DEFENDING WORKERS’ COMPENSATION CLAIMS IN THE NEW ENGLAND STATES INJURIES SUSTAINED WHILE WORKING FROM HOME
Due to the ongoing social distancing and shelter-in-place measures, many employees are now working remotely from home. We have received a number of questions regarding how to handle any claimed injuries that may occur while these employees are working from home. The short answer is that these potential injuries must be evaluated using the normal compensability analysis—whether the injury “arose out of and in the course of” the employment. There are no special statutes addressing work-from-home injuries.
NOTE: Exposure to an infectious disease while working from home is not compensable since exposure is not “inherent in the workplace.”
Massachusetts
The phrase “arising out of and in the course of employment” refers to two separate and distinct inquiries. This is a two-prong test in which both need to be satisfied for compensation to be awarded. “‘Arising out of’ refers to the causal origin, . . . while ‘in the course of’ refers mainly to the time, place, and circumstances of the injury in relation to the employment.”
Aetna Life and Casualty Ins. Co. v. Commonwealth
, 50 Mass. App. Ct. 373, 376 (2000).
The “in the course of” portion of the analysis is a bit easier to assess, so we should look at that first. As noted above, “in the course of” refers to the time and place of the injury. In normal circumstances, the inquiry is whether the injury occurred during work hours and on the employer’s premises. If so, this portion of the test is satisfied. More complex questions arise where the injury occurs outside of normal working hours or off the employer’s premises. Such injuries may still be compensable but there are a number of complex legal principles that might be in play (i.e., coming and going rule, special errand rule, street risk doctrine, etc).
Where an employee is working at home due to COVID-19, the home will likely be considered part of the
employer’s premises
for purposes of determining compensability. Arguably, if the employee has a particular portion of the home set up as a home office, we could try to limit the locale of the employment to only that portion of the home. So, the place portion of “in the course of” will likely be satisfied for injuries “in the work area” during the work-from-home period. Time is a separate issue. If the employee has fixed hours (i.e., 9 AM to 5 PM), and the injury occurs during those fixed hours, that portion of the compensability analysis will be satisfied. Injuries outside the fixed working hours will be more difficult for the employee to prove compensability—the employee will have to show that they were engaged in work activity outside of their fixed hours.
The “arising out of” portion of the analysis will be more complex for these hypothetical injuries. “Arising out of” refers to the causal origin of how the injury occurred. The seminal Massachusetts case on this issue is Caswell’s Case , 305 Mass. 500 (1940), where the Supreme Judicial Court held, “An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects.” Id . at 502. Under this test, the employee does not need to be engaged in the actual performance of the work at the moment of injury—“It is enough if he is upon his employer’s premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment.”
Souza’s Case , 316 Mass. 332, 335 (1944). There has been an enormous amount of litigation since Caswell’s Case in 1940 regarding the interpretation of “incidental” activities, and the case law establishes a wide range of activities that will be deemed “incidental” and therefore compensable.
However, an injury suffered while an employee is engaged in a purely personal activity will not be considered compensable. Injuries suffered during these purely personal errands do not “arise out of” the employment. There is also a set of activities that will be considered “dual purpose” activities—i.e., those that have both an employment and personal connection. Dual purpose activities have been held compensable under Massachusetts case law.
This question of personal vs. employment activities in the work-from-home setting is difficult to grasp, and perhaps some illustrative examples will help:
Example 1
– Employment Activity –
An employee working from home gets up from his/her desk to retrieve printer paper in order to print work documents. While walking to a different part of the home to retrieve the paper, he/she trips over a wire and suffers an injury.
Likely compensable
. The need to print work documents (an employment activity) was the reason for the activity.
Example 2
– Personal Activity
– An employee working from home gets up from his/her desk to take a break from work and do some laundry. While carrying a hamper, he/she falls down the stairs leading to their basement where the washing machine is located.
Likely non-compensable
. The purely personal need to do laundry was the reason for the activity.
Example 3
– Dual Purpose Activity
– An employee working from home gets up from his/her desk to retrieve printer paper in order to print work documents, but also grabs a clean load of laundry at the same time. While walking back to his/her desk with the printer paper on top of the hamper, he/she trips over a wire and suffers an injury.
Likely compensable
. Both the need to print work documents and the need to retrieve the clean laundry were reasons for the activity, but because at least part of the reason was employment-related, the injury is likely compensable.
There have been a few cases in Massachusetts that directly address injuries suffered at home. In a 2008 case, the Reviewing Board stated, “The fact that an injury occurs at home does not necessarily mean it did not arise out of and in the course of employment.”
