Under DC Comp Act, Emailing Order to Employer Does Not Start 10-Day Period for Payment Without Penalty

Virtually all workers’ compensation acts impose a penalty for late payment of benefits. For example, D.C. Code § 32–1515(f) provides for a 20 percent penalty if any compensation is not paid within 10 days “after it becomes due.” The D.C. statute does not, however, indicate when a payment “becomes due.” The District of Columbia Court of Appeals recently held that compensation becomes due—and the ten-day period for payment without incurring the penalty begins—on the date the the Office of Workers’ Compensation (or the Hearings and Adjudication Section) serves the employer with a copy of the compensation order and not an earlier date when the employer’s counsel received a copy of the order sent via email by the worker’s attorney [Daly v. District of Columbia Dep’t of Emp. Servs., 2015 D.C. App. LEXIS 359 (Aug. 6, 2015)].

The court added that such service can be accomplished either by hand delivery or via certified mail/registered mail, return receipt requested. The injured worker had argued that the ten-day time period began to run the day the employer had actual notice of the approved order and that such actual notice could be satisfied in a number of ways, including email from opposing counsel. In the instant case, payment of the comp benefits was made 17 days after the worker’s counsel sent counsel for the employer an email containing a copy of the approved order. If the date the OWC served the employer via certified mail was used to compute the 10-day period, payment was timely. The court disagreed with the worker’s position, noting that there was no authority under the Act or regulations allowing the OWC to delegate its obligation to provide proper notice to the parties. The court added that the agency administers the Act, not the parties.