What are the exceptions to the general rule that an employee’s injuries incurred while commuting to or from work do not arise out of and in the course of their employment?

The CRB's contrary ruling erroneously relied on the "going and coming" rule, providing that injuries sustained commuting to-and-from work are generally not compensable. But this case falls within a well-established exception to that rule where the employee is paid for her travel time, so that "the hazards of the journey may properly be regarded as hazards" of employment. See Voehl v. Indemnity Ins. Co. of North Am., 288 U.S. 162, 169-70 (1933); see also 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 14.06(1) (2021) (collecting cases); Vieira v. District of Columbia Dep't of Emp't Servs., 721 A.2d 579, 583 (D.C. 1998). There are particularly strong reasons to adhere to that view in this case, where Lee's work effectively left her stranded several blocks away from her origin point (and vehicle), so that the hazards of her return to where her shift began are better seen as part of her employment than as part of her commute away from it. We reverse the CRB's decision and remand for further proceedings.

Finally, the CRB erred in its application of the going and coming rule, which provides that "the occurrence of employee injuries sustained off the work premise, while en[]route to or from work," generally are not within the category of injuries "arising in the course of the employment." Grayson, 516 A.2d at 911. This case fits within a well-established exception to the going and coming rule, providing that "[w]hen the employee is paid an identifiable amount as compensation for time spent

15

in a going or coming trip, the trip is within the course of employment." See 2 Larson's Workers' Compensation Law, supra, § 14.06(1); Vieira, 721 A.2d at 583 (finding "no basis to disturb" denial of a claim where "finding that decedent was not paid for travel time has adequate factual support"); see also Commonwealth Edison Co. v. Indus. Comm'n, 428 N.E.2d 165, 166-68 (Ill. 1981) (being paid for travel time is "one of the most reliable ways of making a case for the compensability of a going or coming trip, and is ordinarily sufficient in itself to support such a finding") (collecting cases); Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340, 345-46 (Del. 1993) ("clear majority" of workers' compensation cases "follow the rule that a compensated trip is within the course and scope of employment").

We first ask whether Lee's injuries arose out of her employment. Whether an injury arises out employment "refers to the origin or cause of the injury." Bentt, 979 A.2d at 1232 (citation omitted). "All risks 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." Id. (citation omitted). Injuries arising out of employment-related risks are "universally compensable," those arising out of personal risks are "universally noncompensable," and those arising out of neutral

9

risks are compensable if the obligations of the employment were a but-for cause of the injury. Id. (citation omitted). To illustrate these categories, if Lee were blindsided by another vehicle while driving her route, her injuries would stem from an employment-related risk; if she died a natural death while on the job, that would be the result of a personal risk; and if she were struck by lightning while on the job, the ensuing injuries would flow from a neutral risk. 1 Larson's Workers' Compensation Law, supra, §§ 4.01-4.03; see also Muhammad v. District of Columbia Dep't of Emp't Servs., 34 A.3d 488, 496 n.11 (D.C. 2012) (highlighting dying a natural death and being attacked by one's mortal enemy as examples of injuries stemming from personal risks).

It is enough to resolve this case to conclude that Lee's injuries did not arise from a personal risk, but a risk that was either employment-related or, at the very least, neutral. That is because it cannot be said that Lee's injuries were "thoroughly disconnected from the workplace." Muhammad, 34 A.3d at 496. Her fall was not triggered by some preexisting condition unique to her and unexacerbated by her work; there was no evidence, for example, that Lee suffered from chronic vertigo that precipitated her fall. So it cannot be said that "it is clear that the employment contributed nothing to the episode." Clark v. District of Columbia Dep't of Emp't Servs., 743 A.2d 722, 727 (D.C. 2000) (citation omitted). As for whether the risk

10

was an employment-related or a neutral one, we will assume for purposes of this case that her injuries arose from a neutral risk, which triggers a secondary question under the positional-risk test.

We apply the positional-risk test when an injury results from a neutral risk. This test requires us to "determine whether harm from an injury caused by a neutral risk arises out of one's employment" by asking whether a claimant's injuries "would not have happened but for the fact that conditions and obligations of the employment placed claimant in a position where [s]he was injured." Bentt, 979 A.2d at 1232 (citation omitted). This test provides "a liberal standard," and we have made clear- contrary to the CRB's reasoning-that an employee need not "be engaged at the time of the injury in activity of benefit to the employer." Gaines, 210 A.3d at 771 (citation omitted). We agree with Lee that she satisfies the positional-risk test. Once her first shift ended at the Tenleytown station, Lee was effectively stranded between the Tenleytown station and her point of origin at the Western Garage, thus putting her in "the position where she was injured" walking back to her car. Bentt, 979 A.2d at 1230. That renders her injuries compensable under the positional-risk test.

