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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-AA-1403
LEMAKIA GAINES, 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-106-17)
(Argued January 17, 2019 Decided June 27, 2019)
Bruce M. Bender, with whom Justin M. Reiner and Michael J. Foley were
on the brief, for petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Loren L.
AliKhan, Solicitor General, and Stacy L. Anderson, Acting Deputy Solicitor
General at the time the statement was filed, filed a statement in lieu of brief.
Mark H. Dho, with whom Sarah O. Rollman was on the brief, for intervenor.
Before THOMPSON, BECKWITH, and MCLEESE, Associate Judges.
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MCLEESE, Associate Judge: Petitioner Lemakia Gaines challenges an order
of the Compensation Review Board (CRB) denying her claim for workers’
compensation benefits. We vacate the order.
I.
After an evidentiary hearing, an Administrative Law Judge (ALJ) found the
following facts, which appear to be undisputed. On February 3, 2016, Ms. Gaines
was scheduled to work a “swing shift” as a rail-station manager for intervenor
Washington Metropolitan Area Transit Authority (WMATA). Her first shift was
at the Dupont Circle station and ended at 4:15 p.m. Her second shift was at the
Farragut North station and was scheduled to begin at 6:20 p.m. The period
between the two shifts was an unpaid break. After finishing her first shift, Ms.
Gaines rode the Metrorail one stop to the Farragut North station. Ms. Gaines was
in uniform, and she was required to assist customers while traveling in the
Metrorail system, whether or not she was on duty or on a break.
Ms. Gaines planned to take her break and eat lunch in the employee-only
auxiliary room at the Farragut North station before starting her next shift.
WMATA permits employees to use such rooms as break or lunch rooms. Break
3
rooms are accessible only with a master key issued to station managers and
employees.
After Ms. Gaines arrived at the Farragut North station, she took the escalator
up to the street to get a soda from a nearby store. Around 4:40 p.m., on her way
back down the escalator, she slipped and fell down several steps. Ms. Gaines felt
immediate pain in her neck, back, left shoulder, and left arm, and was bleeding on
her left leg. She was diagnosed with contusions, abrasions, and strains to the left
shoulder, left arm, lumbar spine, thoracic spine, and neck. Ms. Gaines was placed
off of work and remained off of work in the following months due to continuing
pain. Ms. Gaines filed a workers’ compensation claim for medical expenses and
disability benefits.
The ALJ granted Ms. Gaines’s claim. WMATA sought review by the CRB,
which reversed and directed that Ms. Gaines’s claim be denied. According to the
CRB, Ms. Gaines’s claim did not “arise out of” Ms. Gaines’s employment, as
required by D.C. Code § 32-1501(12) (2019 Repl.), because the injury occurred
while Ms. Gaines was on a lengthy break between shifts.
4
II.
We review a decision of the CRB to determine whether the decision is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Reyes v. District of Columbia Dep’t of Emp’t Servs., 48 A.3d 159, 164 (D.C.
2012) (internal quotation marks omitted). We defer to the CRB’s reasonable
interpretation of statutes that the CRB is charged with administering. Howard
Univ. Hosp. v. District of Columbia Dep’t of Emp’t Servs., 200 A.3d 1244, 1248
(D.C. 2019). Workers’ compensation statutes “are remedial in character and are
generally construed liberally in favor of claimants.” Marsden v. District of
Columbia, 142 A.3d 525, 529 (D.C. 2016); see also, e.g., Kolson v. District of
Columbia Dep’t of Emp’t Servs., 699 A.2d 357, 359 (D.C. 1997) (noting “strong
legislative policy favoring awards in arguable cases”) (internal quotation marks
omitted).
A.
To be compensable under the Workers’ Compensation Act, an injury must
“aris[e] out of and in the course of employment.” D.C. Code § 32-1501(12). “The
requirement that an injury arise out of employment refers to the origin or cause of
5
the injury.” Bentt v. District of Columbia Dep’t of Emp’t Servs., 979 A.2d 1226,
1232 (D.C. 2009) (brackets and internal quotation marks omitted).
[R]isks causing injury to a claimant can be brought
within three categories: risks distinctly associated with
the employment, risks personal to the claimant, and
“neutral” risks[ -- ]i.e., risks having no particular
employment or personal character. Harms from the first
are universally compensable. Those from the second are
universally noncompensable. To determine whether
harm from an injury caused by a neutral risk arises out of
one’s employment, this court has adopted the positional-
risk test. 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 [or she] was injured.
