Second Quarter 2018
By: Susan V. Barranco
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 Wisconsin, injuries which occur at an employee’s home can be compensable.
Discussion: A telecommuter, or even regular worker, injured in a personal residence, will be found to have been injured in the course and scope of employment provided the injury occurred while the employee was engaged in his or her job duties. The general rule is that injuries on the employer’s premises occur within the course and scope of employment. Black River Dairy Products, Inc. v. DILHR, 58 Wis. 2d 537, 542 (1973). An injury is compensable only if the occurrence takes place while an employee “is performing service growing out of and incidental to his or her employment,” Wis. Stat. § 102.03(1), which courts confirm is language “used interchangeably with the phrase ‘course of employment,’” City of Appleton Police Dept. v. LIRC, 340 Wis.2d 720, 2012 WI App 50, ¶ 10. Issues regarding the course and scope of employment standards involve mixed questions of law and fact decided not based on bright line tests, Town of Russell Volunteer Fire Dept’ v. LIRC, 223 Wis. 2d 723, 729, 738 (Ct. App. 1998), or common law concepts regarding performance in the course and scope of employment, but instead based on the statutes themselves, Black River Dairy, 58 Wis. 2d at 544. The Commission has found the applicable test for whether injuries of a telecommuter occur within the course of employment is found in Section 102.03(1)(c)4, which states: “The premises of the employer include the premises of any other person on whose premises the employee performs service.” Abramson v. CUNA Mutual Ins. Soc. / Sentry Ins., 91-040700 (LIRC, Jan. 15, 1993). Thus, to prevail in showing a telecommuter’s injury is not compensable because the injury did not occur in the course/scope of employment, an ALJ must find the at-home injury occurred while the employee was engaged in some other personal activity, rather than while performing his or her job duties.
Wisconsin Supreme Court case law suggests the Commission should review three main factors outlined in a popular workers’ compensation treatise by Professor Larson to confirm an employee’s home can become an employer premises for purposes of Wisconsin workers compensation. However, the Commission has instead simply applied the test found in Section 102.03(1)(c)4, which appears to require only that the telecommuter testify credibly he or she was injured while performing job duties. Id. Those three factors could potentially be used to limit compensability of at-home injuries to more classic telecommuters but for the Commission’s interpretation of Section 102.03(1)(c)4. The Commission, however, has applied this statute to much more causal at-home working arrangements. For instance, in Abramson, a compensable injury was found where an employee with prior low back problems re-injured the low back both on the employer’s premises and, later that day, at home. (The ALJ and Commission found both injuries were a substantial factor in causing the employee’s disability. Thus, either injury would have been independently compensable such that the case is instructive on the treatment of at-home injuries despite the claimant’s ability to also establish a compensable injury occurred while in the workplace that same day.) The decision confirms, that Professor Larson’s treatise is a guide in understanding these work injuries and the courts must look at the following indicia when evaluating compensability:
“(1) the quantity and regularity of work performed at home;
(2) the continuing presence of work equipment at home; and
(3) special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.”
Id. (quoting Larson, Workmen’s Compensation Law, § 18.32) (numbers added). Despite that guidance, the ALJ, who discussed at length why the employee and her doctor were credible, simply believed the claimant’s description of the injury, which involved lifting two relatively heavy boxes of paperwork she brought home, and found the injury was compensable under the “very simple test” of Section 102.03(1)(c)4, which he calls “the actual test” for compensability of telecommuter injuries.
The ALJ also found Abramson could have substantially satisfied a standard based on Larson’s three indicia, emphasizing the employer knew about and condoned the at-home work activities. Though this employee did not exclusively work from home, the telecommuting arrangement was sufficiently significant to avoid what the ALJ termed “appropriate fears” underlying Larson’s three indicia to avoid compensable injuries found during “the performance of only ‘some tidbit of work.’” The employer benefitted from this arrangement, and therefore was required to bear the risk/cost associated with its employee working from home.
Perhaps the Commission and ALJ in Abramson felt they were not bound by an application of the Larson test because while the Supreme Court has adopted Larson’s three indicia, this occurred in a case under facts closer to those of a more traditional travelling employee than a telecommuter. See, Black River Dairy Products, Inc. v. DILHR, 58 Wis. 2d 537, 542 (1973). Here, a pizza salesman was injured when he slipped and fell while walking to his truck when he was just about to start his route, having completed all other pre-trip preparations. The salesman, who lived in Green Bay, did not regularly report to the employer’s premises in Eau Claire, which is 193 miles away, and did not have set working hours. The Wisconsin Supreme Court found the employee was working for the employer’s benefit when he slipped and fell, and was on a route as a travelling employee as soon as he left his home. While he was hurt at home, the employee was never hired to perform work on the employer’s premises. The Court concluded the injury was compensable based on travelling employee exceptions to the general rule that only injuries on the employer’s premises are in the course and scope of employment—but also applied the facts to the exception more relevant to telecommuter injuries, noting the injured worker’s premises was an employer premises for purposes of what is now Section 102.03(1)(c)4. The Court, discussing Larson’s three indicia, explains the claimant “was not merely going to work—he was at work” when he fell and injured himself on his own premises. The decision emphasizes that at the time of injury, there was no deviation personal to the claimant.