In order to be entitled to workers' compensation, the injury or death must arise out of and in the course of the worker's employment. Kolson, supra, 699 A.2d at 359 (citing Grayson, supra, 516 A.2d at 911). The general rule, often referred to as the "going and coming" rule, is that injuries sustained away from the employer's premises, en route to or from work, do not occur in the course of employment. Id. (citing Grayson, supra, 516 A.2d at 911 (referencing 1 LARSON,

[721 A.2d 583]

THE LAW OF WORKMEN'S COMPENSATION, § 15.00)). Here, there is no question that the decedent sustained the injuries from which he died away from the Suitland Parkway job site. Therefore, the question is whether the claim falls within any exception to the "going and coming" rule.

One such exception, recognized in most jurisdictions, relates to the traveling employee "for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace." Kolson, supra, 699 A.2d at 360 (quoting Boyce v. Potter, 642 A.2d 1342, 1343 (Me. 1994)). In Kolson, the claimant, an interstate bus driver, sought workers' compensation benefits for injuries sustained when he was assaulted at 4:30 a.m. while walking to a hotel, arranged through his employer, because the bus driver was too tired to travel back to his home in Maryland after a twelve-hour shift. Id. at 358. The Director of DOES affirmed the hearing examiner's decision, rejecting the claimant's argument for application of the traveling employee exception. Id. at 358-59. The examiner had concluded that the rule did not apply because the bus operator had completed his travel and was free to go home. Id. at 358. Notwithstanding our decision in Grayson, supra, we reversed and remanded, concluding that "when a traveling employee is injured while engaging in a reasonable and foreseeable activity that is reasonably related to or incidental to his or her employment, the injury arises in the course of employment." Id. at 361. We held that the bus driver's injuries resulted from a foreseeable risk of his employment which required traveling away from home for long and odd hours. Id. Therefore, "the injury he received while walking from the terminal to register at a nearby hotel at 4:30 a.m., with a `chit' provided by his employer, arose in the course of and out of his employment."² Id. at 362.

There are circumstances where the journey itself has been recognized to be a part of the service rendered by the employee for the benefit of the employer. See, e.g., O'Reilly v. Roberto Homes, Inc., 31 N.J.Super. 387, 107 A.2d 9 (1954) (compensation awarded for fatal injury sustained while construction worker was returning home after performing a thirty minute job of filling oil heaters to keep plaster from freezing); Kyle v. Greene High School, 208 Iowa 1037, 226 N.W. 71 (1929) (compensation awarded for fatal injury of janitor en route to school after usual work hours in response to request to turn on lights for basketball game); see also 1 LARSON, LARSON'S WORKMEN'S COMPENSATION § 16.11 (1998) Professor Larson describes the special errand rule, recognized in some jurisdictions, as follows:

When an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

Id. (footnote omitted).

The WCA provides that workers' compensation is an employee's exclusive remedy against the employer for injuries "arising out of" and "in the course of" the employment. D.C.Code § 32-1501(12). The District of Columbia has adopted the "going and coming" rule. As explained by the District of Columbia Court of Appeals in Kolson v. Department of Employment Services, 699 A.2d 357, 359 (D.C.1997), "[t]he general rule [is] that the occurrence of employee injuries sustained off the work premise, while enroute to or from work, do not fall within the category of injuries in the course of employment." Id. at 359 (quoting 1 LARSON, THE LAW OF WORKMEN'S COMPENSATION § 15.00) (internal quotation marks omitted). The District of Columbia recognizes an exception to this rule for the "traveling employee," see, e.g., id. at 360, and it is the scope of this exception that is at issue here.

In Kolson, relied upon by Parsons as the "leading case" on this issue, Br. of Appellees at 12, the D.C. Court of Appeals explained that "[t]raveling employees are employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace." Kolson, 699 A.2d at 360 (emphasis added). Kolson was an interstate bus driver who sought coverage for injuries sustained when he was assaulted at 4:30 a.m. while walking to a hotel, arranged through his employer, because the bus driver was too tired to travel back to his home after a twelve-hour shift. Id. at 358. The court held that "when a traveling employee is injured while engaging in a reasonable and foreseeable activity that is reasonably related to or incidental to his or her employment, the injury arises in the course of employment." Id. at 361. Because the bus driver's injuries resulted from a foreseeable risk of his employment, which required traveling away from home for long and odd hours, id., the court held that the injury rose in the course of and out of his employment. Id. at 362.

