Clark v. District of Columbia Department of Employment Services , 2000 D.C. App. LEXIS 8 ( 2000 )

BELSON, Senior Judge,

dissenting.

I submit that consideration of the hearing examiner’s findings of fact and due deference to the Department of Employment Services’ interpretation of the statute it administers require affirmance.

The majority, concluding that this case is not materially distinguishable from Hartford Accident & Indemnity Co. v. Hoage, 66 U.S.App.D.C. 160, 85 F.2d 417 (1936), holds that the hearing examiner’s finding that the assault on claimant was unrelated to her employment was not supported by substantial evidence. I suggest that the majority errs when it rejects the Director’s conclusion “that there [was] substantial evidence in the record for the Hearing Examiner to conclude that this was not a random act of violence, and that it was targeted specifically to the owner of the red car, namely claimant” and that “there was substantial evidence in the record for the Hearing Examiner to find that claimant’s injury did not arise out of her employment.” The salient facts merit highlighting.

The young man who later shot claimant walked into the parking lot of the interve-nors’ medical facility at about 6:00 p.m. on August 16, 1991, about six hours after claimant arrived at work. He walked up to Nathaniel Ford, claimant’s fellow employee, and asked specifically for the “lady that drives the red car.” Thinking this unusual, Ford pointed out a burgundy colored car, and the young man said, “no, not that car, the lady that drives this car,” indicating claimant’s car. Ford telephoned claimant after getting the individual’s name (which both he and claimant later forgot), but claimant said she did not recognize the name. Claimant testified that she did not recognize the individual either upon looking down from a window above or when she spoke with him after she came down to the lot.

According to claimant, the young man then asked her if the red car was her car and she asked “why[?].” She testified that then “he put his hands over his mouth and he said I’m tired of Terry and James.” In response, she said she did not know Terry or James. According to claimant, he then said, “is that your car with the luggage rack on it and I said yes and at that point he shot me.” Claimant said she did not recognize the names Terry and James “in any capacity.” They were not co-workers or patients.

After the shooting incident, claimant told police that she thought her son-in-law might have been responsible for it. He had been beating claimant’s daughter severely, and claimant wanted her daughter to leave him. Claimant surmised that her son-in-law was in the drug trade. Claimant thought he might present a danger to her and she admittedly carried a gun for one day during the month preceding the incident because “she had gotten very upset and just tired of the situation that was going on with him.”

Claimant later testified that it was not her son-in-law who shot her, and that she had been told by detectives investigating the shooting that he did not do it. Claimant’s daughter was murdered by gunshot less than two months after the attack on claimant.

Claimant introduced into evidence a letter and report written by Dr. Katherine D. Owens, a licensed psychologist of the Family and Child Center, which included the remark that “this patient was the victim of a professional shooting. One month after she was shot, her daughter was killed in a professional shooting.” Dr. Owens was not called to testify concerning the basis of her remarks. Intervenors’ counsel did not ask the hearing examiner to give the remarks by Dr. Owen any weight — or even call attention to them — in arguing that the injury did not arise out of claimant’s employment. Thus, we can give them no weight.

The hearing examiner made no findings concerning any role claimant’s son-in-law might have played, but based his findings on the evidence of what transpired at the time of the shooting and circumstances surrounding claimant’s employment. Based on that evidence, he found:

The sole evidence of record is clear that the assailant herein had targeted the female owner of claimant’s automobile [red with a luggage rack]; he searched a parking lot for claimant’s car as a means of identification; upon ascertaining the identity of the owner, and confronting her, the assailant voiced what can only be construed as the grounds of a personal vendetta, and then proceeded to assault the person toward whom said vendetta was aimed.

The examiner went on to find that there was not “a single iota of evidence, substantial or otherwise, which links the motive behind her assault to her employment.”

On review, the Director of DOES observed that “substantial evidence is such relevant evidence as a reasonable mind might find as adequate to support a conclusion,” citing George Hyman Construction Co. v. DOES, 498 A.2d 563, 566 (D.C.1985). The Director held that there was substantial evidence in the record supporting the hearing examiner’s conclusion that this was not a random act of violence, but an act targeted specifically to the owner of the red car, namely claimant. Accordingly, the Director concluded “that claimant’s injury did not arise out of her employment.”

