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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-AA-0772 

DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS and

DISTRICT OF COLUMBIA OFFICE OF RISK MANAGEMENT, PETITIONERS,

v. 

DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

DAVID FANT, INTERVENOR. 

On Petition for Review of an Order of the

District of Columbia Department of Employment Services 

Compensation Review Board

(2021-CRB-000062)

(Argued October 24, 2023 Decided December 27, 2023*

)

Alex Fumelli, Assistant Attorney General, with whom Brian L. Schwalb, 

Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor 

General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Carl J. 

Schifferle, Deputy Solicitor General, were on the brief, for petitioners.

Harold L. Levi for intervenor. 

Before EASTERLY, MCLEESE, and SHANKER, Associate Judges.

 * The decision in this case was originally issued as an unpublished 

Memorandum Opinion and Judgment. It is now being published upon the court’s 

grant of petitioners’ motion to publish.
2

MCLEESE, Associate Judge: Petitioners District of Columbia Department of 

Corrections (“DOC”) and District of Columbia Office of Risk Management 

(“ORM”) challenge an order reinstating intervenor David Fant’s workers’ 

compensation benefits. We vacate the order and remand for further proceedings.

I. Factual and Procedural Background

The pertinent facts appear to be undisputed for present purposes. Mr. Fant 

began working at DOC in 1976. In 1989, Mr. Fant injured his back while working. 

He subsequently received temporary total disability benefits and related medical 

benefits pursuant to the workers’ compensation program for District of Columbia 

employees injured during the course of employment. D.C. Code § 1-601.1 et seq. 

In 1992, Mr. Fant applied for federal disability retirement benefits. He was eligible 

for a federal retirement annuity because the federal government operated DOC when 

Mr. Fant began working for DOC. Although he was approved for a federal disability 

retirement annuity in 1993, Mr. Fant elected at that time to receive D.C. workers’ 

compensation benefits in lieu of federal benefits. 

Mr. Fant continued to receive D.C. workers’ compensation benefits until 

2007. When he accepted a position as a security guard, however, ORM terminated

Mr. Fant’s D.C. workers’ compensation benefits. Mr. Fant then activated his federal 

retirement annuity, effective August 2007. 
3

Mr. Fant soon left the position as a security guard, due to pain that made it 

difficult to perform his job duties. He then challenged the termination of his D.C. 

workers’ compensation benefits. In August 2008, an Administrative Law Judge 

(“ALJ”) determined that the security-guard position exceeded Mr. Fant’s physical 

capabilities and ordered the reinstatement of Mr. Fant’s D.C. workers’ compensation 

benefits. 

Mr. Fant received both a federal retirement annuity and D.C. workers’ 

compensation benefits until 2017, when ORM terminated his D.C. workers’ 

compensation benefits on the ground that Mr. Fant’s receipt of federal disability 

benefits rendered Mr. Fant ineligible to receive D.C. workers’ compensation 

benefits. 

Mr. Fant challenged ORM’s decision in two ways. First, as directed in the 

decision, he appealed to ORM’s Chief Risk Officer (“CRO”). Second, Mr. Fant 

requested an evidentiary hearing before an ALJ with the Office of Administrative 

Hearings (“OAH”). 

The CRO affirmed ORM’s decision, concluding that, under D.C. Code 

§ 1-623.16(a), Mr. Fant could not receive “salary, pay, or remuneration” from the 

District while simultaneously receiving workers’ compensation benefits. The CRO 

concluded that this “prohibition extends to the receipt of retirement benefits, 
4

including Federal retirement benefits, payable as a result of District government 

employment.” 

Mr. Fant challenged the CRO’s decision in Superior Court. The Superior 

Court initially upheld the CRO’s interpretation of Section 1-623.16(a). On 

reconsideration, however, the Superior Court agreed with Mr. Fant that OAH had 

exclusive jurisdiction to review ORM’s decision, and the Superior Court therefore 

dismissed the case before it. 

Although DOC and ORM took the position in Superior Court that the 

authority to review ORM’s decision lay with the CRO and the Superior Court, rather 

than the ALJ and the Compensation Review Board (“CRB”), DOC and ORM did 

not appeal the Superior Court’s order dismissing the case. 

