University Employee’s Trek Off Campus finds Coverage under ‘Positional Risk’ Test

Washington, DC (WorkersCompensation.com) -- Generally speaking, the going and coming rule bars compensation when an employee's injury is sustained off the worker premises, while en route to or from work.

However, as Rieger v. District of Columbia Department of Employment Services, 2024 WL 2857510 (D.C. 06/06/24), showed, the going and coming rules gets tricky when an employee shows up on site and leaves the premises to get to their precise work location, which happened to a Howard University employee who walked off campus and bumped into a jogger while trying to get from one building to another at the school.

A midwife and faculty member at a university was dropped off for work but then realized that she need to go to a different building. To get that building, she walked off of university property because it was not possible to stay on campus and walk to that location.

As she was walking, the midwife collided with a jogger, which caused a textbook to hit the midwife in the face, resulting in the midwife falling to the sidewalk and landing on her lower back and hip. She was diagnosed with a concussion, whiplash, and nausea before being diagnosed with post-concussion syndrome. Eventually, she was cleared for work with restrictions.

The university and its insurer introduced evidence tending to support a conclusion that the midwife was actually dropped off outside of university property and had not yet set foot on university property when she was injured.

The administrative law judge concluded that the midwife's injury arose out of and during the course of her employment.

Addressing whether the workers' compensation statute covers an injury that occurs when an employee arrives on the employer's premises for work, leaves the employer's premises to travel to another part of the employer's premises, and is injured during that travel outside the employer's premises, the ALJ explained that:

(1) It was reasonable and foreseeable that the midwife would be dropped off for work at a location on the university's premises that was away from street traffic and was near an employee parking lot.

(2) The midwife was injured while walking on a public sidewalk that was her means of getting from where she was dropped off to the medical-arts building.

(3) The midwife had a work-related reason for being on the sidewalk where she was injured.

(4) The midwife presence on the sidewalk where she was injured was “reasonably incidental” to her trip between two portions of the university's premises.

(5) The midwife would not have been injured but for the obligations of her employment.

The CRB reversed, determining that the ALJ's reasoning would apply only if it was strictly necessary for the midwife to travel over premises not owned by the university. The CRB reasoned that the midwife could have been dropped off directly in front of the building she walked to but made a "purely personal" choice to be dropped off elsewhere on campus.

The midwife appealed the CRB's ruling to court.

Citing Bentt v. D.C. Department of Employment Services, 979 A.2d 1226 (D.C. 2009), the court explained that to determine whether harm from an injury caused by a neutral risk arises out of one's employment requires application of the "positional-risk" test. Under the positional-risk test, an injury arises out of employment so long as it would not have happened but for the fact that conditions and obligations of the employment placed the claimant in a position where the claimant was injured.

The court disagreed with the CRB's conclusion that the injury did not arise out of the midwife's employment. The court explained that the midwife's reason for being dropped off at the first location was to pick up a document, which "was clearly related to her work."

"We think it clear that the risk that [the midwife] might be injured while walking from the drop-off point on hospital premises to the medical-arts building was not 'purely personal' and was at minimum a neutral risk," the court wrote.

The court reasoned that applying this standard made sense in the midwife's case because:

+ The midwife had arrived on her employer's premises for her workday in a reasonable location away from street traffic.

+ The midwife had a specific work-related reason for being dropped off at that particular location.

+ The midwife took a reasonably direct path to the other building.

"Thus, the obligations of her employment placed her on the corner [where the collision occurred], and those obligations were a but-for cause of [the midwife's] injury," the court explained.

The court also found that the midwife's injuries happened during the course of her employment because she was in a location that the university would reasonably have expected her to be.

"We conclude that [the midwife] was injured during 'a reasonable and foreseeable activity that [was] reasonably related to or incidental to ... her employment,'" the court explained.

Thus, it reversed the CRB's decision and remanded the case for further proceedings.

Workers' Comp 101: In reaching its decision, the court looked to other cases for guidance on the analyses of positional risks, "arising out of," and "in the course of." Here are those cases and what they stand for:

Clark v. D.C. Department of Employment Services, 743 A.2d 722 (D.C. 2000). The positional risk test “is a liberal standard which obviates any requirement of employer fault or of a causal relationship between the nature of the employment and the risk of injury. Nor need the employee be engaged at the time of the injury in activity of benefit to the employer.”

Vieira v. D.C. Department of Employment Services, 721 A.2d 579 (D.C. 1998).  Injuries that occur outside the precise hours of employment may in certain circumstances be deemed to have occurred in the course of employment, if they occur during “a reasonable and foreseeable activity that is reasonably related to or incidental to [the] employment or [that] resulted from a risk created by [the] employment.”

United Parcel Service v. D.C. Department of Employment Services, 297 A.3d 1085 (D.C. 2023). Risks are purely personal when they are “thoroughly disconnected from the workplace,” so that it is “clear that the employment contributed nothing to the episode.”

Carter v. M.V. Construction Corporation, 422 A.2d 44 (Md. 1980). "One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of [the] employer's premises, whether going and coming, or pursuing ... active duties.”

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