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Case number 19-7029, Tashomi Ward, Anahou Appellant, versus Washington Metropolitan Area Transit Authority, also known as WMATA, et al.

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Mr. Ward for the appellant, Mr. Cole for the appellees.

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Good morning.

[00:00:18] Speaker 08:
Good morning, Your Honor.

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This is Larry Ward representing Tashomi Wakakinwa.

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Please proceed.

[00:00:33] Speaker 08:
Yes, Your Honor, I am before the court to represent Mr. Wata Kenawa.

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I want to begin by just talking a little bit about the theory that I presented to the court.

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We filed the suit on March 7, 2018, against WMATA for assault and battery and intentional affliction of emotional distress under the WMATA Compact.

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Under the Compact,

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WMATA is liable for torts committed by its employees while in the conduct of a proprietary function.

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The district court correctly found that appellate had subject matter jurisdiction under the WMATA compact.

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That was indicated in the judge's opinion at page 10.

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I also like to direct the court's attention to a case that's analogous Paul Burkhardt versus WMATA.

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which is cited at 112, third, 1207, pages 1216 to 1217.

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That case I'm citing for purposes of showing the existence of subject matter jurisdiction in this case, in that it was filed under a similar statute, and the plaintiff prevailed in that case.

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I also like to talk about sovereign immunity.

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Yes, ma'am.

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Well, I don't want to be asserting sovereign immunity in this case.

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And so it's waived, isn't it?

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So you have a jurisdiction.

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Yes, we have jurisdiction.

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And I guess I'm presenting it because

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not only with Southern Military Waves, but there was some question that I thought was raised by the defendant indicating that we didn't have subject matter jurisdiction.

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And I think they mentioned that we didn't have subject matter jurisdiction because, well, I guess I'll go to the next point to indicate this.

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but so let me just ask you the case that you've just cited all right so that rejects the fourth circuit's position ma'am your honor the case you just cited the brokard versus lamada case at 112 fed third yes 112 fed third 1207 it's actually uh it was a

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D.C.

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Circuit case that was I think it's 1997 and it was a D.C.

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Circuit case and involved a passenger who was assaulted by a metro bus rider here in D.C.

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and the assault continued into Virginia at the metro station and the passenger who was

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of an assault and battery and an intentional infliction of emotional distress claims, and he subsequently won in the D.C.

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Circuit in 1997.

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So, Omana argues, of course, that we lack subject matter jurisdiction, but then goes on to argue that, given your stipulation with Virginia, you're entitled to no further remedies,

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And that even if you were, you haven't included in your complaint the type of allegations that would be necessary to hold Wamata liable under the compact.

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Well, I thought we did, Your Honor, what we did.

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I'm sorry, Your Honor.

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Your Honor?

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Yes.

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Yeah, we did make an allegation of assault and battery and intentional and frictional commercial distress in that complaint.

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I know.

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So the argument is that you have covered all to which you are entitled under the WMATA Compact when you sued Georgia and into stipulation.

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Yes, and I'll counter to that, Your Honor, is that because this case does not arise under the Virginia Workers' Compensation Act, it falls out of the ambit of that act.

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And given that it falls out of the ambit... Compensation under the Virginia Workers' Compensation Act?

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Oh, I'm sorry.

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Didn't you accept compensation under your client compensation under the I'm sorry.

[00:05:58] Speaker 08:
I'm sorry.

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Did you not or did your client accept compensation under the Virginia workers compensation law?

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Yeah, she did.

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But that's enough.

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Yes, she did.

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But there's case law, which I'm going to cite to you now, which says that you can accept compensation under the Virginia Workers' Compensation Act.

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And if you decide to pursue a civil suit against WMATA, you can repay the compensation that you have received.

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And that case is Butler versus, Butler versus Southern States Cops.

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It's at 270 Virginia 459.

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It's a similar case to this in that a plaintiff who was a... Yes, it is.

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It is, okay.

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It is.

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And I'll direct your attention to the, it's on page six, I'm sorry, it's on page 463 and 464.

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And it said footnote two.

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In that case, what happened was that a young lady in Virginia was assaulted on the job by a gentleman, and she sought to file a civil suit.

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And she had received workers' compensation, and the lower court attempted to bar her claim for relief by arguing that a stipend, a workers' compensation stipend had been

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that she had agreed to, prevented her from seeking relief, the Virginia Supreme Court rejected that argument stating that Butler had rights to seek more civil relief.

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And the Virginia Supreme Court presented Butler with the choice of electing to pursue a civil action against her attacker for the full damages instead of seeking benefits under the Act.

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upon repayment of any benefits she had received.

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So that case is a recent case and it's the most current statement out of Virginia by the Supreme Court on that particular issue.

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What is that case?

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say about the word the exclusivity provision under the Worker's Compensation Act?

[00:08:35] Speaker 08:
Yes, sir.

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Yes, it says that if the assault did not arise out of the, if the injury did not arise out of the assault, then the plaintiff would have an opportunity to pursue a remuneration civil court.

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And that's really the underlying issue in this case.

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The issue is whether... I wanted to follow up on that, Mr. Ward, because it seems to me that you actually have, at the very same time you're litigating this case, you have another, you still have another workers compensation proceeding still pending in Virginia.

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As part of a stipulation in which your client agreed that his injuries arose out of a workplace accident, do you have a case where someone's pursuing both tort relief and has already received and is seeking more compensation under the VWCA simultaneously?

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I think the Butler case addresses that, Your Honor.

