Chapter 29: Rules for Public Sector Workers' Compensation Cases

2950.1

Sections 2950 through 2956 shall govern OAH hearings of appeals of certain Public Sector Workers’ Compensation decisions of the District of Columbia Office of Risk Management (ORM). 2950.2 The Rules in Chapter 28 shall apply for procedural issues not addressed in §§ 2950 through 2956. 2950.3 OAH shall hear the following appeals from ORM:

(a) Initial awards for or against compensation benefits pursuant to D.C. Official Code § 1-623.24(b);

(b) Appeals of overpayment determinations under D.C. Code § 1-623.29(b-1)(1);

(c) Modifications of awarded benefits pursuant to D.C. Official Code § 1-623.24(d); and

(d) Requests for determinations of whether a claimant has a permanent disability pursuant to D.C. Official Code § 1-623.06a.

2951.1

Appeals shall be initiated by filing a written hearing request at OAH. The request may be made on a form supplied by the Public Sector Workers’ Compensation Program (the Program) and approved by OAH. A hearing request shall contain:

(a) The name, address, and email address of the claimant and of the claimant’s representative, if any;

(b) The type of claim;

(c) Claimant’s employing agency when the injury occurred;

(d) A statement that the person signing the hearing request has read it and attests that the contents are true and accurate to the best of his or her knowledge;

(e) The signature of the claimant or the claimant’s representative, if any;

(f) The specific nature and extent of the relief sought;

(g) A statement that the person signing the hearing request has read it and attests that the contents are true and accurate to the best of his or her knowledge; and

(h) The signature of the claimant of the claimant’s representative, if any.

2951.2

A hearing request shall be accompanied by a copy of the decision being appealed or a copy of the Notice of Benefits Cap for appeals under D.C. Official Code § 1-623.06a if one has been issued.

2951.3

The claimant or claimant’s representative shall sign the request for hearing and file it with OAH within thirty (30) days of service of the decision. Section 2811 prescribes procedures for filing.

2951.4

No hearing request shall exceed fifteen (15) pages, exclusive of the cover page. The Clerk may reject hearing requests that do not conform to these Rules.

2951.5

The presiding Administrative Law Judge may excuse a claimant’s failure to comply with the specific requirements of this Section.

2952.1

After a hearing request is filed, OAH shall send a copy to the Program and may issue a scheduling order for a status conference. At the status conference, the Administrative Law Judge shall ordinarily issue an order establishing deadlines for the following discovery and hearing activities:

(a) Serving and filing of Discovery Requests, including designation of expert witnesses and exchange of witness reports, if any;

(b) Scheduling of depositions of the parties and witnesses;

(c) Close of Discovery;

(d) Filing of a Joint Pre-Hearing Statement, including designation of all witnesses that a party proposes to call at the hearing and a list of all exhibits the party proposes to offer into evidence. Copies of all proposed exhibits shall be served on the other party and filed with the Court together with the Joint Pre-Hearing Statement;

(e) Deadline for any Motions in Limine and responses;

(f) Date and time of the Pre-Hearing Conference; and

(g) Date and time of the Hearing.

2952.2

The following provisions shall be deadlines for Discovery:

(a) Discovery Requests. No interrogatories, requests for admission, requests for production or inspection, or other discovery requests may be served after the deadline for discovery requests without approval of an Administrative Law Judge;

(b) Depositions. Depositions for any purpose shall be noticed at least ten (10) days before the scheduled deposition date and the deposition date shall be before the close of discovery;

(c) Exchange Lists of Fact Witnesses. On or before the applicable scheduling order deadline(s), each party shall serve and file a list of all the party’s fact witnesses, including the address, and telephone number, if available. No witness who is not designated in the lists may be called to testify at the hearing except for impeachment or rebuttal or upon a showing that the party did not learn of the witness until after the deadline. For good cause, an Administrative Law Judge may allow an undesignated witness to testify if allowing the testimony shall not unduly prejudice the opposing party;

(d) Expert Witness Report. If either party intends to offer an expert opinion, the opposing party may require the party to submit a report of the expert’s testimony in accordance with § 2954.2. A treating physician may give opinion testimony about the cause and extent of a claimant’s disability without having to prepare a report; and

(e) Close of Discovery. No deposition or other discovery may be had after the applicable scheduling order deadline except by permission of an Administrative Law Judge upon a showing of good cause.

