CRO).

      3
          7 DCMR § 156.3 provides that the CRO “shall affirm the Program’s
decision[,] if it is supported by substantial evidence in the record.” 7 DCMR §
156.5 provides for an appeal thereafter to the Superior Court pursuant to Superior
Court Rule of Civil Procedure Agency Review Rule 1 (calling for review on the
agency record).
                                         8



      The CRB affirmed the dismissal for lack of jurisdiction for the reasons cited

by OAH. It also acknowledged, but did not resolve, petitioner’s due process and

equal protection challenges to 7 DCMR § 156.1, which petitioner agreed could not

be considered by the CRB but raised in order to preserve her constitutional

arguments for presentation to this court.       In addition, the CRB considered

petitioner’s argument that OAH erred in applying 7 DCMR § 156.1 to her request

for a hearing. The substance of § 156.1 was adopted as an emergency regulation (7

DCMR § 3356.1) after petitioner filed her request for a permanent disability

determination, see 64 D.C. Reg. 4077, 4104 (Apr. 28, 2017) and 63 D.C. Reg.

15510, 15538 (Dec. 16, 2016), and § 156.1 had been adopted as a final regulation

by the time OAH issued its ruling. Petitioner cited what she called the “unfair

retroactive application” of the regulation. The CRB rejected that argument on the

ground that “[t]he determining date for application of [the regulations] is the date

[May 2, 2017,] of the [ORM] decision being appealed, not the date [c]laimant first

requested a determination from ORM.” Petitioner also cited the unfairness of

allowing claimants dissatisfied with a decision on modification of benefits to

request an OAH hearing, while petitioner’s request for review of ORM’s denial of

her request for a “modification” to her benefit status could be presented only to the

CRO, who petitioner implies would not be “a neutral arbitrator” and who would
                                           9

not “assess[] [petitioner’s] permanent partial disability based on her credibility[.]” 4

The CRB was “sympathetic” to petitioner’s argument but concluded that the OAH

ruling was in accordance with the law.


                                          II.




      As noted above, petitioner commenced her claim for a PPD schedule award

by asserting that she was relying on D.C. Code § 1-623.06a. For reasons the OAH

discussed and as summarized above, that provision is not applicable to petitioner’s

claim. In her appeal to this court, petitioner does not renew her reliance on § 1-

623.06a, and, with one exception, also does not claim that any other statutory or

regulatory provision providing for a hearing before an administrative law judge

(“ALJ”) applies by its terms to her case. 5 Rather, petitioner presents statutory


      4
          By contrast, § 1-623.24(b)(2) provides that OAH hearings on initial claims
will be de novo hearings, i.e., and that OAH “may conduct the hearing in such
manner as to best ascertain the rights of the claimant” and “shall receive such
relevant evidence . . . as . . . “necessary or useful in evaluating the claim.” See also
7 DCMR § 158.1 (“All appeals of Program decisions before the OAH and OHA
[i.e., the DOES Office of Hearing and Adjudication, now called the Administrative
Hearings Division (“AHD”), see Fernandes v. Ft. Myer Constr., 2007 D.C. Wrk.
Comp. LEXIS 42 n.2 (Jan. 31, 2007)] shall be reviewed under a de novo standard
of review.”).
      5
        The exception is that petitioner asserts that she properly requested a formal
hearing under D.C. Code § 1-623.24(f) (providing for a hearing before a DOES
                                                                       (continued…)
                                         10

authority, constitutional, and estoppel claims. She asserts that ORM exceeded its

authority in adopting 7 DCMR §§ 156.1 and that the regulation is inconsistent with

the CMPA; that retroactive application of the regulation pursuant to 7 DCMR §

101.4 6 to deny her an evidentiary hearing deprives her of due process; that the

regulation violates her equal protection rights; that ORM, which unreasonably

delayed a determination on her request for a schedule award, should be estopped

from applying the regulation so as to “unfairly deprive[] [her] of her day in court”;

and that the CRB and OAH erred in determining otherwise. We address each of

these arguments in turn. Because petitioner’s claims present questions of law, our

review is de novo. See Family Fed’n for World Peace v. Moon, 129 A.3d 234, 248

(D.C. 2015).


(…continued)
ALJ). We disagree. By its terms, § 1-623.24(f) applies to “[a] claimant who is not
satisfied with a decision under subsection (d),” meaning a decision based on a
determination that the claimant’s disability has “ceased or lessened[,]” the
“disabling condition is no longer causally related to the employment[,]” the
“claimant’s condition has changed from a total disability to a partial disability[,]”
the “employee has been released to return to work[,]” or “the initial decision was in
error.” D.C. Code §§ 623.24(d)(1) and (4)(A)–(E). As this case involves
petitioner’s request for a schedule award, the foregoing provisions are inapplicable.
      6
         7 DCMR § 101.4 provides that the final regulations ORM promulgated in
July 2017 “shall apply to all new, pending, and existing claims, whether the injury
giving rise to such claim, occurred before or after the date of these rules.” See also
64 D.C. Reg. 6325, 6327 (July 7, 2017) (ORM explanation that it “intend[ed] to
apply the final rulemaking prospectively from its effective date, to include on-
going appeals not yet reduced to a final order.”).
                                        11



