WCDefenseCA

So dear readers, as we keep on keeping on, going into May of 2020, it looks like the trend remains: work from home is the name of the game.

Sure, essential workers continue to leave the house, but a huge chunk of us continue to do our duties from the comfort of our homes (if we can). 

So here’s a fun question for anyone in such a situation contemplating retirement: how can you claim workers’ comp benefits if you’re working at home?

Well, it’s been done, and not just while we’re under shelter-in-place orders.  The WCAB issued a panel decision in 2017 (writ of review was subsequently denied by the Court of Appeal) upholding the WCJ’s ruling that the injury sustained at home was compensable.

In Tidwell v. Santa Clara VTA, applicant was working at home when she fell while using the restroom, resulting in a broken right leg.  According to applicant’s testimony, she had been working for several hours and only took a break to use the restroom with the intent to return to work.

Particular to this case, applicant’s doctors, even prior to this injury, recommended a germ-free environment for the restroom, and her employer’s restroom did not meet this requirement.  Accordingly, she opted to work from home, although she would have otherwise preferred to work at the office.

The facts also showed that applicant had been working at home for 10 months prior to the industrial injury.

The panel adopted and incorporated the opinion of the WCJ and, as noted above, the Court of Appeal denied review.

In the Tidwell case, applicant worked from home because of medical necessity.  The WCJ reasoned that the employer derived benefit from this as there was always the option of not allowing the employee to work from home. 

What about all the folks sitting at home right now, continuing to do their jobs as best as they can under shelter-in-place?  While the employers can take steps to ensure a workplace is relatively safe (guardrails, anti-slip floor mats, prohibiting the consumption of alcohol during business hours), how is an employer to enforce such measures remotely?

Well, as we all continue to work at home, are we to anticipate injuries sustained at home in the discharge of work duties?  The ergonomic chairs and sit-stand desks installed at such great expense by employers in the office sit idle, while your humble blogger may or may not still have an old computer chair from his college days at home.

What’s more, as experience sprinkled with a bit of cynicism has taught us, anticipation of lay-offs prompts specific injury claims; notice of lay-offs prompts cumulative trauma claims.  Can we expect those from the folks working from home?

If those do start coming in, what are the options for the defense community?  Well, for starters, an investigation of the injury might include an investigator visiting the “scene of the injury” for signs of non-industrial causes. 

Are there signs of alcohol consumption during work hours? Of injury being sustained in non-industrial activities unrelated to work?  As Tidwell rightly reminds us, going to the restroom may be industrial, but going for a run and twisting one’s ankle is probably not.

If the work is being done remotely, was there any remote monitoring of the work?  For example, some remote work software makes note when there is general inactivity on a computer for a certain amount of time.  Was that the case in this claim?

Social media searches in particular would be helpful here as well, your humble blogger submits.

What do you think, dear readers, is your humble blogger being paranoid again?  Or is workers’ compensation yet again about to be the piggy bank for the survivors of an economic decline?