Niles v. DC DOES and WAMATA ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-AA-479
DEANNE NILES, PETITIONER,
v.
DISTRICT OF COLUMBIA
DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY, INTERVENOR.
On Petition for Review of an Order of the
District of Columbia Department of Employment Services
Compensation Review Board
(CRB-32-18)
(Submitted February 22, 2019 Decided October 10, 2019)
David M. Snyder, with whom Kevin H. Stillman, was on the brief, for
petitioner.
Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General, Loren L. Alikhan, Solicitor General, and Caroline S. Van
Zile, Deputy Solicitor General, filed a statement in lieu of a brief, for respondent.
Sarah O. Rollman for intervenor.
2
Before BLACKBURNE-RIGSBY, Chief Judge, and FISHER and EASTERLY,*
Associate Judges.
BLACKBURNE-RIGSBY, Chief Judge: On a rainy morning, petitioner Deanne
Niles was walking across the College Park Metro station platform on her way to
work when she slipped and fell. Alleging injuries to her ankle, shoulder, and knee,
Ms. Niles, an administrative assistant for intervenor Washington Metropolitan Area
Transit Authority (“WMATA”), filed a claim for benefits under the District of
Columbia Workers’ Compensation Act (the “Act”). 1 An Administrative Law Judge
(“ALJ”) denied the claim after concluding that her injuries were noncompensable,
citing the well-established proposition that injuries sustained while commuting to
and from work fall outside the Act’s coverage. See Grayson v. District of Columbia
Dep’t of Emp’t Servs., 516 A.2d 909, 911 (D.C. 1986). The Compensation Review
Board (“CRB”) of the District of Columbia Department of Employment Services
affirmed. Now on petition for review, Ms. Niles argues that, because WMATA
encourages its employees to ride the Metro transit system and imposes work-related
rules and obligations on its employees when they do (whether they are on or off
duty), her injuries are compensable under the Act. We affirm.
*
Associate Judge Easterly concurs in the judgment.
1
D.C. Code §§ 32-1501 to -1545 (2019 Repl.).
3
I.
At the time of her injury, Ms. Niles lived in Lanham, Maryland and worked
in WMATA’s headquarters in downtown D.C. On her typical commute to work,
Ms. Niles would drive from her home to the College Park Metro station where she
would park her car for the day. She would then ride the Metrorail to the Gallery
Place-Chinatown Metro stop and, from there, walk to the nearby WMATA office.
WMATA allows its employees to ride the Metrorail and Metrobus for free, but
employees are personally responsible for paying for parking at Metro stations. On
May 5, 2017, rain caused the College Park Metro platform to become slick. After
parking her car in the adjacent lot that morning, Ms. Niles walked across the
platform, where she slipped and fell, sustaining injuries to her ankle, shoulder, and
knee.
Ms. Niles filed a claim for benefits under the Act, seeking temporary total
disability benefits and reimbursement for medical treatment relating to her injuries.
At the evidentiary hearing before the ALJ, Ms. Niles gave uncontested testimony
that WMATA encourages its employees to use the Metro system and allows them to
ride free of charge. Ms. Niles also testified that she had no work-related duties at
the College Park Metro station on the day of her injury. She also acknowledged that,
4
despite the fare subsidy and WMATA’s encouragement that its employees use the
Metro, Metro use by employees was voluntary. The ALJ denied Ms. Niles’s claim,
ruling that it was barred by the “going and coming” rule, which provides that
“injuries sustained off the work premises, while enroute to or from work, do not fall
within the category of injuries ‘in the course of employment.’” McKinley v. District
of Columbia Dep’t of Emp’t Servs., 696 A.2d 1377, 1383 (D.C. 1997) (quoting
Grayson, 516 A.2d at 911).
The CRB reviewed and affirmed the ALJ’s order. The CRB concluded that,
because WMATA did not require Ms. Niles to use the Metrorail, Ms. Niles’s
commute on the morning of her injury was personal and unrelated to her
employment. It also concluded that the ALJ correctly applied the “going and
coming” rule in denying Ms. Niles’s claim. This petition for review followed.
II.
We will affirm the CRB’s decision unless it is “[a]rbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” D.C. Code § 2-
510(a)(3)(A) (2012 Repl.); Mexicano v. District of Columbia Dep’t of Emp’t Servs.,
806 A.2d 198, 203 (D.C. 2002). “We must determine (1) whether the agency made
5
a finding of fact on each material contested issue of fact; (2) whether substantial
evidence in the record supports each finding; and (3) whether the conclusions of law
follow rationally from the findings.” George Washington Univ. v. District of
Columbia Bd. of Zoning Adjustment, 831 A.2d 921, 931 (D.C. 2003). “[A]lthough
we accord weight to the agency’s construction of the statutes [that] it administers,
the ultimate responsibility for deciding questions of law is assigned to this court.”
