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Howard University Hospital v. District of Columbia Dep't of Employment Services8/18/2005
Argued April 13, 2004
Before SCHWELB, RUIZ and GLICKMAN, Associate Judges.
Petitioner Howard University Hospital (the "Hospital") asks us to review and reverse a workers' compensation decision by the Director of the Department of Employment Services ("DOES") in favor of intervenor and Hospital employee Jacqueline Binns.
Overruling an administrative law judge, the Director found that Binns remained disabled by the indirect sequelae of a severe work-related allergic reaction even after her acute allergic symptoms had subsided. The Hospital contends that the Director exceeded his authority by engaging in a de novo review of the evidence instead of deferring to the contrary findings of the administrative law judge. After determining that we have jurisdiction to consider the Hospital's petition despite initial indications otherwise, we remand for further proceedings in light of our recent and potentially dispositive opinion in Washington Post v. District of Columbia Department of Employment Services, 853 A.2d 704 (D.C. 2004).
I.
A threshold issue we must decide is whether we have jurisdiction to entertain the Hospital's petition for review. The issue is one of timeliness. The Workers' Compensation Act provides that an aggrieved party may petition this court to review the Director's final decision on a compensation order pursuant to the District of Columbia Administrative Procedure Act ("APA"). D.C. Code § 32-1522 (b)(3) (2001). The APA in turn provides that a petition for review shall be filed within such time as this court may by rule prescribe. D.C. Code § 2-510 (a) (2001). Implementing that provision, our rules state that " nless an applicable statute provides a different time frame," -- which is not the case here -- "the petition for review must be filed within 30 days after notice is given, in conformance with the rules or regulations of the agency, of the order or decision sought to be reviewed." D.C. App. R. 15 (a)(2). "If the order or decision is made out of the presence of the parties and notice thereof is by mail, the petitioner will have 5 additional days from the date of mailing." Id. The time limits of Rule 15 (a)(2) are "mandatory and jurisdictional." Flores v. District of Columbia Rental Hous. Comm'n, 547 A.2d 1000, 1003 (D.C. 1988). "Once the time prescribed by the rule has passed, we are without power to hear the case." Totz v. District of Columbia Rental Hous. Comm'n, 474 A.2d 827, 829 (D.C. 1984).
The Director issued his final decision in this case on April 11, 2003. An appended certificate of service, signed by an "authorized clerk" in the Office of General Counsel, states that a copy of the decision was sent to the Hospital's counsel of record on that same day by certified mail. The Hospital did not petition for review of the decision until July 18, 2003 -- over three months after the decision was mailed, and thus seemingly beyond the deadline imposed by Rule 15 (a)(2).
It is conceded, however, that, for unknown reasons, the April 11 certified mailing was never received by the Hospital or its counsel. They did not learn of the Director's decision until intervenor's counsel faxed it to the Hospital's counsel on June 17, 2003 (more than two months after the decision was issued). Upon prompt investigation, the parties determined that the DOES administrative file did not contain a return receipt evidencing that a certified mailing actually was sent to the Hospital's counsel on April 11. Counsel thereupon asked the Director to resend the decision to him by certified mail so that he could file a timely petition for review in this court. The Director complied with this request on June 30. The Hospital's counsel rec
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