eNotes: Workers’ Compensation – June 2022 – Washington, DC

SIGNIFICANT CASE SUMMARIES

DC CASE SUMMARY

Latonya Lee v. Washington Metropolitan Area Transit Authority, et al.
DC Court of Appeals
No. 21-AA-0130

Decided: May 26, 2022

An injury occurred in the course of employment while being paid to walk from one work location to another to retrieve her personal vehicle, even when it was parked off premises.

Background

Claimant worked as a bus operator for WMATA. She started her shift when she picked up her bus at WMATA’s Western Garage. After concluding the first half of a split shift, which ended at the Tenleytown station, she exited her bus and began walking to her to retrieve her personal vehicle which was parked several blocks away next to WMATA’s Western Garage. Approximately two blocks into her walk, she slipped and fell sustaining injuries. Pursuant to WMATA’s policy, she was paid for 25 minutes of travel time to compensate her for the trip back to the Western Garage, which is where she picked up her bus at the beginning of her shift. Both the ALJ and CRB denied her claim on the basis that her injuries did not arise out of and in the course of her employment, citing the going and coming rule. The ALJ/CRB determined that Claimant presented sufficient evidence to obtain the benefit of the presumption of compensability, but that WMATA presented sufficient evidence to rebut the presumption when it proved that Claimant was on a break between shifts at the time of the injury, thereby shifting the burden back to the Claimant to show by a preponderance of the evidence that the injury arose out of and in the course of employment. The ALJ determined that: (1) based on her testimony, Lee was returning to the Western Garage to retrieve her personal vehicle; (2) Lee was not required to return to the Western Garage after her first shift ended and she could have gone anywhere; (3) Lee did not engage in any work-related activities on her way to retrieve her personal vehicle; (4) the fact that Lee was wearing her uniform at the time she fell did not bring her injury within the scope of her employment; and (5) “the positional-risk doctrine,” discussed further below, did not apply because WMATA gained no benefit from Lee’s personal errand of retrieving her personal vehicle. Claimant appealed to the DCA.

Holding

The DCA reversed (1) Applying the positional risk test, the injury arose out of the employment because the injuries would not have occurred but for the conditions and obligations of the employment. The DCA disagreed with the CRB that an employee need be engaged in an activity to benefit the employer at the time of the injury. The DCA reasoned that it did not matter whether Claimant was on a paid or unpaid break, because the risk of a fall was not thoroughly disconnected from her work. (2) The injury was in the course of employment because it occurred during a foreseeable activity incidental to her employment. (3) The case is not barred by the going and coming rule as being paid for travel time is an exception to the rule.

Takeaway

The DCA has been expanding the parameters of arising out of and in the course of employment, by utilizing the “but for” analysis of the positional risk test. The common theme seems to indicate that if the activity is foreseeable, the Employer should be liable.

Questions about this case can be directed to Jamie L. DeSisto, at (443) 641-0558 or jdesisto@tthlaw.com.