Like the Director, I regard the examiner’s findings as entirely reasonable. Under the circumstances there was substantial evidence — not just speculation— supporting the conclusion that claimant’s injury did not arise out of her employment.

The hearing examiner applied the positional risk standard which had been applied by the Director and approved by this court in Grayson v. D.C. Dep’t of Employment Servs., 516 A.2d 909, 911 (D.C.1986). There the Director noted as follows:

For an employee’s injury to have arisen out of the employment the obligations or conditions of employment must have exposed the employee to the risks or dangers connected with the injury.

As the hearing examiner and the Director correctly concluded, the employer in this case adduced substantial evidence that claimant’s employment did not expose her to the injury that befell her. It is noteworthy that in reaching this conclusion both gave full effect to the presumption of compensability for employees injured on the job. The majority notes that when an injury occurs “in the course of’ employment, that fact strengthens the presumption that it “arises out of’ the employment, and that “any doubts” as to that fact should be resolved in the claimant’s favor. That does not mean, however, that when a claimant advances a colorable but ultimately unpersuasive argument about what inferences can be drawn from the evidence, the claimant prevails by dint of having made the argument. While the majority fails to articulate any work-related motive for the assault which would make it plausible to conclude that the act arose out of claimant’s employment, the Director has articulated a reasonable basis for determining that the shooting was not work-related.

The assailant came onto the premises looking for a particular person, the lady who drove the red car with a luggage rack. He was not recognized as an employee or patient. His statement that he “was tired of Terry and James” can reasonably be taken to indicate that his motivation had something to do with persons bearing those names — but no persons with the names Terry or James were patients or employees at the medical facility. Indeed, no patient had ever threatened claimant, and the assailant was not a co-worker. In shooting his carefully selected victim, assailant was not performing a random act of violence, like the person who burst into a restaurant kitchen and assaulted a chef as he was going about his work, as in Hoage, supra, or like those who burst into a classroom and assaulted a teacher who happened to be there grading papers, as in Tredway v. District of Columbia, 403 A.2d 732 (D.C.1979).

The circumstances of the incident provided, as the hearing examiner found, evidence “specific and comprehensive enough to sever the now presumed correlation between the employment event or activity and the injury.” I agree, adding the observation that what is “specific and comprehensive enough” must depend upon the nature of the case. Here, a review of all the facts of record shows no indicia of a relationship between the injury and claimant’s work; rather the actions and statements of the assailant point to a private or personal reason for the act.

The majority opinion disagrees, “for the precise reason that the motive behind the assault remains unknown and speculative. A finding that Clark’s assailant has some motive to target her is not the same as a finding that he had a personal, non-work related motive to do so.” But the hearing examiner found that assailant’s words and actions “may reasonably be construed to denote a relationship predicated upon factors other than claimant’s position as a dialysis technician with employer,” i.e., there was a finding not merely that there was “some motive” but a finding that the motive was not work-related. There was also the reasonable finding that the matter was “personal.”

In reaching its result, the majority dismisses the shooter’s statement “I’m tired of Terry and James” as “incomprehensible mutterings.” To the contrary, the statement has real significance to the outcome. The fact that the shooter put his hand to his mouth does not make his words “mutterings.” More important, his words were clearly heard by claimant, even though she said she did not know their significance, and they suggested that a matter relating to “Terry and James” motivated the attack. Most important, “Terry and James” were not co-workers of claimant or patients at claimant’s place of employment. If the assailant made a mistake about his chosen victim, there is absolutely no indication that the mistake had any relationship to her work environment. Thus the statement tends to establish that the shooting was not work-related. It also helps to refute the majority’s central thesis that because the “precise reason behind the assault remains unknown and speculative” the employer has not adduced sufficient evidence to rebut the presumption that the shooting arose from the work. To the contrary, I submit, what is sufficiently known — and reasonably inferred by the department and all of the circumstances— is that the shooting did not arise from the employment.

