Kolson v. DEPT. OF EMPLOYMENT SERVICES, 95-AA-197.

• Decision Date: 07 August 1997
• Docket Number: No. 95-AA-197.,95-AA-197.
• Citation: 699 A.2d 357
• Parties: Michael KOLSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Transportation Leasing, Inc., Intervenor.
• Court: D.C. Court of Appeals

699 A.2d 357

Michael KOLSON, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent, and Transportation Leasing, Inc., Intervenor.

No. 95-AA-197.

District of Columbia Court of Appeals.

Submitted May 22, 1997.

Decided August 7, 1997.

Wayne M. Mansulla, Washington, DC, was on the brief for petitioner.

Charles F.C. Ruff, Corporation Counsel at the time the statement was filed, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondent.

Stephen P. Zachary, Washington, DC, was on the brief for intervenor.

Before WAGNER, Chief Judge, REID, Associate Judge, and KERN, Senior Judge.

REID, Associate Judge.

On June 20, 1987, Petitioner Michael Kolson sustained injuries as a result of an assault which he claims arose out of and in the course of his employment as a bus driver for Greyhound Lines, Inc. A hearing examiner for the Department of Employment Services ("DOES" or "agency") denied his claim for temporary total disability under the District of Columbia Workers' Compensation Act of 1979, D.C.Code §§ 36-301 et. seq. (1993) ("WCA"), on the ground that Mr. Kolson did not sustain an injury which arose in the course of his employment. We reverse and remand for further proceedings consistent with this opinion.

FACTUAL SUMMARY

After finishing a twelve hour driving shift, Mr. Kolson pulled into the Greyhound bus terminal located in Washington, D.C., around 4:00 a.m. He informed the dispatcher that he needed a hotel lodging slip called a "chit"¹ because he was too tired to drive to his home in Columbia, Maryland. The dispatcher requested that Mr. Kolson first transport a bus to another nearby garage and then return to the terminal to pick up the hotel "chit" slip. At approximately 4:30 a.m., after running the errand as requested, Mr. Kolson left the Greyhound terminal with his "chit" slip and headed to the Harrington Hotel. While walking to the hotel, Mr. Kolson was struck from behind with a pipe by an unidentified assailant. The assailant was scared off by a bystander who came to Mr. Kolson's rescue. As a result of the attack, he was taken by ambulance to a hospital and treated for his injuries. Due to physical injuries and post-traumatic stress, Mr. Kolson was not able to return to work until October 8, 1987. He was unable to resume his position as a bus driver and became a welder for Greyhound.

Mr. Kolson filed a claim for benefits under the WCA, seeking an award for temporary total disability under the Act, from June 20, 1987 to October 8, 1987. A full evidentiary hearing was held by the agency on January 21, 1988. The sole issue addressed was "whether claimant's injury arose out of and in the course of his employment." No witnesses were called to testify at the hearing and the parties stipulated to the facts.

The DOES hearing examiner issued a Compensation Order on February 18, 1988, denying Mr. Kolson's claim for disability benefits because his injury did not arise in the course of his employment. The hearing examiner stated:

When claimant checked in his bus, reported to the dispatcher, left employer's premises and was walking toward employer-provided accommodations, he was outside the course of his employment. Claimant had completed the performance of his duties as a bus operator and was free to go home.

The hearing examiner rejected Mr. Kolson's argument that he "is a traveling employee and therefore receives protection because his injury had its origin in a risk created by sleeping away from home." As the hearing examiner explained:

even assuming, ... arguendo, that claimant is a traveling employee, this categorization is to no avail to claimant since I find that claimant had completed any travel when he checked out from employer's terminal.

The hearing examiner did not consider Mr. Kolson's arguments that "the nature of his employment forced him to arrive in the District at an odd hour and that employer's premises were located in an area where alleged criminal activity is present," because "they speak to the `arising out of' test for compensation and the hearing examiner determined that claimant's injury did not satisfy the `in the course of' test of compensability."

