Brown v. Army & Air Force Ex

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WENDY JO BROWN,
Petitioner,
v.
ARMY & AIR FORCE EXCHANGE
No. 96-2608
SERVICE; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(95-1704)
Submitted: May 5, 1998
Decided: June 8, 1998
Before MURNAGHAN, WILKINS, and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Stephen Z. Chertkof, Tracy L. Hilmer, KATOR, SCOTT, HELLER
& HURON, Washington, D.C., for Petitioner. James M. Mesnard,
SEYFARTH, SHAW, FAIRWEATHER & GERALDSON, Washing-
ton, D.C.; Kim M. Hoffman, ARMY & AIR FORCE EXCHANGE
SERVICE, Dallas, Texas, for Respondents.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Wendy Jo Brown petitions this court for review of the Benefits
Review Board's ("the Board") summary affirmance of the Adminis-
trative Law Judge's ("ALJ") order denying Brown's claim for disabil-
ity benefits under the Longshore and Harbor Workers' Compensation
Act, 33 U.S.C.A. §§ 901-950 (West 1986 & Supp. 1998) ("the Act")
for lack of jurisdiction.1 While attending an employment-related con-
ference, Brown alleged that she was sexually assaulted at the conclu-
sion of a social activity. The ALJ found that Brown had failed to
establish that her injury arose out of and in the course of her employ-
ment. Because substantial evidence supports the findings of the ALJ,
we affirm.
The Army and Air Force Exchange Service ("Employer") dis-
patched Brown to a three-day conference in Alexandria, Virginia. The
conference was held in a hotel. During the conference, William Boyd
hosted a "hospitality suite" in the same hotel.2 Brown's superior,
Alwyn Ansley, encouraged her to attend the social event to improve
her employment contacts. Although employment matters were dis-
cussed during the event, her attendance was not a requirement of her
employment.
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1 The Board did not address the merits of the appeal. On September 12,
1996, the Board sent the parties a notice stating that pursuant to the pro-
vision of Public Law Number 104-134, enacted on April 26, 1996, all
appeals to the Board relating to claims under the Act were deemed to
have been affirmed if the case had been pending before the Board for one
year by September 12, 1996. Because Brown's appeal met these criteria,
the Board informed the parties that the ALJ's decision had been effec-
tively affirmed on September 12, 1996, for purposes of their rights to
obtain review in this court.
2 Boyd is a higher-ranking employee of the Employer although not in
Brown's direct chain of command.
2
After the other guests had left the hospitality suite, Brown
remained in Boyd's room and they talked for a while. Together, they
left the hotel and went to several drinking and dancing establishments
in the area. Upon their return to the hotel, Boyd stated that he wanted
to continue their conversation regarding Brown's work. The two went
back to Boyd's hotel room. Once there, Brown attempted to leave.
Brown asserted that as she headed for the door, Boyd restrained her
arms and pulled her to the floor. In this position, Boyd kissed Brown
and rubbed her back. When Brown freed herself, Boyd opened the
door and allowed her to leave the room.3 Brown contends that she is
disabled by post traumatic stress disorder arising from this incident.
The Department of Labor conducted a formal hearing addressing
whether Brown's disability arose out of and in the course of her
employment. In his Decision and Order, the ALJ determined that
Brown was not required to attend the social event and that Boyd's
statement regarding his desire to discuss work was insufficient to
transform the conversation into employment activity. Finding that
Brown's claim did not fall within the coverage of the Act, the ALJ
denied her claim for benefits.
We reverse decisions of the Board only if there is an error of law
or a factual finding that is not supported by substantial evidence on
the record as a whole.4 The United States Supreme Court has defined
substantial evidence as "``such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'"5
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3 Three months prior to this incident, while attending another
employment-related conference, Brown reported to her superiors that
Boyd had made unwelcome sexual advances toward her at the conclusion
of a social gathering held in Boyd's hospitality suite. Brown did not file
a claim for benefits following that incident nor is it a part of this petition
for review.
4 See John T. Clark & Son, Inc. v. Benefits Review Bd., 621 F.2d 93,
95 n.3 (4th Cir. 1980) (citing O'Leary v. Brown-Pacific-Maxon, 340 U.S.
504, 508 (1951)).
