Lecea v. D.C. Department of Employment Services

• Court: District of Columbia Court of Appeals
• Decided: September 14, 2023
• Docket: 22-AA-0544
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-AA-0544

LIBERTO GERARDO LECEA, PETITIONER,

v.

D.C. DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

DESIGN BUSINESS FURNITURE, INC., and NATIONWIDE INSURANCE COMPANY, INTERVENORS.

Petition for Review of an Order of the District of Columbia Compensation Review Board (2022-CRB-000023)

(Submitted May 25, 2023 Decided September 14, 2023)

Benjamin T. Boscolo was on the brief for petitioner.

Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Thais-Lyn Trayer, Deputy Solicitor General, filed a memorandum in lieu of brief for respondent.

Jamie L. DeSisto was on the brief for intervenors.

Before BECKWITH, MCLEESE, and SHANKER, Associate Judges.

MCLEESE, Associate Judge: Petitioner Liberto Gerardo Lecea challenges a

decision of the Compensation Review Board (CRB) awarding him workers’ 2

compensation benefits in an amount smaller than Mr. Lecea sought. Mr. Lecea

argues that the CRB (1) inaccurately determined Mr. Lecea’s average weekly wage

and (2) erroneously reduced the award to Mr. Lecea to reflect unemployment-

compensation benefits Mr. Lecea had received in Virginia. We affirm.

I. Background

The pertinent facts appear to be undisputed for present purposes. In January

2019, Mr. Lecea began working for intervenor Design Business Furniture (DBF),

which sells and installs office furniture. Mr. Lecea worked intermittently on an “as

needed” basis, and his duties included loading and unloading furniture from

commercial moving trucks into office buildings. DBF paid Mr. Lecea $22 per hour.

Mr. Lecea worked for DBF for approximately six weeks and was paid $2,150.

In February 2019, while working for DBF, Mr. Lecea fell from a ladder and

was injured. At the time of the injury, Mr. Lecea also was working for another

company, NOVA Express. Mr. Lecea later worked at yet another company, but he

was laid off from that company and subsequently obtained unemployment-

compensation benefits in Virginia. 3

A. Calculation of Average Weekly Wage

Mr. Lecea filed a claim for workers’ compensation benefits related to his

injury. The parties disputed how to calculate Mr. Lecea’s average weekly wage for

purposes of determining the amount of Mr. Lecea’s award. See generally D.C. Code

§ 32-1508 (basing amount of workers’ compensation awards on claimants’ average

weekly wage). We note that the award in this case also rested in part on a

determination about Mr. Lecea’s average weekly wage relating to NOVA Express.

That determination is not in dispute in this court, so our further discussion focuses

solely on Mr. Lecea’s average weekly wage relating to DBF.

DBF argued that Mr. Lecea’s average weekly wage should be calculated under

D.C. Code § 32-1511(a)(4), which applies if, at the time of the injury, the claimant’s

wages are “fixed by the day, [by the] hour, or by the output of the [claimant].” If

the claimant had been working for the employer for the 26 weeks immediately

preceding the injury, § 32-1511(a)(4) determines the average weekly wage by

dividing the total wages earned in that 26-week period by 26. Id. If, as in Mr.

Lecea’s case, the claimant had been working for the employer for less than 26 weeks,

§ 32-1511(a)(4) provides that the total wages should be based on the amount the

claimant would have earned if the claimant had worked for the employer for the 4

entire 26 weeks, “when work was available to other employees, in a similar

occupation.” Id.

Applying those provisions, DBF added the wages Mr. Lecea had earned

during the six weeks he worked for DBF to the wages that a “like employee” (Mr.

Anderson) had earned during the preceding 20 weeks, and divided that total by 26.

That calculation resulted in an average weekly wage of $108.84. That number

reflects the fact that neither Mr. Lecea nor Mr. Anderson worked full time for DBF.

