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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 18-AA-479

                            DEANNE NILES, PETITIONER,

                                         v.

                           DISTRICT OF COLUMBIA
              DEPARTMENT OF EMPLOYMENT SERVICES, RESPONDENT,

                                         and

                        WASHINGTON METROPOLITAN AREA
                        TRANSIT AUTHORITY, INTERVENOR.


                     On Petition for Review of an Order of the
            District of Columbia Department of Employment Services
                           Compensation Review Board
                                   (CRB-32-18)


(Submitted February 22, 2019                            Decided October 10, 2019)

       David M. Snyder, with whom Kevin H. Stillman, was on the brief, for
petitioner.

       Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General, Loren L. Alikhan, Solicitor General, and Caroline S. Van
Zile, Deputy Solicitor General, filed a statement in lieu of a brief, for respondent.

      Sarah O. Rollman for intervenor.
                                         2

      Before BLACKBURNE-RIGSBY, Chief Judge, and FISHER and EASTERLY,*
Associate Judges.

      BLACKBURNE-RIGSBY, Chief Judge: On a rainy morning, petitioner Deanne

Niles was walking across the College Park Metro station platform on her way to

work when she slipped and fell. Alleging injuries to her ankle, shoulder, and knee,

Ms. Niles, an administrative assistant for intervenor Washington Metropolitan Area

Transit Authority (“WMATA”), filed a claim for benefits under the District of

Columbia Workers’ Compensation Act (the “Act”). 1 An Administrative Law Judge

(“ALJ”) denied the claim after concluding that her injuries were noncompensable,

citing the well-established proposition that injuries sustained while commuting to

and from work fall outside the Act’s coverage. See Grayson v. District of Columbia

Dep’t of Emp’t Servs., 516 A.2d 909, 911 (D.C. 1986). The Compensation Review

Board (“CRB”) of the District of Columbia Department of Employment Services

affirmed. Now on petition for review, Ms. Niles argues that, because WMATA

encourages its employees to ride the Metro transit system and imposes work-related

rules and obligations on its employees when they do (whether they are on or off

duty), her injuries are compensable under the Act. We affirm.




      *
          Associate Judge Easterly concurs in the judgment.
      1
          D.C. Code §§ 32-1501 to -1545 (2019 Repl.).
                                         3

                                        I.



        At the time of her injury, Ms. Niles lived in Lanham, Maryland and worked

in WMATA’s headquarters in downtown D.C. On her typical commute to work,

Ms. Niles would drive from her home to the College Park Metro station where she

would park her car for the day. She would then ride the Metrorail to the Gallery

Place-Chinatown Metro stop and, from there, walk to the nearby WMATA office.

WMATA allows its employees to ride the Metrorail and Metrobus for free, but

employees are personally responsible for paying for parking at Metro stations. On

May 5, 2017, rain caused the College Park Metro platform to become slick. After

parking her car in the adjacent lot that morning, Ms. Niles walked across the

platform, where she slipped and fell, sustaining injuries to her ankle, shoulder, and

knee.



        Ms. Niles filed a claim for benefits under the Act, seeking temporary total

disability benefits and reimbursement for medical treatment relating to her injuries.

At the evidentiary hearing before the ALJ, Ms. Niles gave uncontested testimony

that WMATA encourages its employees to use the Metro system and allows them to

ride free of charge. Ms. Niles also testified that she had no work-related duties at

the College Park Metro station on the day of her injury. She also acknowledged that,
                                         4

despite the fare subsidy and WMATA’s encouragement that its employees use the

Metro, Metro use by employees was voluntary. The ALJ denied Ms. Niles’s claim,

ruling that it was barred by the “going and coming” rule, which provides that

“injuries sustained off the work premises, while enroute to or from work, do not fall

within the category of injuries ‘in the course of employment.’” McKinley v. District

of Columbia Dep’t of Emp’t Servs., 696 A.2d 1377, 1383 (D.C. 1997) (quoting

Grayson, 516 A.2d at 911).



      The CRB reviewed and affirmed the ALJ’s order. The CRB concluded that,

because WMATA did not require Ms. Niles to use the Metrorail, Ms. Niles’s

commute on the morning of her injury was personal and unrelated to her

employment. It also concluded that the ALJ correctly applied the “going and

coming” rule in denying Ms. Niles’s claim. This petition for review followed.



                                        II.



