As more employees work at home, the likelihood of sustaining work injuries at home has increased for many employees. A number of factors discussed below create significant hurdles for employees contesting workers’ compensation claims based on those injuries and may open the door to new claims from telecommuters who are injured traveling from home to the employer’s place of business.
Challenges of Defending Claims for Work Injuries at Home
Despite the location of an employee’s workplace, an injured telecommuter must show that his injury occurred in the course of, and arising out of, his employment to prevail on a workers’ compensation claim. The difficulty for most employers is that they lack witnesses to verify the mechanism of injury, as one would expect in the normal workplace. Without contradictory testimony, the Bureau of Workers’ Compensation and the Industrial Commission will generally rely on:
• The testimony of the injured worker as to how the injury occurred and whether it occurred in the course of, and arose out of, the employment; and
• Doctor’s report that will tie the condition being sought to the mechanism of injury, as described by the injured worker.
The employer is then, generally, forced to rely upon medical evidence that would refute the condition being sought as it is related to a description of the mechanism of injury.
However, if the telecommuter’s medical evidence is sufficient and the injured worker is credible as to his or her description of the mechanism of injury, the majority of claims will be sustained.
Claims For Injuries Incurred While Traveling to Employer’s Business
A new claim may be available to employees who telecommute. If a telecommuter is injured traveling from home to the employer’s headquarters, he may be deemed to be in the course of his employment while commuting. This might be an exception to the “coming and going” rule which generally provides:
• An employee traveling from his or her home to the employer’s place of business is not in the course of his employment if injured on the commute to work (and thus not entitled to workers’ compensation).
• An injured worker traveling from his home to visit a client and is injured during that commute, may be in the course of his employment (and thus may be entitled to workers’ compensation).
In response to such a claim, employers may argue that the “coming and going” rule applies when the injured worker is required to travel to his or her employer’s place of business because the workday does not begin until such time as the injured worker arrives at the destination, i.e. the employer’s workplace. Employers should consider adding such an acknowledgement in any telecommuting agreement with the employee.
Tom Sant: 614.227.2331 or firstname.lastname@example.org
Bricker & Eckler’s Human Resource Advisory – Summer 2007