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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-AA-49

FRANCINE FRAZIER, PETITIONER,

V.

DISTRICT OF COLUMBIA 

DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

and

DISTRICT OF COLUMBIA 

DEPARTMENT OF PUBLIC SCHOOLS, INTERVENOR.

On Petition for Review of an Order

of the Compensation Review Board

(CRB-108-17)

(Argued April 30, 2019 Decided June 11, 2020)

David J. Kapson, with whom Kevin H. Stillman was on the brief, for 

petitioner.

Tonya A. Robinson filed a statement in lieu of brief for respondent.

Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine, 

Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor 

General, and Caroline S. Van Zile, Deputy Solicitor General, were on the brief, for 

intervenor.

Before FISHER, THOMPSON, and MCLEESE, Associate Judges.

Opinion for the court by Associate Judge THOMPSON.

Dissenting opinion by Associate Judge MCLEESE at page 27.
2

THOMPSON, Associate Judge: In December 2008, petitioner Francine 

Frazier, who was then employed by intervenor District of Columbia Public 

Schools, sustained on-the-job injuries to her right hip, knee, and foot when she fell 

while walking up a flight of stairs. She submitted a claim under the public sector 

workers compensation program (“PSWCP” or the “Program”) and thereafter 

received temporary total disability (“TTD”) benefits for several months. She 

returned to work full-time in December 2009 (and though she had received TTD 

benefits through April 2010, the December 2009 to April 2010 payments were 

deemed to have been made in error). 

Over five years later, petitioner submitted a claim for a schedule award 

based on permanent disability related to the December 2008 injury.1

 The Office of 

 

1

 See 7 DCMR §§ 140.1(a) and 140.2(b) (2017) (providing generally that a 

claim for permanent disability compensation shall be filed “[a]t any time after the 

claimant has been determined to have reached [maximum medical improvement] 

and to have a permanent impairment involving the loss of use of a member or 

function of the body . . . .”). Petitioner’s brief states that she asked the PSWCP to 

make a permanent disability determination in March 2015, while the OAH and 

CRB rulings state that the PPD claim was submitted in 2014. We note, however, 

that the record indicates that in 2011, petitioner’s then-attorney sent the Program a 

February 22, 2011, medical report from an orthopedic surgeon who opined that 

petitioner had a “20% right lower extremity impairment.” The record and the 

briefs contain no explanation of what became of this 2011 initiative by petitioner’s 

counsel or, in particular, whether it was treated as a claim. We conclude that we 

(continued...)
3

Risk Management (“ORM”), which “has oversight and administrative 

responsibility for the Program,” 7 DCMR § 101.1, denied petitioner’s claim on 

May 2, 2017, relying on two Additional Medical Evaluation reports from 

orthopedic surgeons who examined petitioner on December 4, 2015, and April 4, 

2017, reviewed her medical records, and determined that she had 0% residual 

impairment from her 2008 accident. After ORM denied the claim, petitioner

sought review in the Office of Administrative Hearings (“OAH”), even though 

ORM’s Notice of Determination advised that any appeal should be made to 

ORM’s Chief Risk Officer (“CRO”). In an October 2, 2017, order, OAH reasoned 

that only the CRO had authority to review the adverse determination in petitioner’s 

case, and on that basis dismissed petitioner’s appeal for lack of subject matter 

jurisdiction. Petitioner thereafter sought review by the Compensation Review 

 

(...continued)

need not address the matter further because it does not appear that any of the 

authorities discussed herein would permit a different resolution of this matter if 

petitioner were deemed to have filed her request for a schedule award in 2011. We 

note that ORM did not deny petitioner’s claim for a PPD schedule award as 

untimely, but denied it on the merits. See also 64 D.C. Reg. 6325, 6333 (July 7, 

2017) (ORM statement in rulemaking notice that a claimant may make a claim for 

a schedule award “at any time”); 7 DCMR ⸹ 140.2(a) (providing generally that a 

claim for permanent disability compensation by a claimant who has reached 

maximum medical improvement must be filed within 180 days after the 

termination of temporary wage-loss benefits, but providing an exception to the 

180-day limit where “there is good cause found by the Program to excuse the 

delay”).
4

Board (the “CRB”). The instant petition for review followed after the CRB 

affirmed the OAH dismissal. We affirm the CRB’s ruling. As we explain below, 

we do so because the statutory and regulatory scheme makes OAH review 

unavailable for the type of claim involved here, and because we are unpersuaded 

by petitioner’s arguments that this limitation is unlawful, was unfairly retroactive 

in her case, and denied her due process and equal protection. 

I.

OAH acknowledged in its “Compensation Order Dismissing the Case for 

Lack of Jurisdiction” that it “is the administrative forum with primary jurisdiction 

over [PSWCP] compensation disputes.” OAH noted, however, that its jurisdiction 

is limited. OAH went on to identify several statutory and regulatory provisions 

that it concluded required it to dismiss petitioner’s case.

First, OAH addressed the assertion petitioner made in submitting her claim 

for a PPD schedule award: that she was requesting a “determination of whether 

[she] has a permanent partial disability pursuant to D.C. Code § 1-623.06a[.]” 

OAH acknowledged that under § 1-623.06a, it has jurisdiction to make permanent 

disability benefits determinations in the circumstance described in that provision. 
5

See D.C. Code § 1-623.06a(a) (2016 Repl.). OAH correctly noted, however, that § 

1-623.06a(a) pertains to permanent disability determinations sought within the last 

52 weeks of temporary benefits by claimants who are approaching the end of the 

500-week period during which temporary benefits are available. Id. OAH also 

cited its regulation at 1 DCMR § 2950.3(d), which similarly specifies that the cases

that “OAH shall hear” include “[r]equests for determinations of whether a claimant 

has a permanent disability pursuant to D.C. Official Code § 1-623.06a”; as well as

the ORM regulation at 7 DCMR § 155.2 (2017), which went into effect as a final

regulation a few months before the OAH ruling and which states that “[r]equests 

for determination of whether claimant has a permanent disability pursuant to 

Section 2306a [of the Comprehensive Merit Personnel Act of 1978 (“CMPA”), i.e., 

D.C. Code § 1-623.06a(a)] shall be made to the Office of Administrative Hearings 

(OAH).” OAH concluded that the foregoing authorities did not empower it to 

make a permanent disability determination in petitioner’s case because she was not 

currently receiving temporary disability benefits.

