A Remotely Interesting Christmas Tale
Employers Need to Consider Potential Work Comp Liability for Remote Work Arrangements
NOEL Enterprises, a toy manufacturer based in the North Pole, operated a plant just outside Warroad, MN that made ping-pong tables, baseball bats, wooden train sets and hockey sticks. On November 12, they received the news: effective November 18, the Governor was “pausing” operations of certain “non-essential” businesses. Their lobbyist in St. Paul heard rumblings about this early in November but she could not convince the Governor, his confidants and state health officials that NOEL’s operations were essential enough, like liquor stores, to remain open.
Santa was ticked. First, the Governor’s first “stay at home” emergency order shut down NOEL last spring. Then, he spent half the summer fending off Amazon’s attempted acquisition, while assuring his people that as long as he was alive, Santa and only Santa would be delivering presents Christmas morning. Now this. Mrs. Claus fumed, too. People could congregate in large shopping malls, outlet malls and retail stores to buy toys, but domestic manufacturing of the toys in their arid 40,000 square foot facility by masked elves at socially distant workstations with state-of-the-art air filtration and [light] wasn’t enough to get NOEL off the state’s “naughty list”. They would have to suspend operations at their manufacturing plant in Warroad due to the Covid-19 pandemic.
Santa and Mrs. Claus, ensconced in NOEL’s world HQ in the North Pole, spoke to the elves in Warroad via Zoom. “We understand you are all disappointed. However, this is crunch time for our business and we have to make our production goals so that all the good children around the world will have toys on Christmas morning,” Santa solemnly declared. “After the shutdown last spring, we thought this might happen again. Thanks to Mrs. Claus’s foresight on this,” he said, nodding to his better half, “we’ve arranged for each of you to be able to work from home. FedEx will make weekly deliveries of nearly-finished product to all of you, and you will finish the toys at home in your home workshops. UPS will pick up the finished product from each of your cottages every Tuesday and Friday until the week of Christmas.”
As the elves left the meeting, Herbie Elfin, who took the toy-building gig to save up for medical school, thought, "Well, at least I won't have to wear this elf costume every day. And, I will save money on gas and wear and tear on my F-150."
As the elves left the meeting, Herbie Elfin, who took the toy-building gig to save up for medical school, thought, "Well, at least I won't have to wear this elf costume every day. And, I will save money on gas and wear and tear on my F-150."
On the morning of December 8, 2020, Herbie was working in the basement workshop of his cottage. After he dropped a finished Mario Mendoza model maple bat into its cardboard shipping sleeve, he drew his hand across the rough stubble of his unshaven face. He stared into the mirror. Oof. He’d let himself go. His long hair seemed poised to revolt and declare independence from his scalp. His wrinkled Claus College sweatshirt sported a red stain from a jelly-filled donut he tried to eat while working earlier in the morning. He needed another cup of coffee. He walked up the stairs. It was still early. Soon his wife and three kids would be up. The kids would quickly wolf down their breakfast before logging on to their Chromebooks for another day of “distance learning”, while his wife, Patrice, exhausted herself trying to play the role of teacher/tutor/proctor while also managing her part-time job as a data engineer for a small tech start up.
Herbie grabbed his cup with the Dunder Mifflin logo and filled it with Folgers’ ebony brew. Patrice, bleary-eyed, shuffled into the kitchen. He gave her a soft kiss on the cheek as he passed her. Herbie began his careful walk down the white-carpeted stairs leading to the basement. He stared into the cup as he took each step, trying to avoid having the black waves wash over the cup’s ceramic wall and onto the carpet. When he neared the bottom, he mis-stepped. He began falling. As he flailed to grab the railing, the cup went flying and exploded onto the cement shop floor. Herbie tumbled down the remaining stairs and landed awkwardly on his right shoulder. He emitted a torrent of elfin obscenities: “%$#@(*&!!!”.
Within seconds, Patrice came to the door, flipped on the light and peered downstairs. She exhaled, relieved the new white carpet looked OK. Then, she saw Herbie writhing on the ground. He did not look o.k.
Mae North, the adjuster at D9 Insurance Group, NOEL’s claims administrator, looked at the First Report of Injury. Herbie Elfin claimed he hurt himself while working from home. Herbie suffered a separated right shoulder and torn rotator cuff when he fell down the stairs at his home after getting a cup of coffee and bringing it down the stairs from his kitchen to his home office/ workshop. She thought to herself, “This guy injured himself at home when he fell down the stairs while getting a cup of coffee.” As she drew the cursor across her screen toward Box 3 of the NOIPLD form to deny the claim, she hesitated. The facts seemed so clear, the denial so obvious, yet…
Mae sent me the email with a summary of these facts shortly after noon. She apologized: she had not received the First Report until 13 days after Herbie reported his injury and she had to e-file the NOIPLD on CAMPUS before the end of business today. “I think I need to deny this. Can you help me with some language for the denial?” she pleaded.
At 2:15 p.m., I sent her the following email:
“Hi Mae: Thanks for your email. I don’t want to be the bearer of bad news during the holiday season, but I believe you will have to admit primary liability for this injury occurring at Mr. Elfin’s home.
