United Parcel Serv. v. Dist. of Columbia Dep't of Emp't Servs.
| Docket Number | 21-AA-0560 |
| Decision Date | 20 July 2023 |
| Parties | United Parcel Service, et al., Petitioners, v. District of Columbia Department of Employment Services, Respondent, and Walter Brogdon, Intervenor. |
| Court | D.C. Court of Appeals |
Argued October 27, 2022
On Petition for Review of an Order of the Compensation Review Board (2020-AHD-000569)
Todd E. Saucedo for petitioners.
Karl A. Racine, Attorney General for the District of Columbia at the time of argument, Caroline S. Van Zile, Solicitor General, and Carl J. Schifferle, Deputy Solicitor General filed a statement in lieu of brief for respondent.
Matthew R. Harkins, with whom William J. Inman was on the brief, for intervenor.
Before BLACKBURNE-RIGSBY, Chief Judge, DEAHL, Associate Judge, and FISHER, Senior Judge.
Walter Brogdon, a package delivery driver for United Parcel Service parked his delivery truck intent on taking his lunch break. He had planned to meet a friend at a bagel shop about half a mile away from where he parked, and he rented an electric moped-style scooter to make his way there. He crashed and injured his leg en route. A divided panel of the Compensation Review Board found that his injury arose out of and in the course of his employment and awarded him disability benefits. Because we conclude that our precedents compel a different result, we reverse.
On the day of the incident, Brogdon and his friend planned on spending their lunch break at Bullfrog Bagels near Eastern Market in the Capitol Hill neighborhood. UPS gave its delivery drivers a ten-minute paid break and an hourlong unpaid lunch break, requiring that they stay within a one-mile radius of their delivery route. Brogdon stacked his breaks together-the ten minutes immediately followed by his lunch break-so that he was using his paid time when he was injured, shortly after leaving his truck.[1] Due to road closures, Brogdon could not park near the bagel shop, so he decided to rent a scooter and ride there. Brogdon estimated it was about half a mile away.
Brogdon had never ridden an electric scooter before, and he used one that was parked on the street and available for short-term rentals via a phone app. He traveled a few blocks without incident, but as he approached an intersection, he saw that the driver in a car beside him "was trying to make the light real fast." That "kind of scared" Brogdon, who "slammed on the brakes and then just wrecked the scooter." Brogdon broke his left leg-a tibial plateau fracture-which required time away from work, two surgeries for treatment, and steroid injections for pain relief.
Brogdon filed a workers' compensation claim seeking medical expenses and disability benefits for his five-month recovery period. UPS and its insurer, Liberty Mutual, contested his claim, arguing that Brogdon's injury was not compensable because it did not arise out of his employment as it was not "reasonably incidental" to his work. An Administrative Law Judge agreed and denied the claim after a hearing. The ALJ concluded that "the renting and riding of a scooter to lunch was not a foreseeable activity" so that Brogdon's injuries did not arise from an employment-related risk, but a personal risk (concepts discussed further below).
Brogdon appealed to the Compensation Review Board (CRB). The CRB reversed the ALJ's order, reasoning that Brogdon's scooter ride to lunch fell within the "personal comfort doctrine," providing (as the CRB described it) that employees who "engage in acts which minister to personal comfort do not thereby leave the course of employment." The CRB noted that scooters have become pervasive in the District, so that their use was not so unforeseeable as to bring it outside the course of Brogdon's employment.
In its order, the CRB distinguished Grayson v. D.C. Department of Employment Services, 516 A.2d 909 (D.C. 1986), a case that similarly involved a lunch-break vehicular accident. In that case, a WMATA bus driver was attempting to take her personal vehicle out on her paid lunch break when, as she pulled out of her parking space, another vehicle crashed into hers. Id. at 910-11. She was denied compensation because (1) her "lunch breaks were completely unsupervised and she was free to go anywhere or do anything she wanted during them," and (2) her employer "did not require or encourage Grayson to purchase lunch elsewhere or use her car . . . [and] provided an eating area for its employees . . . with tables, benches and vending machines." Id. at 912. This court affirmed that ruling. Id. at 910. The CRB distinguished Grayson on the basis that a package delivery driver like Brogdon does not have a standard employer-provided lunch area and "cannot be expected to eat inside the work truck each day." The nature of Brogdon's itinerant work "exposes him to greater risks," the CRB reasoned, and while the risks of accidents from lunch-related travel "may be considered personal in other more sedentary employment scenarios, the substantial evidence of record in this case supports that [Brogdon's] use of the scooter was akin to seeking rest." Essentially, the CRB concluded that Grayson was not controlling because Brogdon was a traveling employee without a fixed break area that had onsite lunch options.
