Frances Johnson v. DC DOES

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-381 FRANCES JOHNSON, PETITIONER, V. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT. On Petition for Review of an Order of the District of Columbia Department of Employment Services Compensation Review Board (CRB 134-14) (Argued April 19, 2016 Decided February 21, 2018) Robert K. Magovern for petitioner. Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General at the time the brief was filed, and Loren L. AliKhan, Deputy Solicitor General at the time the brief was filed. Before GLICKMAN and BECKWITH, Associate Judges, and WASHINGTON, Senior Judge.**  The decision in the case was originally issued as an unpublished Memorandum Opinions and Judgment. It is now being published upon the court‟s grant of the Legal Aid Society‟s motion to publish. ** Judge Washington was Chief Judge at the time of argument. His status changed to Senior Judge on March 20, 2017. 2 GLICKMAN, Associate Judge: Petitioner Frances Johnson challenges a decision of the Compensation Review Board (“CRB”) in her workers‟ compensation case. She contends the CRB erred (1) in concluding that her employer, the District of Columbia Department of Public Works (“DPW”), had preserved its argument that her request for reconsideration of the initial denial of her claim for disability benefits was untimely, and (2) in affirming the denial of her claim by an Administrative Law Judge (“ALJ”) due to the untimeliness of her reconsideration request. We affirm the CRB‟s ruling that DPW did not waive or abandon its objection to the timeliness of Ms. Johnson‟s request for reconsideration. However, we remand for further findings and a determination of whether the filing deadline for that request was tolled for equitable reasons identified by Ms. Johnson in her formal hearing testimony before the ALJ. I. Ms. Johnson was injured in a work-related accident on November 17, 2008, when another DPW employee ran her over with a street sweeper. She filed a timely claim for workers‟ compensation benefits with the Office of Risk Management Disability Compensation Program (“ORM”), which administered such claims for DPW. ORM denied the claim on December 19, 2008, “due to abandonment for failure to file and return the required claim forms.” The notice of 3 denial informed Ms. Johnson that she had thirty days to request reconsideration of this decision. At the time, the thirty-day deadline for requesting reconsideration by ORM was contained in 7 DCMR §§ 3134.5 and 3134.6; the latter regulation specified that ORM would deny a reconsideration request received after thirty days as untimely without ruling on the merits. 7 DCMR § 3134.7 allowed an employee to request a waiver of the thirty-day filing deadline for good cause shown, but ...

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