Court Rejects Home-Based Worker’s Rehearing Request — with a Dissent
The Court of Appeals has denied a motion for en banc reconsideration filed by an injured worker in a case involving an injury that was alleged to have happened in the employee’s own kitchen. Court of Appeals cases are generally decided by a panel of three justices assigned to hear the case, rather than by every justice who sits on the appellate court. A motion for en banc reconsideration asks the entire court to consider the case, instead of simply a panel of three justices. It is rare that such a motion is granted. But there is nothing about this case that suggests that it would come to a run-of-the-mill result; the underlying case has a lengthy procedural history.
Two years ago, in State Office of Risk Management v. Martinez, the Texas Supreme Court had a chance to address the compensability of a claim involving an injury that allegedly happened to an employee while she was working from home. But the court failed to reach the question because of a procedural issue.
The Texas Department of Family and Protective Services (DFPS)employed Edna Martinez as a caseworker. On Saturday, June 9, 2001, Martinez was working from home at her kitchen table in preparation for the next week’s hearings when she got up, slipped in her kitchen, and fell. She broke her shoulder and hit her head in the fall.
Martinez submitted a workers’ compensation claim to the State Office of Risk Management (SORM), the claim administrator for state-agency employees. SORM denied her claim on the grounds that she was not injured in the course and scope of her employment, was not engaged in the furtherance of her employer’s business at the time of the injury, and did not establish a causal connection between her injuries and her employment.
The Supreme Court did not reach the merits of Martinez’ claim because it concluded that the court of appeals had erroneously failed to address an argument raised by SORM – that Martinez had violated a state statute by failing to obtain permission to work at home, which, SORM argued, removed her from the course and scope of her employment at the time of the injury. On remand from the Supreme Court, the Court of Appeals recently agreed with SORM and ruled that “under the facts presented in this case Martinez’s home [was] not a location that can give rise to a workers’ compensation claim.”
The Court of Appeals’ opinion has been pending on motion for en banc reconsideration before the entire San Antonio Court of Appeals for more than four months. On May 15, 2019, the Court of Appeals denied Martinez’ motion for an en banc reconsideration of its motion for rehearing. The court did so without written opinion. But two justices of the entire court would have granted the motion for en banc reconsideration and signed a dissenting opinion.
The court concluded that, based on Martinez’s testimony admitting she did not obtain prior approval before working from home, it was undisputed that she did not comply with the Government Code statutes and therefore she was not acting within the scope of her employment when she fell; thus, she did not sustain a compensable injury. 2 Id. at *9.
In reaching its conclusion, the court rejected Martinez’s argument that the two Government Code statutes do not control in this situation because they conflict with the Texas Worker’s Compensation Act, as codified in sections 401.001 through 419.007 of the Labor Code. See id. As Martinez pointed out, section 401.011(12) of the Worker’s Compensation Act defines “course and scope of employment,” which is an element of a compensable injury, as including “an activity conducted on the premises of the employer or at other locations.” TEX. LAB. CODE ANN. § 401.011(12). Thus, the Worker’s Compensation Act contemplates an employee working from “other locations,” which would include from home. Further, as noted by Martinez, the legislative history contains nothing to indicate the legislature intended the two Government Code statutes to supersede section 401.011(12)’s definition of the scope of employment for purposes of worker’s compensation. I disagree with the court’s conclusion in SORM II that sections 658.010 and 659.018 of the Government Code do not conflict with section 401.011(12) of the Labor Code. See SORM II, 2018 WL 5808333, at *9 (finding no conflict between the plain language of the three statutes).
We have previously pointed out that the question of how courts should determine whether home-based injuries are compensable is an open one in Texas.
While an employer can establish a policy that prohibits working from home, and can punish an employee who violates that policy, as a practical matter, an employer cannot prevent an employee from performing such work. It seems clear that a carrier cannot adequately investigate the compensability of an injury that occurs at an employee’s private residence. The carrier cannot, for example, compel the employee’s family members to cooperate with the investigation. How would a fact finder ever know whether an injury occurred while the employee was performing work at a kitchen table or while wrestling with his children on the living room floor?
Many concepts of compensability that are used today have been in place since the Texas Workers’ Compensation Act was first enacted in 1913. However, in the early part of the last century, a fixed place of employment premises was the norm. Transformations in technology have fostered the concept of working remotely, which has changed the way some employers permit their employees to work.
The Act has not kept pace with these changes. Even so, judicial interpretations of the concept of compensability have historically been founded upon the quid pro quo lying at the heart of the system—swift delivery of adequate benefits without proof of fault or negligence in exchange for an exclusive remedy that protects employers from common law liability.
The borders of the exclusive remedy defense should generally comport with the limits of compensability and that work performed at home–without more–should not be considered “work-related” for purposes of the exclusive remedy defense. Unless the employer exercises control or direction of the premises, there can be no employer liability. Without employer liability exposure, there is no need to invoke the exclusive remedy bar or to provide no-fault insurance benefits.
Where an employee is injured while working on the employer’s premises, or under the supervision and direction of the employer, the injury will normally originate in the employment because the employer would have potential liability for those injuries at common law, and would have the opportunity to identify, prevent or mitigate any such hazard or risk. However, we have also contended that injuries that occur away from the employer’s premises and outside the direction, supervision, or control of the employer do not generate the need for exclusive remedy protection, disallow effective accident prevention and safety measures, and should not be considered as originating in a hazard and risk of employment.
Sooner or later, the Texas Supreme Court may take the opportunity to address these arguments.
FOLIO