OAH also found that petitioner’s claim was not among the types of claims

described in D.C. Code § 1-623.24(b) and in 7 DCMR § 155.1 (2017) and 1 

DCMR § 2950.3 (2017) and as to which OAH has jurisdiction. Section 155.1(a) 

states that “[i]nitial awards for or against compensation benefits pursuant to 
6

Section 2324(b) of the Act” (i.e., D.C. Code § 1-623.24(b)) “shall be appealed to 

[OAH]” beginning December 1, 2016. 1 DCMR § 2950.3(a) states that OAH 

“shall hear” appeals from ORM pertaining to initial awards under § 1-623.24(b). 

Citing Sheppard v. District of Columbia Dep’t of Emp’t Servs., 993 A.2d 525 (D.C. 

2010) (per curiam), OAH cited this court’s case law stating that the claims 

discussed in § 1-623.24 (and referenced in §§ 155.1(a) and § 2950.3(a)) are “initial 

claims for benefits . . . accompanied by a supervisor’s report and not . . . 

subsequent claims arising from the same work-related injury[.]” Sheppard, 993 

A.2d at 528 (deferring to this “longstanding” agency interpretation of the statute). 

OAH explained (and the CRB agreed) that in petitioner’s case, § 1-623.24 

governed her 2008 claim for TTD benefits, but not her instant claim for a 

permanent-disability schedule award. 

OAH additionally reasoned that it did not have jurisdiction under the other 

subparagraphs of 1 DCMR § 2950.3, which authorize appeals to OAH from 

utilization-review decisions (see § 2950.3(b))2 and decisions on appeals pertaining 

to “[m]odifications of awarded benefits pursuant to D.C. Official Code § 1-

 

2

 The District’s brief notes that ORM has repealed the provision that was 

designated as 7 DCMR § 155.1(b) to recognize that the CMPA (specifically D.C. 

Code § 1-623.23(a-2)(4)) provides for appeals from utilization-review decisions to 

go to the Superior Court rather than to an ALJ. OAH has not amended § 2950.3(b) 

to make a corresponding change. 
7

623.24(d)[,]” § 2950.3(c). Regarding § 2950.3(c) and § 1-623.24(d), we note that 

petitioner’s claim for a permanent-disability schedule award is not a 

“modification[] of awarded benefits” because that statutory term refers to a 

reduction in or terminations of benefits “because of a change to the claimant’s 

condition,” D.C. Code § 1-623.24(d)(3)(A)–(D), or to an corrective compensation 

decision where there is “strong compelling evidence that the initial decision was in 

error,” id. ⸹ 1-623.24(d)(3)(E). None of the foregoing provisions applies in 

petitioner’s circumstance, which involves neither utilization review, nor a proposed 

reduction in awarded benefits, nor a claim that the initial benefit award to 

petitioner was in error.

 

Finally, OAH deferred to the ORM interpretation embodied in 7 DCMR § 

156.1 (2017), which establishes that “[a] claimant who is dissatisfied with any 

other decision issued by the Program may only appeal the decision to the Chief 

Risk Officer.”3

 See also 7 DCMR § 140.6(c)(2) (2017) (providing that a claimant 

whose request for a schedule award is denied shall be advised or her right to appeal 

the Program’s decision to the CRO).

 

3

 7 DCMR § 156.3 provides that the CRO “shall affirm the Program’s 

decision[,] if it is supported by substantial evidence in the record.” 7 DCMR §

156.5 provides for an appeal thereafter to the Superior Court pursuant to Superior 

Court Rule of Civil Procedure Agency Review Rule 1 (calling for review on the 

agency record).
8

The CRB affirmed the dismissal for lack of jurisdiction for the reasons cited 

by OAH. It also acknowledged, but did not resolve, petitioner’s due process and 

equal protection challenges to 7 DCMR § 156.1, which petitioner agreed could not 

be considered by the CRB but raised in order to preserve her constitutional 

arguments for presentation to this court. In addition, the CRB considered 

petitioner’s argument that OAH erred in applying 7 DCMR § 156.1 to her request 

for a hearing. The substance of § 156.1 was adopted as an emergency regulation (7 

DCMR § 3356.1) after petitioner filed her request for a permanent disability 

determination, see 64 D.C. Reg. 4077, 4104 (Apr. 28, 2017) and 63 D.C. Reg. 

15510, 15538 (Dec. 16, 2016), and § 156.1 had been adopted as a final regulation 

by the time OAH issued its ruling. Petitioner cited what she called the “unfair 

retroactive application” of the regulation. The CRB rejected that argument on the 

ground that “[t]he determining date for application of [the regulations] is the date 

[May 2, 2017,] of the [ORM] decision being appealed, not the date [c]laimant first 

requested a determination from ORM.” Petitioner also cited the unfairness of 

allowing claimants dissatisfied with a decision on modification of benefits to 

request an OAH hearing, while petitioner’s request for review of ORM’s denial of 

her request for a “modification” to her benefit status could be presented only to the 

CRO, who petitioner implies would not be “a neutral arbitrator” and who would 
9

not “assess[] [petitioner’s] permanent partial disability based on her credibility[.]”4 

The CRB was “sympathetic” to petitioner’s argument but concluded that the OAH

ruling was in accordance with the law. 

II.

As noted above, petitioner commenced her claim for a PPD schedule award 

by asserting that she was relying on D.C. Code § 1-623.06a. For reasons the OAH 

discussed and as summarized above, that provision is not applicable to petitioner’s 

claim. In her appeal to this court, petitioner does not renew her reliance on § 1-

623.06a, and, with one exception, also does not claim that any other statutory or 

regulatory provision providing for a hearing before an administrative law judge 

(“ALJ”) applies by its terms to her case.5 Rather, petitioner presents statutory 

 

4

 By contrast, § 1-623.24(b)(2) provides that OAH hearings on initial claims 

will be de novo hearings, i.e., and that OAH “may conduct the hearing in such 

manner as to best ascertain the rights of the claimant” and “shall receive such 

relevant evidence . . . as . . . “necessary or useful in evaluating the claim.” See also 

7 DCMR § 158.1 (“All appeals of Program decisions before the OAH and OHA

[i.e., the DOES Office of Hearing and Adjudication, now called the Administrative 

Hearings Division (“AHD”), see Fernandes v. Ft. Myer Constr., 2007 D.C. Wrk. 

