August 16, 2006

Home Alone:
Compensability of Injuries that Occur When Working at Home

Although certainly not an issue of first impression, the compensability of injuries that allegedly occur while an employee is working in their home necessarily triggers the deepest and darkest suspicion of all but novitiate workers’ compensation practitioners. This very interesting issue was revisited by the Commonwealth Court in its May 31, 2006 ruling in Verizon v. WCAB (Austin), in an opinion authored by Judge Jubelirer.

The factual background of the claim was that the Claimant alleged that she fell down a flight of stairs in her home, injuring her head and neck. She had been a 32-year employee, working for Verizon as a systems engineer. She was responsible for interfacing application programs and computers, and her work week was split between working for Verizon in a fixed location office, and working out of a basement office in her home.

She was allegedly injured in 2002 after she had answered a work-related telephone call from her supervisor. She received the call while she was upstairs in her home. Not surprisingly, she felt the necessity of acting immediately on her supervisor’s call, and in the course of walking down her steps to her basement office, fell and injured her head and neck.

The Claimant became disabled for about one year, during which the Employer paid her full pay and all of her medical benefits.

No Bureau forms were ever filed, formally recognizing the Claimant’s injuries as being work-related.

While the Claimant was out of work, the Claimant underwent surgery for her neck injury. That surgery resulted in the Claimant having a permanent scar. The Claimant filed a Claim Petition seeking disfigurement benefits, as well as a formal recognition that her injuries were work-related.

The Employer did not file a timely Answer to the Claim Petition, nor was the Employer present at the first hearing on Claimant’s Petition. Subsequently, the Employer retained counsel, filed an Answer, and challenged Claimant’s Motion to have the allegations in the Claim Petition deemed admitted.

Employer argued that the Claimant’s injury had not occurred within the course of her employment, since she was not furthering the Employer’s interests when she fell.

The WCJ denied the Motion of Claimant’s counsel that the allegations in the Claim Petition be deemed admitted, and permitted the Employer to argue that the Claimant’s injury had not occurred within the course and scope of her employment. That defense was raised on grounds that the Claimant was not furthering the Employer’s interests when she fell, as the claimant had fallen while en route to her kitchen to get a drink of water before continuing to her basement office.

Noting no appellate precedent in Pennsylvania specifically addressing the issue of workers’ compensation coverage for employees injured while working in “at home offices.” the Commonwealth Court ruled that the Claimant’s injuries were work-related and compensable, and that the claimant was entitled to a disfigurement award for her surgical scar.

Although no legal precedent existed in Pennsylvania supporting this Decision, the Commonwealth Court looked at decisions analyzing this issue in other jurisdictions, and found a growing body of law outside of Pennsylvania that had considered injuries occurring under like circumstances to be compensable and work-related.

Commonwealth Court found that the Claimant’s injuries were work-related, and that the Claimant’s temporary “break” to get a drink of water was an “inconsequential” departure from her work.

The Commonwealth Court also found that the Claimant’s injuries were work-related as the Employer had sanctioned the Claimant working at home, and further found that the Claimant’s temporary “break” for “personal comfort” to get a drink of water in her kitchen was an “inconsequential” departure from her work and, should not, therefore, bar the claimant from being entitled to workers’ compensation benefits.

The Court also cited two prior Decisions, including Montgomery Hospital v. WCAB, 793 A.2d 182 (Pa. Cmwlth. 2002) and US Airways v. WCAB, 764 A.2d 635 (Pa. Cmwlth. 2000), both of which involved “personal comfort” claims that were found to be compensable, as providing precedential support for its ruling in Verizon.

An analogous citation was also noted in the Court’s ruling in Jones v. WCAB, 489 A.2d 1006 (Pa. Cmwlth. 1985). In that ruling, the Court had affirmed an award of benefits for an injury that the Claimant sustained after parking her car at her home as she returned from a work-related appointment.

In Jones, the Claimant was a rehabilitation counselor, who was permitted by the Employer to work from home. The Court concluded that the Claimant was not injured on “her own time,” as it was anticipated by the Employer that the Claimant’s returning home would have been incidental to her duties as a rehabilitation counselor.

Seamlessly, the like circumstances and analysis in Jones and Verizon were that: 1) both cases involved the Claimants being injured in their homes while working for their Employers; and 2) both Claimants were engaged in furthering the business interests of their Employers when injured.