Butterworth v. Town of Winchester
, 22 Mass. Workers’ Comp. Rep. 225, 228 (2008). There, the employee was a high school tennis coach who was required to call in the tennis match scores to a local newspaper. After leaving the tennis court after a match, he drove home for the night. While walking down his stairs to his basement office where he was going to call the newspaper to report the scores, he tripped and fell. The injury was found compensable based on the reasoning, “When the employee fell down the stairs on the way to make the required work-related calls, he was undoubtedly acting in furtherance of his employer’s interests, and for his employer’s benefit.”
Id
. at 231. The Board relied in part on two earlier Supreme Judicial Court cases:
Over seventy years ago, in
Soares’s Case
, 270 Mass. 3 (1930), the court held that an employee’s death at home in his kitchen arose out of and in the course of employment, where the employee was cleaning a blowtorch which he intended to use the next day as part of his job to thaw out pipes: “In thawing the pipes or preparing for this work, he was engaged in the employment of plumbing and . . . his injury arose out of it.”
Id
. at 7. In
Cahill’s Case
, 295 Mass. 538 (1936), the Supreme Judicial Court held that an employee’s injuries in his driveway at home arose out of and in the course of his employment, where the employee, an insurance adjuster, had two offices, one of them in his home, and, at the time of his injury, was intending to perform work for the employer at home. The employee “was still engaged in the performance of the duties of his employment, though on his own premises.”
Id
. at 542.
Clearly, it will be very difficult to assess compensability for any potential injuries suffered during this work-from-home period.
As a general rule, we recommend that you initially deny any such injuries
in order to complete a more thorough investigation. Adjusters should immediately contact and interview the injured employee to ascertain
exactly
what they were doing at the moment of injury. Documentation of the injury will be virtually non-existent—there will likely be no employer report because the injury did not occur at the regular workplace, and there will likely be no contemporaneous medical record because so many medical facilities are closed or limited at this time. Therefore, it is
imperative
that adjusters interview the injured employee as soon as possible. Find out what time the injury occurred, where in the home it occurred, whether the employee has a dedicated workspace in the home, exactly what activity the employee was engaged in, etc.
Further, we of course still have our normal defenses to raise. Particularly relevant to these potential cases is the issue of disability. Presumably, all of these work-from-home jobs are of the sedentary nature. Even if an employee suffers a compensable injury while working from home, it should not be disabling since the work duties likely consist of computer work only. If this is the case, any claim for an injury while working from home should be denied on the basis of no disabling injury.
Connecticut
The Connecticut Compensation Review Board has considered the issue of home office injuries in a few cases that deal primarily with the going and coming rule but may have some application in the case of injuries actually suffered while working from home. In
Labadie v. Norwalk Rehabilitation Services , 4254 CRB-7-00-6 ( June 21, 2001), the CRB outlined a three prong test to determine whether a home office is the equivalent of a work office: “a regular and substantial quantity of work to be performed at home, the continuing presence of work equipment in the home, and special employment circumstances that make it necessary rather than personally convenient to work at home.”
Id
Although the ultimate decision was based on other issues, the guidance provided by the Board is useful for the current analysis. Based on the Board’s guidance in
Labadie
, it would appear that the existence of these factors will provide a stronger work-connection for an injury. The Board presciently noted that the decision in
Labadie
would create issues as to what activities at home should be considered a compensable injury: “[A]t one’s own residence the need to separate work-related activities from nonwork-related activities becomes far more apparent, and the scope of those activities that may be considered incidental to employment is not only narrower, but also heavily dependent on whether or not a claimant (1) has begun his workday and (2) is in the process of doing something employment-related at the time the injury occurs.”
Id
.
The Board revisited this issue in
Tutunjian v. Burns, Brooks and McNeil
, 5618 CRB-6-11-1 (2012). There, the employee worked from a home office due to a snowstorm and was injured when he left his house to deliver some business mail to the post office. The Board applied the three-factor test from
Labadie
and found that the adverse weather conditions were a “special employment circumstance” which required the claimant to use his home office, thus rendering the claim compensable.
The Commissioner in
Tutunjian
concluded that the injury was sustained “while the employee [was] engaged in the line of the employee’s duty in the business” consistent with the provisions of §31-275(1). See also,
Biggs v. Combined Insurance Company of America
, 62247 CRB-7-18-2 (2019), where the Board found that the claimant’s claim was not compensable as she was injured in the course of carrying out activities in preparation for work and not while the duties of her employment or the business of her employer.
We believe that the Board will apply the same reasoning from Tutunjian and Biggs to the current circumstances with COVID-19. The outbreak of this virus will likely be considered a “special employment circumstance” that make working at home a necessity. Of course, the analysis does not stop there, and each case must still be reviewed to determine whether the injury was suffered during a work activity. As the Board noted in Labadie , the employee must be “in the process of doing something employment-related at the time the injury occurs.”