Comp. LEXIS 42 n.2 (Jan. 31, 2007)] shall be reviewed under a de novo standard

of review.”).

5 The exception is that petitioner asserts that she properly requested a formal 

hearing under D.C. Code § 1-623.24(f) (providing for a hearing before a DOES 

(continued...)
10

authority, constitutional, and estoppel claims. She asserts that ORM exceeded its 

authority in adopting 7 DCMR §§ 156.1 and that the regulation is inconsistent with 

the CMPA; that retroactive application of the regulation pursuant to 7 DCMR §

101.46 to deny her an evidentiary hearing deprives her of due process; that the 

regulation violates her equal protection rights; that ORM, which unreasonably 

delayed a determination on her request for a schedule award, should be estopped 

from applying the regulation so as to “unfairly deprive[] [her] of her day in court”;

and that the CRB and OAH erred in determining otherwise. We address each of 

these arguments in turn. Because petitioner’s claims present questions of law, our 

review is de novo. See Family Fed’n for World Peace v. Moon, 129 A.3d 234, 248 

(D.C. 2015).

 

(...continued)

ALJ). We disagree. By its terms, § 1-623.24(f) applies to “[a] claimant who is not 

satisfied with a decision under subsection (d),” meaning a decision based on a 

determination that the claimant’s disability has “ceased or lessened[,]” the 

“disabling condition is no longer causally related to the employment[,]” the 

“claimant’s condition has changed from a total disability to a partial disability[,]” 

the “employee has been released to return to work[,]” or “the initial decision was in 

error.” D.C. Code §§ 623.24(d)(1) and (4)(A)–(E). As this case involves 

petitioner’s request for a schedule award, the foregoing provisions are inapplicable.

6

 7 DCMR § 101.4 provides that the final regulations ORM promulgated in 

July 2017 “shall apply to all new, pending, and existing claims, whether the injury 

giving rise to such claim, occurred before or after the date of these rules.” See also 

64 D.C. Reg. 6325, 6327 (July 7, 2017) (ORM explanation that it “intend[ed] to 

apply the final rulemaking prospectively from its effective date, to include ongoing appeals not yet reduced to a final order.”).
11

A. ORM’s authority to adopt § 156.1

As this court recently stated in Webb v. District of Columbia Dep’t of Emp’t 

Servs., 204 A.3d 843 (D.C. 2019), D.C. Code § 1-623.44 authorizes the Mayor to 

“promulgate rules necessary or useful for the administration” of the PSWCP, and 

the Mayor in turn has delegated that rulemaking authority, with “broad power,” to 

ORM. Id. at 848. We see no reason to think that this broad power would exclude 

the authority to promulgate a regulation that, in ORM’s words, affords “an 

administrative remedy that ensures swift, efficient and fair resolution of matters 

not statutorily committed to review by an ALJ,” and that ORM believed would 

“streamline and expedite a claimant’s appeal process.” 64 D.C. Reg. at 6331.

Petitioner asserts, however, that § 156.1 is “inconsistent with the purposes of 

the Public Sector Workers’ Compensation Act” (the “Act”) and with how the 

legislature intended injured workers’ rights to be resolved. We are not persuaded 

by this argument. For one thing, the Council of the District of Columbia 

specifically directed in one section of the Act, D.C. Code § 1-623.23(a-2)(4), that

appeals from utilization-review decisions are reviewable by the Superior Court 

rather than by an ALJ. That is enough to show that the Council did not intend that 
12

all PSWCP disputes would be subject to evidentiary hearings before an ALJ. For 

another thing, as ORM explained in adopting § 156.1, the Council “expressly 

provide[d] for a hearing before an ALJ”7 only for some types of Program 

decisions, see D.C. Code §§ 1-623.06a(a), 1-623.24(b)(1) and 1-623.24(f), a 

scheme that does not support a conclusion that the Council had in mind specific 

requirements for how it “intended injured workers’ rights to be resolved” in every 

Program context. 

Petitioner also contends that 7 DCMR § 156 is facially invalid because the 

Act does not authorize ORM to make decisions regarding disability without review 

by DOES. Petitioner relies on D.C. Code § 1-623.02a, which provides in pertinent 

part that the Mayor may delegate “any of the powers conferred on him or her . . . 

except disability compensation hearings and adjudication powers, pursuant to § 1-

623.28, which shall be exercised by the Director of [DOES].” We agree with the 

District of Columbia that the effect of § 1-623.02a (and of its reference to § 1-

623.28) is to preclude the Mayor from delegating to ORM the responsibility that 

the Act specifically assigns to the Director of DOES (or his or her delegate): 

reviewing decisions made after evidentiary hearings on PSWCP initial claims for 

disability benefits. (The DOES Director has delegated that authority to the DOES 

 

7

 64 D.C. Reg. at 6331.
13

CRB.)8 D.C. Code § 1-623.02a was no bar to ORM’s adoption, pursuant to its 

delegation from the Mayor, of a rule (§ 156.1) that directs other types of appeals to 

the CRO.

Petitioner argues in addition that § 156.1 is an “abrupt departure from wellestablished practice,” implying that this renders the regulation invalid even if ORM 

would otherwise have had authority to adopt it. Petitioner emphasizes that under 

ORM’s previous regulations, review by an ALJ of her claim would have been 

available. As she correctly notes, 7 DCMR § 121.18 (2012) provided that the 

PSWCP Notice of Determination on a request for a schedule award “shall inform 

the employee or claimant of his or her right to appeal the decision by requesting a 

hearing before the [DOES Office of Hearing and Adjudication] within thirty (30) 

days of the date of the Program’s decision.” However, in adopting amended rules, 

including § 156.1, in 2017, ORM provided an explanation for the change. It 

explained in its notice of final rulemaking that it believed that its previous 

regulations “conflict[ed] with the controlling statutes,” 64 D.C. Reg. at 632 –

 

8

 See Darden v. District of Columbia Dep’t of Emp’t Servs., 911 A.2d 410, 

414 (D.C. 2006) (The CRB “has the responsibility to provide administrative review 

of compensation orders that formerly was vested in the Office of the DOES 

Director.”). Through the CRB, DOES “still has jurisdiction with respect to the 

adjudication of [public sector] disability compensation appeals.” 53 D.C. Reg.