The Commonwealth Court also noted that the Supreme Court had held, in the City of Harrisburg v. WCAB (Gebhart), 616 A.2d 1369 (Pa. 1992), that a police officer, who was injured when he accidentally discharged his service revolver while unholstering it at home, was found to have sustained work-related and compensable injuries, finding that the officer’s unholstering of his service revolver to secure and store it was an activity that should be considered work-related.

The Commonwealth Court also cited two extraterritorial Decisions, one involving a case in Ohio and the other involving a case in Nebraska, the case citations for which are Bremmer v, Industrial Commission, 27 N.E.2d 164 (Ohio Ct. App. 1938) and Sheets v. Glenwood Tel. Co., 280 N.W. 238 (NEB. 1938), both involving telephone operators working at home who where injured while attending to their “personal comfort.”

Obviously unresolved under this Decision is the capability of the Employer or its insurer/administrator to challenge the compensability of the accidents that largely will be unwitnessed.

With more and more employees working from home, telecommuting, and networking to work, the Verizon ruling by the Commonwealth Court is instructive in terms of the compensability of work-related injuries occurring while employees work at home. Obviously unresolved under this Decision is the capability of the Employer or its insurer/administrator to challenge the compensability of the accidents giving rise to the injuries that largely will be unwitnessed, and will be solely dependent upon the credibility of the Claimants reporting the alleged work injury to the employers or administrators.

Employers permitting employees to work at home have already invested a not-insignificant level of trust in their employees’ loyalty.

The extent to which employers and administrators would be able to investigate claims involving injuries at home will be extremely limited. However, employers permitting employees to work at home have already invested a not-insignificant level of trust in their employees’ loyalty and, equally important, employee self-motivation, as the employees are working unsupervised, typically because the employer already has a certain level of trust in the employees and their work product.

Practical Tips

This claim resulted in some very unusual rulings by the WCJ. Notwithstanding well-developed case law deeming all allegations in a Claim Petition to be admitted without the filing of a timely Answer, the WCJ allowed the Employer to raise a defense central to the case, being the compensability of the Claimant’s injuries. Presumably, that ruling was permitted, and was not substantially discussed by the Commonwealth Court, as the Claimant was not alleging entitlement to disability benefits, but was only alleging entitlement to the formal recognition of her injuries as having been work-related and compensable, and allowing the Claimant to seek disfigurement benefits for her surgical scar.

There is no discussion in the Decision of the fact that no Bureau forms were ever filed by the Employer accepting or denying liability for the Claimant’s injuries.

Oddly enough, there is also no discussion in the Decision, either in terms of the WCJ’s ruling or the Commonwealth Court’s discussion, as to the fact that no Bureau forms were ever filed by the Employer accepting or denying liability for the Claimant’s injuries, potentially exposing the Employer to an award of penalties under Section 435(d) of the Act. With the Claimant having been out of work for one year and having received full pay, presumably being paid wages in lieu of compensation, the claim would, therefore, be characterized as a disability claim, and could not be characterized as a “medical only” claim.

If it was a disability claim, the employer would be required to file a Notice of Compensation Payable, recognizing the claimant’s injury as being work-related, and setting forth the compensation being paid for the claim. The failure to have filed the NCP could have exposed the Employer to an award of penalties for violating the Act. Apparently, the Claimant or counsel did not raise that issue.

Another undiscussed issue was whether the Employer presented a reasonable contest to the claim for purpose of extinguishing any claim for unreasonable contest attorneys’ fees under Section 440 of the Act.

Another issue not discussed or ruled upon, either at the WCJ or the Commonwealth Court levels, was whether the Employer presented a reasonable contest to the claim for purposes of extinguishing any claim for unreasonable contest attorneys’ fees under Section 440 of the Act. That claim could have been asserted from the outset of the litigation, and certainly could have been asserted as of the Employer’s Answer to the Claim Petition being untimely under Section 416 of the Act, and the Yellow Freight Decision and its syphilitic prodigy.

Perhaps, this Decision is more interesting for what is not apparent on its face.

Questions

Questions concerning this decision and like issues involving workers’ compensation litigation practice and procedure can be directed to our workers’ compensation attorneys.

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