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Clark v. D.C. Department of Employment Services

January 20, 2000


Before Reid and Glickman, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Glickman, Associate Judge

Petition for Review of a Decision of the District of Columbia Department of Employment Services

Argued September 14, 1999

Dissenting opinion by Senior Judge Belson

Petitioner, Janet Clark, seeks review of a decision of the Department of Employment Services ("DOES") denying her claim for compensation benefits under the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 36-301 et seq. (1997). Clark suffered the injuries that disabled her from work when an unknown assailant shot her for unknown reasons in the parking lot of her employer, Intervenor BMA Capitol Hill. A DOES hearing examiner concluded after an evidentiary hearing that Clark's injuries did not arise out of her employment, and ordered that her claim for relief be denied. The Director of DOES affirmed that order.

We reverse. Clark was entitled to the benefit of a statutory presumption that the injuries she suffered when she was assaulted at work did arise out of her employment and were compensable. We hold that her employer did not present sufficient evidence to rebut that presumption, and that the hearing examiner's contrary determination was, therefore, not supported by substantial evidence.



Janet Clark was employed by BMA Capitol Hill ("BMA") as a dialysis technician for thirteen years. She worked at BMA's clinic in Southeast Washington, D.C., assisting dialysis patients. On August 16, 1991, Clark drove to work as usual and parked her car, a red Chevrolet, in the employees' parking lot adjacent to the clinic. The parking lot was owned by BMA. After parking her car, Clark went to work inside the clinic building.

Later that day, an unidentified man walked into the parking lot, looked around, and then asked Nathaniel Ford, another BMA employee who also happened to be in the lot, whether Ford knew "the lady that drives the red car." Ford pointed to a car which was burgundy in color, and asked the man if he meant that particular car. The man responded by saying no, that he wanted "the lady that drives this car," pointing to Clark's Chevrolet. Ford asked the man if he knew the name of the woman he was seeking, and the man said that he did not. Ford then took the man's name and phoned Clark, who was still inside the clinic building at the time. He informed her that a man in the parking lot wanted to speak with her. Clark told Ford that she did not recognize the name that the man had given. She looked out a clinic window and spotted the man, but did not recognize him then either. Nonetheless, Clark came downstairs and walked into the lot to speak with the stranger.

Clark approached him and asked him what he wanted. The man asked if the car he had pointed out was hers. Clark asked "why" and the man covered his mouth with his hands and said, "I'm tired of Terry and James." Clark responded to this cryptic statement that she did not know a Terry or James. The man then asked again if the car he identified was hers, and Clark said that it was. Without another word, the man thereupon took out a gun and shot Clark at point-blank range three times, in the head, the neck and the buttock.

Clark's assailant turned and fled immediately after the shooting and was never arrested. His identity is unknown, as Ford and Clark were unable to recall the name he gave them. No evidence was presented regarding the motive for the shooting. Clark testified that she did not know her assailant or why he attacked her. Clark had speculated in an early conversation with police officers that her daughter's husband might have wanted to hurt her. Police investigation revealed no evidence that he was connected to the assault, however, and Clark testified that "several detectives assured [her] that he did not do it." BMA did not present any evidence tying Clark's son-in-law to the shooting.



Having been seriously injured and disabled by her shooting, Clark sought temporary total disability benefits under the Workers' Compensation Act. BMA contested coverage. As the parties stipulated, the sole issue before the hearing examiner was whether Clark's shooting injuries arose out of and in the course of her employment. See D.C. Code § 36-301(12) (1997).

In addressing this issue, the hearing examiner accepted that Clark sustained her injuries on the premises of her employer while in the course of her employment. This, the examiner held, triggered the statutory presumption of a causal relationship between her injuries and her employment. See D.C. Code § 36-321(1) (1997). The burden then shifted to BMA, as the employer seeking to defeat coverage under the Act, to produce "specific comprehensive evidence" sufficient to rebut the presumption.

BMA did not dispute that Clark sustained her injuries "in the course of" her employment, but it did contend that its evidence rebutted the statutory presumption by demonstrating that Clark's injuries did not "arise out of" that employment. The hearing examiner evaluated this contention under the so-called "positional-risk" test enunciated by the Director in Grayson v. Washington Metropolitan Area Transit Auth., H&AS No. 83-260 (May 23, 1985), aff'd sub nom. Grayson v. District of Columbia Dep't of Employment Servs., 516 A.2d 909 (D.C. 1986): "[f]or an employee's injury to have arisen out of the employment, the obligations or conditions of an employee's employment must have exposed the employee to the risks or dangers connected with the injury."

The examiner found that Clark's assailant targeted her because she was the owner of a particular red automobile, and that he "voiced what can only be construed as the grounds of a personal vendetta" of unknown origin. Concluding that the assailant's statements prior to the attack "may reasonably be construed to denote a relationship predicated upon factors other than claimant's position as a dialysis technician with employer," the examiner held that BMA had presented sufficient evidence to rebut the presumption of a causal link between Clark's injury and her employment. The examiner did not discredit Clark's own testimony that she did not understand what her assailant said or why he attacked her. He concluded, however, that, deprived of the benefit of the statutory presumption of causation, Clark had failed to produce any evidence affirmatively linking the motive behind the assault to her employment. Furthermore, the examiner found that Clark did not establish any connection between the geographic location of her employment and the assault.*fn2 The hearing examiner accordingly held that BMA had successfully established that Clark's injuries did not arise out of her employment, and denied her claim for worker's compensation.

The Director affirmed this ruling on the ground 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 ...

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