D.C. Court: Pro se Workers' Comp applicant may have been misled

John O'Brien Mar. 23, 2007, 1:30pm

WASHINGTON, D.C. - The District of Columbia Department of Employment Services may have caused a woman to untimely file for permanent total disability benefits, a recent D.C. Court of Appeals order remanding the case said.

Florence Galligan was awarded temporary total disability benefits in 2004, but wanted to appeal for permanent status. Her request for an extension of time to file an appeal was filed five days after the 30-day window.

Galligan, who was representing herself at the time, claims an attorney at DOES did not specify to her that a motion for extension had to be filed during the 30-day window.

"What representations, if any, were actually made to Ms. Galligan along those lines is not a matter of record before us, but we think that, as in Nelson, especially given her pro se status at the time, she is entitled to a remand for consideration of whether in fact she relied on mistaken assurances by the Director's office about how to file a timely appeal," the March 15 order says.

"Accordingly, we remand this case for that purpose while observing that DOES could eliminate disputes of this sort by complete clarity in the written notice of rights as to when an appeal must be filed."

Galligan was injured in a 2001 fall while working as an usher at the John F. Kennedy Center for Performing Arts, and on Jan. 29, 2004, was awarded temporary total disability benefits by Administrative Law Judge Karen Calmeise.

The order was mailed to Galligan that day, though it was Feb. 18 before she found it. Galligan says she was out of town until Feb. 13, then could not go to her apartment for five days because of a gas leak.

She called both Calmeise and DOES on Feb. 25 and asked both how to properly file an appeal. She did not offer a motion for extension until March 5, after the 30-day window that began Jan. 29.

The Compensation Review Board determined that her subsequent appeal was not valid because it was untimely.

In her appeal of that decision, Galligan cited Nelson v. District of Columbia Department of Employment Services.

"A pro se applicant for entitlement benefits has potentially been misled as to her appellate rights and (thus) may have received an inadequate opportunity to present her arguments to the agency," that decision says.

It also said the applicant may be entitled to a remand for a hearing and five factual findings on whether "she was, in fact, misled in her second level appeal... to her detriment."

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