Recent Decisions Reach Opposite Conclusions in Dog-Tripping Incidents
According to a recent report published by the Bureau of Labor Statistics, as many as 22 percent of the American labor force perform at least some of their work at home. Indeed, with hosts of ubiquitous devices designed to keep us tethered to “the Matrix,” as one of my close friends refers to his work-from-home setup, the lines separating the traditional work site from the home hearth have for many workers become blurred, if they haven’t altogether disappeared. Two workers’ compensation decisions from diagonal corners of our nation—both involving a home-based worker who trips over the family pooch—illustrate some of the difficulties inherent in determining whether injuries to such home-based workers should be compensable.
Recent Decision from Florida
In the most recent of the two decisions, Sedgwick CMS v. Valcourt-Williams, 2019 Fla. App. LEXIS 5350 (1st DCA, Apr. 5, 2019) (discussed earlier this month on this website here), a deeply divided Florida appellate court reversed an award of benefits to a home-based worker who sustained injuries when she tripped over her dog as she reached for a coffee cup in her kitchen.
In what was, at least in some respects, the irony of ironies, the Arizona-based employee worked for her Florida-based employer as a workers’ compensation claims adjuster. Because her work tasks were largely electronic, she was allowed to work from her Arizona home. She was, however, required to accommodate her employer’s East Coast time zone; she began her work day at 4:00 a.m., local time, in order to match the 7:00 a.m. start time at the employer’s Florida facility.
On the day of the injury, the employee decided to take a short coffee break after completing three hours of work. She went downstairs to the kitchen, where her coffee maker was located, and, as she reached for a coffee cup, she tripped over one of her two dogs, sustaining knee, hip, and shoulder injuries. The Florida Judge of Compensation Claims awarded workers’ compensation benefits and the employer appealed (more on that appeal below).
2011 Decision From Oregon
The other illustrative case—this one from Oregon—is Sandberg v. JC Penney Co., 243 Ore. App. 342, 260 P. 3d 495 (Or. Ct. App. 2011). The facts in Sandberg were somewhat similar. The employee, a custom decorator, worked in her employer’s studio one day each week. On other work days, however, she met with customers in their homes and worked in her own home. On customer or prospective customer visits, the employee was required to carry some of her employer’s fabric samples along with her. Her employer also required that she keep additional samples on hand. Because the employer did not provide her with any space to do so, she kept the additional samples in her garage.
On the day she was injured, the employee was moving some samples into the storage area of her garage when, as she put her foot down, she “felt something move.” The “something” turned out to be her dog, which was underfoot. In an attempt to avoid stepping on the animal, she shifted her weight to the other foot, lost her balance and fell, suffering a right distal radius fracture. The board determined that the injury did not arise out of the employment. It did not, therefore, need to move to the issue of whether the injury was sustained “in the course of the employment.” The employee appealed.
Did the Injury Arise from the Employment?
The issue in both appeals was essentially the same: did the employee’s injury arise from the employment [for a general overview of the issue, see Larson's Workers' Compensation Law (“Larson”), §§ 3.01, et seq., 7.01, et seq.]. Bear in mind that Florida’s “arising from the employment" test is somewhat more restrictive than the one employed in Oregon. In the Florida decision, Sedgwick, the majority of the appellate court stressed that an accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death [emphasis added]. Specifically, Florida’s “arising out of” limitation requires that the risks that caused the accident and resulting injuries be work-related. That is to say that the employment must, in some way, contribute an “increased risk” of injury peculiar to that employment.
Florida Majority Stressed the Comparison Between Risks of Employment vs. Risks Existing in Non-Employment Life
Sedgwick turned on the majority’s analysis of risk-weighing. Criticizing the JCC’s own analysis, the Florida court stressed that it wasn’t enough merely to identify the incident as a “workplace tripping-and-fall.” In order to prevail, the Florida employee had to show that the fall was occasioned by a risk not existing the employee’s “non-employment life.”