Mr. Kolson filed an application for review of the Compensation Order on March 18, 1988. The DOES Director affirmed the Compensation Order on January 26, 1995. Mr. Kolson asserts in this appeal that the Director erred in denying his application for benefits.

ANALYSIS

Mr. Kolson contends that his injury arose out of and in the course of his employment. Thus, he claims that the Director's decision affirming the Compensation Order denying him benefits was incorrect as a matter of law. The hearing examiner found that "when claimant checked in his bus, reported to the dispatcher, left employer's premises and was walking toward employer-provided accommodations, he was outside the course of his employment." Mr. Kolson "submits that the facts of this case except him from the `going and coming' rule" due to his status as a traveling employee.

The hearing examiner rejected the invitation to apply the traveling employee exception, despite Mr. Kolson's argument that (1) his job required him to travel interstate, (2) he had just completed a twelve hour day, and (3) he was walking to employer-paid hotel accommodations at the time of his attack. Instead, the examiner found that "claimant had completed the performance of his duties as a bus operator and was free to go home" at the time he sustained injury, and thus concluded that Mr. Kolson had "completed any travel when he checked out from the employer's terminal." Consequently, the traveling employee rule did not apply. While other jurisdictions have awarded disability benefits to workers injured during employment travel, this court has yet to address this issue. We now conclude that the hearing examiner should have applied the traveling employee exception in Mr. Kolson's case.

We have stated previously that "there is a presumption in the WCA that a `claim comes within the provisions of the WCA.' This sound presumption, designed to effectuate the humanitarian purposes of the statute, reflects a `strong legislative policy favoring awards in arguable cases.'" Ferreira v. District of Columbia Department of Employment Servs., 531 A.2d 651, 655 (D.C.1987); see also D.C.Code § 36-321(1). Thus, "in considering Mr. Kolson's argument that the agency decision is not supported by reliable, probative, substantial evidence in the record, see D.C.Code §§ 1-1509(e), -1510(a)(3)(E) (1992 Repl.), we begin with the premise that the agency's decision `is presumed to be correct, so that the burden of demonstrating error is on the appellant or petitioner who challenges the decision.'" Robinson v. Smith, 683 A.2d 481, 487 (D.C. 1996) (quoting Cohen v. Rental Housing Comm'n, 496 A.2d 603, 605 (D.C.1985)).

"In order to receive workers' compensation, an injury must both arise out of and occur within the course of the employment." Grayson v. Department of Employment Services, 516 A.2d 909, 911 (D.C.1986) (citations omitted). The "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. (referencing 1 LARSON, The Law of Workmen's Compensation § 15.00). This rule is often referred to as the "going and coming" rule.

In concluding that the "claimant's injury did not arise in the course of his employment," and thus it was unnecessary to consider whether Mr. Kolson's injury arose out of his employment, the hearing examiner narrowly interpreted the phrase "arising in the course of the employment" and made a sharp distinction between that phrase and the words "arising out of the employment." As we have stated previously,

We recognize ... that ordinarily we must defer to an agency's interpretation of the governing statute, as well as its own regulations. That interpretation is entitled to controlling weight unless it conflicts with the statute ..., is inconsistent with the regulation ..., or otherwise is contrary to established legal doctrine....

Gunty v. Department of Employment Services, 524 A.2d 1192, 1196 (D.C.1987) (citations omitted). We conclude that, as applied to Mr. Kolson, the agency's interpretation of its governing statute is contrary to established legal doctrine.

Although the concepts "arising in the course of the employment" and "arising out of the employment" have distinct meanings, "the two are not totally independent; frequently proof of one will incidentally tend to establish the other." Sentara Leigh Hosp. v. Nichols, 13 Va.App. 630, 414 S.E.2d 426, 428 (1992). Indeed, other jurisdictions have construed these concepts liberally in traveling employee cases. See Voight v. Rettinger Transportation, Inc., 306 N.W.2d 133, 136 (Minn.1981).

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.

Boyce v. Potter, 642 A.2d 1342, 1343 (Me. 1994) (citations omitted). As the Court of Appeals...