Id.
For an injury to fall within the coverage of the Act, it must “arise out of and
in the course of employment.” D.C. Code § 32-1501(12). The “out of employment”
and “in the course of the employment” requirements are distinct, but “frequently,
proof of one will incidentally tend to establish the other.” Kolson v. District of
Columbia Dep’t of Emp’t Servs., 699 A.2d 357, 360 (D.C. 1997) (citation omitted).
Because Ms. Niles’s claim fails to satisfy either requirement, we hold that the injury
falls outside the Act.
A.
Our first inquiry is whether the risk causing Ms. Niles’s injury “arose out of”
her employment with WMATA. The “arising out of” requirement refers to “the
6
origin or cause of the injury.” Bentt v. District of Columbia Dep’t of Emp’t Servs.,
979 A.2d 1226, 1232 (D.C. 2009) (quoting Kolson, 699 A.2d at 361). We recognize
three categories of risks causing injury to a claimant: (1) “risks distinctly associated
with the employment,” (2) “risks personal to the claimant,” and (3) “‘neutral’ risks—
i.e., risks having no particular employment or personal character.” Id. (quoting
Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs., 971 A.2d 909, 920
n.10 (D.C. 2009)). “Harms from the first are universally compensable. Those from
the second are universally noncompensable.” Id. Harms from the third, neutral
risks, “arise out of employment” if the so-called positional-risk test is satisfied.
Clark v. District of Columbia Dep’t of Emp’t Servs., 743 A.2d 722, 727 (D.C. 2000).
Under the positional-risk test, “an injury arises out of employment so long as it
would not have happened but for the fact that conditions and obligations of the
employment placed claimant in a position where he was injured.” Id.
As an initial matter, Ms. Niles does not argue that the risks causing her
accident were “distinctly associated” with her WMATA employment, nor is there
evidence for the proposition. Accordingly, we ask whether the risks that caused Ms.
Niles’s injuries were either personal or neutral. Personal risks are those “thoroughly
disconnected from the workplace.” Muhammad v. District of Columbia Dep’t of
Emp’t Servs., 34 A.3d 488, 496 (D.C. 2012). In contrast, neutral risks are those
7
“having no particular employment or personal character.” Bentt, 979 A.2d at 1232;
see 1 Lex K. Larson & Thomas A. Larson, Larson’s Workers’ Compensation Law
§ 3.05 (Rev. Ed. 2019) (“This theory supports compensation, for example, in . . .
situations in which the only connection of the employment with the injury is that its
obligations placed the employee in the particular place at the particular time when
he or she was injured by some neutral force . . . .”) (footnote omitted). The CRB
concluded that the risks giving rise to Ms. Niles’s injury were entirely personal, thus
rendering her injuries noncompensable under the Act. On petition for review, Ms.
Niles argues that the CRB erred, and that the risks causing her injuries should have
been treated as neutral, and thus subject to the positional-risk test. See Bentt, 979
A.2d at 1232.
We conclude that the risks giving rise to Ms. Niles’s injuries were
disconnected from her employment, thus the risks were personal and
noncompensable. Central to our conclusion is the fact that Ms. Niles was not injured
at her workplace. As an administrative assistant, Ms. Niles worked exclusively in
WMATA’s headquarters in downtown D.C. Ms. Niles’s duties did not extend to the
College Park Metro station, nor was she there on the day of her injury as a WMATA
employee. Instead, Ms. Niles was there to ride the Metrorail as a member of the
general public. Our conclusion here is distinguishable from our recent decision in
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Gaines v. District of Columbia Dep’t of Emp’t Servs., 210 A.3d 767 (D.C. 2019).
There, we reviewed a WMATA station manager’s claim for compensation for
injuries from a slip and fall at a Metrorail station. Id. at 770. We concluded that,
because the employee was injured in the station where she was scheduled to work,
her injuries were not “thoroughly disconnected from the workplace.” Id. at 772–73.
The station manager’s risk of injury, therefore, was not personal, but at least neutral.
Id. Here, unlike the employee in Gaines, Ms. Niles was not scheduled to work at
the College Park Metro station. When she was injured, Ms. Niles was commuting,
not as a WMATA employee, but in her personal capacity; thus the risks causing her
injury were “thoroughly disconnected from the workplace.” Id.
