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A Utah sales manager who worked out of his home slipped on his icy driveway upon seeing a delivery person approaching and was rendered quadriplegic. A Massachusetts high school tennis coach walking down his basement stairs to call in the results of the day's matches to local newspapers tripped and injured his knee. An Oregon woman moving work supplies from her garage to her vehicle tripped over her dog and suffered an injury. All were awarded workers' comp benefits.

The cases highlight the uncertainties of workers' comp as it relates to off-site employees, especially those working from home.

Colburn and attorneys Alan S. Pierce of Pierce, Pierce & Napolitano in Salem, Mass., and Roger A. Levy, a founding attorney with Laughlin, Falbo, Levy & Moresi LLP and Levy Mediations in SanFrancisco, addressed the topic during the recent National Workers' Compensation and Disability Conference & Expo produced by LRP Publications.

The problem. While the exact number of telecommuters is unknown, estimates range up to 17 million as of 2008. Some experts say about 40 percent of employers give their employees the option of working from home at least part of the time.

The increase in home-based employment has led to some workers' comp decisions that leave employers and insurers scratching their heads. One of the main problems for workers' comp payers is trying to understand what is covered under the system.

"The rules that we created in workers' comp, the doctrines for the last 100 years, were not designed for these types of injuries," Colburn said. "We're having to use very old legal analysis tools on a wholly new issue. The answers don't seem to make sense, at least to those of us who have been doing this for a long time."

The issues. Colburn believes things will become clearer as the case law becomes more consistent in jurisdictions. In the meantime, employers face a variety of challenges by having home-based employees.

"Not only are the 'arising out of and in the course of employment' issues facing the parties, but there are also issues surrounding the concepts of the personal comfort doctrine, going and coming rule, what constitutes the 'employer's premises to contend with as well," Pierce said.

The personal comfort doctrine, for example, allows for employees to refresh themselves throughout the workday. Coffee breaks, bathroom breaks, smoking breaks, and lunch breaks are examples.

"Courts have recognized that generally speaking the personal comfort breaks are covered," Pierce said. "So if you are going to analogize for the at-home worker, his office is in his home. If that person gets up and goes to the kitchen to get a drink and trips going down the stairs, why should that injury be less compensable than the identical injury in the office?"

The workers' comp system is designed to address injuries sustained by employees within the parameters of the work environment, as defined by the employer. Workers operating out of their homes create a gray area for the system.

"Employers do not have the same control over their employees' homes as they do over their jobsite.Injuries alleged at home will not have any witnesses," Colburn said. "If the trend continues, the courts will hold that many injuries sustained at home that have nothing to do with the risks of work per se are compensable especially as employers move from offering work from home as a perk to a requirement of employment that benefits the employer."

Solutions. Despite their frustrations, employers can maintain some control over their at-home workers. "Be selective on who you have working at home," Pierce suggested. "If possible, do an inspection of the premises."

Additionally, there are investigative tools available for employers. Pierce, who represents plaintiffs in workers' comp cases, cited a case in which defense attorneys looked at an injured worker's navigational device to determine her whereabouts just prior to an accident.

"A visiting nurse worked in people's homes and got in an accident on a Sunday," Pierce said. "They went to the tow yard and got off her GPS the history of where she had been that morning. Fortunately for me and for her, she was on the route and stopped at Dunkin Donuts for coffee but was on the route and it showed up in there."

Read more at the WorkersComp Forum homepage.

December 17, 2012

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