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Does it involve simultaneous pursuit of VWCA relief and tort relief?

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Can you show me what page of that decision does that?

[00:09:53] Speaker 08:
Yeah, I think it's on page 465 of Butler.

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Yes.

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Oh, I only have this.

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Let's see.

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I only have this second citation.

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Sorry.

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I don't know.

[00:10:12] Speaker 08:
Yeah, it's Yeah, it's it's it's a bundle versus Southern States co-op at 270 Virginia 459 and decided and No, I get that.

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I have a different citation.

[00:10:25] Speaker 08:
So where tell me where it says that Okay, I think it's in

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Can you tell me which paragraph it begins with?

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Which paragraph it begins?

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Yeah, I don't have the case in front of me, Your Honor.

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But I think it's on page 464.

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It's between 464.

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What I have here are simply the page numbers.

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OK.

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Well, but that was a case where the issue was whether the injury was personal

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for employment related.

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But your client has stipulated that these injuries rose out of a workplace accident.

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We have a stipulation to that effect.

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That didn't happen in Butler, did it?

[00:11:16] Speaker 08:
Yes, it did.

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It certainly did.

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And I think if you look at paragraph two, I think they talk about this whole issue because the language in footnote two is similar to

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And furthermore, in 465, what Butler says is that to the extent an employee's injury does not come within the ambit of the Virginia Act, the employee's common law remedies against his employers are preserved unimpaired.

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I don't see this language about paying back the workers' compensation amount and competing with suit against WMATA.

[00:12:10] Speaker 08:
Okay, I think if you look at, okay, I got that language from... All right, and that is Judge Blatt's point.

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It comes from...

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I'm sorry, Your Honor.

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It comes from... I'm sorry.

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Proceed, Counsel.

[00:12:39] Speaker 08:
I'm sorry, Your Honor.

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Could you repeat that for me?

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Let's assume for the moment that language is somewhere in Butler about repayment.

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But Judge Millett points out Butler was talking about a sexual assault.

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And Virginia law has this exception for personal assault.

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That's not your case.

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But I guess what I'm saying is that the language there seems to be saying in Virginia that

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if you're confronted with a instance in which a plaintiff is receiving workers' compensation, and if the case does not arise out of the job, and the plaintiff decides to pursue a civil suit, then it seems to be saying that that's one of the considerations that the court-

[00:13:53] Speaker 05:
That seems to be a rather critical difference between that case and this one, even if you're correct about that repayment part.

[00:14:01] Speaker 08:
But I think that the sexual assault statute, you're talking about statute section 65.1-23.1.

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I think what I'm saying there is that that statute would give us some guidance in terms of how to handle an instance in which an individual

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has gotten payment for workers' comps but still sues, simply.

[00:14:31] Speaker 05:
Now, have you found that might be in that case?

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Provided that?

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Well, it certainly wasn't the main thrust of the case.

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The main thrust of the case was about the assault being personal, wasn't it?

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I'm sorry, Your Honor.

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Could you repeat that for me?

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I apologize.

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Have you found the language that you're relying on in that case about the repayment being important?

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Yeah.

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Right.

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I think that's exactly what I'm relying on.

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The idea is that even though the concept is not... You can't find that language, is it?

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Well, the concept is not statutory, but I'm just saying that that's one of the considerations that Virginia Supreme Court would likely take into consideration if they had a case before it like this.

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But again, the case in 270 Virginia is about whether the assault was personal or job-related.

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Was that not the main issue in that case as opposed to one of the many cases?

[00:15:42] Speaker 08:
Right.

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I think that is the main issue.

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I think it is an issue.

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That's not an issue in this case.

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But yes, right.

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But when you say personal, whether the issue is personal.

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No allegation here is the same out of the job, right?

[00:16:03] Speaker 08:
Yes.

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My allegation is that the district court misinterpreted how

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how a injury arises out of the job.

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And the district court says that in order for an injury to not arise out of the job, that the person has to have some sort of personal relationship with the person who makes the assault.

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And I think that that's a misinterpretation.

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I think that the actual risk test has to do with an employer imposing certain risks upon his employees.

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This analysis all goes to whether the incident arose out of a work accident or not.

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And your client has stipulated

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that these injuries arose out of a work-related accident.

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I don't know why we would go to any other analysis, all this analysis you're talking about when your client has already said in a stipulation that this did arise out of a work-related accident and is getting compensation on the basis of that stipulation.

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I don't understand how you can have your kids do that.

[00:17:31] Speaker 08:
Well, I guess what I'm saying is that

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And in the Butler case, I think that they do talk about repayment for someone who has taken workers' comp.

[00:17:44] Speaker 02:
I don't see that anywhere in Butler.

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I just don't see that in Butler.

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Maybe on rebuttal, you can give us.

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Council, you're saying you don't have a copy of Butler in front of you.

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While we're hearing from Council for WMATA, why don't you

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get the case in front of you.

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And give us that citation, please.

[00:18:04] Speaker 04:
Yes.

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All right?

[00:18:08] Speaker 08:
OK.

[00:18:09] Speaker 08:
Unfortunately, I'm going to play, so I can't give it in front of me, Your Honor.

[00:18:14] Speaker 04:
Well, then we can't pursue your argument at this point, because none of us can find that language.

[00:18:22] Speaker 04:
And maybe counsel for WMATA can help us here.

[00:18:26] Speaker 04:
We'll come back to you on rebuttal.