Id. (citations and internal quotation marks omitted). The positional-risk test “is a
‘liberal’ standard which obviates any requirement of employer fault or of a causal
relationship between the nature of the employment and the risk of injury. Nor need
the employee be engaged at the time of the injury in activity of benefit to the
employer.” Clark v. District of Columbia Dep’t of Emp’t Servs., 743 A.2d 722,
727 (D.C. 2000) (citations omitted).
We determine whether an injury arose “in the course of” employment on the
basis of “the time, place[,] and circumstances under which the injury occurred.”
Bentt, 979 A.2d at 1234 (internal quotation marks omitted). “[A]n accident occurs
‘in the course of employment’ when it takes place within the period of
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employment, at a place where the employee may reasonably be expected to be, and
while he or she is reasonably fulfilling duties of his or her employment or doing
something reasonably incidental thereto.” Id. (internal quotation marks omitted).
Injuries that occur outside the precise hours of employment may in certain
circumstances be deemed to have occurred in the course of employment, if they
occur during “a reasonable and foreseeable activity that is reasonably related to or
incidental to [the] employment or [that] resulted from a risk created by [the]
employment.” Vieira v. District of Columbia Dep’t of Emp’t Servs., 721 A.2d 579,
583 (D.C. 1998) (internal quotation marks omitted).
Although “arising out” of employment and “arising in the course of”
employment are distinct concepts, “the two are not totally independent; frequently
proof of one will incidentally tend to establish the other.” Kolson, 699 A.2d at 360
(internal quotation marks omitted). Moreover, “when it is established that an
injury or death occurs in the ‘course of employment,’ that fact strengthens the
presumption that it ‘arises out of the employment,[’] and any doubts as to that fact
should be resolved in the claimant’s favor.” Clark, 743 A.2d at 728 (brackets and
internal quotation marks omitted). 1
1
The CRB has adopted the so-called “quantum” approach, under which a
weaker showing as to one of these concepts can be counterbalanced by a stronger
(continued . . . )
7
B.
We first note two antecedent issues, one factual and one legal. The factual
issue is whether Ms. Gaines was on duty or off duty at the time of the injury. It
was undisputed that Ms. Gaines was on an unpaid break between her two shifts.
Relying on employment records among other things, however, Ms. Gaines
contended that she was on duty during the break. WMATA introduced testimony
that Ms. Gaines was off duty. The ALJ did not make a finding on that disputed
issue. The CRB, however, stated that Ms. Gaines was off duty. We doubt that the
CRB was permitted to make its own finding in the first instance on this disputed
factual issue. Cf., e.g., Poole v. District of Columbia Dep’t of Emp’t Servs., 77
A.3d 460, 469 n.12 (D.C. 2013) (“Just as the court is required to defer to the ALJ’s
factual finding[s], so must the CRB. The CRB may not consider the evidence de
novo and make factual findings different from those of the ALJ.”) (brackets,
citation, and internal quotation marks omitted). We need not address that issue,
( . . . continued)
showing as to the other. See, e.g., Hicks, CRB No. 07-050, 2007 WL 1439320, at
*3 (D.C. Comp. Review Bd. Apr. 25, 2007). Ms. Gaines argues that the CRB
erred in this case by failing to apply that approach. Because we conclude that Ms.
Gaines has established that her injury arose both out of her employment and during
the course of her employment, we need not address that argument.
8
however, because it does not affect our disposition. Even if we assume that Ms.
Gaines was off duty at the time of the injury, we conclude that the injury was
compensable.
