TERRY, Associate Judge:
In this workers' compensation case, petitioners seek review of an order of the Director of the Department of Employment Services (DOES) reversing in part a hearing examiner's compensation order. The examiner had ruled that although the injured employee, Kenneth Skeen, had compromised and settled his claim against a third party without obtaining written approval from petitioners (Skeen's employer and its insurance carrier) as required by D.C.Code § 36-335(g) (1988), his failure to comply with that statute was excusable "because of the unique circumstances under which his injury occurred." However, the examiner awarded to petitioners a credit against future compensation in the amount of $30,000, the sum previously received by Skeen. On appeal, the Director of DOES held that because Skeen had no justiciable claim against the third party (the government of Brazil), written approval of the settlement was not required. The Director also ruled that petitioners were not entitled to the $30,000 credit.
We agree with the Director that Skeen had no colorable claim against the government of Brazil and was therefore not required to obtain his employer's approval of the so-called settlement. We also hold, however, that in order to prevent unjust enrichment, petitioners are entitled to a credit for the $30,000 which Skeen actually received from Brazil. Accordingly, we affirm the Director's decision in part and reverse it in part.
The facts of this case are undisputed. Kenneth Skeen was employed as a "floorman" or bouncer at a nightclub known as The Godfather, owned by petitioner 4934, Inc.
On February 17, 1984, Skeen received a check for $30,000 from the Brazilian government. He had previously filed suit against the government of Brazil, the ambassador, and the ambassador's son in the United States District Court for the District of Columbia. When that court dismissed Skeen's complaint,
Skeen later filed a second workers' compensation claim seeking additional disability benefits for the period beginning March 21, 1986, and continuing indefinitely. While the earlier claim had been based on Skeen's actual physical injuries, this one asserted that he was suffering from post-traumatic stress syndrome. The employer did not contest the medical aspects of Skeen's claim, which was supported by his own testimony and by the reports of two psychiatrists. However, because Skeen had received the $30,000 payment from Brazil, petitioners maintained that they had no further obligation to pay him workers' compensation benefits. They contended that he had violated D.C.Code § 36-335(g) by failing to obtain their prior written approval of his settlement with the Brazilian government.
After a hearing,
On appeal the Director of DOES affirmed the examiner's award of disability benefits, but reversed the grant of a $30,000 credit to petitioners.
Petitioners now seek reversal of the Director's ruling.
Under long-settled principles of appellate review, we must defer to an administrative agency's findings of fact and affirm them if they are supported by substantial evidence in the record as a whole. See, e.g., Citizens Ass'n of Georgetown v. District of Columbia Zoning Commission, 402 A.2d 36, 41-42 (D.C.1979); D.C.Code § 1-1510(a)(3)(E) (1987). However, to the extent that an agency's decision involves an issue of law, it is entitled to less deference from a reviewing court because the court "has the greater expertise...." Saah v. District of Columbia Board of Zoning Adjustment, 433 A.2d 1114, 1116 (D.C.1981); see SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) ("an order may not stand if the agency has misconceived the law"). In this case there are no factual issues, so that our review of the Director's ruling deals only with her legal analysis.
We agree with the Director's understanding of the doctrine of diplomatic immunity and its effect on Skeen's duty under D.C.Code § 36-335(g). Section 36-335 provides in relevant part:
The Director concluded that the examiner had erred in classifying the funds received by Skeen from the Brazilian government as a settlement or compromise governed by D.C.Code § 36-335(g). She ruled that, as a matter of law, any recovery by Skeen from either his assailant or the government of Brazil was barred by diplomatic immunity. Because Skeen was not entitled to any recompense from a third party, the Director
Petitioners contend that the $30,000 payment to Skeen constituted a settlement of his claim against the Brazilian government, and that Skeen's immediate dismissal of his appeal is proof that the claim was settled. Petitioners are correct in asserting that, as a general rule, forbearance from asserting a claim constitutes good consideration for compromise and settlement. Rommel v. West American Insurance Co., 158 A.2d 683, 685 (D.C.1960); Saunders System Washington Co. v. Kuffner, 75 A.2d 136, 137 (D.C.1950). There is, however, a limitation on that rule: the claim foregone must be "advanced in good faith and ... not obviously absurd in fact or plainly unfounded in law...." Magruder v. National Metropolitan Bank, 40 A.2d 828, 830 (D.C.1945) (emphasis added); accord, Rommel, supra, 158 A.2d at 685; Saunders, supra, 75 A.2d at 137. We hold that Skeen's claim against the government of Brazil, the ambassador, and his son was plainly unfounded in law, so that Skeen's purported "settlement" of that claim was a legal nullity.