[00:18:30] Speaker 08:
Okay, thank you.

[00:18:30] Speaker 04:
Why don't we hear counsel for WMATA.

[00:18:33] Speaker 09:
Good morning.

[00:18:35] Speaker 09:
My name is Richard Cole and I represent the Apple League for Washington Metropolitan Area Transit Authority and Mr. Paul J. Weedafield in his capacity as general manager.

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Today we ask that this court affirm the district court dismissal of appellant's amended complaint for four main reasons.

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First, the Virginia Workers' Compensation Act, the statutory language, as well as principles of race judicata, bar appellant from seeking double recovery for previously compensated injuries.

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Second, judicial estoppel forbids appellant from taking an opposite legal position both today and in front of the district court as that would be for the Virginia Workers' Compensation Commission in order to receive an award benefit.

[00:19:16] Speaker 02:
Hang on.

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Did you argue, first of all, that the stipulation wasn't to a court.

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It was to an agency.

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And so I don't know how it would be judicial estoppel.

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And two, I was surprised not to see a judicial or some sort of equitable estoppel argument in your brief.

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Did I miss it?

[00:19:34] Speaker 09:
So the magic words might not be printed in the brief, but all the elements.

[00:19:38] Speaker 02:
I'm not talking about magic words.

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Is the word estoppel in your brief?

[00:19:42] Speaker 09:
The word estoppel is not in the brief.

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OK, that's not a magic word.

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That's the legal theory that you're arguing.

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So I'm surprised not to see it.

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but I don't know that that's before us.

[00:19:52] Speaker 09:
Well this court has the ability to review de novo and the facts before it are there's a stipulated order.

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I understand we reviewed de novo issues decided by the district court which tends to arise from questions and arguments presented to the district court.

[00:20:07] Speaker 02:
We don't there's nothing for us to review de novo since you didn't make this argument as I understand it to the district court but certainly not in your brief here.

[00:20:15] Speaker 02:
It seems like a powerful equitable stop will might be a powerful argument but I don't

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See it.

[00:20:20] Speaker 09:
Your Honor, we did make the argument that he both entered into an award order in May of 2017 as well as the stipulated that's included in the Joint Appendix at J a 45 through 49 That's a different argument than a stop.

[00:20:34] Speaker 02:
You certainly didn't make that argument.

[00:20:36] Speaker 05:
Okay.

[00:20:37] Speaker 05:
You certainly rely on the

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or workers compensation, excuse me.

[00:20:44] Speaker 09:
Yeah, if I may, my point is that in order to receive compensation from the Virginia Workers' Compensation Commission, he had to make the argument that the injury was by accident arising out of and during the course of his employment.

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Otherwise, his injury would not be compensable by the Virginia Workers' Compensation Commission.

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And respectfully, the Virginia courts do treat the Workers' Compensation Commission as a court of competent jurisdiction.

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And so to that first point, if I may, about the statute, section 65.2300 talks about a presumption of applying the title to injuries that occur by accident or rising out of and during the course of employment.

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But here, we don't need to presume anything.

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We have actual acceptance.

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We have both the award order in May of 2017 and then the stipulated order that replaces it in May of 2018.

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And that is for the injuries complained of in the allegations of the amended complaint, the same injuries.

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And the exclusivity provision states that once that you have accepted the provisions of the title to pay and receive compensation, then that shall exclude all other rights and remedies.

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And I agree with Judge Millett, your comment from a previous argument, that that is where the analysis should end.

[00:21:58] Speaker 09:
because we we have actual acceptance of the provisions of the workers compensation title we have uh payment and receipt of payment compensation benefits which include uh in the stipulated order lifetime medical benefits for all uh causally related treatment to the injuries complained of before the workers compensation commission my understanding is he has a claim still pending or at least at the time of briefing he had another claim before the compensation vwca agency that was still

[00:22:27] Speaker 02:
Do you know what the status of that is?

[00:22:30] Speaker 09:
I do not, your honor.

[00:22:32] Speaker 09:
I met just a week ago with our workers compensation attorneys who primarily handle that case and was not told of any pending dispute related to an application for additional compensation under the prior claim.

[00:22:50] Speaker 09:
So there may be a new case filed by a different attorney, but as far as any compensation related to

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the original claim and award order and stipulated order that I'm, in my understanding, there's no dispute and he, this client is still receiving those medical benefits.

[00:23:07] Speaker 04:
Of course, he suggests he's having trouble receiving them.

[00:23:10] Speaker 04:
All right.

[00:23:11] Speaker 04:
I mean, that is in the record book for us.

[00:23:14] Speaker 04:
And I gather some of this confusion has arisen because he's returned to work that he's gone back on disability, et cetera.

[00:23:22] Speaker 04:
But, um, I just want to be clear.

[00:23:26] Speaker 04:
Um,

[00:23:28] Speaker 04:
Are you abandoning your first argument about this court lacks subject matter jurisdiction?

[00:23:35] Speaker 09:
Well, I believe the proper jurisdiction is in front of the Virginia Workers' Compensation Commission because this injury was by accident, arose out of and during the course of his employment.

[00:23:45] Speaker 09:
And because of that statutory construct, that is the proper place for his litigation related to injuries that came after.

[00:23:54] Speaker 04:
Is that a yes or no?

[00:23:57] Speaker 09:
It is a no, I'm not abandoning that argument, your honor.

[00:24:03] Speaker 09:
I think that the statutory language there is just a codification of the principles of race judicata.

