D.C. Water and Sewer Authority and Gallagher Bassett Services, Inc. v. D.C. Department of Employment Services and Lucille Washington

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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 volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 03-AA-471 D.C. W ATER AND S EWER A UTHORITY AND G ALLAGHER B ASSETT S ERVICES, INC., P ETITIONERS, V. D ISTRICT OF C OLUMBIA D EPARTMENT OF E MPLOYMENT S ERVICES, R ESPONDENT, AND L UCILLE W ASHINGTON, INTERVENOR. On Petition for Review of a Decis ion of the D istrict of Colum bia Department of Employment Services (Dir. Dkt. 03-41) (Submitted January 20, 2004 Decided March 4, 2004) Dougla s A. Datt was on the brief for petitioners. Benjam in T. Bosco lo was on the brief for interven or. Robert J. Spagno letti, Corporation Counsel, and Edward E. Schwab, Acting D eputy Corpora tion Coun sel, filed a statem ent in lieu of b rief for respon dent. Before S TEADMAN, R UIZ and W ASHINGTON, Associate Judges. R UIZ, Associate Judge: Petitioners, D .C. Wate r and Sew er Autho rity and Gallagher Bassett Services, In c., petition for review of a decision of the director of the District of Colum bia Departm ent of Em ployment Services (DOE S) dismiss ing as untim ely their application for review of a disability compensation order awarding permanent partial disability benefits to cla imant/interv enor, Luc ille Washington. Petitioners contend that the director’s order was in error because they correctly relied on the date of appeal as stated on 2 the Errata Order issued by the administrative law judge subsequent to the compensation order. Because we agree with petitioners that the director erred in dismissing th eir applica tion for r eview as untim ely, we reverse and rem and. On February 12, 2003, Administrative Law Judge Karen R. Calmeise issued a compensation order awarding claimant sixteen percent permanent partial disability resulting from injury to her right lower leg. The compensation order included a section on “Appeal Rights” which stated that any party aggrieved by the order may file an application for review with the director, an d that such a pplication m ust be filed within thirty days of the order. Accordingly, the application for review would have b een du e on M arch 14 , 2003. Howeve r, on March 11, 2003, the administrative law judge issued an Errata Order indicating that the title page of the February 12, 2003 compensation order erroneously identified the case number before the Office of Worker’s Compensation. The Errata Order also stated that “[t]he application for review must be filed w ithin thirty days o f the filing of this er rata,” making the application for review due on April 10, 2003. Petitioners filed an application for review on M arch 21 , 2003. On March 30, 2003, claimant/intervenor filed a motion to dismiss the application for review as having been filed more than thirty days from the date of the com pensation order. In their opposition, petitioners noted that they had relied on the adm inistrative law judge’s subsequent Errata Ord er, which g ave the pa rties until April 1 0, 2003 to file an application 3 for review. In dismissing the application for review as u ntimely, the director noted that pursuant to the or iginal co mpen sation o rder, em ployer had un til Marc h 14, 2003 to file an application for review, and dismissed the application as untimely pursuant to D.C. Code § 32-1522 (b)(2) (2001)1 without addressing petitioners’ reliance on the Errata Order or the merits of the application for review. Petitioners filed a timely petition for review of the director’s de cision with th is court. II. Petitioners mainta in that th eir appli cation fo r review filed on Marc h 21, 2003 was timely based on the Errata Order issued by the administrative law judge on March 11, 2003, which specifically provided that “[t]he application for review must be filed within thirty days of the filing of this errata,” or April 10, 2003. Although we agree with the director that D.C. Code § 32-1522 (b)(2) provides that applications for review by the director “shall” be filed within thirty days of the compensation order, we held in Ploufe v. D istrict of Colum bia Dep’t of Employment Servs., 497 A.2d 464 (D.C. 1985), that “a prerequisite to invoking this jurisdictional bar is the age ncy’s ‘oblig ation of givin g notice which was reaso nably calculated to apprise petitioner of the decision o f the claims deputy an d an opp ortunity to 1 Section 32 -1522 (b)(2 ) states in pertine nt part that “[t]h e Mayo r is authorized to establish an administrative procedure for review of compensation orders raising a substantial question of law or fact. Application for such review shall be made by any party within 30 days fro m the d ate a co mpen sation o rder is file d as pro vided in § 32-1 520.” 4 contest that decision through an adm inistrative appeal.”’ Id. at 465 (quoting Thomas v. District of Columbia Dep’t of Employm ent Servs., 490 A.2d 11 62, 1164 (D.C . 1985)). In Ploufe, a notice ambiguous as to the length of the appeal period was held to be inadequa te as a matter of law to trigger the operation of the statutory time period within which to file an intra-agency appea l. See id. at 466. Separate appeal notices by the agency, even though related to claims under different sections of the District of Columbia Unemployment Compensation Act, also have been found to be ambiguous as a matter of law where the claimant reasonab ly could h ave be lieved th e time to appea l had no t run. See Cobo v. District of Colum bia Dep’t of Employment Servs., 501 A.2d 1278, 1280 (D.C. 1985). Here, the administrative law judge’s Errata Order issued on March 11, 2003 was not ambiguous nor confusing, but expres sly gave the parties thirty da ys from th e date of the Errata Order to file an application for review. Petitioners relied on that order. As a result, petitioners should not have been forec losed from consideratio n of their app eal. See id. (finding pe tition timely under t erms o f subse quent n otice). Accordingly, we reverse the decision of the director and remand for a disposition on the me rits. So ordered.

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