Rhode Island
As this is a novel issue in Rhode Island, there isn’t any case law or statutory authority directly addressing the issue. Each claim would have to be analyzed on a case-by-case basis. If the “working from home” employee was performing any of the duties of his/her employment at the time of the injury, then the claim would likely be compensable. (e.g., lifting a box of files, slipping/falling from a desk chair, etc.). However, if during the course of the work day, the employee had deviated from the work duties to do laundry or some other non-work task, then any injury sustained would arguably not be compensable. The primary issue would be causal relationship and/or nexus of the alleged injury to the employee’s job/job duties.
New Hampshire
If the employee is working at home due to the current COVID-19 outbreak, and is injured while working from home, the injury would likely be considered to be “arising out of and in the course of employment” as required by RSA 281-A:2 XI and XIII. Of course, the facts of each case would be determinative on compensability depending on the activities that the employee was engaged in at the time of the injury. What would be considered part of the employment?
Example 1
– Employee working from home is injured while walking the dog during a break from work.
Non-compensable.
Example 2
– Employee working from home is injured while playing with their kids?
Non-compensable.
Example 3
– Employee working from home trips and falls while carrying a work file?
Compensable
.
Vermont
In Vermont, injuries that happen at home generally follow the same test as if they happened at work. A key component of what constitutes an employee’s work-related “duty” is whether the activity benefits the employer. If it does, then it fits within the parameters of the term, even if the employer did not specifically direct the employee to undertake the activity. See
Lopez v. The Howard Center
, Opinion No. 12-14WC (August 7, 2014).
A requirement for establishing that an injury occurred “in the course of” employment is that the injury be shown to have occurred at a place where the employee may reasonably be expected to be while fulfilling the duties of the employment contract. See
Marsigli Estate v. Granite City Auto Sales
, Inc., 124 Vt. 95, 98 (1964). Another requirement for establishing that an injury occurred “in the course of” employment is that it be shown to have occurred while the employee was engaged in an “activity whose purpose is related to the employment.” See
Cyr v. McDermott’s, Inc.
, 187 Vt. 392 (2010).
In
Abraham v. Mountain Communities Supporting Education, Inc.
, Opinion No. 16-18WC (December 19, 2018), the court specifically addressed the question of whether, on the day of an employee’s injury at her home, the scope of her employment encompassed her presence on her home staircase. There, they found that the employee was performing a specific, work-related duty, outside the scope of her regular duties, for her employer’s benefit. They also reasoned that the employee was in a place she could reasonably be expected to be (her staircase) while she fulfilled her work-related duty. See also
Kenney v. Rockingham Sch. Dist.
, 123 Vt. 344, 348 (1963).
In
Abraham
, the court also differentiated between “other home injuries” and those that are work-related home injuries. Specifically, they gave the example of an employee falling at home while returning his work gloves to his shed or being injured in his laundry room, while washing his personal knee pads. These examples are distinguishable as the “routine maintenance” of personal items that employees use at work every day, rather than a specific activity outside the employee’s regular duties undertaken for the employer’s benefit.
Maine
Claims in Maine for injuries suffered while working from home will be analyzed using the familiar standard of “arising out of and in the course of” the employment.
A recent case from the Maine Supreme Judicial Court somewhat addressed the issue of injuries while working from home. See
Estate of Sullwold v. Salvation Army
, 108 A.3d 1265 (2015). There, death benefits were awarded to the widow of a financial executive who worked remotely from his Maine home after the executive suffered a fatal heart attack while exercising on his personal treadmill. This case is a bit unique because the widow had the benefit of a statutory presumption of compensability where the employee dies. See 39-A M.R.S. § 327. The Court stated that under this standard, “hopeless claims” do not receive the benefit of the presumption, but claims that have a rational possibility of success do. The Court found that this claim was not “hopeless” because there was reasonable evidence that if the employee were able to testify, he could show that the injury “arose out of and in the course of the employment.”
Regarding the element of “in the course of employment,” the Court stated that the injury occurred during work hours, in a place that the employer allowed him to work (his home office), and while he was using the cell phone that the employer provided to him for his work. Regarding the element of “arising out of the employment,” the Court found that the widow’s credible testimony that the employee was under a tremendous amount of stress from managing his employer’s $2.5 billion investment portfolio was enough to establish causation between the work activities and the heart attack.
Of course, the primary distinguishing factor in the
Sullwold
case is the presumption of compensability in death cases. For the overwhelming majority of cases, the employee will not have the benefit of that presumption and will be required to prove that the injury “arose out of” the employment by showing that they were engaged in work activity at the time of the incident.
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