Although Parsons takes refuge in the "foreseeable activity" language of Kolson, it ignores the court's emphasis on the nexus between the travel, the work, and the injury that must exist if workers' compensation is to be obtained. Id. at 360-62. The terms of the Assignment Agreement did not indicate that Mr. Khan needed to "travel to different locations" to perform his accounting duties; rather, he was to travel to a single location, PGSL's office in Manila, in order to take a new job as a Project Finance Administration Manager and thereafter enjoy a sedentary existence. Once in Manila, he commuted from home (temporarily, a hotel) to a single workplace. Even assuming that PGSL has more than one office location in Manila, there is nothing to indicate that travel formed an "integral part" of Mr. Khan's job. Parsons has never contested Mr. Khan's declaration to that effect. Thus, his injuries had nothing to do with fulfilling his responsibilities to PGSL as an accountant, much less with "travel away from [his] employer's premises" as that phrase is used in cases applying the traveling employee exception. See, e.g., Kolson, 699 A.2d at 362; Vieira v. D.C. Dep't of Employment Servs., 721 A.2d 579, 583 (D.C.1998). The other examples of a traveling employee discussed in Kolson, 699 A.2d at 362, similarly indicate that the traveling employee exception would not extend to an employee hired to relocate for a lengthy period to a different city. As the Khans contend, were the rule otherwise, workers' compensation would cover all of the Mr. Khan's activities in Manila regardless of the work connectedness required by Kolson.

Even assuming for purposes of argument the merit of Parsons' theory that workers' compensation reaches injuries incurred by employees who are on "travel status" by virtue of having to relocate their permanent residence to accept a new job, coverage under that theory would not reach Mr. Khan's injuries. The Assignment Agreement limited Mr. Khan's relocation travel time from Kuala Lumpur to Manila to two days, and he was kidnapped several days after his arrival, on his day off, when PGSL's offices were closed. It

Page 1086

is irrelevant that he was living temporarily at a hotel when he was kidnapped; the Assignment Agreement included payment of a housing allowance, so PGSL would be subsidizing his housing no matter where he lived for the term of his employment. That he ate in a restaurant on his day off does not render him a traveling employee either; many non-traveling employees eat in restaurants on their days off. Parsons can cite to no authority, from within the District of Columbia or without, that an employee is converted into a traveling employee who is entitled to coverage under a state's workers' compensation statute simply because he is at the start of a new job at a fixed, out-of-state location.

The District of Columbia's interpretation of the traveling employee exception as a narrow exception to the going and coming rule is buttressed by decisions from other jurisdictions. For example, New York courts have not applied the traveling employee exception to bring employees in Mr. Khan's position within the reach of its workers' compensation statute. The New York workers' compensation statute does not apply to employees who are "employed to work at a fixed place or places outside the state," as opposed to employees called upon to perform "transitory work" outside of the state. Cameron v. Ellis Constr. Co., 252 N.Y. 394, 169 N.E. 622, 624 (1930). The New York Court of Appeals explained that this result would obtain even if the claimant were hired in New York; in other words, a New York contract that creates a fixed-state employment outside of New York does not confer upon the employee the status of being a "traveling employee" from New York and hence such an employee is not covered by the state's workers' compensation law. Id.; see also Spomer v. Westron Corp., 35 A.D.2d 621, 312 N.Y.S.2d 730 (N.Y.App.Div.1970); Root v. Workmen's Comp. Appeal Bd., 161 Pa.Cmwlth. 291, 636 A.2d 1263 (1994). These holdings accord with the views of the authors of the leading treatise on workers' compensation that when "regular employment becomes centralized and fixed so clearly in another state that any return to the original state would itself only be casual, incidental and temporary by comparison," then the employee ceases to be considered to be "traveler" from the original state. 9 LARSON'S § 143.04[2][d] (citing cases); cf. Lewis v. Knappen Tippetts Abbett Eng'g Co., 279 A.D. 1107, 112 N.Y.S.2d 79 (N.Y.App.Div.), aff'd 304 N.Y. 461, 108 N.E.2d 609 (1952). Like the employees in Cameron, Spomer, and Root, and unlike the employee in Lewis, Mr. Khan's employment was from the outset of the employment contract "fixed" and "centralized" in Manila, and neither the Khans nor Parsons have claimed any ongoing work-related contacts with Washington, D.C., where PGSL is located. Cf. Hartham v. George A. Fuller Co., 89 A.D.2d 720, 453 N.Y.S.2d 843 (N.Y.App.Div.1982). Although most of these cases rest their holdings on the territorial limitations of the state workers' compensation statute in question, the cases cited reflect the fact that the traveling employee exception cannot be used to bypass the jurisdictional limits of state workers' compensation laws. Once an employee lies outside a statute's territorial limits, which Parsons concedes Mr. Khan does, Br. of Appellees at 44, the traveling employee exception does not bring that employee back into the realm of the statute's coverage.