The majority’s final conclusion — that the case is not materially distinguishable from Hoage, supra, does not survive analysis. Hoage, again, was the case in which the D.C. Circuit found that a chefs injury arose out of his employment where he had been attacked by an unknown assailant. The chef had been working in the kitchen, where his work required him to be, when an unknown person entered the kitchen, struck another man, stabbed the chef in the nose, and then ran up some stairs and jumped out a window. This case is markedly different from Hoage. For Hoage to have been comparable, the assailant there would have to have entered the kitchen and asked for the whereabouts of a person identified by a non-work related factor such as the car he drove, and then, upon learning that the chef was that person, made a reference to a motive related to persons not connected with the work, and then stabbed him. To make it more analogous to this case, claimant would have to have left his work station and met the assailant elsewhere on the premises in response to the identification the assailant conveyed. The differences are determinative of the result.

The other two authorities which the majority uses to delineate the area of jurisdiction concerning third-party assaults are readily distinguishable from this case. Similar to Hoage, in Kolson v. District of Columbia Dep’t of Employment Servs., 699 A.2d 357 (D.C.1997), this court found that the employee’s injuries arose out of his employment where he had been attacked by an unknown assailant. Claimant, a bus driver, was attacked while walking to a hotel in the middle of the night, following completion of his twelve hour driving shift. The employee’s injury in Kolson “grew out of his employment because it 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. at 361. Our present case is clearly distinguishable — claimant’s employment did not cause her to be exposed to any such risk and claimant was not traveling to or from work at the time of the attack. The Kolson court, in deciding that claimant’s injuries were compensable, emphasized the “circumstances of Mr. Kol-son’s interstate employment,” including “the time of his arrival in the District” and “his walk to the hotel” after completing his shift at 4 a.m. Comparable circumstances were not present in the case at hand.

Further, in Tredway, supra, this court held that claimant’s injuries arose out of employment and were compensable. In contrast to the present case, Tredway involved a teacher who was assaulted by two male strangers while she was alone in her classroom grading papers. This court determined that “the risk of attack was incidental to the environment in which appellant’s job placed her,” as the claimant teacher alleged that the school had been the scene of three previous similar attacks on female teachers. Id. at 736. The teacher’s job required her to perform her work in the classroom and to be present in the “zone of danger” during work hours. Id. at 736. The present case is substantially different from Tredway principally, but not solely, because claimant here was not found to have been placed in increased danger or risk because of her employment.

The nub of it is that where an assailant comes onto the work premises and personally seeks out and injures a particular employee whom the assailant has identified in advance by name or other means, and where there is no basis for inferring that the motive for the attack is related to the claimant’s employment, but there is a reasonable basis for inferring that it was private or personal, it cannot be said that the injury arose out of the work. See A. LARSON, 1 LARSON’S WORKERS’ COMPENSATION Law, § 8.03[1] (1999) (assaults which are inherently private in origin are not deemed to arise out of the work). In my view, the assault here is properly deemed an assault inherently private or personal in nature within the categories of assault framed by Larson. The case for this result is strengthened when, in addition to the assailant’s pre-selection of the victim, there is some affirmative evidence that the motive that can be inferred is not work-related, as here where assailant’s only reference to motive related to two persons who had no connection with the work.

In reviewing this case, this court should consider that the Department of Employment Services is fully cognizant of the case law which deals with the determination of when an injury arises out of a claimant’s employment. This is a much discussed issue. The rulings of both the hearing examiner and the Director refer to some of the leading cases. The agency has concluded that claimant should not be compensated where it has reasonably been found that the assault causing her injury was directed at claimant personally and without regard to her employment, even though it is not clear precisely what non-work-related motive prompted the personal attack. The result we review represents the Department’s considered view that the incident in question falls outside this jurisdiction’s expansive interpretation of work-relatedness. I submit that the court, giving due deference to the view of the Department, should reach the same conclusion. See Gomillion v. District of Columbia Department of Employment Services, 447 A.2d 449 (D.C.1982).

I dissent.