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King v. District of Columbia Department of Employment Services12/16/1999
injury or death of an employee that occurs in the District while the employee is performing work is covered by the laws governing workers' compensation in the District.
Council of the District of Columbia, Report on the District of Columbia Workers' Compensation Equity Amendment Act of 1990, at 14-15 (1990). Subsection (a)(1) of the amended statute accomplishes the intended change by omitting the "principally localized" requirement for " he injury or death of an employee that occurs in the District of Columbia if the employee performed work for the employer, at the time of the injury or death, while in the District of Columbia." In contrast, for " he injury or death of an employee that occurs outside the District of Columbia," subsection (a)(2) preserves the pre-1991 statutory rule that there is coverage only "if, at the time of the injury or death, the employment is localized principally in the District of Columbia." See supra note 2. Under either subsection, it is necessary to ascertain the "time of injury" in order to determine if there is coverage under the Act.
On a literal reading, the hearing examiner's and Director's decisions conclude that because there was no "definitive date of injury ," coverage of King's claim was governed by a statute no longer in effect, i.e., § 36-303 as it existed prior to the 1991 amendments. On the record of this case, that approach to the question of coverage of the WCA was plainly wrong. Neither the hearing examiner nor the Director explained why indefiniteness of the date of injury required them to evaluate King's claim under prior rather than current law, and -absent any finding that King knew or should have known prior to 1991 that he had a claim for an employment-related injury - we perceive no reason why it should. Nor, indeed, did resort to the pre-1991 law in lieu of current law obviate the need to fix a time of injury in order to determine coverage. By its express terms the former § 36-303 (a) tied coverage to the principal locus of employment "at the time of . . . injury," see supra note 3, much as the current statute focuses on the time of injury.
The references to pre-1991 law in the agency decisions in this case may be misleading. The hearing examiner and the Director may have meant that where the injury is attributable to repeated work-related trauma occurring both inside and outside the District of Columbia over an extended period, the time (and hence also the place) of the injury is indefinite, and therefore subsection (a)(2) of current D.C. Code § 36-303 (which retains the "principally localized" requirement of prior law) governs the coverage question rather than subsection (a)(1). If so, that rationale overlooks the fact that under D.C. Code § 36-303 (a), the question of coverage cannot be resolved without first determining the time (and place) of injury. It is necessary to make that determination in order to decide whether subsection (a)(1) or subsection (a)(2) governs coverage. (Moreover, if subsection (a)(2) governs coverage, it is also necessary to determine the time of injury for purposes of applying the "principally localized" test.) To say that the time of a cumulative trauma injury is "indefinite" does not automatically settle which subsection of § 36-303 (a) governs coverage for such an injury where the employee suffered some of the trauma, and became disabled, while working in the District. Without having a rule for fixing the time of injury in such a case, we see no reason - and the hearing examiner and the Director offered none - why subsection (a)(2) rather than (a)(1) would necessarily apply to such a case.
Thus, we conclude that to determine whether King's back injury was covered by the WCA, the hearin
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