      A. ORM’s authority to adopt § 156.1



      As this court recently stated in Webb v. District of Columbia Dep’t of Emp’t

Servs., 204 A.3d 843 (D.C. 2019), D.C. Code § 1-623.44 authorizes the Mayor to

“promulgate rules necessary or useful for the administration” of the PSWCP, and

the Mayor in turn has delegated that rulemaking authority, with “broad power,” to

ORM. Id. at 848. We see no reason to think that this broad power would exclude

the authority to promulgate a regulation that, in ORM’s words, affords “an

administrative remedy that ensures swift, efficient and fair resolution of matters

not statutorily committed to review by an ALJ,” and that ORM believed would

“streamline and expedite a claimant’s appeal process.” 64 D.C. Reg. at 6331.



      Petitioner asserts, however, that § 156.1 is “inconsistent with the purposes of

the Public Sector Workers’ Compensation Act” (the “Act”) and with how the

legislature intended injured workers’ rights to be resolved. We are not persuaded

by this argument.     For one thing, the Council of the District of Columbia

specifically directed in one section of the Act, D.C. Code § 1-623.23(a-2)(4), that

appeals from utilization-review decisions are reviewable by the Superior Court

rather than by an ALJ. That is enough to show that the Council did not intend that
                                       12

all PSWCP disputes would be subject to evidentiary hearings before an ALJ. For

another thing, as ORM explained in adopting § 156.1, the Council “expressly

provide[d] for a hearing before an ALJ” 7 only for some types of Program

decisions, see D.C. Code §§ 1-623.06a(a), 1-623.24(b)(1) and 1-623.24(f), a

scheme that does not support a conclusion that the Council had in mind specific

requirements for how it “intended injured workers’ rights to be resolved” in every

Program context.



      Petitioner also contends that 7 DCMR § 156 is facially invalid because the

Act does not authorize ORM to make decisions regarding disability without review

by DOES. Petitioner relies on D.C. Code § 1-623.02a, which provides in pertinent

part that the Mayor may delegate “any of the powers conferred on him or her . . .

except disability compensation hearings and adjudication powers, pursuant to § 1-

623.28, which shall be exercised by the Director of [DOES].” We agree with the

District of Columbia that the effect of § 1-623.02a (and of its reference to § 1-

623.28) is to preclude the Mayor from delegating to ORM the responsibility that

the Act specifically assigns to the Director of DOES (or his or her delegate):

reviewing decisions made after evidentiary hearings on PSWCP initial claims for

disability benefits. (The DOES Director has delegated that authority to the DOES

      7
          64 D.C. Reg. at 6331.
                                         13

CRB.) 8 D.C. Code § 1-623.02a was no bar to ORM’s adoption, pursuant to its

delegation from the Mayor, of a rule (§ 156.1) that directs other types of appeals to

the CRO.



      Petitioner argues in addition that § 156.1 is an “abrupt departure from well-

established practice,” implying that this renders the regulation invalid even if ORM

would otherwise have had authority to adopt it. Petitioner emphasizes that under

ORM’s previous regulations, review by an ALJ of her claim would have been

available. As she correctly notes, 7 DCMR § 121.18 (2012) provided that the

PSWCP Notice of Determination on a request for a schedule award “shall inform

the employee or claimant of his or her right to appeal the decision by requesting a

hearing before the [DOES Office of Hearing and Adjudication] within thirty (30)

days of the date of the Program’s decision.” However, in adopting amended rules,

including § 156.1, in 2017, ORM provided an explanation for the change. It

explained in its notice of final rulemaking that it believed that its previous

regulations “conflict[ed] with the controlling statutes,” 64 D.C. Reg. at 632 –


      8
         See Darden v. District of Columbia Dep’t of Emp’t Servs., 911 A.2d 410,
414 (D.C. 2006) (The CRB “has the responsibility to provide administrative review
of compensation orders that formerly was vested in the Office of the DOES
Director.”). Through the CRB, DOES “still has jurisdiction with respect to the
adjudication of [public sector] disability compensation appeals.” 53 D.C. Reg.
940, 940 (Feb. 10, 2006).
                                           14

which, as the District puts it, are “silent about any appeal rights for the denial of a

schedule award.”



      We have recognized that an agency “is not precluded from changing its

interpretation [of a statute] if it believes that a different interpretation is more

consistent with the statutory language and legislative intent” and if it “provide[s]

an explanation of the change.” Hensley v. District of Columbia Dep’t of Emp’t

Servs., 49 A.3d 1195, 1204–05 (D.C. 2012); see also id. at 1205 n.9; Hanson v.