Mr. Lecea argued that his average weekly wage should be determined under

D.C. Code § 32-1511(a)(6), which applies “[i]f the injured employee has not worked

in this employment during substantially the whole of the period.” Although

§ 32-1511(a)(6) does not make this explicit, it appears to be common ground that

“the period” refers to the 26 weeks preceding the injury. Apparently interpreting

“this employment” to mean his job with DBF, Mr. Lecea argued that § 32-1511(a)(6)

applied, because he had not worked for DBF for the preceding 26 weeks.

Where it applies, § 32-1511(a)(6) provides that the average weekly wage

shall consist of 130 times the average daily wage or salary, divided by 26 weeks, which an employee of the same class working substantially 5

the whole of the immediately preceding period in the same or similar employment, in the same or a similar neighboring place, shall have earned in the employment during the days when so employed.

D.C. Code § 32-1511(a)(6). Also relying on Mr. Anderson as a comparable

employee, Mr. Lecea argued that Mr. Anderson was paid on average $144 per day

on the days when Mr. Anderson worked for DBF. Mr. Lecea thus calculated an

average weekly wage relating to DBF of $720 ($144 x 130 ÷ 26).

After a hearing, an Administrative Law Judge (ALJ) of the District of

Columbia Department of Employment Services concluded that § 32-1511(a)(4)

applied and determined that Mr. Lecea’s average weekly wage relating to DBF was

$108.84. The CRB affirmed those conclusions. The CRB gave several reasons for

applying § 32-1511(a)(4) rather than § 32-1511(a)(6). First, the CRB disagreed with

Mr. Lecea’s contention that § 32-1511(a)(4) was inapplicable because Mr. Lecea did

not work a fixed number of hours each week. As the CRB explained,

§ 32-1511(a)(4) does not require that the number of hours worked be fixed; rather it

requires that the hourly wage be fixed, as it was in this case at $22 per hour.

Second, the CRB explained that § 32-1511(a)(4) operates to fairly account for

the wages of claimants whose work is sporadic. In reaching that conclusion, the

CRB relied on this court’s decision in Hawk v. D.C. Dep’t of Emp. Servs., 244 A.3d 6

1018 (D.C. 2021). In that case, this court upheld as reasonable the CRB’s conclusion

that the calculation of average weekly wage under § 32-1511(a)(4) should take into

account the “seasonal or sporadic nature” of a claimant’s work, by including in the

calculation of average weekly wage periods of time when the claimant did not work

because work was not practically available to the claimant and similar workers. Id.

at 1020-22. We acknowledged “the well-settled principle that the workers’

compensation system is intended to produce an honest approximation of claimants’

probable future earning capacity and should not result in unjust enrichment for

claimants.” Id. at 1022 (brackets, citation, and internal quotation marks omitted).

Finally, the CRB discussed its earlier decision in Marcoux, CRB No. 16-033,

2016 WL 4166022 (D.C. Comp. Rev. Bd. July 25, 2016). That case involved a

claimant who was injured on the third day that he had been working for an employer

as a carpenter. Id. at *1. The claimant had worked for the employer intermittently

on prior occasions, performing various other different jobs, including traffic flagger.

Id. The CRB concluded that the ALJ had correctly relied on § 32-1511(a)(6) to

calculate the claimant’s average weekly wage. Id. at *8-9. The CRB explained that

the claimant’s relationship with the employer was “unique,” in that each job was “a

separate business relationship.” Id. at *9. For that reason, the CRB concluded that 7

§ 32-1511(a)(6) applied. Id. Without further explanation, the CRB also said that

“the ALJ’s determination of [c]laimant’s average weekly wage is supported by

substantial evidence and is in accordance with the law.” Id.

