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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-AA-0560
UNITED PARCEL SERVICE, et al., PETITIONERS,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,
and
WALTER BROGDON, INTERVENOR.
On Petition for Review of an Order of the Compensation Review Board (2020-AHD-000569)
(Argued October 27, 2022 Decided July 20, 2023)
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. 2
DEAHL, Associate 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.
I.
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 hour-
long 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
1 UPS does not dispute on appeal that Brogdon was using his paid break at the time of the accident. 3
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). 4
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 5
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.
II.
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. 6
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) (outlining the burden-shifting framework for such claims). 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 7
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.
A.
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 8
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 we turn to next.
B.
Whether an injury arises out of one’s employment “refer[s] to the origin or
cause of the injury.” Bentt, 979 A.2d at 1232 (alteration in original) (citation
omitted). “[A]ll risks causing injury to a claimant can be brought within three
categories: risks distinctly associated with the employment, risks personal to the 9
claimant, and ‘neutral’ risks—i.e., risks having no particular employment or
personal character.” Id. (alteration in original) (citation omitted). Injuries arising
out of employment-related risks are universally compensable. That encompasses
those risks closely tethered to an employee’s job duties; if a stack of packages
toppled over on Brogdon when loading or unloading his truck, for instance, any
resulting injury would clearly stem from an employment-related risk. See Lee, 275
A.3d at 313. Injuries stemming from personal risks—risks particular to the claimant
independent of their work—are universally noncompensable. Id. They include risks
like dying a natural death or being wounded by one’s mortal enemy while on the job.
Id.
Then there are so-called neutral risks, which are neither distinctly associated
with the employment nor personal to the employee. Id. For instance, if Brogdon
had been hit by a stray bullet or gored by a wild animal while on his route, those
risks would be neither closely tethered to his employment nor personal to him. See
Georgetown Univ., 971 A.2d at 916 (citing what is now 1 Larson’s §§ 3.05, 8.03).
For neutral risks, we have adopted the “positional-risk” test to determine whether an
injury arises out of one’s employment. Bentt, 979 A.2d at 1230. Under that test, we
consider whether the “conditions and obligations of employment placed claimant in
the position where she was injured.” Id. (citation omitted). 10
Here, the relevant risk was Brogdon crashing his electric scooter rental en
route to lunch. That risk is not employment-related, because traveling for lunch was
not closely tethered to the requirements of Brogdon’s job. Whether the risk was
purely personal to Brogdon is a closer call, but we conclude that it was not. Because
Brogdon’s transient work placed him in a position where one might expect him to
travel for lunch, even if it was not strictly necessary, the injury was not “thoroughly
disconnected from the workplace,” Muhammad v. D.C. Dep’t of Emp. Servs., 34
A.3d 488, 496 (D.C. 2012), and it is not “clear that the employment contributed
nothing to the episode,” Clark v. D.C. Dep’t of Emp. Servs., 743 A.2d 722, 727 (D.C.
2000) (citation omitted), so that we cannot deem it a purely personal risk.
We therefore consider Brogdon’s injury as arising from a neutral risk, and
assess its compensability under the positional-risk test. 2 As noted, this test asks
whether the employee’s injuries “would not have happened but for the fact that
conditions and obligations of the employment placed [them] in a position where
[they were] injured.” Bentt, 979 A.2d at 1230 (citation omitted). Employees need
2 In Grayson, both the agency and this court similarly applied the positional- risk test, though our opinion does not illuminate the predicate question of whether Grayson’s injuries stemmed from a neutral risk (this court’s precedents had not yet articulated that concept). See 516 A.2d at 911-12; see also Clark v. D.C. Dep’t of Emp. Servs., 743 A.2d 722, 727 (D.C. 2000) (endorsing this conceptual framework for the first time, citing to Larson, supra). 11
not show that their work required them to be “in the particular place at the particular
time” of the injury, as “many workplace injuries occur in circumstances in which the
employer did not dictate the precise location of the employee at the precise time of
the injury.” Gaines, 210 A.3d at 773 (break-time injury covered when employee fell
on WMATA escalator at the Metro station where she was assigned to work). But
the positional-risk test still requires a showing that the conditions or obligations of
employment generally placed the employee in the position in which the injury
occurred. See Niles v. D.C. Dep’t of Emp. Servs., 217 A.3d 1098, 1102 (D.C. 2019)
(employee “at least” had to establish that her employment placed her in the Metro
station where she was injured on the day of the injury).