District of Columbia Rental Hous. Comm’n, 584 A.2d 592, 595 (D.C. 1991) (“[I]f

an agency’s regulation is invalid – i.e., [is] in conflict with the statutes, [is] beyond

the statutory authority of an agency, or violates jurisdictional doctrines [–] the

agency is not bound by its regulations and its decision to depart from the

regulations will be upheld.”). In addition, while our review of legal rulings is de

novo, we accord deference to an agency’s reasonable interpretation of the statute it

administers. Kelly v. District of Columbia Dep’t of Emp’t Servs., 214 A.3d 996,

1000 (D.C. 2019). In light of these principles, we defer to ORM’s reasonable

interpretation that providing for CRO review of denials of requests for schedule
                                          15

awards is more consistent with the Council’s intent as reflected in the Act than was

the prior regulation that provided for appeals to an ALJ. 9



      B. Retroactivity



      Petitioner further argues that even if ORM’s adoption of § 156.1 was a

permissible change, the factors that determine whether retroactive application of a

new regulation is permissible dictate that the change should not be applied

retroactively. We conclude that no true retroactive application is involved here.



      By way of factual background: The rule providing for an appeal only to the

CRO was not in effect when petitioner made her request for a schedule award in

2014 (or 2015). ORM’s amended rules first went into effect as emergency rules

that were effective from November 30, 2016, through March 17, 2017. See 64

D.C. Reg. 3959, 4077 (Apr. 28, 2017). The amended rules were extended through

a second emergency rulemaking that was effective from March 17, 2017, until July

7, 2017. See 64 D.C. Reg. 6213, 6325 (July 7, 2017). The final amended rules

      9
         It is not clear, though, whether ORM believes that its former regulation
“exceeded the agency’s authority under the [Act],” District Brief at 22 n.8, or
instead that ORM has (and could exercise if it wished) authority to “expand[] . . .
the range of matters that receive hearings at DOES or OAH,” District
Supplemental Reply Br. at 5 n.5.
                                         16

(including 156.1), which are substantively the same as the emergency rules, went

into effect July 7, 2017. Thus, the rule now set forth in § 156.1 had been in effect

for several months as an emergency rule when ORM issued the Notice of

Determination in petitioner’s case on May 2, 2017. Further, § 156.1 had been

published as a final rule by the time OAH and the CRB made their rulings. As

noted above, in 7 DCMR § 101.4, ORM clearly indicated its intent to apply §

156.1 to pending cases.



      Application of a new rule to a pending case has retroactive effect if it

“would impair rights a party possessed when [s]he acted, increase a party’s liability

for past conduct, or impose new duties with respect to transactions already

completed.” Holzsager v. District of Columbia Alcoholic Beverage Control Bd.,

979 A.2d 52, 57 (D.C. 2009) (quoting Landgraf v. USI Film Prods., 511 U.S. 244,

280 (1994)). “[W]ith respect to the impact of [a] new law on the rights of parties,

the fact that the new law merely alters the procedure by which a petitioner may

obtain its objectives weighs in favor of applying the new law, unless [a party has]

reasonably and significantly altered [her] circumstances in reliance on the prior

law.” Id. at 58 (internal quotation marks and brackets omitted); see also Landgraf,

511 U.S. at 275 (“Because rules of procedure regulate secondary rather than

primary conduct, the fact that a new procedural rule was instituted after the
                                          17

conduct giving rise to the suit does not make application of the rule at trial

retroactive.”); Bell v. New Jersey, 461 U.S. 773, 777 n.3 (1983) (noting that

because “a change of forum ‘takes away no substantive right’ [it] can apply

retroactively”). Although “[t]he general rule is that [the adjudicator] must apply

the law in effect at the time it renders its decision,” 10 the principles articulated in

Landgraf dictate that “the law in effect at the time a decision is rendered shall not

be applied where ‘doing so would result in manifest injustice[.]’” Holzsager, 979

A.2d at 57 (quoting Scholtz P’ship v. District of Columbia Rental Accommodations

Comm’n, 427 A.2d 905, 914 (D.C. 1981)).



      Under the foregoing principles, § 156.1 was not given truly retroactive effect

in appellant’s case. One point is that if the prior regulation (authorizing an appeal

to OAH from a schedule-award decision) conflicted with the statute as ORM has

reasoned, petitioner simply did not have a previous right to an OAH hearing, the

repealed regulation notwithstanding. ORM addressed this in its notice of final

rulemaking, explaining that giving effect to rulemaking that “correct[s] or

amend[s] a prior rule or agency decision that conflicts with the controlling statutes

      10
          We applied that general rule in Webb, 204 A.3d at 850 (rejecting, as
“without merit,” the argument that an ORM rule regarding attorney-fee awards was
“improperly applied retroactively” where the rule was adopted as a part of
emergency and final rules that went into in effect before the resolution of the
appeal of attorneys-fee awards).
                                          18

does not constitute a retroactive application of these rules[,]” 64 D.C. Reg. at 6327,

and that “there can be no retroactive application because the ‘new’ legal

consequences under the final rules are derived from a correct application of

existing statutes that were previously misapplied[,]” id. We agree.