940, 940 (Feb. 10, 2006).
14

which, as the District puts it, are “silent about any appeal rights for the denial of a 

schedule award.”

We have recognized that an agency “is not precluded from changing its 

interpretation [of a statute] if it believes that a different interpretation is more 

consistent with the statutory language and legislative intent” and if it “provide[s] 

an explanation of the change.” Hensley v. District of Columbia Dep’t of Emp’t 

Servs., 49 A.3d 1195, 1204–05 (D.C. 2012); see also id. at 1205 n.9; Hanson v. 

District of Columbia Rental Hous. Comm’n, 584 A.2d 592, 595 (D.C. 1991) (“[I]f

an agency’s regulation is invalid – i.e., [is] in conflict with the statutes, [is] beyond 

the statutory authority of an agency, or violates jurisdictional doctrines [–] the 

agency is not bound by its regulations and its decision to depart from the 

regulations will be upheld.”). In addition, while our review of legal rulings is de 

novo, we accord deference to an agency’s reasonable interpretation of the statute it 

administers. Kelly v. District of Columbia Dep’t of Emp’t Servs., 214 A.3d 996, 

1000 (D.C. 2019). In light of these principles, we defer to ORM’s reasonable 

interpretation that providing for CRO review of denials of requests for schedule 
15

awards is more consistent with the Council’s intent as reflected in the Act than was 

the prior regulation that provided for appeals to an ALJ.9

B. Retroactivity

Petitioner further argues that even if ORM’s adoption of § 156.1 was a 

permissible change, the factors that determine whether retroactive application of a 

new regulation is permissible dictate that the change should not be applied 

retroactively. We conclude that no true retroactive application is involved here. 

By way of factual background: The rule providing for an appeal only to the 

CRO was not in effect when petitioner made her request for a schedule award in 

2014 (or 2015). ORM’s amended rules first went into effect as emergency rules 

that were effective from November 30, 2016, through March 17, 2017. See 64 

D.C. Reg. 3959, 4077 (Apr. 28, 2017). The amended rules were extended through 

a second emergency rulemaking that was effective from March 17, 2017, until July 

7, 2017. See 64 D.C. Reg. 6213, 6325 (July 7, 2017). The final amended rules 

 

9

 It is not clear, though, whether ORM believes that its former regulation 

“exceeded the agency’s authority under the [Act],” District Brief at 22 n.8, or 

instead that ORM has (and could exercise if it wished) authority to “expand[] . . . 

the range of matters that receive hearings at DOES or OAH,” District 

Supplemental Reply Br. at 5 n.5.
16

(including 156.1), which are substantively the same as the emergency rules, went 

into effect July 7, 2017. Thus, the rule now set forth in § 156.1 had been in effect 

for several months as an emergency rule when ORM issued the Notice of 

Determination in petitioner’s case on May 2, 2017. Further, § 156.1 had been 

published as a final rule by the time OAH and the CRB made their rulings. As 

noted above, in 7 DCMR § 101.4, ORM clearly indicated its intent to apply §

156.1 to pending cases. 

Application of a new rule to a pending case has retroactive effect if it 

“would impair rights a party possessed when [s]he acted, increase a party’s liability 

for past conduct, or impose new duties with respect to transactions already 

completed.” Holzsager v. District of Columbia Alcoholic Beverage Control Bd., 

979 A.2d 52, 57 (D.C. 2009) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 

280 (1994)). “[W]ith respect to the impact of [a] new law on the rights of parties, 

the fact that the new law merely alters the procedure by which a petitioner may 

obtain its objectives weighs in favor of applying the new law, unless [a party has] 

reasonably and significantly altered [her] circumstances in reliance on the prior 

law.” Id. at 58 (internal quotation marks and brackets omitted); see also Landgraf, 

511 U.S. at 275 (“Because rules of procedure regulate secondary rather than 

primary conduct, the fact that a new procedural rule was instituted after the 
17

conduct giving rise to the suit does not make application of the rule at trial 

retroactive.”); Bell v. New Jersey, 461 U.S. 773, 777 n.3 (1983) (noting that 

because “a change of forum ‘takes away no substantive right’ [it] can apply 

retroactively”). Although “[t]he general rule is that [the adjudicator] must apply 

the law in effect at the time it renders its decision,”10 the principles articulated in 

Landgraf dictate that “the law in effect at the time a decision is rendered shall not 

be applied where ‘doing so would result in manifest injustice[.]’” Holzsager, 979 

A.2d at 57 (quoting Scholtz P’ship v. District of Columbia Rental Accommodations 

Comm’n, 427 A.2d 905, 914 (D.C. 1981)). 

Under the foregoing principles, § 156.1 was not given truly retroactive effect 

in appellant’s case. One point is that if the prior regulation (authorizing an appeal 

to OAH from a schedule-award decision) conflicted with the statute as ORM has 

reasoned, petitioner simply did not have a previous right to an OAH hearing, the 

repealed regulation notwithstanding. ORM addressed this in its notice of final 

rulemaking, explaining that giving effect to rulemaking that “correct[s] or 

amend[s] a prior rule or agency decision that conflicts with the controlling statutes 

 

10 We applied that general rule in Webb, 204 A.3d at 850 (rejecting, as 

“without merit,” the argument that an ORM rule regarding attorney-fee awards was 

“improperly applied retroactively” where the rule was adopted as a part of 

emergency and final rules that went into in effect before the resolution of the 

appeal of attorneys-fee awards).
18

does not constitute a retroactive application of these rules[,]” 64 D.C. Reg. at 6327, 

and that “there can be no retroactive application because the ‘new’ legal 

consequences under the final rules are derived from a correct application of 

existing statutes that were previously misapplied[,]” id. We agree.

Further, and in any event, § 156.1 “merely alter[ed] the procedure” by which 

petitioner could obtain her objective of receiving a schedule award, by requiring 

her to take her appeal to the CRO, and nothing in the record suggests that 

petitioner altered her circumstances in reliance on the repealed rule. Section 156.1 

was the rule in effect at the time the CRB and OAH ruled, and they properly 

applied it in the absence of manifest injustice.

