Like so many people, I have been working from home for the last several weeks as a result of the COVID-19 pandemic. It has been at times frustrating and difficult, but I am thankful to have the means and technology to do my part and continue to help workers who have been hurt on the job across North Carolina.
Social distancing has meant a lot of time with my wife, Jen, my son Jack and our two cats, Lilly and Maurice. Lilly is almost 18 years old. She’s small and spends most of the day sleeping unless it is time for food, when she caterwauls for her meal. Maurice is the opposite, he’s three, has a lot of kitten in him still, and is around constantly. Maurice also weighs 21 pounds.
My current “office” is the dining room table at home. My days usually follow this pattern: I get up, work, grab some lunch, work some more, go for a run and “close” the office at the end of the day (turn off the laptop and put it on top of the printer that sits on an extra chair). The other day, I was pretty focused and working on a Motion to Compel Medical Treatment for a current case. Maurice snuck over, jumped up on my lap, scared the bejesus out of me and nearly caused me to fall out of my chair.
After my heart rate got back to normal, the workers’ compensation attorney nerd in me got to thinking… “What if I actually did get knocked out of the chair and seriously hurt my back or my knee?” I started thinking about other scenarios as well — work mail is now being forwarded to the house and a person trips, falls and sustains an injury when going to or from the mailbox. What about an injury when taking a “break” or heading back from the bathroom to your desk? With so many people now working from home, these scenarios have become real possibilities, and it is important to know your rights and what you may need to do to help your claim.
My research did not find any particular case that conclusively established that an injury at work while telecommuting is compensable. That being said, it does seem to be generally accepted that such an injury would entitle a worker to benefits so long as they met the statutory standards set forth by the NC Workers’ Compensation Act.
First, let’s get some stuff out of the way before we get into the meat of the conversation. When we are talking about workers’ compensation in North Carolina, the injury has to happen in the “course and scope of employment”. So by “break”, I do not mean going outside to your flower beds and throwing around 50 pound bags of mulch; converting your garage into a temporary weight room; slipping on flour while trying to bake bread (if you can find yeast) or chasing the dog who has escaped from the back yard for the umpteenth time.
“Course and scope of employment” means that you are doing something for the benefit of the employer. Course and scope covers “a reasonable time before actual work begins, and a reasonable time after work ends.” Harless v. Flynn, 1 N.C. App. 448, 162 S.E. 2d 47 (1968). Harless also tells us that course of employment includes “intervals during the workday for rest and refreshment” and that “the course of employment continues when the employee goes to the washroom, takes a smoke break, [or] takes a break to partake a refreshment…”.
In addition, the injury must be “by accident”. In North Carolina, that means that you must show an “unusual or untoward” event that caused the injury. Let’s take my story with Maurice the Cat– I was on my computer writing a legal document where out of the blue, a large furry beast jumped on me, causing me to lose my balance, fall out of my chair and sustain an injury. I would think that this would qualify as an unusual event and an accidental injury in the course and scope of employment. I would therefore be entitled to workers’ comp benefits. I also think that the same would be true for a slip and fall while getting mail for work; heading back to your desk after “partaking in refreshment”, going to the back porch for a smoke or heading to or from the powder room.
All of the above being said, I do think that there are some pitfalls to be concerned about. I think the largest obstacle to overcome in telecommuting injuries will be the issue of causation. Most workers’ comp carriers are going to assume that the injury did occur while you were chasing that dog or lifting the bag of mulch. They will deny the claim, fight you and essentially adopt a “prove it didn’t happen the way we said” attitude. The best thing you can do is inform and document. Call the employer and inform them of your injury as soon as possible (even if it is embarrassing like being mauled by your cat), ask the employer to direct you to a medical provider and report the injury to the doctor as well. You should also take pictures to document the time and place where the injury occurred and if there are witnesses (even if a spouse, significant other, friend or neighbor) get them to make a statement as to what they saw. The more proactive you can be the better. Once you have notified your employer, treated and documented the injury, call a workers’ compensation lawyer who can talk to you about your rights and what benefits you may be entitled to under NC Workers’ Compensation Act. Consultations are free and it is always good to learn about your rights and get some peace of mind as you begin to navigate these waters.
Thank you for your time. Stay safe, stay well, stay home, wear that mask and I hope to see you soon.