The traveling employee exception has been recognized by most jurisdictions in this country:

Employees whose work entails travel away from the employer's premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.

2 LARSON, supra, § 25.00 (1997) (footnote omitted).

Traveling employees are employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace. Traveling employees' travel is deemed a work-related risk.... They differ from ordinary commuters, and are exposed, by virtue of their employment, to risks greater than those encountered by the traveling public.

With respect to whether an activity is related to or incidental to employment in traveling employee cases, the Supreme Court of Minnesota has determined that "reasonable activities are those which may normally be expected of a traveling employee as opposed to those which are clearly unanticipated, unforseeable and extraordinary." Voight, supra, 306 N.W.2d at 138 (citations omitted).² Various jurisdictions have held the following injuries to traveling employees to be compensable because they arose in the course of employment and were reasonably expected: (1) head injury to a laborer occurring during a return trip from dinner after out of town demolition work, where the employee was hit in the head with a piece of wood by another employee, Appeal of Griffin, supra, 671 A.2d at 544; (2) injuries caused by a slip and fall in Toronto, Canada when a "transcribertypist" from New York was getting into the bathtub early in the morning to take a shower before returning to New York, Capizzi, supra, 471 N.Y.S.2d at 556, 459 N.E.2d at 849; (3) death due to an accidental fall from a hotel window of a truck driver who registered at hotel after transporting a shipment of eggs from Nebraska to Georgia, Southern Motor Lines Co., supra, 104 S.E.2d at 738-39; (4) death from suffocation when a traveling salesman's head was caught between two metal slats of a bed in the rooming house where he stayed while on a trip to another city in Arizona to sell feed, Peterson v. Indus. Comm'n, 16 Ariz.App. 41, 490 P.2d 870, 873 (1971); (5) death in an automobile collision while union official was returning to a motel after a night of socializing while on an official out of town business trip, District 141, Intern. Ass'n v. Industrial Comm'n, 79 Ill.2d 544, 39 Ill.Dec. 196, 202, 404 N.E.2d 787, 793 (1980); (6) ankle injury to a bus driver when he crossed the street to go to a restaurant for lunch after being relieved by another driver during his city/suburban bus route, Port Auth. of Allegheny County, supra, 452 A.2d at 904. These cases reveal that the traditional meaning of "arising in the course of the employment" generally is not followed in traveling employee cases, and a traveling employee may be compensated for an injury even though it took place off the work premises while the employee was going to or coming from work.

We conclude that, notwithstanding our decision in Grayson, supra, when a traveling employee is injured while engaging in a reasonable and foreseeable activity that is reasonably related to or incidental to his or her employment, the injury arises in the course of employment.³ His injury also grew out of his employment because it resulted from a risk created by his employment — his arrival at odd hours in places away from his home and the necessity of using the public streets to seek lodging. Here, Mr. Kolson, a Greyhound bus driver who lived in Columbia,

[699 A.2d 362]

Maryland, arrived in the District from an out of town assignment at 4 a.m. He was too tired to drive to his home in Maryland and requested a hotel "chit" from his employer. The employer agreed, but asked Mr. Kolson to drive a bus to a nearby terminal before going to the hotel. Mr. Kolson complied with the request and, upon his return to the Greyhound terminal, was given a "chit" for the Hotel Harrington. Since the hotel was located only about six blocks from the then existing Greyhound terminal, it was reasonable and foreseeable that Mr. Kolson would walk to the hotel from the terminal, and that at 4:30 a.m., there might be some unusual risks along the way. Thus, given the circumstances of Mr. Kolson's interstate employment, the time of his arrival in the District, the location of his home in Maryland, and his need for local lodging, his walk to the hotel was related to or incidental to his employment. Consequently, the injury he received while walking from the terminal to register at a nearby hotel at 4:30 a.m., with a "chit" provided by his employer, arose in the course of and out of his employment.

In order to receive workers' compensation, an injury must both arise out of the employment and occur within the course of the employment. See D.C.Code §§ 36-301(12), —303 (1981); 1 Larson, The Law of Workmen's Compensation § 6.10 (1984); see also Monahan v. Hoage, 67 U.S.App. D.C. 174, 90 F.2d 419, 420 (1937). Generally, both requirements must be met before an injured employee can be compensated.²

The Director of DOES found that Grayson's injury occurred in the course of her employment, despite the general rule that the occurrence of employee 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." See 1 Larson, supra, § 15.00. In reaching this conclusion, the Director adopted the paid lunch exception to the "coming or going" rule. Id. at § 15.52.³

3. [C]ontinuance of an employee's wages during the lunch period is sufficient to bring activities during the lunch period within the "paid lunch exception. . . . [C]ontinuance of wages is an incident of services to an employer and serves the employer's interest."