D.C.Code § 36-335(g) applies only when a workers' compensation claimant settles a claim against a third party who is "liable for damages," id. § 36-335(a), resulting from the same injury for which the claimant is seeking compensation. As a matter of law, neither the Brazilian government nor the actual assailant, the ambassador's son, was ever liable for such damages because diplomatic immunity shielded them absolutely from liability.
But we need not base our holding solely on the sometimes amorphous precepts of unwritten international law, for in this case we have both a statute and a treaty on which to rely. 22 U.S.C. § 254d (1988) provides in part:
Article 31 of the Vienna Convention on Diplomatic Relations, April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95, provides in part:
See Caravel Office Building Co. v. Peruvian Air Attache, 347 A.2d 280, 282 (D.C. 1975) (diplomat cannot be sued for breach of lease); Hellenic Lines, Ltd. v. Moore, 120 U.S.App.D.C. 288, 290-291, 345 F.2d 978, 980-981 (1965) (ambassador is not subject to service of process). Article 37 of the Vienna Convention, moreover, provides that the privileges and immunities specified in Articles 29 through 36 extend to members of the family of a diplomatic agent, provided they are not nationals of the receiving state. Accord, Carrera v. Carrera, 84 U.S.App.D.C. 333, 335, 174 F.2d 496, 498 (1949). Thus the Director was correct in ruling that Skeen "had no right, as a matter of law," to hold the ambassador, the ambassador's son, or the government of Brazil liable for damages, and that there was therefore "no third party action
Any possible doubt that the claim against Brazil and the ambassador's son had no legal foundation is dispelled by the testimony of the attorney who represented Skeen in the federal court proceedings.
We disagree, however, with the Director's decision to reverse the examiner's ruling that petitioners were entitled to a credit for the $30,000 payment. Although the government of Brazil had no legal obligation to pay Skeen anything at all, the facts make clear that the payment, albeit gratuitous, was directly related to the shooting and was undoubtedly intended to compensate Skeen to some extent for his injuries. That being the case, we hold that Skeen would be unjustly enriched by $30,000 unless petitioners are given a credit for that amount.
The modern law of unjust enrichment and restitution has its roots in the common law concept of quasi-contract. At common law there were cases in which the courts, in the absence of an actual contract, nevertheless imposed "a duty ... under certain conditions upon one party to requite another in order to avoid the former's unjust enrichment." Bloomgarden v. Coyer, 156 U.S.App.D.C. 109, 116, 479 F.2d 201, 208 (1973) (footnote omitted). To achieve this result, the courts devised "a legal obligation closely akin to a duty to make restitution," id. at 118, 479 F.2d at 210, which they called a quasi-contract. From the beginning a quasi-contract has been openly acknowledged to be a "[l]egal fiction invented by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no contract, but where circumstances are such that justice warrants a recovery as though there had been a promise.... It is ... founded on considerations of justice and equity, and on [the] doctrine of unjust enrichment." BLACK'S LAW DICTIONARY 324 (6th ed. 1990). When the essential facts are not in dispute, as in this case, the question of whether a quasi-contract should be recognized is one of law. Bloomgarden v. Coyer, supra, 156 U.S.App.D.C. at 119, 479 F.2d at 211.
