New Jersey Court Affirms Death Benefits Award for Pulmonary Embolism Caused by Unusual Level of Inactivity

New Jersey Court Affirms Death Benefits Award for Pulmonary Embolism Caused by Unusual Level of Inactivity

Introduction

When my mentor, Arthur Larson, finished the first edition of his oft-cited treatise on workers' compensation law nearly sixty years ago, the "typical" American worker spent his or her work day in a factory, mill, or on a construction site. Much has changed. The Larson "Treatise" [Larson's Workers' Compensation Law ("Larson")] has grown from its original two volumes to twelve, although its most popular version is online and not the product of traditional ink on paper. Many of America's manufacturing jobs have been "exported" and construction sites are scarce due to the prolonged economic slow-down.

Today, instead of working on an assembly line, the 21st Century American worker is more often tied to her employer's headquarters via an electronic umbilicus. Instead of monitoring the safety of its complex machinery, the employer now more likely must be concerned with the ergonomic characteristics of its employees' kitchen tables, since in many cases those tables form a part of the employee's home office. As that worker moves from kitchen sink to kitchen table, the line between personal life and work becomes blurred. As she checks her work-related email during an evening television commercial via the ubiquitous cell phone or laptop, the distinction between home and office may even disappear. Ah, the marvels of modern technology!

Recent New Jersey Case

In a recent case, Renner v. AT&T, 2011 N.J. Super. Unpub. LEXIS 1668 (June 27, 2011), a New Jersey intermediate appellate court addressed a number of important issues that arise from today's prevalent use of home-based workers. The underlying facts and court decision serve as a cautionary tale for both employers and home-based employees alike.  

Renner had been a salaried manager for AT&T for some 25 years at the time of her death. Although she had a "nine-to-five" job, she often worked at home all hours of the day and night to meet various AT&T deadlines. For example, on the evening before her death, Renner emailed a coworker at 12:26 a.m. When her son awakened at 7:00 a.m., Renner was at her desk in her home office. At 9:00 a.m., she called a coworker to say she was not feeling well, but would soon complete the project. She finished it at home, sent an email to a coworker at 10:30 a.m., and an hour later called 9-1-1 because she couldn't breathe. She was pronounced dead when she arrived at the hospital, having succumbed to a pulmonary embolism.

A workers' compensation judge awarded death benefits to Renner's surviving spouse in the face of New Jersey's enhanced causation standard governing cardiovascular injury or death [N.J.S.A. 34:15-7.2]. That standard, like similar provisions in other state Acts, generally requires the claimant to show that such an injury or death was produced by work effort or strain involving an event or happening "in excess of the wear and tear of the claimant's daily living."

The appellate court agreed with the compensation judge; Renner's work inactivity was greater than her non-work inactivity and her work inactivity caused her embolism in a material way. The court noted the conflict in medical evidence—the husband's medical expert concluded that Renner's effort of sitting at her home office desk for long periods of time contributed to a material degree in causing her death while the employer's expert opined that her embolism was more likely caused by a combination of Renner's risk factors (obesity, lack of exercise, use of birth control pills)—and observed further that the employee led a sedentary life in and out of work. Still, credible evidence supported the judge's finding that Renner’s work inactivity was greater than her non-work-inactivity.

Important Points to Consider

The old workers' compensation axiom—that the employer generally takes the worker as it finds her—still applies. Renner was morbidly obese and led a sedentary life. Her medication added to her risk of cardiovascular events. That she may have been more susceptible to a fatal embolism than a healthy worker was irrelevant [see Larson, §§ 9.02, 10.03, 52.06].

While the employer has little control over the conditions of the home-based worker's "home" office, it generally assumes the risks associated with poor ergonomic conditions and even household accidents. See, for example, the recent Oregon case, Sandberg v. J.C. Penny Co., Inc., 2011 Ore. App. LEXIS 715 (June 1, 2011), where the Oregon appellate court reversed a decision denying compensation to a home-based worker who sustained injuries when she tripped over her dog as she walked from her house to a nearby garage to retrieve some work-related materials [see Larson, § 16.10; see alsoWorkers’ Compensation and Home Office Injuries: Dogged Claimant One Step Closer to Victory in Oregon”, by Karen Yotis, Esq.].

A few courts have indicated that the "home office" of a telecommuter is actually an extension of the employer's premises. The corollary may often be that travel between the home "premises" and the employer's principal headquarters may not be regarded as "a commute." The normal "going and coming rule" may very well be inoperable to limit the risk of the employer to injuries sustained by home-based employees traveling to attend meetings and other company events [see Larson, §§ 13.01, 16.10].

Where former generations typically worried about strenuous activity in the factory or the field, current American workers should also be concerned about "strenuous" inactivity. As the number of obese Americans rises and our level of physical activity falls, working for hours on end in the home office can be dangerous, as can prolonged sitting during the eight-hour flight from Charlotte to Frankfurt.

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