C. Equal protection

Petitioner argues that § 156.1 treats her differently by comparison to “every 

permanently injured worker in the private sector,” “every permanently injured 

public sector worker who received a Notice of Determination from ORM before 

December 1, 2016,” and “every permanently injured public sector worker who has 

received 448 weeks of temporary total or temporary partial disability benefits.” 

[Petitioner’s Br. at 7] Petitioner acknowledges that a rational-basis standard of 
19

review applies to this claim. See Tucker v. United States, 708 A.2d 645, 647 (D.C. 

1998) (“Where a statutory classification is alleged to contravene equal protection 

principles, and where . . . the statute does not implicate a fundamental right or a 

suspect class, we must assess its validity pursuant to a rational basis standard.”) 

(internal quotation marks and footnote omitted). Petitioner argues, however, that 

there is no rational basis for relegating her claim to an on-the-record review while

affording evidentiary hearings before a neutral factfinder to the above-described

claimants, thus treating her claim differently from theirs. 

Under the rational-basis standard, a law “is constitutionally valid so long as 

the challenged classification is rationally related to a legitimate governmental 

purpose.” Id. “A statutory classification will not be set aside if any set of facts 

reasonably may be conceived to justify it.” Id. (internal quotation marks omitted).

“The party challenging the constitutionality of such a classification must make a 

clear showing of arbitrariness and irrationality, and must negat[e] every 

conceivable basis which might support it.” Id. (internal quotation marks and 

citation omitted) (bracket in original). Where no suspect classification is involved, 

the government is “entitled to ‘a presumption of rationality that can only be 

overcome by a clear showing of arbitrariness and irrationality[,]’” Hessey v. 

Burden, 615 A.2d 562, 575 (D.C. 1992), a presumption that “extends to 
20

administrative regulatory action as well[.]” Steffan v. Perry, 41 F.3d 677, 685 

(D.C. Cir. 1994). Moreover, “a legislature or govern[ment] decisionmaker [need 

not] actually articulate at any time the purpose or rationale supporting its 

classification.” Nordlinger v. Hahn, 505 U.S. 1, 15 (1992).

We have little trouble conceiving of a rational basis for permitting some 

injured public sector workers to appeal adverse disability determinations to an ALJ 

while limiting others to a review by an agency review officer. For example, 

claimants who have been receiving TTD benefits for at least 448 weeks, see D.C. 

Code § 1-623.06a(a), are likely to be seriously disabled and to have become 

dependent on those benefits, and may suffer extreme deprivation if their TTD 

benefits terminate at 500 weeks without replacement by permanent disability 

benefits. A similar dependency may exist for claimants facing a Program proposal 

to reduce or terminate benefits. D.C. Code § 1-623.24(d). By contrast, as 

petitioner’s case demonstrates, claimants seeking PPD schedule awards may have 

returned to work and may have been functioning without benefits for long periods 

of time –– years (2009 to 2017) in petitioner’s case –– by the time they seek 

review of an ORM decision denying a schedule award. 
21

Further, claimants seeking review of Program decisions denying them initial 

awards of benefits may need to provide evidence about matters such as what 

happened on the job to cause or aggravate an injury and about their ability to work, 

which typically takes the form of hearing testimony that properly will be the 

subject of credibility determinations. By contrast, claimants seeking PPD schedule 

awards rely on a more limited range of evidence and, most importantly, on written 

medical reports and disability ratings by doctors, and the decision-makers 

recognize a “conclusively presumed” “effect on earning capacity.” WMATA v. 

District of Columbia Dep’t of Emp’t Servs., 965 A.2d 1, 3 (D.C. 2009) (quoting 2

A. Larson, WORKMEN’S COMPENSATION LAW, § 58.11, at 10-323 to 10-324 

(1987)); cf. Mathews v. Eldridge, 424 U.S. 319, 344, 345 (1976) (“The potential 

value of an evidentiary hearing” is less where the decision will turn on “routine, 

standard, and unbiased medical reports by physician specialists” who can 

communicate effectively, and where, even though “there may be ‘professional 

disagreement with the medical conclusions,’ the ‘specter of questionable 

credibility and veracity is not present.’”). Thus, it can reasonably be thought that a 

claimant’s testimony about her ability to work is much less important if important 

at all (although appellant appears to be correct that evidentiary hearings on denial 

of schedule awards are available in the private sector).

11 As to petitioner’s 

 

11 See Smith v. District of Columbia Dep’t of Emp’t Servs., 548 A.2d 95, 

(continued...)
22

complaint about treatment that is different from that afforded to “every 

permanently injured worker in the private sector,” ORM described in its 

rulemaking notice the lengthy, 266-day average time for decisions to issue after a 

DOES hearing (i.e., a hearing before a DOES AHD ALJ, which remains available 

to private sector claimants seeking schedule awards, see, e.g., Miller v. 

Commercial Moving & Rigging, Inc., 2018 DC Wrk. Comp. LEXIS 288 (Aug. 23, 

2018)). ORM contrasted that to the “streamline[d,]”“expedite[d,]” and “swift 

[and] efficient” CRO review process established by § 156.1 for PSWCP claimants 

seeking review of decisions for which the Act does not mandate a hearing before 

an ALJ. 64 D.C. Reg. at 6331 (noting that DOES had only “one dedicated ALJ” to 

hear appeals of Program matters). In light of that stated rationale for the change in 

process, we cannot that § 156.1 is without a rational basis such that its 

implementation amounts to an equal protection violation. 

Petitioner asserts that review by the CRO is “at best . . . an ‘on the record’ 

determination,” [Petitioner’s Br. at 9] but nothing in ORM regulations describes 

 

(...continued)

101 (D.C. 1988) (observing, in the private-sector context, that “schedule benefits 

for [PPD] are payable regardless of actual wage loss”; also remarking, overoptimistically it would appear, that the schedule is “limited to obvious and easilyprovable losses of members,” and that the “conspicuousness of the loss 

guarantee[s] that awards could be made with no controversy whatsoever”).
23

the parameters of the CRO review or precludes, for example, the CRO’s 

consideration of additional medical opinions beyond those that ORM considered 

before issuing its Notice of Determination. The CRB has observed (albeit prior to 

issuance of § 156.1) that “[t]here are no ‘proceedings’ before ORM, nor is a 

‘record’ created.” Downing v. District of Columbia Pub. Sch., 2012 D.C. Wrk. 

