Recovery for Home-Based Workers is (Literally) All Over the Map

Recently, national commentator Thomas A.
Robinson wrote
about a pair of decisions from Oregon and Florida that reached different
results regarding the compensability of injuries incurred by employees while
working from home.

Two workers’ compensation decisions from diagonal corners of our nation—both involving a home-based worker who trips over the family pooch—illustrate some of the difficulties inherent in determining whether injuries to such home-based workers should be compensable.

In the most recent of the two decisions, Sedgwick CMS v. Valcourt-Williams, 2019 Fla. App. LEXIS 5350 (1st DCA, Apr. 5, 2019) (discussed earlier this month on this website here), a deeply divided Florida appellate court reversed an award of benefits to a home-based worker who sustained injuries when she tripped over her dog as she reached for a coffee cup in her kitchen.

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The other illustrative case—this one from Oregon—is Sandberg v. JC Penney Co., 243 Ore. App. 342, 260 P. 3d 495 (Or. Ct. App. 2011). The facts in Sandberg were somewhat similar. The employee, a custom decorator, worked in her employer’s studio one day each week. On other work days, however, she met with customers in their homes and worked in her own home. On customer or prospective customer visits, the employee was required to carry some of her employer’s fabric samples along with her. Her employer also required that she keep additional samples on hand. Because the employer did not provide her with any space to do so, she kept the additional samples in her garage.

On the day she was injured, the employee was moving some samples into the storage area of her garage when, as she put her foot down, she “felt something move.” The “something” turned out to be her dog, which was underfoot. In an attempt to avoid stepping on the animal, she shifted her weight to the other foot, lost her balance and fell, suffering a right distal radius fracture. The board determined that the injury did not arise out of the employment. It did not, therefore, need to move to the issue of whether the injury was sustained “in the course of the employment.” The employee appealed.

The Florida case was determined to be
non-compensable; the Oregon employee made a recovery. Two years ago, in State
Office of Risk Management v. Martinez, the Texas Supreme Court had a chance
to address the compensability of such claims, but 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 is pending
on motion for rehearing before the entire San Antonio court of appeals. But
this trio of cases illustrates the difficulties presented in investigating and
adjudicating claims filed by home-based workers.

This prompts the question, how should
courts determine whether such injuries are compensable?

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.

We argue that borders of the exclusive
remedy defense 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. 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. Until that time, the Texas
rule lies somewhere between the Florida and Oregon rules, both in terms of
geography and on the legal spectrum of compensability.