In the present case, the CRB concluded that Marcoux applies “narrowly” and

rested on a determination that the “claimant’s relationship with the employer was

‘unique,’” because each different job the claimant had worked for the employer was

“part of a separate business relationship.” The CRB also noted that it had previously

concluded that § 32-1511(a)(6) did not apply in cases where the claimant’s

employment “was sporadic” and the complainant “did not work . . . 40-hours per

week.” Wolfe, CRB No. 05-35, 2006 WL 158649, at *7 (D.C. Comp. Rev. Bd. Jan.

5, 2006). Relying on Wolfe, the CRB concluded that Ҥ 32-1511(a)(6) should not

apply when it would lead to an average weekly wage that would exceed the

claimant’s actual average weekly wage. Such a result is contrary to the purpose of

the [Workers’ Compensation] Act.” Lecea, CRB No. 21-098, 2022 WL 384886, at

*5 (D.C. Comp. Rev. Bd. Jan. 27, 2022) (original brackets and quotation marks

omitted); see Wolfe, 2006 WL 158649, at *7. 8

B. Reduction to Reflect Virginia Unemployment-Compensation Benefits

The parties also disputed whether Mr. Lecea’s award in the present case

should be reduced to reflect unemployment-compensation benefits from Virginia

that Mr. Lecea received during the claimed period of disability. The ALJ ruled that

Mr. Lecea’s award in this case should not be reduced to reflect the Virginia

unemployment-compensation benefits. The CRB reversed that ruling.

The CRB explained that (1) Mr. Lecea was seeking a wage-replacement

workers’ compensation benefit; (2) unemployment-compensation benefits are also

intended to replace lost wages; and (3) awarding duplicative wage-loss disability

benefits and unemployment-compensation benefits for the same time period would

result in “double recovery,” contrary to the principle that claimants should not

receive more money from not working than from working.

The CRB disagreed with two specific arguments raised by Mr. Lecea. First,

Mr. Lecea relied upon the CRB’s decision in Giron-Ventura, CRB No. 20-091, 2021

WL 1016339 (Comp. Rev. Bd. Feb. 5, 2021). In that case, the CRB declined to

reduce a workers’ compensation award based on payments the claimant had received

under the CARES Act, 15 U.S.C. § 9001 et seq., a statute that provided pandemic- 9

related benefits to unemployed persons. Giron-Ventura, 2021 WL 1016339, at *5.

The CRB gave two reasons for that ruling: (1) the CARES Act benefit at issue was

not funded by the claimant’s employer, so reducing the workers’ compensation

award was not necessary to avoid requiring the employer to pay a double benefit, id.

at *5, *7; and (2) the CARES Act benefit at issue was not intended as a wage

replacement but rather was “a fixed amount, unrelated to a person’s wages,” id. at

*7.

In the present case, the CRB distinguished Giron-Ventura, explaining that the

Virginia unemployment-compensation award was intended as a wage replacement,

so awarding both those benefits and workers’ compensation benefits for the same

period would amount to double payment of benefits to Mr. Lecea.

Second, the CRB acknowledged Mr. Lecea’s argument that DBF had not

made payments toward funding the Virginia unemployment-compensation award.

The CRB concluded, however, that it was irrelevant whether the Virginia

unemployment-compensation had been funded by DBF, because reducing the

workers’ compensation award based on the Virginia unemployment-compensation

benefits was “necessary to prevent overcompensating Mr. Lecea, not to make [DBF]

whole.” 10

II. Analysis

“Our limited role in reviewing the decision of the CRB permits us to reverse

only if we conclude that the decision was arbitrary, capricious, or otherwise an abuse

of discretion and not in accordance with the law.” Hawk, 244 A.3d at 1021 (internal

quotation marks omitted). “Although this court generally resolves legal questions

de novo, the court ordinarily accords deference to an agency’s interpretation of a

statute that the agency administers, unless the interpretation is unreasonable or is

inconsistent with the statutory language or purpose.” Id. (internal quotation marks

omitted). We “have often given deference to the CRB’s reasonable interpretation of

the” D.C. Workers’ Compensation Act (WCA), D.C. Code § 32-1501 et seq., but we

have recently indicated that the extent to which we should defer to the CRB is

unclear. Schwechter v. D.C. Dep’t of Emp. Servs., 287 A.3d 267, 269-70 (D.C.