5 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
3
This petition raises the issue of whether the ALJ properly found
that Employer successfully rebutted the presumption of coverage
under the Act. Section 20(a) of the Act establishes the presumption
that a claimant's disabling condition is causally related to her employ-
ment if she establishes that (1) she suffered a harm, and (2) working
conditions existed that could have caused, aggravated, or accelerated
a previous condition.6 Entitlement to this presumption requires that
the claimant's injury arise out of and in the course of her employment.7
The Board has held that for an injury to arise in the course of
employment, it must have occurred "within the time and space bound-
aries of the employment and in the course of an activity whose pur-
pose is related to the employment."8 The section 20(a) presumption
applies to this question.9 To rebut this presumption, the employer
must produce specific and comprehensive evidence that the activity
in which claimant was engaged when injured was not an inherent part
of the conditions of her employment.10 If the employer successfully
rebuts the section 20(a) presumption of coverage, the claim must then
be resolved on the evidence as a whole.11
Generally, if the social or recreational activity occurs on the
employer's premises during normal working hours, or if the employer
requires employee participation in the activity, then the activity is
considered an inherent part of the claimant's employment. In the
instant case, the record establishes that the social gathering was not
a regular incident of Brown's employment; it was not held on
Employer's premises, nor was it conducted during normal working
hours. Moreover, Brown's participation in the social gathering was
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6 See 33 U.S.C.A. § 920(a); Brown v. ITT/Continental Baking Co., 921
F.2d 289, 295 (D.C. Cir. 1990).
7 See U.S. Indus./Fed. Sheet Metal, Inc. v. Director, Office of Workers'
Compensation Programs, 455 U.S. 608, 615 (1982).
8 Boyd v. Ceres Terminals, 30 BRBS 218 (1997).
9 See Wilson v. Washington Metro. Area Transit Auth., 16 BRBS 73
(1984).
10 See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 1082 (D.C. Cir.
1976).
11 See Brown, 921 F.2d at 295.
4
voluntary, as was her decision to leave the hotel with Boyd to fre-
quent several nighttime establishments. Based on this evidence, we
find that Employer has successfully rebutted the section 20(a) pre-
sumption by establishing that Brown's attendance at the social gather-
ing was not an inherent part of the conditions of her employment.
However, a determination that a social activity is not a part of the
claimant's employment does not necessarily bar all recovery. Because
there is no circuit precedent discussing the compensability of injuries
sustained during social events under the Act, as relied on by the ALJ,
we turn to the Board's leading case on this subject, Vitola v. Navy
Resale & Services Support Office, 26 BRBS 88 (1992). Vitola sets
forth the following non-exhaustive list of factors to determine
whether an injury during a voluntary social activity arose in the
course of the claimant's employment: (1) whether the employer spon-
sored the event; (2) whether there was some degree of encouragement
to attend; (3) whether the employer substantially financed the event;
(4) whether employees viewed the event as an employment benefit to
which they were entitled; (5) whether the employer obtained any tan-
gible advantages from the event; and (6) whether the activity occurred
on the employer's premises. Because Vitola discusses the relevant
factors in resolving this question and is a reasonable interpretation of
the Act, we apply its rationale to the present case. 12
In the instant case, the record establishes that Boyd, not Employer,
sponsored and substantially financed the social gathering. Even
though Brown was encouraged to attend the social, it was not held
during regular work hours, Brown did not have to perform her regular
duties if she did not attend, and no attendance was taken. Because
such social gatherings were routinely held during these conferences,
some employees may have regarded the event as an employment ben-
efit after becoming accustomed to socializing with colleagues follow-
ing the day's conference events. And although the social gathering
may have improved morale and congeniality among colleagues,
Employer received no tangible benefits from the event. Moreover, the
social gatherings were not held on Employer's premises. Finally, by
her own admission, Brown was not injured while she attended the
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12 See Kemp v. Newport News Shipbuilding & Dry Dock Co., 805 F.2d
1152, 1153 (4th Cir. 1986).
5
social gathering. She did not suffer any harm until she returned with
Boyd to his hotel room after spending several hours dancing and
drinking with him after the gathering that evening. Weighing each
factor in relation to the evidence as a whole, we find that Brown's
attendance at the social gathering was not a requirement of the confer-
ence and thus was not a requirement of her employment. Accordingly,
her injury did not arise out of the course of her employment and she
is not entitled to the section 20(a) presumption.
The ALJ did not delineate the specific Vitola factors upon which
its determination was based; however, we find that the ALJ's decision
to dismiss Brown's claim for lack of jurisdiction was rational and
supported by the record as a whole. Accordingly, the Board's decision
to affirm the order of the ALJ is hereby affirmed.
AFFIRMED
6