      Further, and in any event, § 156.1 “merely alter[ed] the procedure” by which

petitioner could obtain her objective of receiving a schedule award, by requiring

her to take her appeal to the CRO, and nothing in the record suggests that

petitioner altered her circumstances in reliance on the repealed rule. Section 156.1

was the rule in effect at the time the CRB and OAH ruled, and they properly

applied it in the absence of manifest injustice.



      C. Equal protection



      Petitioner argues that § 156.1 treats her differently by comparison to “every

permanently injured worker in the private sector,” “every permanently injured

public sector worker who received a Notice of Determination from ORM before

December 1, 2016,” and “every permanently injured public sector worker who has

received 448 weeks of temporary total or temporary partial disability benefits.”

[Petitioner’s Br. at 7] Petitioner acknowledges that a rational-basis standard of
                                          19

review applies to this claim. See Tucker v. United States, 708 A.2d 645, 647 (D.C.

1998) (“Where a statutory classification is alleged to contravene equal protection

principles, and where . . . the statute does not implicate a fundamental right or a

suspect class, we must assess its validity pursuant to a rational basis standard.”)

(internal quotation marks and footnote omitted). Petitioner argues, however, that

there is no rational basis for relegating her claim to an on-the-record review while

affording evidentiary hearings before a neutral factfinder to the above-described

claimants, thus treating her claim differently from theirs.



      Under the rational-basis standard, a law “is constitutionally valid so long as

the challenged classification is rationally related to a legitimate governmental

purpose.” Id. “A statutory classification will not be set aside if any set of facts

reasonably may be conceived to justify it.” Id. (internal quotation marks omitted).

“The party challenging the constitutionality of such a classification must make a

clear showing of arbitrariness and irrationality, and must negat[e] every

conceivable basis which might support it.” Id. (internal quotation marks and

citation omitted) (bracket in original). Where no suspect classification is involved,

the government is “entitled to ‘a presumption of rationality that can only be

overcome by a clear showing of arbitrariness and irrationality[,]’” Hessey v.

Burden, 615 A.2d 562, 575 (D.C. 1992), a presumption that “extends to
                                        20

administrative regulatory action as well[.]” Steffan v. Perry, 41 F.3d 677, 685

(D.C. Cir. 1994). Moreover, “a legislature or govern[ment] decisionmaker [need

not] actually articulate at any time the purpose or rationale supporting its

classification.” Nordlinger v. Hahn, 505 U.S. 1, 15 (1992).



      We have little trouble conceiving of a rational basis for permitting some

injured public sector workers to appeal adverse disability determinations to an ALJ

while limiting others to a review by an agency review officer. For example,

claimants who have been receiving TTD benefits for at least 448 weeks, see D.C.

Code § 1-623.06a(a), are likely to be seriously disabled and to have become

dependent on those benefits, and may suffer extreme deprivation if their TTD

benefits terminate at 500 weeks without replacement by permanent disability

benefits. A similar dependency may exist for claimants facing a Program proposal

to reduce or terminate benefits. D.C. Code § 1-623.24(d).         By contrast, as

petitioner’s case demonstrates, claimants seeking PPD schedule awards may have

returned to work and may have been functioning without benefits for long periods

of time –– years (2009 to 2017) in petitioner’s case –– by the time they seek

review of an ORM decision denying a schedule award.
                                         21

      Further, claimants seeking review of Program decisions denying them initial

awards of benefits may need to provide evidence about matters such as what

happened on the job to cause or aggravate an injury and about their ability to work,

which typically takes the form of hearing testimony that properly will be the

subject of credibility determinations. By contrast, claimants seeking PPD schedule

awards rely on a more limited range of evidence and, most importantly, on written

medical reports and disability ratings by doctors, and the decision-makers

recognize a “conclusively presumed” “effect on earning capacity.” WMATA v.

District of Columbia Dep’t of Emp’t Servs., 965 A.2d 1, 3 (D.C. 2009) (quoting 2

A. Larson, WORKMEN’S COMPENSATION LAW, § 58.11, at 10-323 to 10-324

(1987)); cf. Mathews v. Eldridge, 424 U.S. 319, 344, 345 (1976) (“The potential

value of an evidentiary hearing” is less where the decision will turn on “routine,

standard, and unbiased medical reports by physician specialists” who can

communicate effectively, and where, even though “there may be ‘professional

disagreement with the medical conclusions,’ the ‘specter of questionable

credibility and veracity is not present.’”). Thus, it can reasonably be thought that a

claimant’s testimony about her ability to work is much less important if important

at all (although appellant appears to be correct that evidentiary hearings on denial

of schedule awards are available in the private sector). 11       As to petitioner’s

      11
           See Smith v. District of Columbia Dep’t of Emp’t Servs., 548 A.2d 95,
                                                                    (continued…)
                                         22

complaint about treatment that is different from that afforded to “every

permanently injured worker in the private sector,” ORM described in its

rulemaking notice the lengthy, 266-day average time for decisions to issue after a

DOES hearing (i.e., a hearing before a DOES AHD ALJ, which remains available

to private sector claimants seeking schedule awards, see, e.g., Miller v.