Even if we were to treat the risk that caused Ms. Niles’s injury as neutral and
apply the positional-risk test, Ms. Niles’s claim fails. Under this test, an injury arises
out of employment “so long as it would not have happened but for the fact that
conditions and obligations of the employment placed claimant in the position where
she was injured.” Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs.,
830 A.2d 865, 872 (D.C. 2003). Here, we see no evidence that the conditions and
obligations of Ms. Niles’s employment as a WMATA administrative assistant placed
her at the College Park Metro station. Ms. Niles’s work took place exclusively at
WMATA’s headquarters. And on the morning of the injury, Ms. Niles had no work
9
obligations at the College Park Metro station. To be sure, the positional-risk test
does not require Ms. Niles to show that her WMATA employment placed her on the
College Park Metro platform at the precise time and place of the accident. See
Gaines, 210 A.3d at 773 (“[S]o narrow an approach would lead to absurd
consequences, because many workplace injuries occur in circumstances in which the
employer did not dictate the precise location of the employee at the precise time of
the injury.”). But it does require Ms. Niles to at least establish that her employment
placed her in the College Park Metro station on the day of the injury. See Bentt, 979
A.2d at 1232.
Ms. Niles argues that the positional-risk test is satisfied because she would
not have been injured but for WMATA’s encouragement to its employees to ride the
Metro. At the administrative hearing, WMATA did not dispute that it encourages
its employees to use the Metro, or that it provides its employees complimentary
Metro fare benefits. But mere encouragement is not enough to satisfy the positional-
risk test. See Bentt, 979 A.2d at 1232. Ms. Niles was not obligated to ride the
Metrorail or make use of WMATA’s fare benefits. Nor was there evidence that Ms.
Niles’s employment was conditioned on her use of the Metro system. Instead, Ms.
Niles was free to choose how she commuted to work. Accordingly, we conclude
that Ms. Niles’s injuries did not arise out of her WMATA employment.
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B.
Ms. Niles’s claim is also noncompensable under the Act because the injury
did not occur “in the course of” her employment. The CRB concluded that the
“going and coming” rule barred Ms. Niles’s claim for compensation. See Grayson,
516 A.2d at 911. On petition for review, Ms. Niles argues that her injury occurred
in the course of her employment because she was subject to WMATA rules and
duties when she rode the Metrorail, and WMATA benefitted from her presence
there.
The “course of employment” requirement focuses on “the time, place and
circumstances under which the injury occurred.” Bentt, 979 A.2d at 1234 (quoting
Kolson, 699 A.2d at 361). An injury occurs in the course of employment when “it
takes place within the period of employment, at a place where the employee may
reasonably be expected to be, and while [the employee] is reasonably fulfilling
duties of [the employee’s] employment or doing something reasonably incidental
thereto.” Id. at 1235. Under the “going and coming” rule, injuries occurring off of
11
work premises while traveling to and from work generally do not occur in the course
of employment. Grayson, 516 A.2d at 911. 2
We agree with the CRB that the “going and coming” rule bars Ms. Niles’s
claim for compensation. We first note that, because WMATA was in control of the
platform at the College Park Metro station, it is true “in a technical and artificial
sense” that Ms. Niles was on her employer’s premises when she was injured. 2
Larson & Robinson, supra, § 15.02. But “[i]n a more realistic sense,” because Ms.
Niles was not at the Metro station for any work-related reason, she was riding the
Metrorail as a member “of the public, whether they have free passes or not.” Id.; see
also Lemon v. N.Y.C. Transit Auth., 528 N.E.2d 1205, 1209 (N.Y. 1988) (“[I]n
exercising the right to use the subways, claimant made her own free choice whether
to use the pass for commuting ‘and served [her] own convenience. The company
was indifferent as to the way or means by which [s]he reached the place where the
day’s work began.’”) (citation omitted and alteration in original). Thus, for purposes
of the “going and coming” rule, Ms. Niles’s injury at the College Park Metro station
occurred off of WMATA’s premises. Because Ms. Niles’s injury occurred on her
regular commute to work, during which she was not performing any work duties,
2
Although inapplicable here, we have recognized certain exceptions to the
“going and coming” rule. See, e.g., Kolson, 699 A.2d at 360 (traveling employees);
Grayson, 516 A.2d at 911 n.3 (paid lunches).
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her injury falls squarely within the “going and coming” rule and thus outside the
course of her employment. See Grayson, 516 A.2d at 911.
Ms. Niles argues that, because she was subject to WMATA rules and duties
while she rode the Metrorail, her injury at the College Park Metro station arose in
the course of her employment. Ms. Niles presented evidence at the administrative
hearing showing that when WMATA employees ride the Metro, they are subject to
various obligations, regardless of whether or not they are working. For instance, all
employees are required to maintain a neat appearance, to report accidents and file
written reports, and to report the presence of unauthorized persons on WMATA
property. Ms. Niles argues that while riding the Metrorail, she was “an extra
employee who could assist other riders in the event of emergencies.” But the fact
that Ms. Niles, while riding the Metro, might have been called to action is not enough
to bring her regular commute within the course of employment.
