Before Wagner, Chief Judge, and Farrell, Associate Judge, and
King, Senior Judge.[fn*]
[fn*] Judge King was an Associate Judge of the court at the time of
argument. His status changed to Senior on November 23, 1998.
[721 A2d Page 581]
The opinion of the court was delivered by: Wagner, Chief Judge:
Maria Da Gloria Vieira, Administratrix for the Estate of Carlos A. Vieira, deceased, challenges the denial of her claim for workers' compensation death benefits filed pursuant to the provisions of the D.C. Workers' Compensation Act of 1979, D.C.Code §§ 36-301 et seq., (1997 Repl.) which the Department of Employment Services (DOES) denied on the ground that the decedent's death did not arise out of his employment. The decedent, Carlos A. Vieira, was killed in an automobile accident on the Fourteenth Street bridge while returning to his home in Virginia after making lane changes to facilitate traffic flow for his employer, intervenor, Fort Myer Construction Corporation (Fort Myer), at a construction site in the District. After working his regularly scheduled 9.5 hour work day, Mr. Vieira had returned home and had come back to the District in time to make the 7:00 p.m. lane change.
The administratrix argues that DOES erred in failing to consider and apply the special errand exception to the general rule that injuries sustained en route to or from work do not fall within the course of employment for purposes of determining eligibility for benefits. In rejecting the claim for benefits, DOES relied primarily upon its decision in Kolson v. Greyhound Lines, Dir. Dkt. No. 88-45, H & AS No. 88-2, OWC No. 0123964 (January 26, 1995), which this court subsequently reversed and remanded in Kolson v. District of Columbia Dep't of Employment Servs., 699 A.2d 357 (D.C. 1997). In light of our decision in Kolson, we reverse and remand for further proceedings consistent with this opinion.
Mr. Vieira had been employed by Fort Myer for more than ten years when he died. At the time of Mr. Vieira's death, Fort Myer was performing road work on Suitland Parkway in the District. In addition to his regular work as a laborer for Fort Myer, Mr. Vieira was responsible for opening and closing sections of the highway to accommodate the work and maintain traffic flow at the beginning and end of rush hours. Mr. Vieira's regular work hours were from 6:00 a.m. to 3:30 p.m., for which he was paid at a specific hourly rate. The last lane closure had to be made at 7:00 p.m.; therefore, Mr. Vieira had to return to the job site to shift the lanes at 7:00 p.m. If required to perform this task during his regular work shift, Mr. Vieira was not paid additional compensation. However, if required to return to the job site to set up the lane change, he was paid for two hours work, although the actual time involved in making the lane changes was only approximately thirty minutes. The hearing examiner found that this flat rate of pay was not dependent on the actual time necessary to shift lanes or the worker's travel time to and from the job.
On December 23, 1994, Mr. Vieira finished his regular work schedule and returned home at approximately 4:00 p.m. At 6:00 p.m., he went back to the construction site to move the barricades for the rush hour traffic. He completed the job, and he was involved in a fatal car accident while returning home.
Contending that Mr. Vieira's death arose out of and in the course of his employment with Fort Myer, his widow, the Administratrix of his estate, filed for survivorship benefits on her own behalf and for the benefit of decedent's children. Based essentially upon the foregoing facts, the hearing and appeals examiner (examiner) found that the decedent "performed no work duties for employer while traveling to or from the job site." The examiner also found that "when the fatal accident occurred, decedent was on his way home at the close of his workday, and was not performing duties for his employer." Therefore, the examiner concluded that no work-related event was involved. Relying on the agency's decisions in Kolson, supra, and Grayson v. District of Columbia Dep't of Employment Servs., 516 A.2d 909, 911 (D.C. 1986), the examiner denied the claim. She concluded that "[s]ince claimant was coming from work, was performing no work duties for employer and was free to go home or elsewhere, he was not in the course of his employment[;]" therefore, he was not entitled to benefits under the Workers' Compensation Act. [721 A2d Page 582]
The Director of DOES affirmed the hearing and appeals examiner's decision. In doing so, the Director rejected summarily that Mr. Vieira's claim should come within an exception to the "coming and going" rule because he was on a special errand for his employer and was paid for his travel time. The Director accepted the examiner's factual finding that Mr. Vieira was not paid for travel time, but rather for two hours no matter how long it took to travel between the work site and home. Citing the agency's decision in Kolson, the Director concluded that Mr. Vieira's fatal accident did not occur in the course of his employment.
By statute, the scope of our review of the agency's decision is limited to whether the findings of fact are supported by substantial evidence in the record and in accordance with the law. D.C.Code § 1-1510(a)(3)(E); KOH Sys. v. District of Columbia Dep't of Employment Servs., 683 A.2d 446, 449 (D.C. 1996) (citation omitted); Gomillion v. District of Columbia Dep't of Employment Servs., 447 A.2d 449, 451 (D.C. 1982) (citation omitted). In cases before DOES, the examiner initially makes findings of fact and conclusions of law, granting or denying the claim. KOH, 683 A.2d at 449 (citing Dell v. District of Columbia Dep't of Employment Servs., 499 A.2d 102, 105-06 (D.C. 1985)). Upon review, "[t]he Director accordingly is bound by the examiner's findings of fact if supported by substantial record evidence." Id. (citing Santos v. District of Columbia Dep't of Employment Servs., 536 A.2d 1085, 1088 (D.C. 1988)). Since the Director has final responsibility within the agency for interpreting the statute the agency administers, the Director reviews de novo the examiner's legal conclusions. Id. (citing Harris v. District of Columbia Office of Worker's Compensation, 660 A.2d 404, 407 (D.C. 1995); St. Clair v. District of Columbia Dep't of Employment Servs., 658 A.2d 1040, 1042-44 (D.C. 1995)). In turn, this court assures that the Director has given deference to the fact finding role of the examiner and that the decision is supported by substantial evidence. Id. (citation omitted). "In contrast, we review the Director's legal conclusions de novo, keeping in mind, however, that when the statutory language is not entirely clear, we ordinarily defer to the Director's interpretation of the governing statute and the agency's own regulations." Id. (citations omitted). If the Director's interpretation of the law is in conflict with statutes, regulations, or other legal authorities, it is not entitled to controlling weight. Id. at 449-50 (citing Gunty v. District of Columbia Dep't of Employment Servs., 524 A.2d 1192, 1196 (D.C. 1987)). "[T]his court has the last word on the law because, ultimately, 'the substantial evidence issue is an issue of law' and 'the reviewing court has the greater expertise.' " Id. at 449 (quoting Dell, supra, 499 A.2d at 107).
The Administratrix argues that DOES erred in concluding that the decedent's fatal accident did not arise out of and in the course of his employment with Fort Myer. She contends that the undisputed evidence shows that the decedent was on a "special errand" of opening and closing traffic lanes for his employer at the time that Mr. Vieira was killed. Fort Myer argues that the factual findings of the hearing examiner, particularly that decedent was not performing any work duties for his employer at the time of the accident, were supported by substantial evidence, and therefore, cannot be disturbed. It further contends that the hearing examiner properly ...