In 2008, the Minnesota Workers Compensation Court of Appeals (WCCA) affirmed an award of worker’s compensation benefits under very similar circumstances in Munson v. Wilmer/Interline Brands (WCCA 12/16/2008). The parties did not dispute the facts in Munson. On Saturday March 31, 2007, Munson worked as a sales representative for the employer. The employer maintained a warehouse in Minnesota but did not provide office space for its sales representatives in the state and Munson was required to maintain a home office. Munson maintained his office in a second floor bedroom and his office contained typical office equipment. On the date of injury, he had breakfast at home and went upstairs to his home office to prepare a month-end sales report. His boss needed the report the following Monday morning. After working for a bit, he decided to take a break and go downstairs to his kitchen to get a cup of coffee. He planned to get a cup of coffee and promptly return to his second floor office. As he walked down the stairs, he slipped, landing on his back on the steps and suffering a T-9 vertebral fracture that subsequently required surgery. He filed a workers’ compensation claim. The employer and insurer denied it. The case went to a hearing and the parties asked the compensation judge to consider whether the “personal comfort” doctrine applied “’to an employee who is working at home because his employer requires him to have a home office and does not have premises where [he] can perform his job duties.’” The judge concluded the “personal comfort” doctrine applied, deemed the injury compensable and awarded benefits.
On appeal, the WCCA affirmed, finding the compensation judge’s application of the personal comfort doctrine in awarding benefits was legally proper and supported by substantial evidence.
The court noted the question of whether the personal comfort doctrine applied when an employee was working in their home was an issue of first impression. The WCCA rejected the employer and insurer’s argument that the personal comfort doctrine should not apply to injuries sustained in a home office setting because employees working at home could make “limitless claims”. The employer and insurer urged, but the court rejected, a “bright line” rule that would only apply the personal comfort doctrine in situations where the employer owned or controlled the work environment.
The WCCA found that “by requiring the employee to maintain a home office as a condition of his employment, the employer… extended the employment premises to the employee’s home and assumed some risks associated with those premises.” The Court noted the employee did not leave the course of his employment when he used a short-term break to get a cup of coffee in his kitchen. There was no evidence the route he took was “unreasonably dangerous or unconventional” nor did the employer expressly prohibit such activity. The Court noted, “The employer’s business decision to require a home office rather than to provide a separate facility for its employees is an element of control.” The court recognized “the potential difficulties that may arise in cases where home-based or telecommuting employees are injured in their homes”, but also noted Minnesota had followed the personal comfort doctrine for years.
Mae, the circumstances of Mr. Elfin’s injury are almost identical to those in the Munson case. Therefore, I think you’re going to have to pick up the claim.
Let me know if you have any questions.”
Let me know if you have any questions.”
A few minutes later, Mae emailed me back.
“Chris, Thanks for the quick response. Do you think it makes any difference that Mr. Elfin was working temporarily at his home, not permanently, like Munson? In addition, I don’t see how his fall on the stairs represents an increased risk of injury. Stairs are literally everywhere we live and work.”
I responded: “Thanks Mae. Let me address the two issues you raised.
First, I don’t think the “temporary” nature of Mr. Elfin’s work at home would make a difference. The WCCA in Munson emphasized that “requiring the employee to maintain a home office as a condition of his employment… extended the employment premises to the employee’s home and assumed some risks associated with those premises.” In Elfin’s case, NOEL, albeit because of a state emergency order issued during a global pandemic, required its employees to work from home as a condition of their continued employment. The bottom line is the employer mandated that Mr. Elfin work from home.
In response to your second question, after Dykhoff confirmed Minnesota’s workers’ compensation courts should use the “increased risk” test to determine whether an injury “arose out of” employment, our appellate courts have wrestled with how to treat injuries occurring on stairs. On numerous occasions, the WCCA has found that “the use of stairs, in and of itself, creates an increased risk of injury regardless of the condition of the stairs.” The Minnesota Supreme Court has not yet endorsed the WCCA’s view that stairs per se represent an increased risk. I do not think the factual circumstances of your case (global pandemic resulting in government edict forcing employer to have employee’s work from home and employee injured getting a cup of coffee) would be the ideal “test case” for the Supreme Court on this issue.
Mae, if you’ll excuse my Christmas pun, Mr. Elfin’s case may not be the Mount Crumpit you want to die on. In summary, under existing case law, I think there is a 90% chance a compensation judge would find this claim compensable.
Let me know if you have any other questions or need additional assistance.
Happy Holidays!”
Mae responded: “Humbug! J I guess we will have to pick up this claim. Enjoy your Christmas with your family Chris.”
In the 12 years since the WCCA issued its decision in Munson, it has not considered other cases involving injuries occurring at home under similar circumstances. The Munson court clearly considered several factors in finding the Munson’s injury compensable:
1.) The employer required the employee to maintain a home office as a condition of his employment;
2.) There was no dispute as to the facts or duration of the employee’s break; and
3.) At the time of the break, the employee was performing a task (completing a report) required of him by his employer.
Over the past nine months, many Minnesota employers have grappled with the scope and applicability of state emergency orders. Tens of thousands of workers who used to work in offices now work from their bedrooms, basements and kitchen tables. Courts will likely grapple with other cases involving injuries occurring in remote work and home office settings. It is likely they may apply the same factors the WCCA used in Munson, particularly focusing on whether the employer required that its employee maintain a home office as a condition of employment (even if that requirement stems from a temporary state mandate due to a pandemic). Employers and employees alike will consider whether remote work will remain a permanent part of their working relationship. Employers weighing the pros and cons of work from home (WFH) arrangements need to consider their workers’ compensation liability among many factors. Otherwise, for unwary employers, WFH could become WTF.