Second Quarter 2018

Kansas

By:  Patrick J. Mack

Question: If an employee (‘telecommuter”) who works primarily from home is injured while performing a task related to his or her job duties, is the injury compensable even though the event occurred in the employee’s home?

Short Answer: Yes, in Kansas, depending on the facts and circumstances that gave rise to the accident and injury, an injury that occurs at home could be compensable under the Kansas Workers’ Compensation Act.

Discussion: Kansas courts have not yet directly addressed whether a telecommuter’s injury would be compensable under the Act. In general, an accident that occurs at home to a telecommuter while performing work duties would be compensable. However, it would depend heavily on the facts and circumstances surrounding the alleged injury and may be difficult for the employee to prove that a reason outside of employment duties did not cause the injury.

In general, it is the employee’s burden of proof to establish by preponderance of the evidence that he sustained a compensable work accident in order to obtain an award of compensation benefits under Kansas law. KSA 44-501b(c). This requires the employee to prove that the accident both arose out of and occurred in the course of employee’s employment with the employer. KSA 44-501b(b). The two phrases “arising out of” and “in the course of” employment, as used in Workers’ Compensation Act, have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. K.S.A. 44-501 the Kansas et seq. Rinke v. Bank of America, 148 P.3d 553, 282 Kan. 746 (2006).

An injury by accident shall be deemed to arise out of employment only if: (i) there is a causal connection between the conditions under which the work is required to be performed and the resulting accident; and (ii) the accident is the prevailing factor causing the injury, medical condition, and resulting disability or impairment. KSA 44-508(f)(2)(B)

The Act clearly defines what injuries do not arise out of and occur in the course of employment, namely: (i) Injury which occurred as a result of the natural aging process or by the normal activities of day-to-day living; (ii) accident or injury which arose out of a neutral risk with no particular employment or personal character; (iii) accident or injury which arose out of a risk personal to the worker; or (iv) accident or injury which arose either directly or indirectly from idiopathic causes. KSA 44-508(f)(3)(A). The Kansas Court of Appeals recently defined the term “idiopathic” to mean “personal or innate to the employee.” Graber v. Dillon Companies, 52 Kan. App. 2d 786, 787, 377 P.3d 1183, 1184 (2016).

In terms of an accident and injury that would occur at home, it first must be determined if the injury occurred within the time and location constraints of employee’s employment at home. Then, the question becomes whether employee’s employment duties placed employee in an increased risk of harm.

It would likely be difficult for a Kansas telecommuter to collect benefits under the Kansas Workers’ Compensation Act but not at all impossible. Most of what they would do from home, unless directly related to employment duties, may also be attributable to normal activities of day to day living which is clearly excluded as not compensable under the Act. It is more likely than not that most injuries would be related to some cause that would be idiopathic or personal in nature without some direct tie to the injury and the work the employee performs.

Practice Tip: Employers would be best served to have very specific policies for telecommuters in terms of the constraints of their work from home. An excellent example, would be to require work to be performed in a separate room of the house where only employment related items are located and that the employee only perform work duties in that confined portion of the house. If a telecommuter reports an injury they believe might be work related it would be in the employer’s best interest to ask many questions about the area of the house the injury occurred, what specifically caused the injury, what time the accident occurred and whether there was some cause other than work duties that could have caused the accident.