Petition for Review of an Order of the District of Columbia Department of Employment Services
Before Rogers, Chief Judge, Farrell, Associate Judge, and Reilly, Senior Judge.
The opinion of the court was delivered by: Reilly
REILLY, Senior Judge: In this petition for review of an order of the Department of Employment Services (the agency) denying worker's compensation to Billy Mosley, an employee injured in an apartment leased to him without rent by his employer, we are urged to reverse such order on the ground that the agency erred in determining that the injury did not arise out of or in the course of employment. See D.C. Code § 36-301 (12) (1988 Repl.). We affirm.
The record shows that Mosley was hired in April of 1987 by Daro Realty, which manages several apartment buildings in the city, as a maintenance porter at a nine-story apartment house at 1600 16th Street, N.W. His regular chores included cleaning, collecting and dumping the contents of the trash cans placed in the corridors by tenants, mopping and sweeping the halls and laundry room. He was also called upon by the property manager to supply such services to the tenants as replacing lighting fixtures, unclogging drains, repairing broken windows and window cranks. As he was not a craftsman, management utilized outside contractors for more complicated repair problems, e.g., electrical wiring, plumbing, or pipe fitting. Under his schedule of hours, he worked from 8:00 a.m. to 4:00 p.m. on week days (except Friday afternoons) and two hours each morning on Saturdays and Sundays, starting at 8:00 a.m. or 9:00 a.m.
Approximately two months after being hired, Mosley who had been living elsewhere, was offered an apartment on the bottom floor of the premises rent-free. He accepted and signed a lease. This instrument contained an addendum providing for the payment of $350 in monthly rent should he quit or his employment be otherwise terminated. In all other respects, the terms of the lease -- a standard printed form -- were identical to those agreed upon by other tenants in apartments operated by Daro Realty.
When testifying about this lease at the agency hearing, Mosley said that except for the rental conditions, his employer gave no explanation for its offer and that his only reason for accepting was because he "wanted an apartment by myself anyway." According to John Moncrief, the property manager, this arrangement was made so that there would be a maintenance man on the premises to help in emergencies if Moncrief was out of town, and in return for a free apartment, Mosley agreed to respond in case of an emergency after hours. He emphasized that Mosley was not supposed to be on call for twenty-four hours and that he was free to absent himself from his apartment without notifying management.
Early one Sunday morning in October -- some six months after petitioner moved into the leased apartment -- Moncrief was informed by the desk clerk that Mosley had just been transported to a hospital by an emergency ambulance sent to the building by the fire department, because he had apparently cut his hand on a window. Medical records show that Mosley had suffered a major laceration in the upper tendon of one arm which required surgery and resulted in partial impairment in the use of his right hand. Upon his discharge from the hospital a few days later, he returned to the apartment. He continued to occupy it without paying rent until the end of the year, although unable to resume work because of his arm injury.
In appearing at the hearing in support of his right to worker's compensation, Mosley's counsel presented his claim on the stated premise that the injury occurred during working hours in performing a task within the scope of his employment. According to Mosley's testimony, he had begun work on that particular Sunday morning before 7:00 a.m., had mopped the entrance hall, cleaned the laundry room, collected trash, and deposited it in the dumpster located in the backyard near the basement steps, when he noticed that a window in his apartment was partially open. Going back to his unit, he attempted to close the window which swung out a foot or two above ground, by pulling with one hand and using a screwdriver with the other. *fn1 While so engaged, the screwdriver slipped and he inadvertently thrust his arm through a pane where it remained impaled in broken glass until a cousin arrived and helped him remove the bleeding arm from the shattered window. *fn2 An ambulance was called and Mosley was taken to the hospital.
The claimant's testimony was contradicted on all major points by Moncrief when called to the stand by the employer. He told the hearing examiner that maintenance personnel were forbidden from reporting for work prior to 8:00 a.m., in order to avoid disturbing sleeping tenants. He also testified that Mosley performed no work on that particular morning as he had neither signed in nor picked up from the front desk the keys to the storage room where the trash bags were kept. No mopping or floor cleaning had been done.
As for the cause of the injury, Moncrief's inspection of the apartment indicated that the accident could not have happened as Mosley described. He found no screwdriver -- but did discover two knives lying on the ground outside the window. According to Moncrief, from the contours of the hole in the glass, someone must have hit the window rather than pushed a hand against it.
In her findings of fact, Hearing Examiner Karolyn Roebuck accepted Moncrief's testimony as "very credible" and rejected Mosley's version of events, noting that his injury occurred before he was required to report for work, and that he had not even begun work when it happened. She also found that claimant was not on twenty-four hour call, and was free to absent himself from the premises after scheduled working hours without notifying management. She made the additional finding that while the claimant was occasionally called upon to lend assistance outside normal working hours if in his apartment when an emergency occurred, he was not required to live on the premises as a condition of employment.
On the issue of liability, the examiner held that even assuming the injury had occurred as the claimant alleged, it did not occur in the course of his employment, and concluded that simply because claimant resided in the apartment where the injury occurred, such injury did not arise "in the course of his employment." The examiner entered an order denying Mosley's claim for worker compensation. On administrative appeal by Mosley, the Director of the agency determined that the examiner's ...