Durrah v. Washington Metropolitan Area Transit Authority

• Decision Date: 30 April 1985
• Docket Number: No. 84-1218,84-1218
• Citation: 760 F.2d 322
• Parties: Michael L. DURRAH, Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 322

760 F.2d 322

245 U.S.App.D.C. 252

Michael L. DURRAH, Petitioner, v.WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, DirectorOffice of Workers' Compensation Programs, U.S Department of Labor, Respondents.

No. 84-1218.

United States Court of Appeals District of Columbia Circuit.

Argued March 13, 1985.

Decided April 30, 1985.

Timothy F.X. Cleary, Washington, D.C., for petitioner.

John F. Ward, for respondents.Marianne Demetral Smith and Donald S. Shire, Attys., Dept. of Justice, Washington, D.C., entered appearances for respondents.

Before GINSBURG and BORK, Circuit Judges, and OBERDORFER, ^*District Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Michael L. Durrah commenced employment with the Washington Metropolitan Area Transit Authority (WMATA) as a special police officer on July 30, 1979.The accident at issue occurred some three weeks later, on August 22, 1979.Durrah, at the time of the accident, was on duty on the midnight to 8:00 a.m. shift at a large Metrobus depot.That night, for the second time since he began working for WMATA, Durrah was assigned to PostNo. 1, where he was responsible for monitoring all traffic entering or leaving the depot.At approximately 4:00 a.m., Durrah left the guardhouse and purchased a soda from a vending machine WMATA had installed in the employees' lounge on the premises.In alleged contravention of WMATA's instructions, Durrah did not report that he was leaving the guardhouse and obtain a substitute to cover PostNo. 1 in his absence.Upon leaving the lounge to return to PostNo. 1, Durrah slipped on a staircase.He immediately complained of a knee injury and in due course sought benefits under the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. Secs. 901-950(1982 & Supp. I 1983).¹An administrative law judge (ALJ) denied Durrah's claim, Durrah v. WMATA, No. 80-DCWC-224(Sept. 29, 1981)(hereafter "ALJ Decision"), and the Benefits Review Board(BRB) affirmed.Durrah v. WMATA, 16 BEN.REV.BD.SERV.(MB) 333 (BRB May 8, 1984).On Durrah's petition for review, we reverse the BRB's decision and remand the case for further proceedings consistent with this opinion.

Durrah alleges an injury occurring on his employer's premises in the course of his workday.There is no dispute that this injury would be one "arising out of and in the course of employment,"²33 U.S.C. Sec. 902(2), if Durrah had obtained both permission and a substitute to cover PostNo. 1 before going to the employees' lounge.We hold that his fall was securely within the time and space boundaries of his employment.

The lounge and staircase were facilities WMATA expected its employees to use.³Moreover, Durrah's conduct--getting a soft drink--is generally incidental to day- (or night-) long employment.The soda machine Durrah visited was maintained by the employer on the employer's premises.Employee use of the machine was an anticipated occurrence in the course of a workday."Generally, personal comfort activities such as obtaining a cold drink for a meal come within the course of employment."ALJ Decisionat 5.See, e.g., Prater v. Indiana Briquetting Corp., 253 Ind. 83, 251 N.E.2d 810, 813(1969);Jones v. Continental Electric Co., 75 N.J.Super. 76, 182 A.2d 168(1962);see alsoWheatley v. Adler, 407 F.2d 307(D.C.Cir.1968)(en banc).It is not "necessary that the employee be engaged at the time of the injury in activity of benefit to his employer.All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose."O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 507, 71 S.Ct. 470, 472, 95 L.Ed. 483(1951).Accord, e.g., O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 362, 85 S.Ct. 1012, 1014, 13 L.Ed.2d 895(1965)(per curiam);Hensley v. WMATA, 655 F.2d 264(D.C.Cir.1981), cert. denied, 456 U.S. 904, 102 S.Ct. 1749, 72 L.Ed.2d 160(1982); Director, OWCP v. Brandt Airflex Corp., 645 F.2d 1053, 1056(D.C.Cir.1981);Evening Star Newspaper Co. v. Kemp, 533 F.2d 1224(D.C.Cir.1976).In short, had Durrah first secured a replacement, his injury would unquestionably have "take[n] place within the period of the employment, at a place where the employee reasonably may be, and while he[was] engaged in doing something incidental [to the employment]."1 A. LARSON, supra note 3, Sec. 14.00.