Here, we agree with the ALJ and dissenting CRB member when they each
concluded that Brogdon’s decisions to rent an electric scooter and travel a
considerable distance for lunch rendered his injuries so attenuated from his work that
they cannot be said to have arisen from his employment. Brogdon’s employment
did not put him in a position where he had little choice but to make his scooter trek.
See, e.g., Lee, 275 A.3d at 310 (“Lee’s work [as a bus driver] 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.”).
Brogdon’s trip more closely resembles a personal errand given that he had a 12
particular lunch spot that he had made prior plans to eat at, and traveling there took
him afield from his route. Brogdon brought the risk upon himself; it did not just
happen to befall him while in a position caused by his employment. The CRB’s
contrary view cannot be squared with Grayson.
Recall that in Grayson, a WMATA bus driver was taking her personal vehicle
offsite for lunch. 516 A.2d at 910. She was hit by another vehicle while pulling out
of her parking space, and her resulting injuries were deemed noncompensable
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
instead “provided an eating area for its employees at the garage with tables, benches
and vending machines.” Id. at 912. In short, the agency reasoned that the conditions
of Grayson’s employment as a bus driver did not expose her to the dangers
associated with driving her personal vehicle offsite for lunch. Id. at 912-13. This
court affirmed. Id. at 913.
In attempting to distinguish Grayson, the CRB observed that Brogdon did not
have “use of a standard lunch area” provided by his employer and “cannot be
expected to eat inside the work truck each day.” That might be a persuasive 13
distinction if Brogdon had simply parked his truck near, and walked up to, a lunch
spot or park bench along his route. Proximate pit stops like that would seem closely
tied to, and virtually required by, the transient nature of Brogdon’s work. 3 But the
distinction is not a meaningful one here, as the record does not suggest that Brogdon
lacked other options more immediately upon his route where he might get lunch or
find a table to sit at. To the contrary, Brogdon’s testimony made clear that he could
have stopped at a nearby convenience store like a “7-Eleven,” but he did not want to
do that because he “kind of hate[s] going to 7-Eleven” and had done it “too many
times.” While it is quite understandable that Brogdon did not want a convenience-
store lunch, Grayson cannot be distinguished on that basis, where it was equally
understandable that the claimant preferred to eat offsite rather than from the vending
machines available onsite. The CRB’s failure to meaningfully distinguish Grayson
renders its decision capricious. See New York Cross Harbor R.R. v. Surface Transp.
Bd., 374 F.3d 1177, 1181 (D.C. Cir. 2004) (“An agency acts arbitrarily and
3 For this reason, we do not agree with the CRB’s dissenting member that if Brogdon had simply “walk[ed] to lunch” at any “location off the worksite,” any injuries he suffered would be noncompensable. For an itinerant employee like Brogdon who has no physical worksite, immediately proximate pit stops where one might seek food, water, a bathroom break, or rest should essentially be seen as an extension of one’s workspace (the equivalent of an employee break room or restroom). It was Brogdon’s decision to travel to an out-of-the-way restaurant, prompting him to rent a scooter because of how far it was, that severed the connection to his employment and rendered his injuries noncompensable. 14
capriciously if . . . it has not persuasively distinguished” precedent) (citation
omitted).
For essentially the same reasons, the CRB’s appeal to the personal comfort
doctrine does not support its conclusion. This court has never expressly endorsed
the personal comfort doctrine, but (1) it has broad acceptance in other jurisdictions,
see 2 Larson’s § 21, (2) the CRB has applied it in multiple cases, and (3) no litigant
before us disputes its application in the District. We therefore assume, without
deciding, that it applies. 4 The doctrine renders injuries compensable when an
employee, “within the time and space limits of their employment, engage[s] in acts
4 The CRB invoked the personal comfort doctrine in assessing the “arising out of” prong of its analysis. In jurisdictions that have adopted the doctrine, there is a split of authority as to whether it pertains to that prong of the analysis at all, or if instead it operates only to bring an activity “within the course” of one’s employment. Compare In re Compensation of Watt, 505 P.3d 1021, 1024-25 (Or. Ct. App. 2022) (discussing conflicting views and concluding that “arising out of” prong is not independently satisfied by personal comfort doctrine), and Circuit City Stores, Inc. v. Ill. Workers’ Comp. Comm’n, 909 N.E.2d 983, 990 (Ill. App. Ct. 2009) (“[T]he personal comfort doctrine does not answer the whole question of compensability because it addresses only the ‘in the course of’ requirement; the ‘arising out of’ requirement must be met independently.”), with Cadmus Mags. v. Williams, 515 S.E.2d 797, 798 (Va. Ct. App. 1999) (“[A]n injury sustained by an employee while engaged in the performance of an act essential to his personal comfort . . . is compensable as ‘arising out of’ and ‘in the course of’ the employment.”) (quoting Bradshaw v. Aronovitch, 196 S.E. 684, 686 (Va. 1938)). We do not resolve that issue here, and instead assume the doctrine applies to the “arising out of” prong of the analysis. 15
which minister to personal comfort.” Id. Short breaks for eating, drinking, using
the restroom, or smoking are prototypical scenarios to which the doctrine applies.