[00:24:08] Speaker 09:
The courts in Virginia treat an award order from the Workers' Compensation Commission as a final order on the merits, a final judgment on the merits.

[00:24:16] Speaker 09:
We have a unanimity of parties suing its employer in both jurisdictions.

[00:24:20] Speaker 09:
He's suing over the same transaction and occurrence.

[00:24:23] Speaker 02:
No, but I think that may all be a great merits argument for you about displacement.

[00:24:29] Speaker 02:
But we've got expressed jurisdiction under the WMATA statute.

[00:24:33] Speaker 02:
Talks about jurisdiction of courts, and we have it.

[00:24:37] Speaker 09:
The original jurisdiction, your honor, but subject matter jurisdiction isn't necessarily.

[00:24:42] Speaker 02:
What do you mean between original jurisdiction and subject matter jurisdiction?

[00:24:45] Speaker 09:
The original jurisdiction means that a case can be brought against WMATA, but depending on the subject matter of the case, that it may not be appropriate given sovereign immunity or given other exclusives.

[00:24:57] Speaker 02:
I know, but you haven't raised sovereign immunity.

[00:24:59] Speaker 02:
So that's a jurisdictional objection.

[00:25:01] Speaker 02:
But the fact that the Virginia Workers' Compensation Act sort of displaces or forecloses his claim

[00:25:10] Speaker 02:
not a jurisdictional argument, right?

[00:25:12] Speaker 02:
That goes to liability, but not to our authority to hold, were we to decide that this is correct, that the Virginia's Work and Compensation Act forecloses his claim.

[00:25:27] Speaker 02:
That's a different, that's a merits rule.

[00:25:28] Speaker 02:
And the Supreme Court has been directing us for more than a decade now to be very careful about what we label jurisdictional.

[00:25:35] Speaker 02:
And I'm not aware of any authority for the proposition that this type of merits argument that you're making is jurisdictional.

[00:25:46] Speaker 02:
In fact, the Federal Tort Claims Act has an almost identical provision holding the United States government libel consistent with state law.

[00:25:55] Speaker 02:
No one thinks that's jurisdictional.

[00:25:58] Speaker 02:
It's a merits defense.

[00:25:59] Speaker 09:
Then allow me to just concede and move on, Your Honor.

[00:26:02] Speaker 09:
To speak real quickly, I believe Mr. Workagegni, who was focused on this repayment issue, he may be talking about subrogation or WMATA's lien rights against a third party actor.

[00:26:16] Speaker 09:
So if he were to pursue his claim against Mr. Van Buren in his individual capacity and received a judgment of which he collected money on for the cause of his injuries, WMATA would have a right, a lien.

[00:26:28] Speaker 09:
to recover its workers compensation outlay against that judgment.

[00:26:33] Speaker 05:
However, the language in Butler that relates to the sexual assault situation.

[00:26:45] Speaker 09:
Yeah, I don't believe that's discussed by Butler.

[00:26:47] Speaker 09:
I don't see it discussed in Butler.

[00:26:49] Speaker 09:
I do have the case in front of me.

[00:26:50] Speaker 09:
I was rereading it.

[00:26:51] Speaker 09:
I believe it's about whether the injury in Butler was compensable under the Virginia Workers Compensation Act in the first instance.

[00:26:59] Speaker 09:
And I believe that's where most of these cases lie.

[00:27:00] Speaker 09:
I don't believe there's a case where there's some allowed to receive compensation under the act and also allowed to sue in court for the same injuries against the employer.

[00:27:11] Speaker 04:
So are you familiar with this Buchanan case that counsel cited this morning?

[00:27:21] Speaker 09:
I don't see it in his brief, Your Honor.

[00:27:25] Speaker 04:
It's not there.

[00:27:25] Speaker 04:
He just cited it today.

[00:27:28] Speaker 09:
No, off the top of my head, I'm not.

[00:27:30] Speaker 09:
All right.

[00:27:31] Speaker 09:
All right.

[00:27:32] Speaker 04:
Because you did cite a Fourth Circuit case that goes exactly the other way from what counsel tells us this morning, this Buchanan decision by our court.

[00:27:44] Speaker 04:
But I don't find it in the brief either.

[00:27:48] Speaker 09:
Yeah, my apologies, Your Honor.

[00:27:50] Speaker 09:
I can't- Oh, outside it, yeah.

[00:27:54] Speaker 03:
Your apology.

[00:27:55] Speaker 09:
I'm happy to do so.

[00:28:01] Speaker 09:
And so to this point, the city of Richmond v. Braxton, a case relied on by appellant, the Virginia Supreme Court decided that the sexual assault in that case was personal and did not arise out of the employment.

[00:28:14] Speaker 09:
But the result was that it struck down the Workers' Compensation Commission award.

[00:28:19] Speaker 09:
because it is saying that the award that was granted the commission did not uh the injury didn't arise out of the employment so the title and the benefits therein did not apply and the remedy would then be to seek uh in in common law or toward or it wouldn't be prevented from doing so by the exclusivity provision but

[00:28:39] Speaker 09:
To the merits as well, this assault described in the amendment by accident.

[00:28:49] Speaker 03:
I'm sorry.

[00:28:53] Speaker 04:
Excuse me, we're getting an echo here from someone.

[00:28:56] Speaker 04:
Yeah, some other voice is cutting in.

[00:28:58] Speaker 04:
It's not one of the judges.

[00:29:00] Speaker 09:
Okay.