      We will affirm the CRB’s decision unless it is “[a]rbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” D.C. Code § 2-

510(a)(3)(A) (2012 Repl.); Mexicano v. District of Columbia Dep’t of Emp’t Servs.,

806 A.2d 198, 203 (D.C. 2002). “We must determine (1) whether the agency made
                                            5

a finding of fact on each material contested issue of fact; (2) whether substantial

evidence in the record supports each finding; and (3) whether the conclusions of law

follow rationally from the findings.” George Washington Univ. v. District of

Columbia Bd. of Zoning Adjustment, 831 A.2d 921, 931 (D.C. 2003). “[A]lthough

we accord weight to the agency’s construction of the statutes [that] it administers,

the ultimate responsibility for deciding questions of law is assigned to this court.”

Id.



      For an injury to fall within the coverage of the Act, it must “arise out of and

in the course of employment.” D.C. Code § 32-1501(12). The “out of employment”

and “in the course of the employment” requirements are distinct, but “frequently,

proof of one will incidentally tend to establish the other.” Kolson v. District of

Columbia Dep’t of Emp’t Servs., 699 A.2d 357, 360 (D.C. 1997) (citation omitted).

Because Ms. Niles’s claim fails to satisfy either requirement, we hold that the injury

falls outside the Act.



                                       A.



      Our first inquiry is whether the risk causing Ms. Niles’s injury “arose out of”

her employment with WMATA. The “arising out of” requirement refers to “the
                                           6

origin or cause of the injury.” Bentt v. District of Columbia Dep’t of Emp’t Servs.,

979 A.2d 1226, 1232 (D.C. 2009) (quoting Kolson, 699 A.2d at 361). We recognize

three categories of risks causing injury to a claimant: (1) “risks distinctly associated

with the employment,” (2) “risks personal to the claimant,” and (3) “‘neutral’ risks—

i.e., risks having no particular employment or personal character.” Id. (quoting

Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs., 971 A.2d 909, 920

n.10 (D.C. 2009)). “Harms from the first are universally compensable. Those from

the second are universally noncompensable.” Id. Harms from the third, neutral

risks, “arise out of employment” if the so-called positional-risk test is satisfied.

Clark v. District of Columbia Dep’t of Emp’t Servs., 743 A.2d 722, 727 (D.C. 2000).

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 claimant in a position where he was injured.” Id.



      As an initial matter, Ms. Niles does not argue that the risks causing her

accident were “distinctly associated” with her WMATA employment, nor is there

evidence for the proposition. Accordingly, we ask whether the risks that caused Ms.

Niles’s injuries were either personal or neutral. Personal risks are those “thoroughly

disconnected from the workplace.” Muhammad v. District of Columbia Dep’t of

Emp’t Servs., 34 A.3d 488, 496 (D.C. 2012). In contrast, neutral risks are those
                                          7

“having no particular employment or personal character.” Bentt, 979 A.2d at 1232;

see 1 Lex K. Larson & Thomas A. Larson, Larson’s Workers’ Compensation Law

§ 3.05 (Rev. Ed. 2019) (“This theory supports compensation, for example, in . . .

situations in which the only connection of the employment with the injury is that its

obligations placed the employee in the particular place at the particular time when

he or she was injured by some neutral force . . . .”) (footnote omitted). The CRB

concluded that the risks giving rise to Ms. Niles’s injury were entirely personal, thus

rendering her injuries noncompensable under the Act. On petition for review, Ms.

Niles argues that the CRB erred, and that the risks causing her injuries should have

been treated as neutral, and thus subject to the positional-risk test. See Bentt, 979

A.2d at 1232.



      We conclude that the risks giving rise to Ms. Niles’s injuries were

disconnected from her employment, thus the risks were personal and

noncompensable. Central to our conclusion is the fact that Ms. Niles was not injured

at her workplace. As an administrative assistant, Ms. Niles worked exclusively in

WMATA’s headquarters in downtown D.C. Ms. Niles’s duties did not extend to the

College Park Metro station, nor was she there on the day of her injury as a WMATA

employee. Instead, Ms. Niles was there to ride the Metrorail as a member of the

general public. Our conclusion here is distinguishable from our recent decision in
                                            8

Gaines v. District of Columbia Dep’t of Emp’t Servs., 210 A.3d 767 (D.C. 2019).

There, we reviewed a WMATA station manager’s claim for compensation for

injuries from a slip and fall at a Metrorail station. Id. at 770. We concluded that,

because the employee was injured in the station where she was scheduled to work,

her injuries were not “thoroughly disconnected from the workplace.” Id. at 772–73.

The station manager’s risk of injury, therefore, was not personal, but at least neutral.

Id. Here, unlike the employee in Gaines, Ms. Niles was not scheduled to work at

the College Park Metro station. When she was injured, Ms. Niles was commuting,

not as a WMATA employee, but in her personal capacity; thus the risks causing her

injury were “thoroughly disconnected from the workplace.” Id.