The legal issue is whether Ms. Gaines’s injury arose from a risk that was
distinctly associated with her employment, was personal to Ms. Gaines, or was
neutral. The ALJ concluded that the risk at issue was neutral. The CRB did not
expressly decide that issue but appears to have at least assumed arguendo that the
risk was neutral. In this court, Ms. Gaines argues that the risk was neutral, whereas
WMATA contends that the risk was personal to Ms. Gaines. We have no
difficulty concluding that the risk of injury in this case was at least neutral. We
have treated risks as personal when they are “thoroughly disconnected from the
workplace.” Muhammad v. District of Columbia Dep’t of Emp’t Servs., 34 A.3d
488, 496 & n.11 (D.C. 2012) (internal quotation marks omitted) (giving example
of dying a natural death); see also, e.g., Clark, 743 A.2d at 727 (risk is personal
“when it is clear that the employment contributed nothing to the episode”) (internal
quotation marks omitted). Ms. Gaines’s injury was certainly not “thoroughly
disconnected from the workplace.” The injury occurred in the workplace, as a
result of a fall while Ms. Gaines was riding on a WMATA escalator on her way
into the station where she was scheduled to work. Ms. Gaines submitted evidence
9
that it had been raining heavily and that the escalator was wet. Although the ALJ
did not make an explicit finding on that point, the ALJ did find generally that Ms.
Gaines’s testimony was credible. Moreover, WMATA does not appear to contest
that workplace conditions contributed to Ms. Gaines’s fall. This case therefore
does not present the question whether compensation is available for injuries arising
from falls “resulting from some disease or infirmity that is strictly personal to the
employee and unrelated to his [or her] employment.” Georgetown Univ. v. District
of Columbia Dep’t of Emp’t Servs., 971 A.2d 909, 913 n.1 (D.C. 2009) (internal
quotation marks omitted) (leaving that question open).
Because Ms. Gaines was injured as a result of a risk that was at a minimum
neutral, her injury arose “out of employment” if the injury “would not have
happened but for the fact that conditions and obligations of the employment placed
[her] in a position where [she] was injured.” Bentt, 979 A.2d at 1232 (internal
quotation marks omitted). Assuming that Ms. Gaines was not on duty at the time
of the injury, the injury nevertheless arose “in the course of employment” if it
occurred during “a reasonable and foreseeable activity that is reasonably related to
or incidental to [the] employment or resulted from a risk created by [the]
employment.” Vieira, 721 A.2d at 583 (internal quotation marks omitted). We
conclude that both of these standards are met.
10
Ms. Gaines’s injury would not have happened but for the fact that her job
required her to go to the Farragut North station in order to work a shift there. It is
true, as WMATA emphasizes, that WMATA did not require Ms. Gaines to arrive
early. Nor did WMATA require Ms. Gaines to use the escalator rather than some
other means of entering the station. In those senses, WMATA did not require Ms.
Gaines to be “in the particular place at the particular time” of the injury.
Georgetown Univ., 971 A.2d at 916 (internal quotation marks omitted). This court,
however, has not understood the concept of “arising out of employment” so
narrowly. See, e.g., Kolson, 699 A.2d at 361 (where employee whose job requires
travel “is injured while engaging in a reasonable and foreseeable activity that is
reasonably related to or incidental to his or her employment,” injury arises out of
employment and is compensable). Moreover, so 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. We therefore conclude that, barring countervailing
considerations not present in this case, injuries that occur at the workplace as a
result of a neutral risk arise out of the employment.
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For similar reasons, we conclude that Ms. Gaines’s injury arose in the course
of her employment. The injury occurred on a WMATA escalator at the station
where Ms. Gaines was assigned to work, while Ms. Gaines was heading to a
WMATA-provided break room designated for the exclusive use of WMATA
employees, during a scheduled break of approximately two hours between Ms.
Gaines’s shifts for the day. It seems to us apparent that Ms. Gaines’s use of the
break room during this period was reasonable and reasonably foreseeable. We also
conclude that Ms. Gaines’s plan to use the break room during the break was
“reasonably related to or incidental to [the] employment.” Vieira, 721 A.2d at 583
(internal quotation marks omitted).