Unjust enrichment occurs when a person retains a benefit (usually money) which in justice and equity belongs to another. Hillyard v. Smither & Mayton, Inc., 76 A.2d 166, 167 (D.C.1950); Sparks v. Gustafson, 750 P.2d 338, 342 (Alaska 1988); Partipilo v. Hallman, 156 Ill.App.3d 806, 810, 109 Ill.Dec. 387, 390, 510 N.E.2d 8, 11 (1987); see RESTATEMENT OF RESTITUTION § 1 comment a (1937). In such a case, the recipient of the benefit has a duty to make restitution to the other person
The concept of unjust enrichment is well recognized in workers' compensation cases. Courts are frequently presented with claims by employers and insurers for modification of disability benefits, for reimbursement of sums overpaid or erroneously paid, or even for damages from a third party who actually caused the injury. In many such cases the courts apply unjust enrichment principles to reach what they deem to be the correct result. See, e.g., Louviere v. Shell Oil Co., 509 F.2d 278, 284-285 (5th Cir.1975), cert. denied, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90 (1976) (employer's insurer entitled to indemnity from third-party tortfeasor on ground of unjust enrichment); Estridge v. Stovall, 704 S.W.2d 653 (Ky.Ct.App.1986) (disabled worker not entitled to simultaneous recovery under state compensation laws and federal black lung statutes; state may recover excess payments on theory of unjust enrichment); Campbell v. Blue Diamond Mining, Inc., 684 S.W.2d 279 (Ky.Ct. App.1985) (disabled worker barred, by principles of unjust enrichment, from receiving simultaneous benefits under state and federal laws); Hajnas v. Engelhard Mineral & Chemical Co., 231 N.J.Super. 353, 555 A.2d 716 (1989) (overpayment); Liberty Mutual Insurance Co. v. Industrial Commission, 40 Ohio St.3d 109, 532 N.E.2d 124 (1988) (payment made to worker who, under applicable law, was not entitled to benefits); Glen Alden Corp. v. Tomchick, 183 Pa.Super. 306, 130 A.2d 719 (1957) (overpayment); Roy v. Providence Metalizing Co., 119 R.I. 630, 381 A.2d 1051 (1978) (overpayment); cf. St. Paul Fire & Marine Insurance Co. v. Treadwell, 263 Md. 430, 283 A.2d 601 (1971) (unjust enrichment claim, which court found "appealing," rejected as contrary to statute). We follow the same course here.
The connection in this case between Skeen's injury at the hands of the ambassador's son and the money he received from the Brazilian government simply cannot be ignored. Regardless of its actual motivation for making the payment, Brazil chose to redress Skeen's injuries with that money. Petitioners' duty to pay workers' compensation benefits was triggered by the very same injury. Since Brazil had no legal duty to pay Skeen a penny but paid him anyway, we hold that in the circumstances of this case, see RESTATEMENT, supra, § 1 comment c, Skeen would be unjustly enriched if he were allowed to keep the $30,000 and still collect all the money which petitioners are required by law to pay him. To hold otherwise would permit double recovery by Skeen, contrary to the policy underlying D.C.Code § 36-335, which "is principally concerned with avoiding double payments on workers' compensation awards." Felch v. Air Florida, Inc., 275 U.S.App.D.C. 403, 406, 866 F.2d 1521, 1524 (1989), citing Meiggs v. Associated Builders, Inc., 545 A.2d 631, 637-638 (D.C.1988), cert. denied, 490 U.S. 1116, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989). We therefore direct DOES to grant a credit of $30,000 against the disability benefits owed by petitioners to Skeen.
Petitioners make two other arguments which may be more briefly discussed, for they are both without merit.
When our cases speak of the "humanitarian purpose" of the statute, they refer specifically to the presumption of compensability, D.C.Code § 36-321(1) (1988), which enables a claimant more easily to establish his or her entitlement to benefits and is intended to favor awards in arguable cases. See Ferreira v. District of Columbia Department of Employment Services, 531 A.2d 651, 655 (D.C.1987). The reason for this presumption is simply that a worker's sole remedy for a work-related injury is the remedy provided by the statute; consequently, if the statutory benefits are unavailable for any reason, the worker will not be compensated at all for the injury. However, when it is undisputed that a claimant's injury arose out of his or her employment and is therefore compensable, "the presumption is no longer part of the case" because it is no longer necessary to effectuate the humanitarian purpose of the law. Dunston v. District of Columbia Department of Employment Services, 509 A.2d 109, 111 (D.C.1986).
There is no dispute in this case that Skeen's injuries arose from his employment. While the examiner undoubtedly erred in basing her decision to exempt Skeen from D.C.Code § 36-335(g) on the "humanitarian purpose" of the statute,
Second, petitioners contend that the examiner's failure to compel production of the agreement between Skeen and the government of Brazil deprived them of their due process right to a full and fair adjudication of this case. The Director concluded that the examiner's refusal to subpoena Skeen's attorney and force disclosure of the document was error, but that the error was harmless because Skeen had no litigable claim against Brazil. We need not even go that far. We hold that if the examiner's failure to issue a subpoena was error—which we do not decide—it was necessarily harmless. Disclosure of the document could have had no possible effect on the outcome of this case because the details of the agreement had no bearing on the dispositive legal issue, namely, whether Skeen had a valid claim against Brazil in the first place.
