Illustrating the point that for telecommuting employees, who are often tethered to their employers by ubiquitous cell phones and tablets, the line between the employment world and private life is blurred—if it exists at all—Maine’s Supreme Judicial Court affirmed an award of death benefits to the widow of a financial advisor who died of a heart attack while exercising on a treadmill at his home [Estate of Sullwold v. The Salvation Army, 2015 ME 4 (Jan. 22, 2015)]. Finding the hearing officer and the Workers’ Compensation Appellate Division correctly found that the evidence triggered the presumption in 39-A M.R.S. § 327 correctly, the Court held that there was sufficient evidence for the hearing officer to find the employment contributed to the heart attack “in a significant manner.” § 327 generally provides that when an employee has been killed or is otherwise physically or mentally unable to testify, there is a rebuttable presumption that the employee received a personal injury arising out of and in the course of the employment.
The financial advisor had lived in Maine since 2009, when he relocated from New York City, where his employer’s office was located. The employer permitted him to work remotely from home, supplying him with a computer, a Blackberry cell phone, and other office materials. On the day of his death, February 23, 2010, the advisor started working at 8:30 a.m. in his home office and continued working until about 3:30 p.m., when he took a break to walk on the treadmill, bring his Blackberry with him. About 30 minutes later, his wife found him unconscious on the floor with the treadmill still running and the Blackberry next to him. EMT professionals were dispatched, but they were unable to revive him.
The advisor had previously suffered a heart attack in 1993. At his doctor’s recommendation, the advisor made lifestyle changes by dieting and exercising regularly. Shortly before his death, however, he had reported to his doctor that he had experienced chest pain while walking his dog. The advisor’s wife and co-workers reported that the advisor worked long hours and was under stress as he was in charge of the employer’s investment portfolio valued at approximately $2.5 billion. Co-workers indicated the stress was exacerbated by increased donor contributions after September 11, 2001, and the effect of the 2008 economic downturn on the employer’s overall finances.
The advisor’s widow sought workers’ compensation benefits. The Board and the hearing officer determined that there was a sufficient causal connection between the advisor’s death and the workplace to warrant an award. Among the findings was the determination that work stress was a major causal factor in the advisor’s death. The Appellate Division affirmed the Board’s award, concluding that the hearing officer did not err in finding that the evidence triggered the presumption found in 39-A M.R.S. § 327 and that the employer had failed to rebut the presumption.
Supreme Judicial Court’s Discussion
On appeal, the employer contended the hearing officer erred in applying the presumption to the case. The Court acknowledged that the statute contained “an implied requirement of preliminary linkage” between the employment and the incident underlying the claim. Because the Legislature intended to allow the presumption “only for the benefit of a compensation claimant whose filing of a claim is a rational act,” there must be evidence that, were the employee available to testify, the incident at issue would have “some rational potential of eventuating an award of compensation.” In other words, “hopeless claims” do not receive the benefit of the presumption, but claims that have a rational possibility of success do.
The Court concluded the evidence in the record supported the hearing officer’s conclusion that the estate could reasonably have proved that the advisor’s death occurred in the course of the employment. While the advisor was walking on a treadmill at the time of his death, that death occurred during work hours, in a place that the employer sanctioned for his work, and while he was using the Blackberry that the employer had provided him for that work. The court stressed that the use of the treadmill allowed the advisor to work while he exercised.
The evidence also supported the conclusion that the estate had a rational chance of proving the second element—that the fatal injury arose out of the employment. Again, acknowledging that where injury or death resulted from a pre-existing condition, such as the advisor’s heart condition and prior heart attack, the Court noted that the advisor’s widow testified “convincingly” about the level of stress her husband experienced. The hearing officer also found, based on expert medical testimony, that the advisor’s longstanding, chronic and relentless work stress significantly accelerated and combined with his underlying coronary disease, which resulted in the advisor’s sudden cardiac death. Had the advisor been available to testify, there is evidence that he could have augmented the evidence of stress.
“Location Independence”: Blessing or Curse?
You’ve likely heard the catch phrase: ’location independence.“ It’s a growing trend among technology and knowledge workers. ”Digital nomads" use technology to design a lifestyle that allows them to work and live wherever they want. Indeed, over the past few years I’ve inadvertently come to recognize that I’m one of those nomads. I’m preparing this blog from my dining room table in Durham. Later today I’ll collaborate with a close friend and colleague who lives in Los Angeles. We won’t speak by phone; we’ll electronically chat. I’ve posted writing pieces while in the mid-Atlantic on a cruise ship. I’ve completed writing deadlines from the sports book at the MGM Grand in Vegas. I’ve edited Larson chapters from a villa balcony in Newport Beach.
I have a son who’s in the SEO (search engine optimization) business. He “employs” (actually contracts with) two other computing experts. One lives in Egypt, the other in Israel; how’s that for detente? I know of at least one national company that “gives” a Blackberry to every employee at the senior manager level, or above, so that the employee can be reached 24/7. Is that electronic connection an umbilicus or a shackle? Is it a blessing or a curse? The short answer is “yes.” That is to say, it’s both. Many of us can now work anywhere; we end up working everywhere. We can’t escape.
Traditional Notion of “the Workplace” is Disappearing
One hundred years ago, when the workers’ compensation scheme was first constructed, the typical workday was long—yes—but it generally had a clear start and a clear finish. It was usually “housed” in a specific facility and one’s work often was clearly defined. That has certainly changed. The Internet, “the cloud,” VPNs, Dropbox—add your own list—they’ve smudged the old familiar lines that designated the workplace.
Is the workers’ compensation scheme resilient enough to manage its way through such significant change? Can you have a going and coming rule where the workplace is everywhere? I’m actually optimistic that the comp scheme is sufficiently flexible to handle the challenge.
Blackberry—Don’t Do Anything Without It
A knowledge worker headquartered in New York City decides he’d rather enjoy the peaceful calm of Maine than the concrete jungle? He’s talented and his employer relents. But it tells him his freedom will come at a price: he’ll be tethered to the home office by his Blackberry. He’ll need to have it with him at all times. He’ll be able/required to check in almost continuously. The employer itself will also pay a price: its premises will be expanded to a home in Maine. Its premises will even include a personal treadmill since the worker can walk, chew gum and collect email messages at the same time. Under this Sullwold decision, I suspect that if he’d suffered his fatal attack while walking the dog, that too would have been a compensable incident—provided he had his Blackberry. The lesson for employees, particularly those who live in Maine: your Blackberry; don’t do anything without it.