The Commission has also found an employee, who would not be considered a classic telecommuter since she had never worked at home previously, was in the course of employment because she was performing services for the employer at the time she was injured while going to her car to retrieve paperwork related to work. Augustine v. Kenosha Visiting Nurse / United Wisconsin, 98-064631 (LIRC, Sept. 13, 2000). Here, the claimant was required to work at home while caring for an ill child, though she had asked for the day off. Given that she did not regularly perform work at home, but the injury was still found compensable, this case, like Abramson, suggests application of Larson’s “three indicia” may not be outcome-determinative. Instead, the Commission looked to Section 102.03(1)(c)4, extending the employer’s premises to the employee’s home, and emphasized the claimant was injured not when performing personal activity, but instead while actually performing services. A dissenting Commissioner lamented that the employee was allowed to work at home for her own convenience, and that under the majority’s logic, “had a ceiling fixture fallen on her, she likely would have been covered.” The dissenting commissioner thought the claim should have been denied under the coming and going rule, through which an injury is not compensable while commuting to/from work.
The Commission has rejected a claim for benefits, citing the coming and going rule, where a claimant argued working from home during the weekend rendered his injury compensable, when he was in a car accident while commuting to work the following Monday morning. Fay v. Trek Diagnostic Syst. / St. Paul Fire & Marine Ins. Co., 2003-049932, (LIRC, July 28, 2005). The Fay decision is instructive on telecommuter compensability analysis though the involved employee did not regularly telecommute, and the Commission focused more on why the accident was not compensable under the “dual purpose” doctrine. This claim was not compensable because the employee would have commuted home from work Friday and back to work Monday regardless of whether he worked over the weekend. The focus here, as in the case of telecommuter injuries, is on whether the employee is injured while performing service, for an injury during “the commuting trip is not covered, (though the actual performance of work may be).”
The need to be injured while performing work duties to establish an injury in the course of employment is also illustrated in an appellate court case in which a police officer employee is at home when he injures himself doing push-ups. See, City of Appleton Police Dept., 2012 WI App 50, ¶ 23. The court affirmed a LIRC finding—focusing on the well-being exception under Wis. Stat. § 102.03(1)(c)3, through which injuries are not incidental to employment if an employee voluntarily participates in a program to “designed to improve the physical well-being of the employee” while also not being compensated—that the push-up activity was not voluntary because the officer’s employment was governed by a collective bargaining agreement that required a physical fitness test, and provided certain monetary benefits based on the test results. Despite being injured while at home, the officer could prove a compensable injury in the course/scope of his employment, because by doing push-ups, he was performing service for the job. Id.
Wisconsin follows the positional risk doctrine, through which any injury on the employer premises can be considered compensable where the premises itself plays a role in the mechanism of injury. The appellate court has explained positional risk may not always be relevant—through language suggesting there is an argument the positional risk doctrine may be inapplicable for telecommuter injuries—in a case in which a volunteer firefighter was found to have died while acting within the course/scope of employment when trying to save his family from a fire at his personal residence. Town of Russell Volunteer Fire Dept., 223 Wis. 2d at 727. The court explained the positional risk doctrine is designed to review compensability where the conditions and obligations of employment create a special zone of danger or hazard out of which the injury arose—but not situations where the actual work duties create the risk of injury. This instructive—given the straightforward Section 102.03(1)(c)4 test effectively requires job duties to create the risk of injury—suggests telecommuter injuries are compensable regardless of the location of injury provided work duties are being conducted, if the injury occurred while the employee “performs service” for the employer. The question then becomes one of credibility. If the court believes the telecommuter’s injury occurred while job duties were being discharged, the injury will be compensable.
Under the same logic, if the employee’s home itself creates the hazard, one can argue the injury cannot be found compensable, provided that environment itself is not used to perform service related to work. For example, despite the personal comfort doctrine, we would argue an employee who slips on a wet floor while walking to the bathroom is not injured while she “performs service,” because the conditions of the premises, while hazardous, are outside the employer’s control. The court may still find this injury compensable by applying Larson’s three indicia, which may be outmoded given telecommuting’s increase in today’s marketplace. (Indeed, the Larson factors simply seem to describe telecommuting itself.) On the other hand, and despite a similar lack of employer control over the particulars of the at-home workstation, a telecommuter’s occupational disease may be found compensable where the mechanism of injury is based on repetitive typing. Here, the telecommuter would be more clearly pointing to a mechanism in which she “performs service” for the employer.
Practice tip: When reviewing telecommuter injuries, clarify and pin down the mechanism of injury, so you may explore an argument the employee deviated from her work duties, and thus the injury did not occur while performing service to the employer’s benefit. Also, explore an argument that the conditions of the home caused the injury, but again, that those conditions were not being utilized while the telecommuter was performing service. If the employee confirms she was not performing service at the time the injury occurred, memorialize that fact in a written or recorded statement immediately. This could be considered a factual defense through which the claim could be disputed without a medical opinion.