Comp. LEXIS 522 (Nov. 28, 2012). Further, the form (“Form 9-A Appeal to the 

Chief Risk Officer”) that ORM’s Notice of Determination advised should be used 

to Appeal to the CRO (available at DC.gov/orm/attachments, last visited March 29, 

2020), directs the claimant to submit “necessary attachments” and “supporting 

documentation” and to “[l]ist detailed facts supporting the reason(s) why the 

[ORM] decision is incorrect[,]” without suggesting that the submission is limited 

to material that ORM considered. Petitioner, it seems, “does no more than 

speculate as to the significance of the procedural differences in the review 

processes[.]” Joyner v. District of Columbia Dep’t of Emp’t Servs., 502 A.2d 

1027, 1032 n.6 (D.C. 1986).

For all these reasons, we reject petitioner’s equal protection argument.

D. Due process
24

Petitioner also contends that the new regulation, § 156.1, “unfairly deprived 

[her] of her day in court” and therefore violates due process. She argues that under 

the tests set out in Mathews v. Eldridge, she was entitled to an evidentiary hearing 

on her claim. 

“In order to invoke the Fifth Amendment’s procedural due process 

protections, [a party] must show that a protected liberty or property interest is 

implicated.” (J. David) Leonard v. District of Columbia, 794 A.2d 618, 623 (D.C. 

2002). Assuming without deciding that petitioner has such a protected interest in 

receipt of permanent disability schedule award, we resolve petitioner’s claim on 

the basis of the principle that “[d]ue process is a flexible concept[.]” Kelly v. 

Parents United, 641 A.2d 159, 167 (D.C. 1994) (internal quotation marks omitted). 

What it requires is “the opportunity to be heard at a meaningful time and in a 

meaningful manner.” Mathews, 424 U.S. at 333 (internal quotation marks 

omitted). What due process requires in an administrative decision-making process 

depends on factors such as “the degree of potential deprivation that may be caused 

by a particular decision,” id. at 341, the risk of erroneous deprivation, and the 

fiscal and administrative burdens that additional or substitute procedural 

requirements would entail, id. at 335. “[A]n evidentiary hearing is neither a 
25

required, nor even the most effective, method of decisionmaking in all 

circumstances.” Id. at 348. 

The same facts discussed in the equal protection section above persuade us 

that petitioner has not shown a due process violation. There is no evidence that the 

denial of PPD benefits that petitioner has done without for many years, and which 

she first sought years after her treating orthopedic surgeon assigned her a 20% 

disability rating in 2011, worked a grievous deprivation, and similarly no 

persuasive evidence that the denial of benefits was erroneous.12 Moreover, having 

forgone a review by the CRO and a further review by the Superior Court of any 

adverse CRO decision, petitioner cannot even show that the process that § 156.1 

made available to her was inadequate to avoid the assertedly erroneous ORM 

determination. In particular, petitioner has not shown that a substitute procedural 

mechanism was needed to afford her an meaningful opportunity to be heard on the 

issue of whether she has a permanent impairment qualifying for a schedule award –

an issue that is a predominately medical one, and one as to which evidence can be 

 

12 It is undisputed that two orthopedic surgeons who examined petitioner in 

2015 and 2017 found that she has a 0% impairment, that one of the surgeons 

reported that petitioner exhibited “symptom magnification,” and that petitioner 

relies on a 2011 opinion for her claim of permanent impairment.
26

meaningfully presented through written submissions by the doctors who have 

examined petitioner and reviewed her medical records. 

E. Estoppel

Finally, petitioner argues that because ORM unjustifiably delayed the 

processing of her claim for permanent disability benefits, her claim should be 

resolved under the former rules and ORM should be estopped from applying the 

new rule. “To assert estoppel successfully in [a] governmental context,” a party 

must show that she “suffered injury due to reasonable reliance” and that the relief 

she seeks is necessary to “prevent injustice and promote the public interest.” 

(Marvin) Leonard v. District of Columbia, 801 A.2d 82, 86 (D.C. 2002). 

“Estoppel generally requires that government agents engage . . . in conduct that can 

be characterized as misrepresentation or concealment, or, at least, behave in ways 

that have caused or will cause an egregiously unfair result.” Jackson v. District of 

Columbia Emps. Comp. Appeals Bd., 537 A.2d 576, 579 (D.C. 1988) (brackets and 

internal quotation marks omitted). 

Although petitioner has shown delay (from 2014 or 2015, to 2017) in 

resolving her claim, she has not shown or even alleged misrepresentation or 
27

concealment. On this record, she also has not shown that affording her an 

evidentiary hearing before OAH is necessary to promote the public interest or to 

prevent injustice or an egregiously unfair result. See supra n.14. Nor, having 

forgone a review by the CRO, has she shown that she suffered the injury she 

complains of (denial of a schedule award) because of the change in ORM’s 

regulations. In addition, petitioner could not have “relied on the former rule” 

because there was no way of knowing whether petitioner would have needed to 

appeal ORM’s determination at the time she filed her claim. And, having failed to 

show that ORM’s interpretation that its prior regulation authorizing an OAH 

hearing conflicted with the statutory intent, petitioner also has not shown that her 

reliance on that prior regulation was reasonable. We therefore reject petitioner’s 

estoppel argument. 

Accordingly, the CRB order affirming the OAH dismissal of petitioner’s 

appeal is

Affirmed.

MCLEESE, Associate Judge, dissenting: It is undisputed that Ms. Frazier 

suffered a work-related injury in 2008 while working for the District of Columbia 
28

Public Schools; that she appropriately was awarded temporary total disability 

benefits for a time; and that after she was able to return to work in 2009, the 

temporary disability payments ceased. Approximately five years later, Ms. Frazier 

submitted a claim seeking permanent partial disability benefits relating to the 

original injury. Specifically, Ms. Frazier contended that the workplace injury 

ultimately caused her to permanently lose partial use of one of her legs, warranting 

an award of benefits pursuant to the compensation schedule in D.C. Code § 1-

623.07(c)(2), (19) (2016 Repl.). The Office of Risk Management (ORM) denied 

Ms. Frazier’s claim on the merits. Ms. Frazier sought review before the Office of 

Administrative Hearings (OAH), which dismissed for lack of jurisdiction. The 

Compensation Review Board (CRB) affirmed the dismissal of Ms. Frazier’s case. 