[00:29:01] Speaker 04:
Sorry.

[00:29:02] Speaker 04:
Speaking, please cease.

[00:29:05] Speaker 09:
So the assault described in the amended complaint was an injury by accident within the meaning of the Act, and it as well arose out of and during the course of appellant's employment.

[00:29:17] Speaker 09:
And then, and then lastly, even if you do not agree that WMATA and Mr. Weedifield should not be held vicariously liable,

[00:29:24] Speaker 09:
for some act by an employee that was done outside the scope of his employment and not furthering any business or proprietary interests of WMATA.

[00:29:32] Speaker 09:
So the case law in Virginia about whether an accident can be an injury under the Workers' Compensation Act, it says, although the injury is a result of willful and intentional assault from either a fellow employee or a third person, that does not prevent the injury from being accidental within the meaning of the act.

[00:29:50] Speaker 09:
And that was from a 1934 Virginia Supreme Court decision, which we cited in our brief, Continental Life Insurance Company v. Go.

[00:29:58] Speaker 04:
Well, you know what I find interesting about that case is Virginia stretched the meaning of the word accidental, all right?

[00:30:10] Speaker 04:
And that was so that the injured employee

[00:30:18] Speaker 04:
would have someone from whom he could recover for these very serious injuries, committed by some hitchhikers, essentially, as dissent points out.

[00:30:29] Speaker 04:
So I thought it was interesting where the court held that if you work at a stable, you can't expect to be bitten by your friend's dog.

[00:30:43] Speaker 04:
Well, if you ever been around stables,

[00:30:46] Speaker 04:
There are dogs around there.

[00:30:47] Speaker 04:
So in any event, I thought that was sort of interesting.

[00:30:50] Speaker 04:
So in this case, WMATA has no interest in having employees engage in physical combat, even when they're speaking of their job.

[00:31:06] Speaker 09:
So I wondered I think that goes more to the arising out of question.

[00:31:12] Speaker 09:
Yeah, actual risk test that was given in lib C and that states that

[00:31:18] Speaker 09:
An accident arises out of employment when it's apparent to a rational mind under all attending circumstances that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury.

[00:31:32] Speaker 09:
And I think that that's didn't overrule the continental life insurance company case or the one that it cited, which was farmers manufacturing company, the war for

[00:31:43] Speaker 05:
And in that case, fairly standard compensation law throughout the country in their lead through mostly that the fact that An injury that arises out of the employment that is accidental as to the injured person is not taken out from under the workers compensation that just because the third party torque feature was a co employee who did on purpose.

[00:32:07] Speaker 09:
Right.

[00:32:08] Speaker 09:
And so the courts through Lipsy, as well as these prior cases, then look to

[00:32:14] Speaker 09:
Is there that causal connection?

[00:32:16] Speaker 09:
In the Farmers Manufacturing Company v. Whirlpool case, two co-employees got in an argument over disposal of sawdust, and three hours later, one employee attacked the other one with a crowbar and killed him.

[00:32:27] Speaker 09:
And that was deemed compensable under the Workers' Compensation Act.

[00:32:31] Speaker 09:
And I think that that analysis has continued through case law, including Hendricks v. Walmart, which we cited in our brief, where an employee was off duty, she was on vacation,

[00:32:41] Speaker 09:
She only showed up to the store to collect a paycheck.

[00:32:45] Speaker 09:
And while she was at the store, she slipped and fell on liquid that was present.

[00:32:49] Speaker 09:
So nothing about her job should cause her to come in contact with wet liquid on the floor.

[00:32:54] Speaker 09:
By nature, she was off the clock.

[00:32:56] Speaker 09:
She wasn't even supposed to be there.

[00:32:57] Speaker 09:
But in analyzing all attending circumstances, the court found that but for her employment and the Walmart paycheck distribution policy,

[00:33:06] Speaker 09:
that that causal connection was enough to find the exclusivity provision of the Workers' Compensation Act applied, and that suing in court was not the proper venue, that she should be before the Workers' Compensation Commission in order to receive her compensation.

[00:33:21] Speaker 02:
Can I ask you, first of all, there were sort of two assaults here.

[00:33:25] Speaker 02:
There was the first one, and then it stopped.

[00:33:27] Speaker 02:
The guy said, oh, we got to stop or we're going to get fired.

[00:33:29] Speaker 02:
And then when Mr. Rukwunehu stood up,

[00:33:34] Speaker 02:
He just lobbed him in the back of the head and started the assault process all over again.

[00:33:39] Speaker 02:
And how can we tell on a motion to dismiss, as opposed to a summary judgment record,

[00:33:49] Speaker 02:
what all the relevant circumstances are here.

[00:33:51] Speaker 02:
According to the complaint, this assault came out of the blue.

[00:33:54] Speaker 02:
They weren't having a disagreement.

[00:33:56] Speaker 02:
They were having a discussion.

[00:33:57] Speaker 02:
And then he assaulted him.

[00:33:58] Speaker 02:
And even if you think that first round might have been tied to his work on the machines, there was then a second round of the assault.

[00:34:07] Speaker 02:
I don't understand how this is something that, when you keep referencing, we need to know all the attendance circumstances, that we can decide that at a 12b6 stage as opposed to summary judgment.

[00:34:19] Speaker 09:
Well, we're certainly limited to the allegations of the amended complaint.

[00:34:23] Speaker 09:
And the appellant is given every inference in his favor.

[00:34:27] Speaker 09:
But the allegations are detailed.