2023). We need not address that issue in this case, however, because we agree with

the CRB’s resolution of the two questions at issue. 11

A. Average Weekly Wage

Mr. Lecea renews the arguments he presented to the CRB. We agree,

however, with the CRB’s careful and thorough analysis of this issue. We therefore

uphold the CRB’s ruling.

We briefly add four comments. First, as previously noted, accepting Mr.

Lecea’s contention that § 32-1511(a)(6) applies in this case would have resulted in

an average weekly wage of $720. That appears to be more than either Mr. Lecea or

Mr. Anderson ever earned in any week while working at DBF. The CRB

appropriately declined to adopt an average weekly wage that was so much in excess

of what Mr. Lecea (or a similarly situated employee) would actually have been able

to earn at DBF, given “the practical availability of work” to Mr. Lecea and similar

workers. Hawk, 244 A.3d at 1022.

Second, we note one complication that the Board did not explicitly address in

this case. We agree with the Board’s conclusion that Marcoux does not require

application of § 32-1511(a)(6) in this case. It is true, however, that the question

whether § 32-1511(a)(6) is properly applied to calculate the average weekly wage

of a claimant whose work is part-time or sporadic was arguably raised in Marcoux. 12

Specifically, one of the points the employer made was that Mr. Marcoux had not

worked full eight-hour days for his employer. Marcoux, 2016 WL 4166022, at *8.

The CRB’s decision in Marcoux did not explicitly address that issue, instead

addressing other specific topics and then concluding without further explanation that

the ALJ’s award was supported by substantial evidence and in accordance with the

law. Id. at *9. Because the CRB in Marcoux did not squarely address the issue

whether § 32-1511(a)(6) is properly applied to part-time or sporadic work, Marcoux

should not be viewed as having resolved that issue. Cf., e.g., United States v.

Debruhl, 38 A.3d 293, 298 (D.C. 2012) (prior judicial decision is not binding

precedent “unless in the decision put forward as precedent the judicial mind has been

applied to and passed upon the precise question”) (internal quotation marks omitted).

The CRB thus was free to rely on Wolfe, 2006 WL 158649, at *7, which did squarely

address and decide the question.

Third, Mr. Lecea argues that our decision in Hawk is inapplicable because the

claimant in that case had abandoned any argument that § 32-1511(a)(6) should apply

instead of § 32-1511(a)(4). It is true that this court in Hawk did not squarely decide

whether § 32-1511(a)(4) or § 32-1511(a)(6) applies to a case like the present one.

But we agree with the CRB that Hawk’s analysis provides helpful guidance on how

to reach “an honest approximation” of a claimant’s “probable future earning 13

capacity”—which is the goal of the workers’ compensation system. Hawk, 244 A.3d

at 1022.

Finally, Mr. Lecea points out that the WCA “is a humanitarian statute that

should be given a liberal construction.” Hawk, 244 A.3d at 1022. We conclude,

however, that the CRB appropriately declined to extend that principle so as to permit

Mr. Lecea to obtain compensation substantially in excess of the amount he would

actually have earned from DBF had he not been injured.

For the foregoing reasons, we conclude that the CRB properly applied D.C.

Code § 32-1511(a)(4) in calculating Mr. Lecea’s average weekly wage.

B. Reduction to Reflect Virginia Unemployment-Compensation Benefits

Mr. Lecea renews the arguments he made before the CRB in support of his

challenge to the reduction in his workers’ compensation award to reflect his Virginia

unemployment-compensation award. We agree with the CRB’s thorough and

persuasive analysis of this issue. We see no need to expand upon the CRB’s

reasoning, which we hereby adopt and affirm. 14

For the foregoing reasons, we affirm the decision of the CRB.

So ordered.