      Even if we were to treat the risk that caused Ms. Niles’s injury as neutral and

apply the positional-risk test, Ms. Niles’s claim fails. Under this 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 claimant in the position where

she was injured.” Georgetown Univ. v. District of Columbia Dep’t of Emp’t Servs.,

830 A.2d 865, 872 (D.C. 2003). Here, we see no evidence that the conditions and

obligations of Ms. Niles’s employment as a WMATA administrative assistant placed

her at the College Park Metro station. Ms. Niles’s work took place exclusively at

WMATA’s headquarters. And on the morning of the injury, Ms. Niles had no work
                                          9

obligations at the College Park Metro station. To be sure, the positional-risk test

does not require Ms. Niles to show that her WMATA employment placed her on the

College Park Metro platform at the precise time and place of the accident. See

Gaines, 210 A.3d at 773 (“[S]o narrow an approach would lead to absurd

consequences, because 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.”). But it does require Ms. Niles to at least establish that her employment

placed her in the College Park Metro station on the day of the injury. See Bentt, 979

A.2d at 1232.



      Ms. Niles argues that the positional-risk test is satisfied because she would

not have been injured but for WMATA’s encouragement to its employees to ride the

Metro. At the administrative hearing, WMATA did not dispute that it encourages

its employees to use the Metro, or that it provides its employees complimentary

Metro fare benefits. But mere encouragement is not enough to satisfy the positional-

risk test. See Bentt, 979 A.2d at 1232. Ms. Niles was not obligated to ride the

Metrorail or make use of WMATA’s fare benefits. Nor was there evidence that Ms.

Niles’s employment was conditioned on her use of the Metro system. Instead, Ms.

Niles was free to choose how she commuted to work. Accordingly, we conclude

that Ms. Niles’s injuries did not arise out of her WMATA employment.
                                         10



                                       B.



         Ms. Niles’s claim is also noncompensable under the Act because the injury

did not occur “in the course of” her employment. The CRB concluded that the

“going and coming” rule barred Ms. Niles’s claim for compensation. See Grayson,

516 A.2d at 911. On petition for review, Ms. Niles argues that her injury occurred

in the course of her employment because she was subject to WMATA rules and

duties when she rode the Metrorail, and WMATA benefitted from her presence

there.



         The “course of employment” requirement focuses on “the time, place and

circumstances under which the injury occurred.” Bentt, 979 A.2d at 1234 (quoting

Kolson, 699 A.2d at 361). An injury occurs in the course of employment when “it

takes place within the period of employment, at a place where the employee may

reasonably be expected to be, and while [the employee] is reasonably fulfilling

duties of [the employee’s] employment or doing something reasonably incidental

thereto.” Id. at 1235. Under the “going and coming” rule, injuries occurring off of
                                         11

work premises while traveling to and from work generally do not occur in the course

of employment. Grayson, 516 A.2d at 911. 2



      We agree with the CRB that the “going and coming” rule bars Ms. Niles’s

claim for compensation. We first note that, because WMATA was in control of the

platform at the College Park Metro station, it is true “in a technical and artificial

sense” that Ms. Niles was on her employer’s premises when she was injured. 2

Larson & Robinson, supra, § 15.02. But “[i]n a more realistic sense,” because Ms.

Niles was not at the Metro station for any work-related reason, she was riding the

Metrorail as a member “of the public, whether they have free passes or not.” Id.; see

also Lemon v. N.Y.C. Transit Auth., 528 N.E.2d 1205, 1209 (N.Y. 1988) (“[I]n

exercising the right to use the subways, claimant made her own free choice whether

to use the pass for commuting ‘and served [her] own convenience. The company

was indifferent as to the way or means by which [s]he reached the place where the

day’s work began.’”) (citation omitted and alteration in original). Thus, for purposes

of the “going and coming” rule, Ms. Niles’s injury at the College Park Metro station

occurred off of WMATA’s premises. Because Ms. Niles’s injury occurred on her

regular commute to work, during which she was not performing any work duties,


      2
        Although inapplicable here, we have recognized certain exceptions to the
“going and coming” rule. See, e.g., Kolson, 699 A.2d at 360 (traveling employees);
Grayson, 516 A.2d at 911 n.3 (paid lunches).
                                         12

her injury falls squarely within the “going and coming” rule and thus outside the

course of her employment. See Grayson, 516 A.2d at 911.



      Ms. Niles argues that, because she was subject to WMATA rules and duties

while she rode the Metrorail, her injury at the College Park Metro station arose in

the course of her employment. Ms. Niles presented evidence at the administrative

hearing showing that when WMATA employees ride the Metro, they are subject to

various obligations, regardless of whether or not they are working. For instance, all

employees are required to maintain a neat appearance, to report accidents and file

written reports, and to report the presence of unauthorized persons on WMATA

property. Ms. Niles argues that while riding the Metrorail, she was “an extra

employee who could assist other riders in the event of emergencies.” But the fact

that Ms. Niles, while riding the Metro, might have been called to action is not enough

to bring her regular commute within the course of employment.