The court affirms the ruling of the CRB. I would vacate the order of the CRB and 

remand for further proceedings. I therefore respectfully dissent.

I.

In determining that it lacked jurisdiction to review the denial of Ms. 

Frazier’s claim, OAH relied on 1 DCMR § 2950.3 (2017). That provision grants 

OAH authority to hear appeals from ORM in four specific kinds of cases: initial 

awards for or against compensation, certain decisions involving disputes about the 
29

appropriateness of medical care or service, modifications of benefits, and certain 

requests to convert ongoing temporary disability benefits into permanent disability 

benefits. Id. Concluding that Ms. Frazier’s claim did not fall into any of those 

categories, OAH determined that Ms. Frazier was required instead to seek review 

before the Chief Risk Officer of ORM, pursuant to 7 DCMR § 156.1 (2017) 

(public-sector workers’ compensation claims not reviewable by OAH are 

reviewable by ORM’s Chief Risk Officer). The CRB agreed with that analysis. 

Fully assessing the jurisdictional issue presented in this case would require 

fighting through a complicated thicket of statutory provisions, regulations, and 

case law. E.g., D.C. Code §§ 1-623.02a (2016) (granting Mayor authority to 

administer public-sector workers’ compensation program (PSWCP), permitting 

delegation of that authority, except as to “disability compensation hearings and 

adjudication powers, pursuant to [D.C. Code] § 1-623.28, which shall be exercised 

by the Director of the Department of Employment Services [DOES]”), 1-623.22 

(2016) (setting time limits for bringing “original claim[s]” and for reopening 

claims), 1-623.24 (2016) (establishing procedures for determining PSWCP 

claims); 1-623.24(d) (providing for modification of awards in certain 

circumstances), 1-623.28 (2016) (providing for review by DOES of “awards for or 

against payment of compensation” pursuant to D.C. Code § 1-623.24), 1-623.44 
30

(2016) (authorizing Mayor to promulgate rules to administer and enforce PSWCP, 

including rules governing modification of awards); 1 DCMR § 2950.3 (2017) 

(OAH jurisdiction); 7 DCMR §§ 115.11 (2020) (supplemental claims), 115.12 

(claimed aggravation of injury), 115.13 (latent disability), 115.14 (recurrence of 

disability), 140 (2020) (permanent disability), 144 (2020) (modification of 

awards), 155 (2020) (OAH jurisdiction), 156 (2020) (ORM jurisdiction); Sheppard 

v. District of Columbia Dep’t of Emp’t Servs., 993 A.2d 525, 527-28 (D.C. 2010)

(per curiam) (deferring to CRB’s conclusion that particular provision of D.C. Code 

§ 1-623.24 did not apply to claim for partial permanent disability based on injury 

as to which claimant had previously been awarded temporary total disability 

benefits); Darden v. District of Columbia Dep’t of Emp’t Servs., 911 A.2d 410, 

414 (D.C. 2006) (The CRB “has the responsibility to provide administrative review 

of compensation orders that formerly was vested in the Office of the DOES 

Director.”). 

In trying to chart a path through this thicket, the natural first step would be 

to figure out what statutory provision (if any) authorized ORM to decide the merits 

of Ms. Frazier’s claim for permanent partial disability benefits. Surprisingly, 

ORM, OAH, the CRB, and the opinion for the court all skip that step. ORM 

decided the claim on the merits without explaining what provision authorized it to 
31

do so. OAH and the CRB concluded that certain provisions were not applicable to 

Ms. Frazier’s claim, but expressed no view as to what provision, if any, authorized 

ORM to decide the claim on the merits. This court takes the same approach.

The District of Columbia Department of Public Schools (DCPS) takes the 

position that claims such as Ms. Frazier’s are properly understood as requests to 

reopen the initial temporary disability award, and thus are governed by D.C. Code 

§ 1-623.22(e), which permits reopening within one year of the last disability 

payment or the final court order. On that view, Ms. Frazier’s claim ought to have 

been denied as untimely, because her claim for permanent partial disability 

benefits was brought several years after the last payment of temporary benefits, 

and the initial award was apparently not the subject of judicial review. As 

previously noted, however, ORM did not deny Ms. Frazier’s claim as untimely, 

instead deciding the claim on the merits. Moreover, as the court’s opinion notes, 

ORM appears to take the view that claims for permanent partial disability under 

the compensation schedule are not subject to the one-year statutory limit in D.C. 

Code § 1-623.22(e). Supra at 3 n.1 (citing 64 D.C. Reg. 6325, 6333 (July 7, 2017) 

(in rulemaking notice, ORM states that claimants may make claim for schedule 

permanent disability award “at any time”); 7 DCMR § 140.2(a) (in absence of 
32

good cause for delay, claim for permanent disability benefits must be filed within 

180 days after termination of temporary benefits)).

In my view, it is not possible to reach a reasoned conclusion in this case 

without addressing the question whether permanent partial disability claims such 

as Ms. Frazier’s, if factually supported and promptly presented, are cognizable 

under the applicable statutes and regulations. Imagine a public-sector employee 

who suffers a workplace injury resulting in a temporary disability that subsides, so 

that the employee returns to work and temporary disability payments end. If the 

injury flares up several years later, to the point that it becomes permanently 

disabling, there is a substantial argument from general principles that 

compensation for the permanent disability should be available, assuming that the 

employee sought such compensation promptly after the flare-up. The CRB has 

taken that view in the private-sector setting. See Capitol Hill Hosp. v. District of 

Columbia Dep’t of Emp’t Servs., 726 A.2d 682, 686 (D.C. 1999) (deferring to 

CRB’s conclusion that claimant can bring claim for permanent partial disability 

award under compensation schedule despite having previously obtained temporary 

benefits; court states that it would “make[] no sense” to interpret statutory time 

limits to make claimant ineligible to obtain permanent disability benefits before 

claimant became eligible for them). I realize that the private-sector workers’ 
33

compensation provisions vary in some respects from the public-sector provisions, 

so that a holding from one context does not necessarily carry over to the other. We 

have held, though, that the public-sector workers’ compensation statute should be 

read broadly to advance its humanitarian purposes. See generally Brown-Carson v. 