These conclusions are consistent with the general rule that injuries that occur
at the workplace when an employee is coming to or going from work are ordinarily
compensable. See, e.g., Wright, ECAB No. 88-40, 1991 DC Wrk. Comp. LEXIS
1, at *8-9 (D.C. Comp. Review Bd. Sept. 13, 1991) (“[I]njuries which occur on the
employer’s premises while coming and going to work are compensable . . . .”); 2
Lex K. Larson, Larson’s Workers’ Compensation Law § 13.01, at 13-3 (2018) (in
general, injury “going to and from work is covered only on the employer’s
premises”) (emphasis omitted). More broadly, these conclusions are consistent
with the general rule that injuries that occur at the workplace -- whether before the
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start of the day’s work, after the end of the day’s work, or during a break in the
middle of the day’s work -- are ordinarily compensable even though they are
“technically outside the regular hours of employment in the sense that the worker
receives no pay for that time and is in no degree under the control of the employer,
being free to go where he or she pleases.” Id. at § 21.02[1][a], at 21-3. As
Larson’s treatise explains, the rationale of this rule is that
the time, although strictly outside the fixed working
hours, is closely contiguous to them; the activity to which
that time is devoted is related to the employment,
whether it takes the form of going or coming, preparing
for work, or ministering to personal necessities such as
food and rest; and, above all, the employee is within the
spatial limits of his or her employment.
Id. at 21-4.
We are not persuaded by the contrary reasoning of the CRB and WMATA.
First, WMATA and the CRB emphasize the duration of Ms. Gaines’s break. In
essence, they reason, Ms. Gaines arrived to work at Farragut North station nearly
two hours early, and WMATA should not be responsible for her injury in those
circumstances. We disagree. No doubt cases might arise in which an employee
came to work so early or stayed so late that the employee’s presence at the
workplace would be neither reasonable nor reasonably foreseeable. We see no
basis in this case, however, for a conclusion that Ms. Gaines’s conduct was either
13
unreasonable or not reasonably foreseeable to WMATA. We therefore conclude
that Ms. Gaines’s injury cannot reasonably be excluded from coverage based on
the length of Ms. Gaines’s scheduled break. We note that courts have found
injuries in comparable circumstances to be compensable under workers’
compensation statutes. See, e.g., Noble v. Indus. Comm’n, 932 P.2d 804, 808-09
(Ariz. Ct. App. 1996) (injury occurred while employee was resting and having
refreshments in break room fifteen minutes after his shift ended; employee’s
presence in break room was reasonable); Curry v. D.A.L.L. Anointed, Inc., 966
N.E.2d 91, 95-96 (Ind. Ct. App. 2012) (dismissing civil action by employee
because claim fell within exclusive coverage of workers’ compensation statute;
employee was injured while finishing meal after having arrived at work one hour
and fifteen minutes early); Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494,
496 & n.1 (Tenn. 1992) (employee was injured in designated break room
approximately one hour before the start of work, where employer acquiesced in
pre-work use of break room; employee’s use of break room was not “so unusual or
unreasonable as to not be considered an incident of her employment”) (collecting
cases); see generally 2 Larson’s Workers’ Compensation Law § 21.06[1][a], at 21-
23 (“The course of employment, for employees having a fixed time and place of
work, embraces a reasonable interval before and after official working hours while
the employee is on the premises engaged in preparatory or incidental acts.”),
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§ 21.01[1][a], at 21-3 (“Injuries occurring on the premises during a regular lunch
hour arise in the course of employment . . . .”) (emphasis omitted).
Second, WMATA and the CRB rely heavily on the CRB’s prior decision in
Brody, CRB No. 16-008, 2016 WL 3870155 (D.C. Comp. Review Bd. June 14,
2016). In that case, Ms. Brody was a WMATA station manager. Id. at *1. She
was scheduled to work two shifts, both at the Metro Center station. Id. Her first
shift ended at 10 a.m. and her second shift began at 1 p.m. Id. During her break,
she traveled on Metro to the Columbia Heights station to have lunch. Id. After
leaving the station to get lunch, she tripped and fell while reentering the Columbia
Heights station. Id. The CRB held that Ms. Brody’s injury was not compensable.
Id. at *2-4. Critical to the CRB’s analysis, however, was that Ms. Brody’s
workplace was the Metro Center station, and Ms. Brody had no employment-
related reason to be at the Columbia Heights station. Id. at *2, *4. We express no
view about whether Brody was correctly decided. It suffices for current purposes
that Brody is critically different from the present case, in that Ms. Gaines’s injury
occurred at Farragut North station, which was her specific duty station, and Ms.
Gaines thus had an employment-related reason for going to that station.
15
We recognize that we must defer to reasonable conclusions of the CRB. We
conclude, however, that the only reasonable conclusion on this record and under
our law is that Ms. Gaines’s injury is compensable.
For the foregoing reasons, we vacate the decision of the CRB and remand
the case for further proceedings.
So ordered.