In the proceeding before OAH, the ALJ reinstated Mr. Fant’s D.C. workers’ 

compensation benefits. The ALJ acknowledged that D.C. Code § 1-623.16(a-1), 

which was added in 2010, seemingly barred Mr. Fant from receiving D.C. workers’ 

compensation benefits because Mr. Fant was employed by the District of Columbia 

before October l, 1987, and was currently receiving disability retirement benefits 

from the federal government. The ALJ reasoned, however, that before 

Section 1-623.16(a-1)’s adoption, the public-sector workers’ compensation statute 

“did not specifically prohibit a District of Columbia employee from receiving [D.C. 

workers’ compensation] benefits at the same time he or she was receiving retirement 
5

disability pay under the federal government civil service disability retirement 

system.” Therefore, the ALJ ruled that Mr. Fant was eligible to receive both federal 

disability benefits and D.C. workers’ compensation benefits under the pre-2010 

version of the statute. The ALJ also ruled that applying the current version of the 

workers’ compensation statute to Mr. Fant’s D.C. workers’ compensation benefits—

first awarded in 1989 and then reinstated in 2008—would be an impermissible 

retroactive application of the statute. 

The CRB affirmed the ALJ’s order. First, the CRB noted that although ORM 

and DOC had argued in the Superior Court case that the Superior Court, rather than 

OAH and the CRB, had jurisdiction to review ORM’s decision, ORM and DOC had 

not raised that jurisdictional challenge before the CRB. The CRB therefore did not 

address the jurisdictional issue. Second, the CRB upheld the ALJ’s analysis that the 

pre-2010 version of the public-sector workers’ compensation statute did not forbid

simultaneous receipt of federal disability retirement benefits and D.C. workers’ 

compensation benefits. Third, the CRB agreed with the ALJ that application of the 

current version of the public-sector workers’ compensation statute to post-2010 

payments would give the statute impermissible retroactive effect. 

II. Analysis

We review a decision of the CRB to determine whether the decision is 

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 
6

law.” Reyes v. D.C. Dep’t of Emp. Servs., 48 A.3d 159, 164 (D.C. 2012) (internal 

quotation marks omitted). We have often given deference to the CRB’s reasonable 

interpretation of workers’ compensation statutes. E.g., Howard Univ. Hosp. v. D.C. 

Dep’t of Emp. Servs., 267 A.3d 1068, 1071 (D.C. 2022). Recent decisions of this 

court, however, have raised questions about the extent to which the CRB is entitled 

to deference in its interpretation of workers’ compensation statutes. See Lecea v. 

D.C. Dep’t of Emp. Servs., 301 A.3d 734, 739-40 (D.C. 2023). ORM and DOC 

argue that this court should defer to ORM rather than the CRB. We need not address 

that issue, however, because the conclusions we reach in this case do not depend on 

our standard of review. 

A. Jurisdiction

As previously noted, DOC and ORM unsuccessfully argued in the Superior 

Court that jurisdiction to review ORM’s decision was vested in the Superior Court 

rather than in the ALJ and the CRB. DOC and ORM did not raise that issue before 

the CRB, however, and they have not raised that issue in this court. Nevertheless, 

we have an independent obligation to confirm our own jurisdiction before ruling on 

the merits of a case. E.g., Nunnally v. D.C. Metro. Police Dep’t, 80 A.3d 1004, 1006 

n.4 (D.C. 2013). We conclude that we do have jurisdiction. The CRB has frequently 

decided public-sector workers’ compensation cases, and this court has frequently 

reviewed such decisions. E.g., Perry v. D.C. Dep’t of Emp. Servs., 288 A.3d 300, 
7

300-06 (D.C. 2023). Even if the CRB lacked the authority to review the particular 

ORM decision at issue in this case, this court ordinarily need not consider alleged 

jurisdictional defects in an agency’s authority that were not properly presented to the 

agency. D.C. Hous. Auth. v. D.C. Off. of Hum. Rts., 881 A.2d 600, 613 (D.C. 2005)

(“[T]he general rule is that even jurisdictional questions must be put to agencies 

before they are brought to the reviewing court.”) (brackets and internal quotation 

marks omitted). There is a “narrow” discretionary exception to this doctrine, 

applicable to challenges to the agency’s “inherent capacity to act, or where the 

challenged action is plausibly claimed to be patently in excess of the agency’s 

authority.” Id. at 612, 613 (citation and internal quotation marks omitted). No party 

has invoked that discretionary exception in this court, and we see no reason to raise 

the exception sua sponte. We therefore proceed to decide the case on the merits, 

without expressing a view as to whether the claim at issue in this case ought to have 

come to this court by way of the ALJ and the CRB or instead by way of Superior 

Court.