In analyzing the "arising out of employment" requirement the Director applied a standard akin to the positional-risk standard detailed in Larson's treatise, supra, § 6.50. The director noted as follows:

For an employee's injury to have arisen out of the employment the obligations or conditions of employment must have exposed the employee to the risks or dangers connected with the injury.

Order at 7.⁴

The positional-risk standard as set forth by Larson and the Director's slightly varied standard are both similar to a "but for test." "An injury arises out of the employment if it would not have occurred but for the fact that conditions and obligations of the employment placed claimant in a position where he was injured." 1 Larson, supra, § 6.50 (emphasis in original). A growing number of courts have adopted the positional-risk standard;⁵ however, it is but one of five standards used by different jurisdictions to interpret the phrase "arising

Page 912

in the course of employment."⁶ See Larson, supra, §§ 6.00, 6.10.

The standard used by the Director in this case is a liberal one and furthers the purpose of workers' compensation, which is to provide financial and medical benefits to employees injured in work-related accidents. See Matter of District of Columbia Workmen's Compensation Act, 180 U.S.App.D.C. 216, 554 F.2d 1075, 1084 (1976). The standard minimizes, if not eliminates the concept of fault in worker compensation claims.

Fault has nothing to do with whether or not compensation is payable. The economic impact on an injured workman and his family, is the same whether the injury was caused by the employer's fault or otherwise.

Whetro v. Awkerman, supra, 383 Mich. 235, 242, 174 N.W.2d 783, 785 (1970) (adopting the positional-risk standard similar to that used by the Director in our case). It also accords with the general policy that workers' compensation statutes should be liberally construed. See Wheatley v. Adler, supra, 132 U.S.App.D.C. at 183-84, 407 F.2d at 313-14; Baltimore & Philadelphia Steamboat Co. v. Norton, 284 U.S. 408, 414, 52 S.Ct. 187, 189, 76 L.Ed. 366 (1932). "This court must, of course give great weight to any reasonable construction of a regulatory statute adopted by the administrative agency charged with its enforcement." Gomillion v. District of Columbia Department of Employment Services, 447 A.2d 449, 451 (D.C. 1982). Although Grayson challenges the standard used by DOES, she fails to articulate why it is unreasonable.⁷ Since we perceive no unreasonableness in DOES' use of its chosen standard, it was not error for the Director to apply it to this case. The Director applied the standard to the Hearing Examiner's findings of fact and concluded that Grayson's injuries did not arise out of her employment. The Director observed that Grayson's lunch breaks were completely unsupervised and she was free to go anywhere or do anything she wanted during them. Also, WMATA did not require or encourage Grayson to purchase lunch elsewhere or use her car as WMATA provided an eating area for its employees at the garage with tables, benches and vending machines. Since Grayson was free to do anything she wanted on her lunch break, the Director concluded that

in no sense then can it be said that the conditions of claimant's employment as a busdriver exposed her . . . to the dangers

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attendant the personal use of her automobile during her lunch break.

Order at 8.

The Director also rejected the Hearing Examiner's conclusion that the lunch break created a "condition of special strain" by its short length and the fact that Grayson was required to relieve another bus operator at its end. The Director wrote:

I am unaware of any employment whereby employees are not required to return from lunch within certain time limits, often with the expectation that their return will relieve other employees. I am also familiar with many kinds of jobs which impose a half-hour lunch break time limit. The fact that claimant's lunch break might have been twenty minutes rather than one-half hour does not present a situation where Claimant is under special strain since she knew the extent of the period of her lunch break days in advance and since such lunch breaks were regularly scheduled.

Order at 8-9. The Director noted that the special strain exception only applied when the stresses of the day were unusual, unexpected or particularly burdensome, see Larson, supra, § 15.52, but did not ordinarily apply in situations such as the present one, "[w]here the time constraints under which an employee must operate are known well in advance and regularly scheduled and where such limits are common to many of the employer's other employees."

We hold therefore that the Director's decision is rationally related to the findings of fact. See Kenmore Joint Venture v. District of Columbia Board of Zoning Adjustment, 391 A.2d 269, 276 (D.C. 1978) ("We may not substitute our own judgment so long as there is a rational basis for the . . . [agency's] decision.")⁸

Affirmed.