District of Columbia Dep’t of Emp’t Servs., 159 A.3d 303, 307 (D.C. 2017) 

(private-sector statute and public-sector statute have “similar humanitarian 

purpose,” so court interprets provisions to be consistent even where statutory 

language is not identical); cf. Newell-Brinkley v. Walton, 84 A.3d 53, 56-57 (D.C. 

2014) (workers’ compensation provisions, including provisions applicable to 

District of Columbia police officers and firefighters, are typically given “liberal 

construction by the courts to effectuate [their] humanitarian purposes”). 

It is possible that DCPS is correct, and the best reading of the applicable 

statutes and regulations is that District of Columbia employees are simply out of 

luck if they suffer a workplace injury and receive temporary disability benefits, 

they then improve so that those temporary benefits end, and several years later 

their injury worsens into a permanent partial disability. Critically, however, ORM 

and the CRB have not indicated whether they agree or disagree with DCPS on this 

point. For that reason, the court has no idea whether upholding the CRB’s ruling 

in this case will have the logical consequence of barring recovery by claimants 
34

with otherwise seemingly meritorious permanent partial disability claims. I would 

remand for the CRB (and perhaps ORM) to address that issue in the first instance. 

See generally, e.g., Fred F. Blanken & Co. v. District of Columbia Dep’t of Emp’t 

Servs., 825 A.2d 894, 901 (D.C. 2003) (remanding for Director of DOES to 

address “important” issue in first instance).

Because I believe that we need to hear further from the pertinent agency (or 

agencies), I express no firm view about the ultimate resolution of the jurisdictional 

issue in the case. I do note, however, that if there were no other statutory basis for 

presenting permanent partial disability claims based on injuries that flare up 

several years after temporary disability benefits end, I would be very reluctant to 

rule out D.C. Code § 1-623.24(a) and (b). By their terms, those provisions seem 

potentially applicable to such claims. See D.C. Code § 1-623.24(a) (directing 

Mayor or Mayor’s designee to decide “claims” seeking award of compensation) 

and (b) (providing for review of claims brought under D.C. Code § 1-623.24(a)). 

Moreover, if permanent partial disability claims such as Ms. Frazier’s arise under 

D.C. Code § 1-623.24 (a) and (b), then OAH (rather than the Chief Risk Officer of 

ORM) would seemingly have statutory authority to review ORM’s decision of 

such claims, pursuant to D.C. Code §§ 1-623.28(a) (providing for DOES review of 

“award[s] for or against compensation” pursuant to D.C. Code § 1-623.24(a) and 
35

(b)), 2-1831.03(b)(1) (2016) (granting OAH authority to decide certain matters 

previously under authority of DOES, including public-sector workers’ 

compensation cases). 

I recognize that there is language in Sheppard, 993 A.2d at 528, suggesting 

that D.C. Code § 1-623.24 is limited to “initial claims.” Sheppard, however, 

focused on a particular statutory requirement: that the Mayor make an initial 

ruling within thirty days or the claim would be deemed accepted. 993 A.2d at 526 

(citing D.C. Code § 1-623.24(a-3)(1)). Moreover, the court in Sheppard

emphasized that “the fact that [the claimant’s] claim is not ‘deemed accepted’ does 

not preclude recovery on her underlying claim for permanent partial disability 

benefits.” Id. at 528 n.1. To the contrary, the court explained, the District of 

Columbia had advised the court that such claims receive the benefit of “a full-scale 

hearing” and related appeals. Id. In light of these assurances in Sheppard, I think 

we would need to hear a far clearer explanation from the pertinent agency (or 

agencies) before extending Sheppard so as to possibly foreclose permanent partial 

disability claims of the type at issue in Sheppard and this case.

II.
36

Because I would remand for further proceedings, I view it as premature to 

decide the other issues addressed in the court’s opinion. I do wish to briefly 

discuss one topic touched on by the court: the applicable standard of review.

The court states in passing that it is deferring to the view of ORM. Supra at 

15. Assuming for the moment that we would generally owe deference to ORM 

and/or the CRB, neither agency has expressed a clear position on what I view as a 

critical question: what is the proper statutory basis for permanent partial disability 

claims such as that brought by Ms. Frazier? Cf., e.g., D.C. Appleseed Ctr. for Law 

& Justice, Inc. v. District of Columbia Dep’t of Ins., Sec., & Banking, 54 A.3d 

1188, 1216 (D.C. 2012) (“Explanation in sufficient detail also is required for 

meaningful judicial review and for there to be a basis for judicial deference to 

agency determinations.”) (internal quotation marks omitted). 

More generally, it appears to me to be unsettled under District of Columbia 

law which agency, if any, would be entitled to deference in deciding whether the 

Chief Risk Officer of ORM or OAH has jurisdiction to review ORM’s initial 

decision of permanent partial disability claims such as Ms. Frazier’s. On the latter 

point, I note that (1) this court does not appear to have ever previously accorded 

deference to ORM, instead stating that deference is owed to the CRB, e.g., 
37

Sheppard, 993 A.2d at 527 (“Because of the CRB’s special expertise in 

administering the [Comprehensive Merit Personnel Act, which includes the 

provisions governing the PSWCP], we defer to [the CRB’s] reasonable 

interpretations of ambiguous provisions in that legislation.”) (internal quotation 

marks omitted); (2) on the other hand, under the federal workers’ compensation 

system, the Supreme Court has indicated that special deference was not owed to 

the analogue of the CRB, see Potomac Elec. Power Co. v. Dir., Office of Worker’s 

Comp. Programs, 449 U.S. 268, 278 n.18 (1980) (“It should also be noted that the 

Benefits Review Board is not a policymaking agency; its interpretation of the 

[federal workers’ compensation statute] thus is not entitled to any special deference 

from the courts.”); and (3) additional complications arise where, as in this case, the 

statutory provisions at issue touch on the respective authority of multiple agencies, 

cf., e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2417 (2019) (“[T]he basis for deference 

ebbs when the subject matter of the dispute . . . falls within the scope of another 

agency’s authority.”) (brackets and internal quotation marks omitted); Caiola v. 

Carroll, 851 F.2d 395, 399 (D.C. Cir. 1988) (“The diffusion of the interpretive 

authority among several agencies, and the possibility of inconsistent 

interpretations, weaken the case for deference.”). 
38

I see no need to belabor the issue of deference, because in my view the court 

should remand to the CRB. Because the court instead affirms, I respectfully 

dissent.