One member of the CRB panel dissented, concluding that Grayson controlled the analysis. The dissent reasoned that the risk of lunchtime accidents "appears to me to be completely personal" and that the risks Grayson and Brogdon took would have been personal even "if neither Grayson nor [Brogdon] had elected to use a conveyance but had merely been injured while walking to lunch to a location off the worksite, in this case, away from the delivery truck." UPS and Liberty Mutual now petition this court for review.
We review CRB decisions to determine whether they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Gaines v. D.C. Dep't of Emp. Servs., 210 A.3d 767, 770 (D.C. 2019) (citation omitted); D.C. Code § 2-510. We will affirm the agency's rulings so long as they are supported by substantial evidence, meaning "(1) the agency made findings of fact on each contested material factual issue, (2) substantial evidence supports each finding, and (3) the agency's conclusions of law flow rationally from its findings of fact." Bentt v. D.C. Dep't of Emp. Servs., 979 A.2d 1226, 1231 (D.C. 2009) (quoting Georgetown Univ. v. D.C. Dep't of Emp. Servs., 971 A.2d 909, 915 (D.C. 2009)). Although we defer to an agency's reasonable interpretation of the statutes it administers, "the ultimate responsibility for deciding questions of law is assigned to this court." Id. (citation omitted).
A worker who suffers an accidental injury "arising out of and in the course of employment" is generally entitled to workers' compensation benefits. D.C. Code § 32-1501(12); see Wash. Post v. D.C. Dep't of Emp. Servs., 852 A.2d 909, 910-11 (D.C. 2004) (). The "arising out of" and "in the course of employment" components are "distinct concepts," and both must be established. Lee v. D.C. Dep't of Emp. Servs., 275 A.3d 307, 312 (D.C. 2022) (quoting Gaines, 210 A.3d at 771). The "arising out of" test concerns the origin or cause of the injury, whereas "in the course of" refers to the "time, place and circumstances under which the injury occurred." Kolson v. D.C. Dep't of Emp. Servs., 699 A.2d 357, 361 (D.C. 1997) (citation omitted). Both prongs are designed to probe the same central question: whether the injury was sufficiently connected to work to be covered.
Before delving into those requirements, though, it is worth acknowledging that workers' compensation is not based on employee fault. Generally speaking, an employee's negligence is no obstacle to receiving benefits. "Fault has nothing to do with whether or not compensation is payable." Grayson, 516 A.2d at 912 (citation omitted); see also 1 Arthur Larson &Lex K. Larson, Larson's Workers' Compensation Law § 1.03 (2022) (hereinafter "Larson's") (negligence and fault do not ordinarily affect the right to compensation benefits). Thus, the issue before us is not whether Brogdon was careless for choosing to ride a scooter, but whether his scooter ride arose out of and in the course of his employment for UPS. With that background in hand, we turn to the two prongs of the inquiry.
We begin with the "in the course of employment" prong of our inquiry. "[A]n accident occurs 'in the course of employment' when it takes place within the period of the employment, at a place where the employee may reasonably be expected to be, and while he or she is fulfilling duties of his or her employment or doing something reasonably incidental thereto." Kolson, 699 A.2d at 361 (citation omitted). The baseline rule is that injuries that happen on an employee's commute to or from work, or while on a break during the work day, are not within the course of their employment. Courts have recognized a number of exceptions to this "going or coming" default rule, however, including when the employee is paid for their commuting or break time.
Under this "well-established exception to the going and coming rule," when employees are paid for their travel or break time, "the trip is within the course of employment." Lee, 275 A.3d at 315 (citation omitted); see also Grayson, 516 A.2d at 911 &n.3 (recognizing "paid lunch exception to the 'coming or going' rule"). Here, where UPS does not contest that Brogdon's injury occurred during a paid break, the paid time exception suffices to bring Brogdon's activity within the course of his employment. UPS thus understandably focuses its challenges on the "arising out of" prong of the analysis, which...
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