Commercial Moving & Rigging, Inc., 2018 DC Wrk. Comp. LEXIS 288 (Aug. 23,

2018)).   ORM contrasted that to the “streamline[d,]”“expedite[d,]” and “swift

[and] efficient” CRO review process established by § 156.1 for PSWCP claimants

seeking review of decisions for which the Act does not mandate a hearing before

an ALJ. 64 D.C. Reg. at 6331 (noting that DOES had only “one dedicated ALJ” to

hear appeals of Program matters). In light of that stated rationale for the change in

process, we cannot that § 156.1 is without a rational basis such that its

implementation amounts to an equal protection violation.



      Petitioner asserts that review by the CRO is “at best . . . an ‘on the record’

determination,” [Petitioner’s Br. at 9] but nothing in ORM regulations describes


(…continued)
101 (D.C. 1988) (observing, in the private-sector context, that “schedule benefits
for [PPD] are payable regardless of actual wage loss”; also remarking, over-
optimistically it would appear, that the schedule is “limited to obvious and easily-
provable losses of members,” and that the “conspicuousness of the loss
guarantee[s] that awards could be made with no controversy whatsoever”).
                                        23

the parameters of the CRO review or precludes, for example, the CRO’s

consideration of additional medical opinions beyond those that ORM considered

before issuing its Notice of Determination. The CRB has observed (albeit prior to

issuance of § 156.1) that “[t]here are no ‘proceedings’ before ORM, nor is a

‘record’ created.” Downing v. District of Columbia Pub. Sch., 2012 D.C. Wrk.

Comp. LEXIS 522 (Nov. 28, 2012). Further, the form (“Form 9-A Appeal to the

Chief Risk Officer”) that ORM’s Notice of Determination advised should be used

to Appeal to the CRO (available at DC.gov/orm/attachments, last visited March 29,

2020), directs the claimant to submit “necessary attachments” and “supporting

documentation” and to “[l]ist detailed facts supporting the reason(s) why the

[ORM] decision is incorrect[,]” without suggesting that the submission is limited

to material that ORM considered.       Petitioner, it seems, “does no more than

speculate as to the significance of the procedural differences in the review

processes[.]” Joyner v. District of Columbia Dep’t of Emp’t Servs., 502 A.2d

1027, 1032 n.6 (D.C. 1986).



      For all these reasons, we reject petitioner’s equal protection argument.




      D. Due process
                                        24

      Petitioner also contends that the new regulation, § 156.1, “unfairly deprived

[her] of her day in court” and therefore violates due process. She argues that under

the tests set out in Mathews v. Eldridge, she was entitled to an evidentiary hearing

on her claim.



      “In order to invoke the Fifth Amendment’s procedural due process

protections, [a party] must show that a protected liberty or property interest is

implicated.” (J. David) Leonard v. District of Columbia, 794 A.2d 618, 623 (D.C.

2002). Assuming without deciding that petitioner has such a protected interest in

receipt of permanent disability schedule award, we resolve petitioner’s claim on

the basis of the principle that “[d]ue process is a flexible concept[.]” Kelly v.

Parents United, 641 A.2d 159, 167 (D.C. 1994) (internal quotation marks omitted).

What it requires is “the opportunity to be heard at a meaningful time and in a

meaningful manner.”      Mathews, 424 U.S. at 333 (internal quotation marks

omitted). What due process requires in an administrative decision-making process

depends on factors such as “the degree of potential deprivation that may be caused

by a particular decision,” id. at 341, the risk of erroneous deprivation, and the

fiscal and administrative burdens that additional or substitute procedural

requirements would entail, id. at 335. “[A]n evidentiary hearing is neither a
                                        25

required, nor even the most effective, method of decisionmaking in all

circumstances.” Id. at 348.



      The same facts discussed in the equal protection section above persuade us

that petitioner has not shown a due process violation. There is no evidence that the

denial of PPD benefits that petitioner has done without for many years, and which

she first sought years after her treating orthopedic surgeon assigned her a 20%

disability rating in 2011, worked a grievous deprivation, and similarly no

persuasive evidence that the denial of benefits was erroneous. 12 Moreover, having

forgone a review by the CRO and a further review by the Superior Court of any

adverse CRO decision, petitioner cannot even show that the process that § 156.1

made available to her was inadequate to avoid the assertedly erroneous ORM

determination. In particular, petitioner has not shown that a substitute procedural

mechanism was needed to afford her an meaningful opportunity to be heard on the

issue of whether she has a permanent impairment qualifying for a schedule award –

an issue that is a predominately medical one, and one as to which evidence can be




      12
          It is undisputed that two orthopedic surgeons who examined petitioner in
2015 and 2017 found that she has a 0% impairment, that one of the surgeons
reported that petitioner exhibited “symptom magnification,” and that petitioner
relies on a 2011 opinion for her claim of permanent impairment.
                                        26

meaningfully presented through written submissions by the doctors who have

examined petitioner and reviewed her medical records.