B. Post-2010 D.C. Workers’ Compensation Benefit Payments to Mr. Fant

D.C. Code § 1-623.16(a-1), which was enacted in 2010, provides that a 

District “employee shall not be eligible for [District public-sector workers’ 

compensation benefits] if he or she was employed by the District of Columbia or the 

federal government before October 1, 1987, and is receiving disability benefits from 
8

the federal government for the same injury.” It is undisputed that Mr. Fant was 

employed by the District of Columbia before October 1, 1987, and that his D.C. 

workers’ compensation benefits and his federal disability benefits arose from the 

same injury. Thus, once it went into effect in 2010, Section 1-623.16(a-1) by its 

plain terms appears to bar payments of D.C. workers’ compensation benefits to 

Mr. Fant during the period when he was receiving federal retirement disability 

benefits.

Mr. Fant argues, however, that applying Section 1-623.16(a-1) to him would 

be to give that provision a retroactive effect, because doing so would attach new 

legal consequences to his 1989 work-related injury. We assume without deciding 

that Mr. Fant is correct on that point. 

There is a presumption against giving statutes retroactive effect, but that 

presumption will yield in the face of sufficiently clear legislative intent. Metro. 

Police Dep’t v. Pub. Emp. Rels. Bd., 301 A.3d 714, 721 (D.C. 2023); see Apartment 

& Off. Bldg. Ass’n v. Pub. Serv. Comm’n, 129 A.3d 925, 932 (D.C. 2016) (statute 

need not explicitly state that it applies retroactively; “it will suffice if the legislature 

has made its intent clear”) (internal quotation marks omitted); Nixon v. D.C. Dep’t 

of Emp. Servs., 954 A.2d 1016, 1023 (D.C. 2008) (“[L]egislation must be considered 

as addressed to the future, not to the past[,] unless such be the unequivocal and 

inflexible import of the statutory terms.”) (brackets, ellipsis, and internal quotation
9

marks omitted). We hold that the text of Section 1-623.16(a-1) itself demonstrates 

the legislature’s unequivocal intent to bar post-2010 D.C. workers’ compensation 

payments to claimants, like Mr. Fant, whose injuries had occurred pre-enactment. 

Section 1-623.16(a-1) explicitly reaches well back into the past, applying to 

employees who were working for the District government or the federal government 

over twenty years before the provision’s enactment. Nothing in the provision’s text 

suggests that the legislature was focused only on post-enactment injuries, and many 

of the employees whom the provision explicitly covers might no longer even have 

been working for the District government or the federal government when the 

provision was enacted. We therefore hold that, once it went into effect in 2010, 

Section 1-623.16(a-1) barred payments of D.C. workers’ compensation benefits to 

Mr. Fant during the period when he was receiving federal retirement disability 

benefits.

Even where the legislature’s intent is clear, there are constitutional limits on 

the legislature’s ability to enact retroactive legislation. E.g., Metro. Police Dep’t,

301 A.3d at 721. Nevertheless, “constitutional restrictions on retroactivity are of 

limited scope, and . . . absent a violation of those specific provisions, . . . potential 

unfairness is not a sufficient reason for a court to fail to give a statute its intended 

scope.” Id. (brackets, ellipses, and internal quotation marks omitted); see also id. at 

721-22 (assuming without deciding that court could disregard legislative intent if 
10

retroactive application of statute would cause “manifest injustice”). Mr. Fant does 

not argue in this court that there are grounds on which this court could override the 

legislature’s intent. We therefore need not decide that issue. We do observe, 

however, that we see no obvious basis upon which the court in this case could 

permissibly override the legislature’s intent. 

C. Pre-2010 D.C. Workers’ Compensation Benefit Payments to Mr. Fant

The parties dispute whether, even before the enactment of 

Section 1-623.16(a-1) in 2010, D.C. Code § 1-623.16(a) already barred Mr. Fant 

from simultaneously receiving D.C. workers’ compensation benefits and federal 

disability benefits. We have no occasion to decide that issue. The ORM decision at 

issue in this case halted future payments to Mr. Fant of D.C. workers’ compensation 

benefits as of 2017. For the reasons we have explained, that ORM decision was 

lawful in light of the 2010 enactment of Section 1-623.16(a-1). We therefore reverse 

the judgment of the CRB and remand for entry of an order affirming ORM’s 

decision. 

Up to this point in the present case, ORM has not sought repayment from 

Mr. Fant of any D.C. workers’ compensation benefits already paid to Mr. Fant. We 

express no view as to whether the District would be entitled to obtain such repayment 

if it were sought. See generally D.C. Code § 1-623.29 (establishing procedures and 
11

standards governing recovery of overpayments of public-sector workers’ 

compensation benefits); 7 D.C.M.R. § 133 (same).

For the foregoing reasons, we vacate the order of the CRB and remand for 

entry of an order upholding ORM’s 2017 order terminating payment of future D.C. 

workers’ compensation benefits to Mr. Fant.

So ordered.