      In Foster v. Massey, our predecessor court held that an employee who is “on

call” is not, without more, exempt from the “going and coming” rule. 407 F.2d 343,

346 (D.C. Cir. 1968).3 In Foster, the widow of a bus driver filed a workers’


      3
         See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[D]ecisions of the
United States Court of Appeals rendered prior to February 1, 1971 . . . constitute the
case law of the District of Columbia.”).
                                         13

compensation claim relating to the driver’s car accident and death while commuting

to work. Id. at 344. The decedent was an on-call employee who did not work a

regular schedule, but was guaranteed a minimum weekly wage. Id. at 344–45.

When he was called to duty, his pay started at the time he was scheduled to report to

the station; he was not paid during his commute. Id. at 345. The decedent’s widow

argued that, because the decedent’s guaranteed wage was effectively compensation

for being on call, the accident arose in the course of employment. Id. The court

recognized that, when an employee is paid for their commute to work, “this thin link

is deemed sufficient to bring the trip within the boundary of employment and thus

of accident compensability.” Id. at 346. But in affirming the denial of the widow’s

claim, the court noted that, to show such a link, “the identification of pay with trip

must be specific and certain. It is not enough that before the trip begins workers are

on call . . . or to argue that overall compensation takes account . . . of the

inconvenience of being on call.” Id.; see also Canney v. Strathglass Holdings, LLC,

159 A.3d 330, 334 n.2 (Me. 2017) (“[I]njuries that occurred while an employee was

‘on call’ [are] not necessarily within the course of employment for worker’s

compensation purposes.”); State Accident Ins. Fund Corp. v. Reel, 735 P.2d 364,

368 (Or. 1987) (“As to such [employees] who are continually on call, but off the

premises, off-premises injuries normally are not covered.”); Jake’s Casing Crews,

Inc. v. Grant, 451 P.2d 700, 703 (Okla. 1969) (“The fact that the claimant was
                                          14

subject to call at all hours of the day or night, does not establish that he was in the

line of duty at the time the accident occurred.”); 2 Larson & Robinson, supra,

§ 14.05[6] (“The circumstance that the employee is ‘subject to call’ should not be

given any independent importance in the narrow field of going to and from work.”).



      So too here. It is not enough that Ms. Niles was required to comport with

WMATA rules while riding the Metrorail, or that she might have been called to

action under certain circumstances. There was no “specific and certain” evidence

that Ms. Niles was paid specifically to ride the Metrorail. Foster, 407 F.2d at 346.

Although WMATA allowed Ms. Niles to use the Metro system for free, that free

access “was a fringe benefit . . . that could be used by [WMATA] employees as they

wished,” Lemon, 528 N.E.2d at 1209, rather than a “specific and certain” link

between Ms. Niles’s employee wage and her use of the Metro. Without more, the

rules and obligations imposed on Ms. Niles while she rode the Metrorail are not

enough to bring those trips within the boundary of her employment.



      Lastly, Ms. Niles argues that her injury occurred in the course of employment

because her use of the Metro conferred two distinct benefits on WMATA: one, the

public’s increased confidence in the Metro in seeing WMATA’s own employees use

public transit; and two, the presence of an extra employee who could potentially
                                         15

assist with Metro operations. The “course of employment” requirement may be

satisfied if an injury occurs in the performance of “an activity of mutual benefit to

employer and employee.” Kolson, 699 A.2d at 360 (citation omitted). But in all

instances, the activity at issue must be “reasonable,” “foreseeable,” and “reasonably

related or incidental” to the claimant’s employment. Id. at 361. Here, we fail to see

how Ms. Niles’s presence at the Metro station sent the public any message, given

the fact that she was not wearing a WMATA uniform or otherwise communicating

her identity as a WMATA employee. When Ms. Niles rode the Metrorail, WMATA

may have indeed benefitted from the presence of an extra employee who could

potentially assist during emergencies. But when Ms. Niles was injured at the

College Park Metro station, she was not performing any activity “reasonably related

or incidental” to her work.



                                        III.



      We conclude that the CRB’s determination that Ms. Niles is barred from

compensation followed rationally from its factual findings. Ms. Niles’s injury did

not arise out of or in the course of her employment: The risk that caused Ms. Niles’s

injury was distinctly personal, and the injury, sustained off premises during her
                                      16

regular work commute, is squarely barred from compensation under the “going and

coming” rule. Accordingly, we affirm the order of the CRB.



                                                       So ordered.
