Transcription
4/14/2021Preventing & Defending HomeInjuriesBy Donald Barthel, Esq.Law Offices of Bradford & Barthel, LLPBradford &BarthelBradford &Barthel, LLPBradford & Barthel@bradfordbarthelbradfordbarthelllp21
4/14/2021TOOLS FOR YOU AT:www.bradfordbarthel.comCOVID Questions?covid@bradfordbarthel.comBLOG Articlesbradfordbarthel.blogspot.com/AMA Rating -ratings/CE Videosbradfordbarthel.com/education/CE Webinarsbradfordbarthel.com/education/Today’s Speaker3Donald BarthelFounding Partnerdbarthel@bradfordbarthel.comTahmeena AhmedManaging imberly WagnerB&B VenturaPartner/Managing Attorneykwagner@bradfordbarthel.comSophia MartinezB&B OntarioPartnersmartinez@bradfordbarthel.comTammey WeltyDirector/Training & Communicationstwelty@bradfordbarthel.com42
4/14/2021Make sure you are:10 CCR 2592.03 compliantwww.bradfordbarthel.com5B&B’s Appellate Department Hundreds of Recons & Removals Nearly 100 Writs of Review Over a dozen Supreme Court Petitions forReviewwww.bradfordbarthel.com63
4/14/2021Home-based work is nothing new.And it ain't going anywhere.even after(if?) COVID-19 becomes a thing of the pastEven after vaccine “new normal ” 55% of execs believe most EEs willcon’t working remotely at least 1 day/wk784
4/14/2021Working at home isn't a picnic for all EEsMake sure they know about your EAPEncourage its useDisabuse thoughts of stigmawww.bradfordbarthel.com9Safe Telecommuting Practices Create remote working policydetailing expectations fortelecommuters review w/EEsask EEs to sign acknowledgment theyreceived/reviewedwww.bradfordbarthel.com105
4/14/2021Safe Telecommuting Practices Set fixed work hoursmealrest timesWhy? Better defines “in the course of employment.”www.bradfordbarthel.com11Safe Telecommuting Practices Clearly define EE's scope of work policy states activities fallingoutside EE's jobdescription are not ER'sresponsibility Est. home office standards(ex requiring designated anddedicated work area)www.bradfordbarthel.com126
4/14/2021Safe Telecommuting PracticesProvide training on workstation setup safety measures ergo best practiceswww.bradfordbarthel.com13Safe Telecommuting PracticesDetail equipment used by EEEnact guidelines for check-insgeo-tracking ?!equipment trackingwww.bradfordbarthel.com147
4/14/2021Encourage EEs mental health by:PREPARING FOR WORK: showering dressing (avoid daily sweats and PJs)www.bradfordbarthel.com15Encourage EEs maintain mental health by:Keeping taking care of body & mind hydrate exercise - walk around block is cheap & effective "Just Dance" "social distancing" does NOT mean no socializing.phone friends/familytextZoom stay socialwww.bradfordbarthel.com168
4/14/2021Encourage EEs maintain mental health:Careful: those walls can start to close-in on us!Get e EEs maintain mental health:Taking breaks split up work projects don't struggle to complete task by skippinglunch and/or schedule breaks there are excellent reasons CA mandates thourlyEEs receive 10 min break for every 3.5 hoursand a 30 min lunch breakwww.bradfordbarthel.com189
4/14/2021Encourage EEs maintain physicalhealth by:Taking Ergonomics Seriously have specialist visit job (home) siteid regular worksites (may be multiple) id potential difficulties & address ergo issuescreate and require periodic use of home office safety checklistdraft teleworker agreement describing safety requirementsand EE's responsibilities to work safely ex. backup in case spouse/kids require primarywww.bradfordbarthel.com19Encourage EEs maintain physicalhealth:It's not just ergo.Investigate and address safety concerns fire alarm requirements electric: surge protectors, frayed wires cybersecuritywww.bradfordbarthel.com2010
4/14/2021Use regularly scheduled staff meetingsto discuss: EAP availabilityTelehealth optionsSuicide HotlinesAA contact infoCA hotlineswww.bradfordbarthel.com21Easy Question:Question: Can injuries occurring at home officeaoe/coe?Answer: oftenwww.bradfordbarthel.com2211
4/14/2021Question: Any defenses?Answer: you bet!www.bradfordbarthel.com23General Rule: employmentrelationship can extend to EE's homeFirst consideration: is the workcontemplated by employment(written, oral, implied)?www.bradfordbarthel.com2412
