## Facts

- Nathan Kemp worked for Evening Star Newspaper Company as a truck driver delivering newspapers and also operated a taxicab part-time.
- On August 10, 1971, Kemp returned from a delivery run around 3:30 p.m. and was not scheduled for another run until about 4:25 p.m.
- During this gap, Kemp remained on paid status and was subject to the employer’s work schedule, creating an enforced lull between runs.
- A co-employee told Kemp that Kemp’s taxicab, parked about a half-block from the workplace, had been struck and damaged.
- Kemp and two co-employees (both also on paid status) walked to the parking lot to inspect the damage; one co-employee had body-work skills and discussed how the damage might be repaired.
- At the lot, Kemp became involved in a confrontation with an individual believed to have caused the damage.
- Kemp was fatally shot during the confrontation while still within the paid break period.
- Kemp’s widow filed for death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act (as applied in the District of Columbia).

## Issues

1. Whether Kemp’s fatal injury occurred “in the course of” employment when it happened during a paid lull while he attended to damage to his personal vehicle near the workplace.
2. Whether the injury “arose out of” employment, including whether the employment conditions and risks had a sufficient causal relation to the shooting.
3. Whether the employer rebutted the statutory presumption of coverage under 33 U.S.C. § 920 with substantial evidence to the contrary.

## Decision

- The court affirmed the Benefits Review Board’s decision upholding the ALJ’s award of death benefits.
- The court held that substantial evidence supported the finding that the death occurred in the course of employment.
- The court held that substantial evidence, together with the statutory presumption, supported the finding that the death arose out of employment.
- The court applied a deferential review standard, declining to reweigh competing inferences drawn by the ALJ from the record.
- A dissent would have treated the shooting as stemming from a personal dispute over the taxicab and would have vacated the award.

## Legal Principles

- Under the LHWCA, administrative findings are reviewed for substantial evidence and consistency with law; reviewing courts do not retry facts.
- The LHWCA presumes, absent substantial evidence to the contrary, that a claim falls within the Act’s coverage. 33 U.S.C. § 920.
- An enforced, employer-created paid lull between assigned duties may remain within the course of employment even when the employee engages in reasonable personal activity near the workplace.
- When injury occurs during work time and in proximity to the employment setting, the “arising out of” requirement may be satisfied if employment conditions materially contribute to the circumstances producing the harm, and the employer fails to rebut the presumption with substantial contrary evidence.
- In mixed-motive or mixed-cause settings, the ALJ may draw reasonable inferences about employment connection; the presence of an alternative personal explanation does not compel reversal if substantial evidence supports the administrative conclusion.

## Conclusion

The D.C. Circuit upheld an award of death benefits, concluding that substantial evidence supported administrative findings that an employee’s fatal shooting during an employer-imposed paid lull near the workplace occurred in the course of employment and arose out of employment, and that the employer did not rebut the LHWCA presumption of coverage.


Evening Star Newspaper Co. v. Kemp, 533 F.2d 1224 (D.C. Cir. 1976)