In Foster v. Massey, our predecessor court held that an employee who is “on
call” is not, without more, exempt from the “going and coming” rule. 407 F.2d 343,
346 (D.C. Cir. 1968).3 In Foster, the widow of a bus driver filed a workers’
3
See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[D]ecisions of the
United States Court of Appeals rendered prior to February 1, 1971 . . . constitute the
case law of the District of Columbia.”).
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compensation claim relating to the driver’s car accident and death while commuting
to work. Id. at 344. The decedent was an on-call employee who did not work a
regular schedule, but was guaranteed a minimum weekly wage. Id. at 344–45.
When he was called to duty, his pay started at the time he was scheduled to report to
the station; he was not paid during his commute. Id. at 345. The decedent’s widow
argued that, because the decedent’s guaranteed wage was effectively compensation
for being on call, the accident arose in the course of employment. Id. The court
recognized that, when an employee is paid for their commute to work, “this thin link
is deemed sufficient to bring the trip within the boundary of employment and thus
of accident compensability.” Id. at 346. But in affirming the denial of the widow’s
claim, the court noted that, to show such a link, “the identification of pay with trip
must be specific and certain. It is not enough that before the trip begins workers are
on call . . . or to argue that overall compensation takes account . . . of the
inconvenience of being on call.” Id.; see also Canney v. Strathglass Holdings, LLC,
159 A.3d 330, 334 n.2 (Me. 2017) (“[I]njuries that occurred while an employee was
‘on call’ [are] not necessarily within the course of employment for worker’s
compensation purposes.”); State Accident Ins. Fund Corp. v. Reel, 735 P.2d 364,
368 (Or. 1987) (“As to such [employees] who are continually on call, but off the
premises, off-premises injuries normally are not covered.”); Jake’s Casing Crews,
Inc. v. Grant, 451 P.2d 700, 703 (Okla. 1969) (“The fact that the claimant was
14
subject to call at all hours of the day or night, does not establish that he was in the
line of duty at the time the accident occurred.”); 2 Larson & Robinson, supra,
§ 14.05[6] (“The circumstance that the employee is ‘subject to call’ should not be
given any independent importance in the narrow field of going to and from work.”).
So too here. It is not enough that Ms. Niles was required to comport with
WMATA rules while riding the Metrorail, or that she might have been called to
action under certain circumstances. There was no “specific and certain” evidence
that Ms. Niles was paid specifically to ride the Metrorail. Foster, 407 F.2d at 346.
Although WMATA allowed Ms. Niles to use the Metro system for free, that free
access “was a fringe benefit . . . that could be used by [WMATA] employees as they
wished,” Lemon, 528 N.E.2d at 1209, rather than a “specific and certain” link
between Ms. Niles’s employee wage and her use of the Metro. Without more, the
rules and obligations imposed on Ms. Niles while she rode the Metrorail are not
enough to bring those trips within the boundary of her employment.
Lastly, Ms. Niles argues that her injury occurred in the course of employment
because her use of the Metro conferred two distinct benefits on WMATA: one, the
public’s increased confidence in the Metro in seeing WMATA’s own employees use
public transit; and two, the presence of an extra employee who could potentially
15
assist with Metro operations. The “course of employment” requirement may be
satisfied if an injury occurs in the performance of “an activity of mutual benefit to
employer and employee.” Kolson, 699 A.2d at 360 (citation omitted). But in all
instances, the activity at issue must be “reasonable,” “foreseeable,” and “reasonably
related or incidental” to the claimant’s employment. Id. at 361. Here, we fail to see
how Ms. Niles’s presence at the Metro station sent the public any message, given
the fact that she was not wearing a WMATA uniform or otherwise communicating
her identity as a WMATA employee. When Ms. Niles rode the Metrorail, WMATA
may have indeed benefitted from the presence of an extra employee who could
potentially assist during emergencies. But when Ms. Niles was injured at the
College Park Metro station, she was not performing any activity “reasonably related
or incidental” to her work.
III.
We conclude that the CRB’s determination that Ms. Niles is barred from
compensation followed rationally from its factual findings. Ms. Niles’s injury did
not arise out of or in the course of her employment: The risk that caused Ms. Niles’s
injury was distinctly personal, and the injury, sustained off premises during her
16
regular work commute, is squarely barred from compensation under the “going and
coming” rule. Accordingly, we affirm the order of the CRB.
So ordered.