Durrah v. Washington Metropolitan Area Transit Authority

Decision Date30 April 1985
Docket NumberNo. 84-1218,84-1218
Citation760 F.2d 322
PartiesMichael L. DURRAH, Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Director, Office of Workers' Compensation Programs, U.S. Department of Labor, Respondents.
CourtU.S. Court of Appeals — District of Columbia Circuit

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 Post No. 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 Post No. 1 in his absence. Upon leaving the lounge to return to Post No. 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 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," 2 33 U.S.C. Sec. 902(2), if Durrah had obtained both permission and a substitute to cover Post No. 1 before going to the employees' lounge. We hold that his fall was securely within the time and space boundaries of his employment.

                (1982 & Supp. I 1983). 1   An 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

The lounge and staircase were facilities WMATA expected its employees to use. 3 Moreover, 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 Decision at 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 also Wheatley 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 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 Post No. 1 guard was to remain at the guardhouse while the Post No. 2 guard made rounds, which evidently included the employees' lounge. Transcript at 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 Post No. 1 and Post No. 2 duties.

                from the lounge area without requesting permission and without obtaining a substitute to cover Post No. 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 Post No. 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

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 Decision at 4; see also Durrah, 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 Post No. 1 and Post No. 2 duties.

The only other evidence suggesting that Durrah had been informed of a rule confining Post No. 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. Transcript at 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). See Champion 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 ALJ and BRB cited no authority closely in point in support of their dispositions. 6 WMATA, 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. 7 It 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' compensation scheme. 8 Whatever discipline Durrah's alleged rule violation may have warranted, it distorts workers' compensation precedent, and the basis in law and reason for that precedent, to describe his staircase slip as outside the risk

                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 (quoting Waters 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

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