[00:34:30] Speaker 09:
And in fact, I do believe they show a workplace argument over workplace responsibilities that you don't touch.

[00:34:36] Speaker 02:
Not an argument.

[00:34:37] Speaker 02:
The complaint does not allege an argument.

[00:34:38] Speaker 02:
It's as a discussion.

[00:34:39] Speaker 02:
And we have to take that.

[00:34:41] Speaker 02:
as fact for purposes of a 12b6 stage.

[00:34:44] Speaker 02:
So let's not call it an argument.

[00:34:46] Speaker 02:
Let's call it a discussion.

[00:34:47] Speaker 09:
And it was a discussion that used explicatives.

[00:34:51] Speaker 09:
It certainly described an emotionally charged discussion.

[00:34:56] Speaker 02:
That's you adding words into the complaint again.

[00:34:59] Speaker 02:
Let's not add words into the complaint.

[00:35:01] Speaker 09:
I'm happy to read directly from it, but it talked about yelling.

[00:35:04] Speaker 09:
It talked about cursing at customers.

[00:35:06] Speaker 09:
It talked about telling him not to touch his machines, his expletive machines, when he was trying to do his maintenance and his repair work.

[00:35:15] Speaker 09:
I struggled to see how that does not describe an argument.

[00:35:19] Speaker 02:
Well, what if it turned out that Mr. Van Buren had a mental disorder that was triggered

[00:35:30] Speaker 02:
by people threatening his authority, his perception that someone's threatened his authority.

[00:35:34] Speaker 02:
So this attack was a product of his mental disorder, which made him personally hate Mr. Worker Gunehu.

[00:35:44] Speaker 02:
Would that be personal or would that be workplace?

[00:35:47] Speaker 09:
If there was this personal motivation that was wholly divorced from his employment and his employment relationship, Mr. Work, get me his employment relationship.

[00:35:58] Speaker 02:
That's just giving me, articulating a legal test back to me.

[00:36:01] Speaker 02:
What I'm asking you is assume these facts, which we don't have in the complaint.

[00:36:05] Speaker 02:
Yes.

[00:36:06] Speaker 02:
But that Mr. Van Buren has some sort of mental disorder that makes him violently react whenever someone seems to threaten his authority from his perception.

[00:36:16] Speaker 02:
it could happen at work, it could happen at home, it could happen on the street.

[00:36:20] Speaker 02:
It's just this thing that happens and it suddenly makes something burst out in personal rage at the person who, in his view, offended him.

[00:36:30] Speaker 02:
Don't tell me the test.

[00:36:32] Speaker 02:
Tell me whether that would be personal or work-related.

[00:36:38] Speaker 09:
Yes, it would be personal, Your Honor.

[00:36:39] Speaker 02:
Okay.

[00:36:39] Speaker 02:
How can we tell then at this stage when you have a complaint that says,

[00:36:45] Speaker 02:
Apparently, this guy used foul language, but there are people who just talk that way.

[00:36:49] Speaker 02:
We were having a discussion.

[00:36:50] Speaker 02:
Then he exploded.

[00:36:54] Speaker 02:
And then we stopped fighting.

[00:36:55] Speaker 02:
And then as I was getting up, he exploded a second time.

[00:36:59] Speaker 02:
How could that be decided on a 12b6 motion as opposed to summary judgment if we really have to get into the head of the attacker to understand what their motive was?

[00:37:09] Speaker 02:
Was it a rising out of a workplace dispute or rising out of some personal antipathy?

[00:37:14] Speaker 09:
So two points, Your Honor.

[00:37:16] Speaker 09:
First, the exact language of the amended complaint and the allegations are important.

[00:37:20] Speaker 09:
There was a brief verbal exchange as to each person's job responsibilities.

[00:37:24] Speaker 09:
Suddenly, defendant Van Buren stood up in the kiosk and yelled, mother blank, I told you not to touch the machine's exclamation point and punch plaintiff in the face.

[00:37:32] Speaker 02:
I think we could have those same facts if it turned out Mr. Van Buren, if the complaint had another paragraph that says Mr. Van Buren has a severe mental disorder that causes him anytime he feels threatened, whatever the perception that he has.

[00:37:48] Speaker 02:
to explode in personal targeted rage.

[00:37:51] Speaker 09:
The end result would be if he didn't already accept the provisions of the title and compensation before the Workers' Compensation Commission.

[00:37:57] Speaker 02:
Right, that's a different reason.

[00:37:58] Speaker 09:
There could be a result where this did not arise out of his employment and could be compensable in a court of law.

[00:38:06] Speaker 02:
Or could it be that you can't always tell at the 12b6 stage that sometimes you might need to know, if you're taking every fact and every inference in favor of the complainant,

[00:38:16] Speaker 09:
I think that that's possible, but I think that you would have to rewrite this complaint.

[00:38:20] Speaker 09:
I think you would have to rewrite these allegations in order to get there, Your Honor.

[00:38:24] Speaker 09:
And if I may, as well,

[00:38:29] Speaker 09:
He's not asking the court to return his award of compensation.

[00:38:34] Speaker 09:
He's not asking to return to WMATA any payment.

[00:38:36] Speaker 09:
Like you mentioned, we believe that he's just attempting to have his cake and eat it too.

[00:38:43] Speaker 02:
In fact, footnote two of the district court's decision talked about a third worker's compensation claim being filed in August 2018.

[00:38:54] Speaker 02:
Uh, and, uh, Councilor, the appellant wasn't sure about what happened with that.