But the doctrine does not apply where one’s “departure” from their work “is so great
that an intent to abandon the job temporarily may be inferred.” Id. Here, Brogdon’s
decisions to travel to a bagel shop that was a fairly substantial distance away from
his truck, and to do so via electric scooter, fit that mold so as to bring his activity
outside the personal comfort doctrine’s contours. See supra note 3.
In summary, Brogdon’s trek to a bagel shop was not so connected to his
employment that one can reasonably say it arose out of his employment. He was
traveling there because he had plans to meet a friend, and Brogdon “wanted to try
[the bagel shop] out” since it had dietary options friendly to pescatarians, like
himself. He chose to travel there via scooter precisely because his choice of
restaurant was so far away from his truck that traveling there and back by foot would
have taken too long. Those decisions reflect personal choices that are sufficiently
attenuated from Brodgon’s work as to bring his injuries outside the scope of his
employment. Just as in Grayson, Brogdon’s “lunch breaks were completely
unsupervised,” and employees were “free to go anywhere or do anything [they]
wanted during them,” 516 A.2d at 912, with the only caveat being that Brogdon had
to stay within a mile of his route. And unlike Grayson, who had only a 20-minute 16
lunchbreak that obviously restricted her lunch options, Brogdon had a 70-minute
break here, so that his decisions about how to spend that time were more obviously
attenuated from (and less dictated by) the conditions of his employment than in
Grayson. 2 Larson’s § 13.05[4] (citing cases concluding that break-time injuries
were compensable when employers allowed workers to leave the premises but only
one particular store was reachable during the break time allotted).
Brogdon counters with Kolson, in which a Greyhound bus driver was attacked
as he walked to a hotel that his employer had provided for the evening, and we held
his injuries both arose out of and occurred within the course of his employment. 699
A.2d at 361. But the conditions of employment in Kolson were far more closely
connected to the injury than they are here. Kolson’s injuries “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.” Id. In addition, Kolson
was walking from a Greyhound terminal to the very hotel that Greyhound directed
he check into in the pre-dawn hours. Id. at 358. Kolson would be more on point if,
rather than making his way to nearby and employer-dictated lodging, the claimant
was injured en route to a more distant hotel that he had chosen based on his personal
interest in trying it out. Our reasons for concluding that Kolson’s injury arose from 17
his employment simply would not apply to those facts, and they similarly do not
apply to the facts before us now.
We have declined to find injuries compensable when they arose out of risks
more closely connected to the conditions of employment than those we confront
here. In Bentt, for example, a doctor received nerve-blocking injections to alleviate
pain from a non-work-related injury on the recommendation of her supervisor, but
the injections led to ulcerous skin that required surgery. 979 A.2d at 1229. The
supervisor himself administered the injections, on hospital grounds, after the
claimant’s colleagues noticed her limping on the job. Id. Still, we held the injury
did not “arise out of” employment because “the conditions of Bentt’s employment
did not expose Bentt to the dangers of a maladministered injection.” Id. at 1233. In
another case, we held that an attack of acute ventricular tachycardia, which an
employee contended was “precipitated by the interaction of employment-induced
stress with his pre-existing cardiac condition,” did not arise out of employment.
McKinley v. D.C. Dep’t of Emp. Servs., 696 A.2d 1377, 1378 (D.C. 1997). Or
consider Niles, a case in which a WMATA employee was injured at a metro station
on her way to work; we held that the obligations of her employment and WMATA’s
encouragement to its employees to ride the Metro did not satisfy the positional-risk
test. 217 A.3d at 1102-03. 18
Under the positional-risk test, the conditions and obligations of Brogdon’s
employment did not put him in the situation where his injury occurred. The CRB’s
contrary conclusion is at odds with our precedents and cannot be sustained.
III.
The CRB’s judgment is reversed, and we remand for further proceedings
consistent with this opinion.
So ordered.