      E. Estoppel



      Finally, petitioner argues that because ORM unjustifiably delayed the

processing of her claim for permanent disability benefits, her claim should be

resolved under the former rules and ORM should be estopped from applying the

new rule. “To assert estoppel successfully in [a] governmental context,” a party

must show that she “suffered injury due to reasonable reliance” and that the relief

she seeks is necessary to “prevent injustice and promote the public interest.”

(Marvin) Leonard v. District of Columbia, 801 A.2d 82, 86 (D.C. 2002).

“Estoppel generally requires that government agents engage . . . in conduct that can

be characterized as misrepresentation or concealment, or, at least, behave in ways

that have caused or will cause an egregiously unfair result.” Jackson v. District of

Columbia Emps. Comp. Appeals Bd., 537 A.2d 576, 579 (D.C. 1988) (brackets and

internal quotation marks omitted).



      Although petitioner has shown delay (from 2014 or 2015, to 2017) in

resolving her claim, she has not shown or even alleged misrepresentation or
                                        27

concealment.    On this record, she also has not shown that affording her an

evidentiary hearing before OAH is necessary to promote the public interest or to

prevent injustice or an egregiously unfair result. See supra n.14. Nor, having

forgone a review by the CRO, has she shown that she suffered the injury she

complains of (denial of a schedule award) because of the change in ORM’s

regulations. In addition, petitioner could not have “relied on the former rule”

because there was no way of knowing whether petitioner would have needed to

appeal ORM’s determination at the time she filed her claim. And, having failed to

show that ORM’s interpretation that its prior regulation authorizing an OAH

hearing conflicted with the statutory intent, petitioner also has not shown that her

reliance on that prior regulation was reasonable. We therefore reject petitioner’s

estoppel argument.



      Accordingly, the CRB order affirming the OAH dismissal of petitioner’s

appeal is



                                             Affirmed.



      MCLEESE, Associate Judge, dissenting: It is undisputed that Ms. Frazier

suffered a work-related injury in 2008 while working for the District of Columbia
                                         28

Public Schools; that she appropriately was awarded temporary total disability

benefits for a time; and that after she was able to return to work in 2009, the

temporary disability payments ceased. Approximately five years later, Ms. Frazier

submitted a claim seeking permanent partial disability benefits relating to the

original injury.   Specifically, Ms. Frazier contended that the workplace injury

ultimately caused her to permanently lose partial use of one of her legs, warranting

an award of benefits pursuant to the compensation schedule in D.C. Code § 1-

623.07(c)(2), (19) (2016 Repl.). The Office of Risk Management (ORM) denied

Ms. Frazier’s claim on the merits. Ms. Frazier sought review before the Office of

Administrative Hearings (OAH), which dismissed for lack of jurisdiction. The

Compensation Review Board (CRB) affirmed the dismissal of Ms. Frazier’s case.

The court affirms the ruling of the CRB. I would vacate the order of the CRB and

remand for further proceedings. I therefore respectfully dissent.



                                         I.



      In determining that it lacked jurisdiction to review the denial of Ms.

Frazier’s claim, OAH relied on 1 DCMR § 2950.3 (2017). That provision grants

OAH authority to hear appeals from ORM in four specific kinds of cases: initial

awards for or against compensation, certain decisions involving disputes about the
                                        29

appropriateness of medical care or service, modifications of benefits, and certain

requests to convert ongoing temporary disability benefits into permanent disability

benefits. Id. Concluding that Ms. Frazier’s claim did not fall into any of those

categories, OAH determined that Ms. Frazier was required instead to seek review

before the Chief Risk Officer of ORM, pursuant to 7 DCMR § 156.1 (2017)

(public-sector workers’ compensation claims not reviewable by OAH are

reviewable by ORM’s Chief Risk Officer). The CRB agreed with that analysis.



      Fully assessing the jurisdictional issue presented in this case would require

fighting through a complicated thicket of statutory provisions, regulations, and

case law.   E.g., D.C. Code §§ 1-623.02a (2016) (granting Mayor authority to

administer public-sector workers’ compensation program (PSWCP), permitting

delegation of that authority, except as to “disability compensation hearings and

adjudication powers, pursuant to [D.C. Code] § 1-623.28, which shall be exercised

by the Director of the Department of Employment Services [DOES]”), 1-623.22

(2016) (setting time limits for bringing “original claim[s]” and for reopening

claims), 1-623.24 (2016) (establishing procedures for determining PSWCP

claims); 1-623.24(d) (providing      for modification of awards        in certain

circumstances), 1-623.28 (2016) (providing for review by DOES of “awards for or

against payment of compensation” pursuant to D.C. Code § 1-623.24), 1-623.44
                                        30

(2016) (authorizing Mayor to promulgate rules to administer and enforce PSWCP,

including rules governing modification of awards); 1 DCMR § 2950.3 (2017)

(OAH jurisdiction); 7 DCMR §§ 115.11 (2020) (supplemental claims), 115.12

(claimed aggravation of injury), 115.13 (latent disability), 115.14 (recurrence of

disability), 140 (2020) (permanent disability), 144 (2020) (modification of

awards), 155 (2020) (OAH jurisdiction), 156 (2020) (ORM jurisdiction); Sheppard

v. District of Columbia Dep’t of Emp’t Servs., 993 A.2d 525, 527-28 (D.C. 2010)

(per curiam) (deferring to CRB’s conclusion that particular provision of D.C. Code

§ 1-623.24 did not apply to claim for partial permanent disability based on injury

as to which claimant had previously been awarded temporary total disability

benefits); Darden v. District of Columbia Dep’t of Emp’t Servs., 911 A.2d 410,

414 (D.C. 2006) (The CRB “has the responsibility to provide administrative review

of compensation orders that formerly was vested in the Office of the DOES

Director.”).