4/14/2021Who cares?By agreement, ER can limit relationship todefinite: time locationwww.bradfordbarthel.com25HowRequiring all work be done in the workplaceorOr extending usual limits by requiring performance for ER's for itsbenefit beyond workplaceExamples: special errands special missions work at home2613
4/14/2021IMPORTANTwork req'd to be performed at EE's home?Going & Coming defense (barring aoe/coe duringregular commute to/from regular work premises) doesNOT applyTreated like travel between 2 ER-owned premises @ER's requestwww.bradfordbarthel.com27All is not lostNot all EEs have the right to claim home as 2ndwork site(thus, can't overcome Going & Coming Rule)www.bradfordbarthel.com2814
4/14/2021RULE:absent ER direction to work at home, EE whoconsistently works at home even with ER's knowledge, doesNOT home as 2nd work sitewww.bradfordbarthel.com29Wilson v. WCAB(1976) 41 CCC 76Facts: Teacher MVA injury driving to schoolEE argued G&C didn't apply b/c:"exceptional circumstances [were] established by herperforming work at home the night before the accident andby transporting work-related items.to class."www.bradfordbarthel.com3015
4/14/2021Wilson v. WCABSupremes say. EE's home did not 2nd job siteEE not exempt from G&CReasoning: job only req'd she only report to school (nowhere else) no implicit requirement she work at home did work at home only for her personal conveniencewww.bradfordbarthel.com31Santa Rosa Junior College v. WCAB(Smythe) (1985) 50 CCC 626Facts: teacher killed driving home from work often worked from home (as did many otherinstructors)Holding: barred by G&Cwww.bradfordbarthel.com3216
4/14/2021Santa Rosa Junior College v. WCAB(Smythe)Supremes say. .unless ER requires EE to perform work athome as a condition of employment, fact that EE regularly works there does not turnit into 2nd job site for G&C rulewww.bradfordbarthel.com33Santa Rosa Junior College v. WCAB(Smythe)"a home does not become a second job sitesimply because one's employment requireslong working hours and the employer knowsthat the employee frequently brings workhome."Court find no evidence that "faculty memberswere required — implicitly or otherwise — towork at home rather than on campus."www.bradfordbarthel.com3417
4/14/2021Other courts weighing in.Harmon v. WCAB (1987) 52 CCC 234 (writ denied)Facts: EE could have worked at school, but "more efficient" at homeHolding: deniedReasoning:no evidence using home as 2nd job site was implied condition ofjobwww.bradfordbarthel.com35Raquedan v. WCAB (2018) 83 CCC 1708(writ denied)Facts: returning to work from uncompensated lunch break@ home killed while on RTWHolding: not compensableReason: EE not req'd to work at homewww.bradfordbarthel.com3618
4/14/2021BUTwhat if ER directs EE to work from home. expressly? impliedly? no difference (bad news)www.bradfordbarthel.com37"implied direction" work needed tobe done @ homeandER knew & expected it would be done thereBramall v. WCAB (Dunnington)(1978) 43 CCC 288Facts: EE injured while driving home to translate depos ER needed work "urgently” req'd "uninterrupted concentration" "extremely difficult" to do at office ("after-hours distractions")www.bradfordbarthel.com3819
4/14/2021BramallDCA holds: aoe/coeReasoning: implied requirement b/c ER expected EE to fully and timelycomplete the work even to extent that she work beyond normal hours ER knew EE took depos home for translation&approved practicewww.bradfordbarthel.com39Bramall distinguished from WilsonWilson: working at home EE's conveniencevsBramall: work could not be performed in workenvironment&work @ home normal practice approved by ERwww.bradfordbarthel.com4020
4/14/2021Sit back and just try to imagine thisscenario: a plague engulfs the earth, esp UStransmit person to person through respiratory dropletsgov’t recommends/requires folks work at homephysical and psych injuries occur while working Are you able to imagine this?411. allowed to work at home2. injury sustained while makingreasonable/anticipated use of the premises compensablewww.bradfordbarthel.com4221
4/14/2021Santa Clara Valley Transportation Authorityv. WCAB (Tidwell)(2017) 82 CCC 1514 (writ denied)Facts: working from home due to non-aoe/coe injury wheelchair non-aoe/coe injured transferring from toilet to wheelchairIssue: aoe/coe?43Santa Clara Valley TransportationAuthority v. WCAB (Tidwell)Holding: yesReasoning: EE was given permission to work athome as a "reasonable accommodation" home workplace for w/c purposes**bathroom use also compensable via "personalcomfort doctrine"www.bradfordbarthel.com4422