We reverse in part the decision of the Director and remand this case to DOES with directions to grant a credit to petitioners in the amount of $30,000, the sum previously received by Skeen from the government of Brazil. In all other respects the Director's decision is affirmed.
Affirmed in part, reversed and remanded in part.
The following is an excerpt from the transcript of the hearing in this case on Kenneth Skeen's second workers' compensation claim, held on January 28, 1988. The witness is the attorney who represented Mr. Skeen in the suit filed in the United States District Court against the Republic of Brazil, the Brazilian ambassador, and the ambassador's son. The cross-examiner is Mr. Skeen's present attorney.
A. Yes, he did. As a matter of fact, it had already been ruled on, and the criminal charges had been dropped because of diplomatic immunity.
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Q. Did the ambassador enjoy diplomatic immunity, Mr. Coale?
Q. And did the party who shot Mr. Skeen enjoy diplomatic immunity?
Q. There was a prior criminal hearing on the shooting that occurred on November 29, 1982?
A. I believe that it was a hearing or that the State Department instructed through Justice that they had diplomatic immunity.
Q. So no criminal actions were taken against the man who shot Mr. Skeen?
Q. And he was never incarcerated or charged by the District of Columbia or by the federal government for that criminal act?
Q. When you filed the lawsuit in the United States District Court for the District of Columbia, were you aware or did you know whether or not in fact you had a valid or invalid lawsuit against the Federat[ive] Republic of Brazil and the two other defendants?
A. I had a real good idea.
Q. What was that? What was your idea?
A. Can I explain this in the context?
A. On cases like Kenny's and some other, for lack of a better word, high profile cases, that you know are going to have a lot of media attention and political attention, at the time diplomatic immunity was a pretty hot issue.
I felt that my job was to do everything that I could to help Kenny out and get him something. A successful action that I'd taken in other cases which I would point out that you can't any more, but in this day Rule 11 was not enforced very much at all.
Q. Tell us about Rule 11.
A. Rule 11, yes. If one files a claim or if one filed a motion or something in federal court, under Rule 11 if the motion or if the suit really doesn't have any chance of then winning or it is frivolous, you get hit hard. You get the attorney fees for the other side. You get sanctions.
The rule was on the books then, but it really wasn't enforced very much. Now it is. It is very strict. The judges are doing a lot.
I wouldn't have filed the case now.
At the same time I was in touch with Senator Laxalt, Paul Laxalt, who was pressuring Brazil and the State Department to do something. The same thing was done in People magazine, the Washington Post Sunday magazine, and in lots of other media.
My argument to the media was this was the time that there was a ten billion dollar debt from Brazil that they were not paying back. My basic message that got across to the media, which was through me and Kenny
Now this three-prong approach worked. When the case was dismissed at the trial level, I couldn't do anything but appeal to keep the pressure on. I received a call from the State Department that enough was enough.
Q. You say the case was dismissed?
A. The case was dismissed at the trial level. The first motion to dismiss was granted. It was thrown out.
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Q. What was the basis of the motion that was filed to dismiss?
A. The diplomatic immunity. That was basically it, then.
Q. Was that motion granted?
Q. So at the point of time that you made any type of agreement for payment with the Brazilian government, you did not have a pending action in the United States District Court for the District of Columbia?
Q. Go ahead.
A. Now I had to keep the pressure on. I got a call from the State Department that [said] basically let's end this, that enough is enough. There was a new ambassador that was coming in from Brazil. The old one was gone. The Brazilian government wanted this to stop. There were periodic updates in the media, I believe. They wanted to know how Kenny was doing. They offered a certain sum as a gift to end all of this. That is basically what it was.
My three-prong strategy I don't think that you could use today. I have used it in the past in other high profile cases. It worked. But it is Rule 11 today. It would be a very expensive action.
Q. So the agreement that you entered into with the Brazilian government was entered into after the motion to dismiss your lawsuit had already been granted?
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Q. Had you taken an appeal from the motion?
Q. And that was pending in the United States ... Court of Appeals for the District of Columbia [Circuit]?
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Q. Did you in fact, under any law or treaty of the United States, never mind the lawsuit, have a right to pursue a claim against Brazil or the other defendants, Mr. Coale?
A. I considered it as a moral claim. If the—
Q. So you had no legal basis?
Q. The monies that were paid, were they paid to you based upon any legal theory or right or cause that Mr. Skeen had against the Brazilian government?
A. No. That was never discussed.
Q. Or that you were aware of?
A. Or that I was aware of.