[00:38:58] Speaker 02:
Do you know what the status of that one is?

[00:39:01] Speaker 02:
That August 20, 2018 filing?

[00:39:04] Speaker 09:
I do not, Your Honor.

[00:39:04] Speaker 09:
Okay.

[00:39:06] Speaker 02:
And what about his claims in his declaration that he's just not getting paychecks?

[00:39:11] Speaker 02:
He hasn't gotten a paycheck since 20, or not a paycheck, excuse me, not a paycheck, sorry, a worker's compensation check since

[00:39:18] Speaker 02:
18.

[00:39:20] Speaker 09:
Honestly, I can't speak to that, Your Honor.

[00:39:22] Speaker 09:
I can speak to the stipulated order, which permits him an award of benefits of lifetime medical benefits, inclusive of some wage loss, indemnity relief.

[00:39:31] Speaker 09:
And so under the worker's comp title and cases, if he can prove that his injuries are causally or his treatment is causally related to the injuries for which he claimed.

[00:39:43] Speaker 02:
That's medical treatment.

[00:39:44] Speaker 02:
That's different from getting compensation for lost work.

[00:39:48] Speaker 09:
You know, that word also discusses wage loss as well.

[00:39:53] Speaker 02:
Okay, you're just not aware on your own of what the status of the latest workers compensation is?

[00:40:01] Speaker 09:
Of a different claim?

[00:40:02] Speaker 09:
No, I'm not aware of a different claim.

[00:40:05] Speaker 02:
Well, I'm not sure it's a different claim, but it rises out of the same incident.

[00:40:08] Speaker 09:
Right.

[00:40:08] Speaker 09:
No, I mean, a newly filed August 2018.

[00:40:11] Speaker 09:
I'm not aware.

[00:40:12] Speaker 05:
It could be the cutest how many weeks compensation is.

[00:40:16] Speaker 05:
He's entitled to under the act, because they're not.

[00:40:20] Speaker 05:
That is to say, even though there's been an award in the past, a workers compensation recipient can come back asking for more more more weeks and compensation.

[00:40:34] Speaker 09:
Correct.

[00:40:34] Speaker 09:
And we believe that that's the proper function of the title as well as where this case, should any dispute still exist, be litigated.

[00:40:43] Speaker 09:
And lastly, Your Honor, courts in the DC and Fourth Circuit routinely hold LaMotta is not held liable for criminal conduct in its system.

[00:40:51] Speaker 09:
because policing and criminal acts, WMATA is immune from those claims.

[00:40:57] Speaker 09:
Section 80 of our compact is just a waiver of sovereign immunity for torts committed at its proprietary function compared to governmental function.

[00:41:06] Speaker 09:
There's nothing alleged about advancing the proprietary business interests of WMATA.

[00:41:12] Speaker 09:
Mr. Van Guren's conduct was sudden, unexpected, criminal,

[00:41:16] Speaker 09:
He knew it was not related to his employment because he said this could get us fired, according to the allegations in the amended complaint.

[00:41:24] Speaker 09:
And so we believe that with those facts that you cannot hold WMATA and then in turn its general name.

[00:41:30] Speaker 02:
Responding at superiors as an affirmative defense, isn't it?

[00:41:36] Speaker 09:
Yes, your honor.

[00:41:36] Speaker 02:
We require a lot of fact finding.

[00:41:38] Speaker 02:
It seems odd to seek motion to dismiss on the basis of an affirmative defense for which you bear the burden of proof.

[00:41:46] Speaker 02:
And we're assuming lots of facts now.

[00:41:50] Speaker 09:
Well, we're taking the allegation as amended as presented.

[00:41:53] Speaker 02:
Now your allegations, as you just described them, sounded a lot like my hypothetical, right?

[00:41:57] Speaker 02:
He couldn't have been doing this for his work.

[00:41:59] Speaker 02:
He's not supposed to do that.

[00:42:00] Speaker 02:
We don't know what made him go crazy.

[00:42:02] Speaker 09:
Right.

[00:42:02] Speaker 02:
I don't believe that that's my hypothetical.

[00:42:04] Speaker 09:
I don't believe that the two laws are inconsistent, however, Your Honor.

[00:42:10] Speaker 02:
You had a very different description of the complaint just now than you did when I was asking you about arising out of work.

[00:42:15] Speaker 09:
Sure, it is.

[00:42:16] Speaker 02:
That seems difficult.

[00:42:18] Speaker 02:
I don't know how you can fairly read the allegations of complaint in favor of the plaintiff, both of those ways at the same time, which we would have to do to rule on that.

[00:42:27] Speaker 04:
Any further questions?

[00:42:30] Speaker 04:
Thank you, counsel.

[00:42:35] Speaker 04:
All right, counsel for repellent.

[00:42:37] Speaker 04:
Give you a couple of minutes.

[00:42:47] Speaker 04:
Um, Mr. Ward, can you hear me?

[00:42:51] Speaker 05:
He seems to have left the courtroom.

[00:43:03] Speaker 01:
Well, Mr. Ward is still in the courtroom.

[00:43:08] Speaker 01:
He needs to unmute himself.

[00:43:10] Speaker 01:
Mr. Ward, please press star six to unmute yourself.

[00:43:17] Speaker 04:
Good.

[00:43:18] Speaker 08:
Hello, Your Honor.

[00:43:19] Speaker 04:
Yes, you have two minutes in rebuttal.