Parenthetically, I’d add that a number of states take this view. Virginia, for example, is replete with decisions denying benefits to claimants who sustain falls on flat, level, unobstructed walkways within the employer’s premises [see Larson, § 7.04, et seq.]. In a real sense, Sedgwick turns on the character of the “obstruction." Since it was the employee's own dog, the obstruction had no workplace genesis. The court said that to adopt the employee's viewpoint, it would have to hold that an employee’s tripping over her own dog at home on a Friday was attributable to risks of employment while the same employee’s tripping over the same dog at the same home on a Saturday was not.
Oregon Concentrates on Employment Risk
In Sandberg, the Oregon appellate court noted that the “arise out of employment” requirement “tests the causal connection between [a] claimant’s injury and a risk connected with [his or] her employment” [quoting Fred Meyer, Inc. v. Hayes, 325 Ore. 592, 596, 943 P.2d 197 (1997)]. So far, this sounds pretty much like the Florida rule.
Under Oregon’s test, a worker’s injury is deemed to arise out of employment if the risk of the injury results from the nature of his or her work or when the injury originates from some risk to which the work environment exposes the worker. Note that the emphasis here in on the work environment, not the employee's non-employment life, as was the case in the Florida decision.
Oregon Court Essentially Said Employee’s Home Became Part of “the Employment Premises”
Quoting Larson, § 16.10, the Oregon Court stressed that once it was established that the home premises are also the work premises, it follows that the hazards of home encountered in connection with the performance of the work are also hazards of the employment.
Traveling Employee Analogy
The Oregon court added that the situation was similar to that of the traveling employee. Generally speaking, in Oregon (and elsewhere), when an employee is required to travel as a condition of employment, injuries resulting from activities necessitated by the travel are compensable, even if the worker is not performing a work task at the time of injury [see Larson, § 25.01, et seq.]. Thus, injuries from risks over which an employer has no control, such as the risk of injury from a hotel fire, can be compensable.
Control Over the Environment Not the Key in Oregon
The Oregon Court stressed that the employer’s control over the work environment was not the key, indicating that if the employer, for its own advantage, demanded that a worker furnish the work premises, the risks of those premises encountered in connection with the performance of work are risks of the work environment, even if they are outside of the employer's control, and injuries resulting from those risks arise out of the employment.
Here, because the Oregon employer did not provide space for claimant to perform all of her work tasks, she was required—as a condition of her employment and for the benefit of her employer—to work in her home and garage. Thus, those areas constituted claimant's work environment when she was working, and injuries suffered as a result of the risks of those environments, encountered when claimant was working, arose out of her employment.
Oregon Court Saw No Problem with the Back and Forth Argument That the Florida Court Found to be Worrisome
Can we see that the issue over which the Florida Court seemed determined not to stumble—tripping over one’s dog at home on a Friday (i.e., a workday) versus tripping over the same dog at the same home on a Saturday—was not at all problematic for the Oregon Court. As long as the home decorator was performing her work duties at the time, the trip and fall would be compensable, since it resulted from a risk of the employment.
Florida courts draw this same distinction quite often. An employee can cut his or her hand on a sharp work-related object at the worksite and similarly cut a hand at home with a knife. The Florida court has little difficulty discerning whether the one or the other is work-related. I know, I know, the sharp object at work and the sharp object at home are not identical. But is the difference really so stark?
Conclusion: These Two Cases Are Illustrative of the Choice Courts Have
To the extent that a Court views the home as an extension of the workplace, as was the case in the Oregon decision, injuries sustained while working at home will commonly be found compensable. To the extent that the court makes a careful comparison between the specific risks faced by the employee at the employer’s premises and those faced at home—the Florida situation—claims filed by home-based employees will often be unsuccessful.
The extension of the employer’s premises to the home has another implication as well. Since in most states, travel between two employment premises does not fall within the going and coming rule, i.e., it isn’t a commute, those jurisdictions that follow the Oregon line of thought would likely turn travel from the employee’s home to the employer’s premises into a work-related activity, such that accidents along that route will be compensable [see Larson, § 16.10.