      In trying to chart a path through this thicket, the natural first step would be

to figure out what statutory provision (if any) authorized ORM to decide the merits

of Ms. Frazier’s claim for permanent partial disability benefits.      Surprisingly,

ORM, OAH, the CRB, and the opinion for the court all skip that step. ORM

decided the claim on the merits without explaining what provision authorized it to
                                        31

do so. OAH and the CRB concluded that certain provisions were not applicable to

Ms. Frazier’s claim, but expressed no view as to what provision, if any, authorized

ORM to decide the claim on the merits. This court takes the same approach.



      The District of Columbia Department of Public Schools (DCPS) takes the

position that claims such as Ms. Frazier’s are properly understood as requests to

reopen the initial temporary disability award, and thus are governed by D.C. Code

§ 1-623.22(e), which permits reopening within one year of the last disability

payment or the final court order. On that view, Ms. Frazier’s claim ought to have

been denied as untimely, because her claim for permanent partial disability

benefits was brought several years after the last payment of temporary benefits,

and the initial award was apparently not the subject of judicial review.        As

previously noted, however, ORM did not deny Ms. Frazier’s claim as untimely,

instead deciding the claim on the merits. Moreover, as the court’s opinion notes,

ORM appears to take the view that claims for permanent partial disability under

the compensation schedule are not subject to the one-year statutory limit in D.C.

Code § 1-623.22(e). Supra at 3 n.1 (citing 64 D.C. Reg. 6325, 6333 (July 7, 2017)

(in rulemaking notice, ORM states that claimants may make claim for schedule

permanent disability award “at any time”); 7 DCMR § 140.2(a) (in absence of
                                        32

good cause for delay, claim for permanent disability benefits must be filed within

180 days after termination of temporary benefits)).



      In my view, it is not possible to reach a reasoned conclusion in this case

without addressing the question whether permanent partial disability claims such

as Ms. Frazier’s, if factually supported and promptly presented, are cognizable

under the applicable statutes and regulations. Imagine a public-sector employee

who suffers a workplace injury resulting in a temporary disability that subsides, so

that the employee returns to work and temporary disability payments end. If the

injury flares up several years later, to the point that it becomes permanently

disabling, there is a substantial argument from general principles that

compensation for the permanent disability should be available, assuming that the

employee sought such compensation promptly after the flare-up. The CRB has

taken that view in the private-sector setting. See Capitol Hill Hosp. v. District of

Columbia Dep’t of Emp’t Servs., 726 A.2d 682, 686 (D.C. 1999) (deferring to

CRB’s conclusion that claimant can bring claim for permanent partial disability

award under compensation schedule despite having previously obtained temporary

benefits; court states that it would “make[] no sense” to interpret statutory time

limits to make claimant ineligible to obtain permanent disability benefits before

claimant became eligible for them).     I realize that the private-sector workers’
                                         33

compensation provisions vary in some respects from the public-sector provisions,

so that a holding from one context does not necessarily carry over to the other. We

have held, though, that the public-sector workers’ compensation statute should be

read broadly to advance its humanitarian purposes. See generally Brown-Carson v.

District of Columbia Dep’t of Emp’t Servs., 159 A.3d 303, 307 (D.C. 2017)

(private-sector statute and public-sector statute have “similar humanitarian

purpose,” so court interprets provisions to be consistent even where statutory

language is not identical); cf. Newell-Brinkley v. Walton, 84 A.3d 53, 56-57 (D.C.

2014) (workers’ compensation provisions, including provisions applicable to

District of Columbia police officers and firefighters, are typically given “liberal

construction by the courts to effectuate [their] humanitarian purposes”).



      It is possible that DCPS is correct, and the best reading of the applicable

statutes and regulations is that District of Columbia employees are simply out of

luck if they suffer a workplace injury and receive temporary disability benefits,

they then improve so that those temporary benefits end, and several years later

their injury worsens into a permanent partial disability. Critically, however, ORM

and the CRB have not indicated whether they agree or disagree with DCPS on this

point. For that reason, the court has no idea whether upholding the CRB’s ruling

in this case will have the logical consequence of barring recovery by claimants
                                          34

with otherwise seemingly meritorious permanent partial disability claims. I would

remand for the CRB (and perhaps ORM) to address that issue in the first instance.

See generally, e.g., Fred F. Blanken & Co. v. District of Columbia Dep’t of Emp’t

Servs., 825 A.2d 894, 901 (D.C. 2003) (remanding for Director of DOES to

address “important” issue in first instance).