[00:43:22] Speaker 08:
Yes, Your Honor.

[00:43:23] Speaker 08:
Number one, I don't see how one can say that this case does not arise out of employment and that the film invalidated the policy, a safety policy, which is preeminent in that organization.

[00:43:38] Speaker 08:
Secondly, at some point, Your Honor, if I may, I'm not at a position where I could provide you with that particular case

[00:43:48] Speaker 08:
site in which they talk about the repayment.

[00:43:51] Speaker 08:
Would there be any possibility that I could submit that to you later today?

[00:43:55] Speaker 08:
And then the third thing is that there was no... Can you give me the citation?

[00:44:02] Speaker 02:
Sorry, before you move on, can you give me the citation one more time for that case?

[00:44:07] Speaker 08:
Yes, the citation is... It's 270 Virginia.

[00:44:17] Speaker 08:
459 decided in 2005.

[00:44:21] Speaker 08:
And it is between pages 463 and 465.

[00:44:28] Speaker 08:
And there's a footnote at number, a footnote two.

[00:44:33] Speaker 02:
That's the Butler case.

[00:44:34] Speaker 02:
I thought you had a different case, a more recent Virginia case.

[00:44:37] Speaker 08:
Let me give you also another case that has some language similar to that, and that's McGreevey versus Raichol Dana instruments.

[00:44:44] Speaker 02:
No, that's not the one I thought you were talking about.

[00:44:46] Speaker 02:
Never mind.

[00:44:47] Speaker 02:
OK.

[00:44:47] Speaker 02:
We already have that one from the brief.

[00:44:49] Speaker 02:
All right.

[00:44:50] Speaker 08:
OK, look at 459.

[00:44:52] Speaker 04:
Yes, we have that.

[00:44:55] Speaker 04:
What's your third point?

[00:44:57] Speaker 08:
Okay.

[00:44:58] Speaker 08:
The third point that I was going to make is that, uh, I do, uh, believe that this w it was not an argument as you pointed out to council, it was a assault.

[00:45:09] Speaker 08:
Uh, there was never an argument.

[00:45:12] Speaker 08:
Um, and I do agree that the continental case is a stretch in terms of, uh, council attempting to say that, uh, that assault or injury rose out of employment.

[00:45:26] Speaker 08:
Um,

[00:45:27] Speaker 05:
I thought I understood you to say when you first started your rebuttal that this did arise out of employment.

[00:45:35] Speaker 08:
I'm sorry, Your Honor.

[00:45:35] Speaker 05:
I thought I understood you to say at the beginning of your rebuttal that this did arise out of employment.

[00:45:42] Speaker 05:
Did I misunderstand you?

[00:45:45] Speaker 08:
No.

[00:45:45] Speaker 08:
Our current case does not arise out of employment.

[00:45:52] Speaker 08:
does not arise.

[00:45:54] Speaker 08:
I absolutely does not.

[00:45:56] Speaker 05:
Okay, repeated your honor.

[00:46:03] Speaker 05:
So your client was wrong to have filed for workers compensation and to have accepted.

[00:46:09] Speaker 08:
Well, what what what happened there was that he was in dire straits financially.

[00:46:14] Speaker 08:
And he had, I knew, I told him there was a possibility that he may not be able to recover civilly, but he had no recourse economically.

[00:46:26] Speaker 05:
And I think that's one of the- I'm assuming that the third party court favor here is judgment free, since you've dismissed this to him.

[00:46:37] Speaker 08:
I'm sorry, Your Honor.

[00:46:38] Speaker 05:
I'm assuming that Martin Ben-Gurion is judgment free.

[00:46:41] Speaker 05:
Otherwise, you'd be taking the third party court

[00:46:45] Speaker 08:
Yes, he's dismissed.

[00:46:47] Speaker 05:
You dismissed him, I presume, because he's judgment-proof.

[00:46:51] Speaker 08:
Yes, we dismissed him because under the law, we had to proceed against WMATA.

[00:46:59] Speaker 08:
We could not proceed against both defendants.

[00:47:02] Speaker 08:
And he basically had a lot of issues.

[00:47:08] Speaker 08:
And quite frankly, he was not financially solvent.

[00:47:15] Speaker 05:
That's what I say.

[00:47:21] Speaker 08:
Yes.

[00:47:21] Speaker 05:
Okay.

[00:47:23] Speaker 08:
But I do.

[00:47:23] Speaker 08:
I do agree with Judge Rogers to the extent that I think there needs to be more, um, discovery taken to under understand the thinking that Mr Van Buren had at that particular time.

[00:47:38] Speaker 08:
Uh, and that was one of the issues that I had, uh, by being dismissed earlier.

[00:47:44] Speaker 08:
And I indicated that to the district court judge, which is that I had heard rumor that there were some other issues with the same gentleman, uh, in the organization, but he was never, um, uh, reassigned or, uh, it was never resolved.

[00:48:06] Speaker 04:
All right.

[00:48:06] Speaker 04:
Thank you.

[00:48:07] Speaker 04:
We will take the case under advisement.

[00:48:11] Speaker 08:
So do I get an opportunity to submit that case to you, Your Honor, later today?

[00:48:16] Speaker 04:
You can file a rule letter addressed to the Court of the Court by close of business with a copy to the Council for WMATA.

[00:48:29] Speaker 08:
Great.

[00:48:30] Speaker 08:
Thank you, Your Honor.

[00:48:31] Speaker 04:
Thank you.