The ALJ found, however, that Durrah violated a WMATA rule in taking a soda break: he left his duty station to go to and from the lounge area without requesting permission and without obtaining a substitute to cover PostNo. 1.That finding alone determined the case for the ALJ and the BRB.The ALJ ruled, and the BRB agreed, that "[Durrah's] actions were removed from the course of employment when [he] knowingly violated the employer's rule that officers stationed at PostNo. 1 never leave the post without express permission."Durrah, 16 BEN.REV.BD.SERV.at 334.We explain below why we are unable to accept this peremptory adjudication of Durrah's workers' compensation claim.

Initially, we note the absence of documentary or clear testimonial evidence for the critical finding that Durrah had been forbidden to leave the guardhouse.The statutory presumption of coverage is relevant in this regard.A claim "shall be presumed" to "come[ ] within the provisions of"the Act"in the absence of substantial evidence to the contrary."33 U.S.C. Sec. 920(a).The evidence shows that the bus depot had two guardposts; WMATA personnel testified that the PostNo. 1 guard was to remain at the guardhouse while the PostNo. 2 guard made rounds, which evidently included the employees' lounge.Transcriptat 58-61; 75-76.There is no uncloudy record evidence, however, that Durrah, who had begun working at his new station only the night before, was made aware of this distinction between PostNo. 1andPostNo. 2 duties.

The ALJ based his declaration "that [Durrah] had notice of the prohibition against leaving the guardhouse" principally upon the assertion that "[the] rule was posted inside the guardhouse, was contained in [Durrah's] guard manual and rule book, and was covered by the two week training session in which [Durrah] participated."ALJ Decisionat 4;see alsoDurrah, 16 BEN.REV.BD.SERV.at 334.But the best evidence of the tenor of WMATA's rule was conspicuously missing from the record WMATA made.WMATA never placed in evidence the rule book, guard manual, or guardhouse sign upon which the ALJ and, in turn, the BRB relied.We believe these glaring gaps in WMATA's presentation should have attracted the attention of those assigned to judge Durrah's case.Nor is there any indication, through testimony or otherwise, that the posting, manual, or rule book, unseen by the ALJ and BRB, differentiated between PostNo. 1andPostNo. 2 duties.

The only other evidence suggesting that Durrah had been informed of a rule confining PostNo. 1 guards to the guardhouse ⁴ was testimony that, on a training ride to facilities in Virginia, Maryland, and the District of Columbia a week prior to starting in his new position, Durrah would have discussed and would have had an opportunity to ask questions about his duties.Transcriptat 77.More than references to a written rule never placed in evidence and vague testimony that Durrah had an opportunity to get information bearing on guard responsibilities should be required to overcome the advantage Congress accorded workers by the coverage presumption set out in 33 U.S.C. Sec. 920(a).SeeChampion v. S & M Traylor Brothers, 690 F.2d 285(D.C.Cir.1982);Hensley v. WMATA, 655 F.2d at 267-71;Swinton v. Kelly, 554 F.2d 1075, 1084-85(D.C.Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81(1976).What more the ALJ and BRB perceived we cannot discover in the record.⁵

Our disagreement with the ALJ and BRB, however, goes beyond the cloudy quality of the evidence WMATA presented at the hearing.Even viewing the facts in the light most favorable to WMATA, we do not comprehend how it can be maintained that Durrah's transgression "so thoroughly disconnected [him] from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment."O'Leary, 340 U.S. at 507, 71 S.Ct. at 472(quotingWaters v. William J. Taylor Co., 218 N.Y. 248, 252, 112 N.E. 727, 728(1916));accord, e.g., O'Keeffe, 380 U.S. at 362, 85 S.Ct. at 1014.The asserted violation did not place Durrah in the path of new risks not inherent in his employment situation.Had Durrah followed his employer's alleged instructions to the letter in obtaining permission to take a mid-shift break at the employees' lounge soda machine, his injury would have occurred in the very same place on WMATA's premises, at the same time, and in the same manner.Far from severing the link between employment circumstances and injury, Durrah's deviation did not determine the time or place of his injury, and did not render his activity nonincidental to employment.

The ALJ and BRB cited no authority closely in point in support of their dispositions.⁶WMATA, in its brief to this court, offers as the most analogous cases ones in which guards left the work premises and thus removed themselves, as Durrah did not, from the space boundaries of routine compensation coverage.Lisonbee v. Chicago Mill & Lumber Co., 278 So.2d 5(La.1973);Metropolitan Sand & Gravel Corp. v. Lowe, 22 F.Supp. 65(E.D.N.Y.1938).In sharp contrast, the fateful staircase here came with the territory.⁷It was part of the employment scene for guards who did rounds, for guards assigned to a fixed spot who obtained replacements, and for guards who did not.Fault on Durrah's part there may be, but to deny compensation solely because of misconduct that does nothing to alter the relationship between employment setting and injury would be alien to the workers'...