Workers’ Compensation and Home Office Injuries: Dogged Claimant One Step Closer to Victory in Oregon

Workers’ Compensation and Home Office Injuries: Dogged Claimant One Step Closer to Victory in Oregon

Karen Yotis By Karen Yotis, Esq.

Traditional approaches to precepts as basic as ‘course and scope of employment’ and ‘traveling employee’ may be going to the dogs in Oregon because of a claim involving an interior decorator whose Home Sweet Home also functioned as her Home Sweet Office.  The employer, a WCLJ and the state’s Workers’ Compensation Board all agreed—the injury Mary Sandberg suffered when she tripped over her dog while walking from her home to her garage to perform a work task did not ‘arise out of’ her employment [see 2008 Or. Wrk. Comp. LEXIS 987]. But in an opinion filed June 1, 2011, as No. 0702441/A140276, the Court of Appeals of Oregon saw it a very different way, and concluded that Sandberg “was where she was, doing what she was, because of the requirements of her employment.” Id. at page 7. The court has remanded the case for a determination on whether Sandberg was injured in ‘the course of’ her employment, but a very important battle has nevertheless gone to the side of the home-based underdog.

In determining the AOE issue, the Board focused on the nature of the risk that caused Sandberg’s injury, and categorized the risk of tripping over one’s own dog while stepping out of one’s own home as ever so personal. Its reasoning was clear:  Sandberg’s proverbial best friend posed a risk that she encountered, not by virtue of her employment, but every time she stepped out the front door. Further, the risk arose from Sandberg’s home environment, which fell outside of her employer’s control.

Sandberg did not save her claim by describing herself as a ‘traveling employee.’ Because Sandberg was injured at home, which was without dispute a location where she routinely worked, it could not follow that Sandberg was injured while ‘traveling’ away from her employer’s premises. The personal aspects of the risk at issue in the case did not inure to the concept of traveling away from an employer’s work premises. Nor did the so-called ‘travel’ itself expose Sandberg to the risk that injured her, because that particular dog-gone risk existed whenever Sandberg was inside (or on the way outside of) her home.

To say that the appellate court disagreed with the board is, well, an understatement. In its seven-page opinion holding that the board erred in concluding that Sandberg’s injury did not arise out of her employment, claimant’s canine isn’t mentioned until page six, where the court deems concern about the employer’s lack of control over the risk unwarranted. Although the employer had no control over Sandberg’s dog, what clinched it for Sandberg in the eyes of the appellate court was the complete control that Sandberg’s employer had over whether she worked away from its corporate design studio.

The court relied on Larson’s Workers’ Compensation Law, § 16.10 in finding that the employer’s lack of control over the conditions of Sandberg’s home-based work premises was immaterial. Once the evidence established that Sandberg’s home premises were also her work premises, it followed that the hazards Sandberg encountered when performing work at home were also hazards of her employment.

The appellate court’s outright reversal of the board’s decision with respect to AOE may cast doubt on the following Oregon agency decisions that had cited the Board's decision in Sandberg:

Anne K. Hauser, 2010 Or. Wrk. Comp. LEXIS 568 (2010) – The state’s WC board affirmed the denial of benefits to a home-based decorator who fell while going to retrieve a sweater after loading her car with the materials she needed for an appointment. Because she was engaged in a personal matter, and because she was injured on her own stairs and not in the work environment between her living room and her vehicle, Hauser’s risk was ‘personal’ rather than ‘employment-related,’ and the resultant injury did not ‘arise out of’ her employment.

Margaret A. Jones, 2009 Or. Wrk. Comp. LEXIS 600 (2009) - The state’s WC board affirmed denial of benefits to a law enforcement officer who tripped over her vacuum cleaner while duty-stationed at home on administrative leave. The risk of injury did not result from the nature of Jones’s work nor originate from a risk to which her work environment exposed her, but rather stemmed from an instrumentality personal to her and to which she was exposed regardless of any work activity.

The following summarized agency decisions from other states espouse the Sandberg court’s broader view of the home-based workspace:

M.C. v. Pennock Sales & Service and Comcast Corporation, 2009 VT Wrk. Comp. LEXIS 3 – In a claim involving multiple employers, the state’s Department of Labor denied a New Hampshire employer’s motion to dismiss and retained jurisdiction over a home-based Vermont worker’s claim where the cause of injury was in dispute, to prevent the significant risk of mutually exclusive, contradictory rulings.

Gary Munson v. Wilmar/Interline Brands and St. Paul Travelers, 2008 MN Wrk. Comp. LEXIS 124 – The Minnesota Workers’ Compensation Court of Appeals affirmed an award to a sales representative who fell down steps when he took a break from the work tasks he was performing in his second-floor home-office to get a cup of coffee. Because the employer provided no other office facilities where employees could work, Munson prevailed under the personal comfort doctrine.

Peeler v. Harris Brown Management, 2003 SC Wrk. Comp. LEXIS 720 – In a full panel decision, the state’s WC commission awarded benefits to an employee who fell down stairs in her home-based office. The accident arose out of and occurred in the course and scope of employment because Peeler was actually carrying boxes of files necessary to perform the job duties directed by her employer when she fell.

Like Sandberg, these opinions question the non-compensable nature of so-called ‘personal risks’ and demonstrate what may be a new recovery trend for home-based employees in workers’ compensation cases.

Note: Board decisions, while not binding authority, often deal with cutting edge issues. As such, they are informative and summarized here for those purposes.

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