Opinion Mondays: DC’s Hearings Division Has New Job—Choosing a Home Remodeling Contractor

The D.C. Court of Appeals reversed a decision by the District's Compensation Review Board (CRB) that had held the District of Columbia's Adjudication and Hearings Department had no statutory authority to settle a dispute between an injured worker and the workers' compensation insurer over which of two contractors would perform remodeling work at the worker's home to accommodate the use of an important piece of physical therapy equipment [Young v. District of Columbia Dept. of Empl. Servs., 2020 D.C. App. LEXIS 456 (Dec. 3, 2020)]. The court held the dispute related to the provision of medical care and services to the injured worker and, therefore, should have been determined under D.C. Code § 32-1507. As I comment below, one is left wondering, however, how this dispute lasted for more than four years.

Background

Young, who has been quadriplegic since a work-related accident in 2006, filed a disability claim with the District of Columbia's Adjudication and Hearings Division (AHD) of the Department of Employment Services (DOES) for modification of his residence to enable him to use specialized physical therapy equipment recommended by his physician. The PT equipment consisted of a large robotic device which, inter alia, counteracted the negative effects of immobility. The device weighs some 661 pounds, and requires an estimated 169 square feet of space in which to operate. Enlargement and other structural modifications of Young's residence, which is in Florida, were necessary to accommodate the PT device.

Travelers Indemnity Company, the workers' compensation insurer of Young's employer, agreed to pay for the equipment and the necessary home modifications. Young and Travelers could not agree, however, over the choice of contractor to do the home remodeling. After a hearing, an Administrative Law Judge (ALJ) ruled that the AHD was without jurisdiction under the District of Columbia Workers' Compensation Act of 19791 (WCA) to resolve the dispute over contractor selection because, the ALJ concluded, the dispute did not "pertain to the character and sufficiency of a medical aid." The CRB upheld that interpretation of the WCA, stating the AHD's statutory "authority to hear and determine all questions in respect of any claim [does not] include everything a Claimant could possibly associate with his work-related injury" [Opinion, p. 4, emphasis by the Court]. Young appealed.

Appellate Court's Decision

The appellate court analyzed the statutory framework, particularly the language found in D.C. Code §§ 32-1507 (medical services, supplies, and insurance) and 32-1520 (procedure in respect of claims). The court indicated the CRB's "cursory" explanation as to jurisdiction was unsatisfactory. The court owed no deference to the CRB's unreasonable interpretation of the WCA.

Home Modification Was Not Excluded from Medical "Aid" or "Services

The court stressed that although home modification was not mentioned specifically among the ancillary services listed in § 32-1507(a), that did not mean it was excluded from the general category of medical "aid" or "services." The listing of some particular services that the employer shall furnish clearly was not meant to be exhaustive—as the use of the word "including" signified. The court said this conclusion was buttressed by precedent under similar statutes elsewhere.

The court pointed to the Longshore Act, which was the precursor of the WCA. Decisions under the LHWCA supported the conclusion that modifications to a residence could be deemed medical aids or services. The court went on to say:

The legal conclusion is inescapable: home modifications can constitute "medical aid" under § 32-1507, and the ALJ in this case therefore had the statutory authority and responsibility under subsection (b) to resolve any dispute between Mr. Young and Travelers concerning the "necessity, character, or sufficiency" of the home modification he sought to enable him to benefit from [the device][emphasis by the Court].

Character and Sufficiency

The court indicated the remaining question was whether the dispute over the choice of contractor was one that concerned the "character" or "sufficiency" of Young's requested home modification (its "necessity" was conceded and hence was not in dispute). The court said:

Contrary to the apparent view of the ALJ and the CRB, the mere fact that each party's preferred contractor proposes to perform the same structural modification does not mean there is no "character" or "sufficiency" issue raised by the choice of contractor. The dispute is over the suitability and qualifications of the contractor engaged to do the job—in other words, how the proffered contractor would carry out the plans, whether the contractor is capable, whether it would do so adequately so as to fulfill the parties' legitimate needs and requirements. Such a dispute is integral to both the "character" and the "sufficiency" of the home modification for which Mr. Young seeks authorization.

Accordingly, the court reversed and remanded for a hearing to resolve the dispute over who should be the contractor.

Commentary

This is the point in the post where I'm supposed to say that I disagree with the court's decision; I don't. Not that it makes any difference, but I completely concur with the appellate court's analysis.

I'm ordinarily loath to take a stance that is too critical of a party's actions in a case because I've learned, from four decades of reading cases, that important issues can bubble just under the surface—issues that the appellate court chooses not to mention.

Here, the appellate court judiciously omits most of the relevant dates. We do not know, for example, when the AHD and CRB entered their respective decisions. But here are my points:

• Young's physician issued the prescription for the PT device in 2016.
• Young, who lived in Florida, contacted a general contractor sometime thereafter.
• Travelers, the insurer, indicated it would not consent to the use of that contractor because, according to the appellate court, Young's contractor would not assure Travelers that all workers on the remodeling job would be covered by workers' compensation insurance.
• Travelers proposed the use of a different contractor. This contractor agreed that all workers at the site would be insured.
• The plans for the remodeling were set; the contractor's identity would not have made any difference to the finished product.

Was the refusal to certify that all workers would be insured so important to Young's contractor that it was willing to forego the business for four years to see if Young would prevail in the end and ratify its decision to use uninsured workers? Was Young's choice of a contractor so important to him that he was willing to forego the prescribed treatment for more than four years? Does a worker's stance on an issue like this ever ripen into refusal to accept medical care? Should Travelers have given in and allowed the work to be completed under terms that it contended might result in uninsured liability to it? A four-year delay, when virtually everything had been agreed upon—it's a head scratcher.