      Because I believe that we need to hear further from the pertinent agency (or

agencies), I express no firm view about the ultimate resolution of the jurisdictional

issue in the case. I do note, however, that if there were no other statutory basis for

presenting permanent partial disability claims based on injuries that flare up

several years after temporary disability benefits end, I would be very reluctant to

rule out D.C. Code § 1-623.24(a) and (b). By their terms, those provisions seem

potentially applicable to such claims.     See D.C. Code § 1-623.24(a) (directing

Mayor or Mayor’s designee to decide “claims” seeking award of compensation)

and (b) (providing for review of claims brought under D.C. Code § 1-623.24(a)).

Moreover, if permanent partial disability claims such as Ms. Frazier’s arise under

D.C. Code § 1-623.24 (a) and (b), then OAH (rather than the Chief Risk Officer of

ORM) would seemingly have statutory authority to review ORM’s decision of

such claims, pursuant to D.C. Code §§ 1-623.28(a) (providing for DOES review of

“award[s] for or against compensation” pursuant to D.C. Code § 1-623.24(a) and
                                          35

(b)), 2-1831.03(b)(1) (2016) (granting OAH authority to decide certain matters

previously   under     authority   of DOES,     including public-sector       workers’

compensation cases).



      I recognize that there is language in Sheppard, 993 A.2d at 528, suggesting

that D.C. Code § 1-623.24 is limited to “initial claims.”           Sheppard, however,

focused on a particular statutory requirement: that the Mayor make an initial

ruling within thirty days or the claim would be deemed accepted. 993 A.2d at 526

(citing D.C. Code § 1-623.24(a-3)(1)).          Moreover, the court in Sheppard

emphasized that “the fact that [the claimant’s] claim is not ‘deemed accepted’ does

not preclude recovery on her underlying claim for permanent partial disability

benefits.” Id. at 528 n.1. To the contrary, the court explained, the District of

Columbia had advised the court that such claims receive the benefit of “a full-scale

hearing” and related appeals. Id. In light of these assurances in Sheppard, I think

we would need to hear a far clearer explanation from the pertinent agency (or

agencies) before extending Sheppard so as to possibly foreclose permanent partial

disability claims of the type at issue in Sheppard and this case.



                                          II.
                                         36

      Because I would remand for further proceedings, I view it as premature to

decide the other issues addressed in the court’s opinion. I do wish to briefly

discuss one topic touched on by the court: the applicable standard of review.



      The court states in passing that it is deferring to the view of ORM. Supra at

15. Assuming for the moment that we would generally owe deference to ORM

and/or the CRB, neither agency has expressed a clear position on what I view as a

critical question: what is the proper statutory basis for permanent partial disability

claims such as that brought by Ms. Frazier? Cf., e.g., D.C. Appleseed Ctr. for Law

& Justice, Inc. v. District of Columbia Dep’t of Ins., Sec., & Banking, 54 A.3d

1188, 1216 (D.C. 2012) (“Explanation in sufficient detail also is required for

meaningful judicial review and for there to be a basis for judicial deference to

agency determinations.”) (internal quotation marks omitted).



      More generally, it appears to me to be unsettled under District of Columbia

law which agency, if any, would be entitled to deference in deciding whether the

Chief Risk Officer of ORM or OAH has jurisdiction to review ORM’s initial

decision of permanent partial disability claims such as Ms. Frazier’s. On the latter

point, I note that (1) this court does not appear to have ever previously accorded

deference to ORM, instead stating that deference is owed to the CRB, e.g.,
                                           37

Sheppard, 993 A.2d at 527 (“Because of the CRB’s special expertise in

administering the [Comprehensive Merit Personnel Act, which includes the

provisions governing the PSWCP], we defer to [the CRB’s] reasonable

interpretations of ambiguous provisions in that legislation.”) (internal quotation

marks omitted); (2) on the other hand, under the federal workers’ compensation

system, the Supreme Court has indicated that special deference was not owed to

the analogue of the CRB, see Potomac Elec. Power Co. v. Dir., Office of Worker’s

Comp. Programs, 449 U.S. 268, 278 n.18 (1980) (“It should also be noted that the

Benefits Review Board is not a policymaking agency; its interpretation of the

[federal workers’ compensation statute] thus is not entitled to any special deference

from the courts.”); and (3) additional complications arise where, as in this case, the

statutory provisions at issue touch on the respective authority of multiple agencies,

cf., e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019) (“[T]he basis for deference

ebbs when the subject matter of the dispute . . . falls within the scope of another

agency’s authority.”) (brackets and internal quotation marks omitted); Caiola v.

Carroll, 851 F.2d 395, 399 (D.C. Cir. 1988) (“The diffusion of the interpretive

authority   among    several   agencies,    and   the   possibility   of   inconsistent

interpretations, weaken the case for deference.”).
                                        38

      I see no need to belabor the issue of deference, because in my view the court

should remand to the CRB.      Because the court instead affirms, I respectfully

dissent.