2952.3

The presiding Administrative Law Judge may schedule continued status conferences and extend discovery deadlines as may be appropriate. Before filing a motion to extend discovery, or to reschedule a status conference, a party shall seek consent of the opposing party as required by § 2817.5.

2953.1

In accordance with the scheduling order, the parties shall file a Joint Pre-Hearing Statement that includes the following:

(a) A joint statement of the case, including all stipulated facts;

(b) A statement of the remaining issues in dispute;

(c) A statement of any objections to admissibility of proposed exhibits, including the specific grounds for the objections;

(d) A list of each party’s proposed witnesses, excluding witnesses offered solely for impeachment or rebuttal;

(e) A list of the exhibits each party proposes to offer, together with a copy of the exhibit. Claimants’ exhibits shall be numbered 100 through 199. Agency exhibits shall be numbered 200 through 299. The parties are encouraged, but not required, to number the pages of the cumulative exhibits consecutively (Bates stamped), to avoid confusion about page references in the record; and

(f) Designation of portions of deposition transcripts and discovery responses to be used at the Hearing (except for transcripts of depositions of expert witnesses).

2953.2

Each party shall serve and file any Motion in Limine or other motion concerning the conduct of the Hearing prior to the applicable scheduling order deadline.

2953.3

At the Pre-Hearing Conference the Administrative Law Judge shall discuss and make rulings on the following matters:

(a) Whether the parties will agree to additional stipulations of fact or to the admissibility of exhibits;

(b) The need to exchange any additional medical or vocational reports or other documents;

(c) The approximate time that each party will require for the Hearing and whether it may be appropriate to set time limits or to limit the number of witnesses;

(d) Resolution of any pending motions;

(e) Whether the Hearing will be conducted in person, via videoconference, or via teleconference;

(f) Whether interpreters will be needed; and

(g) Any other matters that may be appropriate.

2954.1

Each party shall disclose the identity and proposed testimony of any expert witness in accordance with the scheduling order issued pursuant to § 2952.1.

2954.2

Unless otherwise stipulated, any Expert Witness Report shall contain the following:

(a) A statement of all opinions the witness will express and the basis for those opinions;

(b) The data or other information considered by the witness in forming them;

(c) Any exhibits that will be used to summarize or support them;

(d) The witnesses’ qualifications, including a list of all publications authored in the previous ten (10) years;

(e) A list of all other cases in which, during the previous four (4) years, the witness testified as an expert at trial or by deposition;

(f) A statement of the compensation to be paid for the study and testimony in the case; and

(g) The following certification signed by the witness: “I hereby certify that this report is a complete and accurate statement of all my opinions, and the basis and reasons for them, to which I will testify under oath.”

2954.3

A party may depose any person who has been identified as an expert and whose opinions may be presented at the Hearing.

2954.4

Interrogatories. Unless otherwise stipulated or ordered, a party may serve on any other party no more than twelve (12) written interrogatories, including subparts. The interrogatories shall be answered as follows:

(a) By the party to whom they are directed or, if by the District, by any officer or agent, who shall furnish the information available to the party;

(b) The responding party shall serve answers or objections within twenty-one (21) days after being served;

(c) Objections to interrogatories shall be stated specifically. Each interrogatory shall, to the extent it is not objected to, be answered separately and fully in writing under oath. Answers and objections shall identify and quote each interrogatory in full immediately preceding the answer or objection;

(d) The person who makes the answers shall sign them, and the attorney who objects shall sign any objections; and

(e) If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records, including electronically stored information, and if the burden of deriving or ascertaining the answer is substantially the same for either party, the responding party may answer by:

(1) Specifying the records that shall be reviewed in sufficient detail to enable the interrogating party to locate them as readily as the responding party; and

(2) Giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

2954.5

Requests for Production of Documents. Requests shall be made and responded to in accordance with D.C. Superior Court Civil Rule 34. 2954.6

Requests for Admission. Unless otherwise stipulated or ordered, a party may serve no more than fifteen (15) requests for admission on the other party. Requests shall be made and responded to in accordance with D.C. Superior Court Civil Rule 36.

2954.7

Depositions. Depositions shall be conducted in accordance with D.C. Superior Court Civil Rules 30 and 31.

2954.8

Motions to Compel Discovery. No party shall file a Motion to Compel Discovery without permission of the presiding Administrative Law Judge. Permission shall be granted only after the parties or counsel have conferred in an effort to resolve the dispute or a party or counsel has made at least three (3) attempts to contact the opposing party or counsel without success to set up a meeting to confer.

(a) If the parties are unable to resolve the dispute after discussing it for a reasonable period, they shall request a telephone conference with the presiding Administrative Law Judge.

(b) If the dispute cannot be resolved by conference call with the Administrative Law Judge, the Administrative Law Judge may direct the moving party to file a motion to compel discovery.

(c) Before filing a Motion to Compel Discovery without having conferred with the opposing party or counsel, the moving party or counsel shall submit a written description of three separate attempts to contact the opposing party or counsel by telephone or email, including dates and times, and describe any response that was received. If an Administrative Law Judge finds that a party has made a good faith effort to resolve the issue, the Administrative Law Judge may direct the moving party to file a Motion to Compel Discovery. The Administrative Law Judge may also impose appropriate sanctions on the opposing party.

(d) Any Motion to Compel Discovery shall state specifically the Discovery that was requested, and any objections raised by the opposing party and specify the information or documents that the opposing party declined to provide.

(e) An opposing party may respond to a Motion to Compel Discovery within the time specified in § 2813.6 or such other time as the presiding Administrative Law Judge shall specify.

2954.9

Sanctions. If the District’s Motion to Compel Discovery is granted, in addition to other sanctions that the presiding Administrative Law Judge may impose, the Administrative Law Judge shall deduct any reasonable expenses, costs, and fees incurred by the District, including attorney's fees, from any award of attorney's fees to the Claimant.

2955.1

The rules for hearings and evidence set forth in § 2823 shall apply to Public Sector Workers’ Compensation hearings except as modified in this Section.

2955.2

All hearings shall be recorded. Any party may obtain a copy of the recording in accordance with § 2828.2. Except where OAH is required by law to prepare a transcript, parties who want written transcripts shall prepare them at their own expense in accordance with § 2828.3.

2955.3

The party with the ultimate burden of proof ordinarily shall go first, but the presiding Administrative Law Judge may change the order of presentation to accommodate the availability of witnesses or the needs of the parties.

2956.1

An attorney who has represented a claimant who seeks to recover attorney's fees shall file a motion within thirty (30) days of the issuance of a final decision. The motion shall contain the following information:

(a) An itemized description of each service rendered, including the date and the amount of time spent. Time shall be recorded in intervals of no greater than ¼ hour. Intervals of one-tenth (1/10) hour are preferred;

(b) The amount of the fee which the attorney seeks; and

(c) A statement explaining the basis for the requested fee.

2956.2

In determining the amount of any award, the Administrative Law Judge shall consider at least the following factors:

(a) The nature, novelty, and complexity of the case;

(b) The time and labor required;

(c) The amount of benefits awarded;

(d) Customary local charges for similar services; and

(e) The professional qualifications of the attorney or other representative.

2956.3

Claims for attorney's fees are governed by D.C. Official Code § 1-623.27 and the Public Sector Workers’ Compensation Benefits Rule on Attorney’s Fees, 7 DCMR § 162.