4/14/2021Gellman v. WCAB (2013)78 CCC 236 (writ denied)Facts: atty carrying work in box from home to her car had attend hearing, left WCAB in afternoon andcarried box into apt. to finish work injured carrying box the next day "routinely" worked from home "usually" went to home review work/dictate after pmappearanceIssue: aoe/coe?Holding: nowww.bradfordbarthel.com45Gellman v. WCAB (2013)Reasoning: not on a special mission nothing "extraordinary" or "nonroutine" aboutcarrying box w/work documents when she fell no evidence that when EE took work home, it was:a. benefit to ER orb. was for anything other than her own conveniencewww.bradfordbarthel.com4623
4/14/2021Personal Comfort DoctrineInjury from purely personal act notcompensableBUTInjury on EE's premises during work hours often compensableEVEN IFperforming an activity not a duty of jobwww.bradfordbarthel.com47EXAMPLES using the bathroompausing to chat w/co-EEdrinking cup of coffeelighting a cigarettedoodling on a pad of paper "personal comfort acts" www.bradfordbarthel.com4824
4/14/2021"it is not indispensable to recovery that at the time ofthe injury an employee must be rendering service tohis employer."Western Pipe and Steel Co. of California v. IAC(Henderson) (1942) 7 CCC 28, 29www.bradfordbarthel.com49ER need not benefit from EE's injuriousactivity:Price v. WCABSupremes confirmed that "a strong nexusbetween the personal act and increased efficiencyis not a prerequisite to coverage”"[a]cts of 'personal convenience' are within thecourse of employment if they are 'reasonablycontemplated by the employment.'"www.bradfordbarthel.com5025
4/14/2021TEST: whether the act was reasonablycontemplated by the employmentCONSIDERATIONS:1. nature of the act2. nature of the employment3. custom/usage of the employment4. terms of the employment contract5. other factorsPrice v. WCAB (1984) 37 Cal. 3d 559, 568www.bradfordbarthel.com51"departures effecting a temporaryabandonment of employment." NO"act of personal convenience"SCIF v. WCAB (Cardoza) (1967)32 CCC 525, 527www.bradfordbarthel.com5226
4/14/2021Important Factoremployer's knowledge of the activity in advance of its occurrenceandno prohibition of itDon't Forget Our Discussion re Safe Telecommuting Practices clearly define EE's scope of work policy states activities falling outside EE's job description aren’t ER’sresponsibility est home office standards (ex requiring designated and dedicated workarea)www.bradfordbarthel.com53It's ScaryInjuries sustained during personal acts of comfort that take place on ER's premises usually compensableUNLESS EXPLICITLY FORBIDDENwww.bradfordbarthel.com5427
4/14/2021It's ScaryThey include: eating lunch getting a drink of water smoking tobacco where not forbidden "attending to the wants of nature” changing to or from working clothes pouring oil into a car engine while waiting to begin work playing catch on ER's lawn during a paid coffee break helping co-EE start stalled carwww.bradfordbarthel.com55They include: jumping into a reservoir to rinse off after picking grapesgetting treatment during a break for an in-grown toenailchasing a picked lemon into the street when it rolled awaychewing gumusing a curling ironperforming isometric exercises at the deskgetting a flu shotblowing his nosetapping a co-EE on shoulder while passingwww.bradfordbarthel.com5628
4/14/2021NOT ALL IS LOST!Some activities no reasonable ER would condoneEX doctrine does not cover injuries resulting fromunusualbizarredaringriskydeviant activitiesactivities w/inherent potential for injury to EE or others"Hey y'all! Watch this!"www.bradfordbarthel.com57No Personal Doctrine where: injured using water slide expressly prohibited from using afterhoursEE who drowned an irrigation ditch while fleeing fromimmigration officialsdeath by asphyxiation while masturbating at work wife argued benefited b/c "released tension and stress"holding:"there are still some personal acts which had best be performed athome or at least not on the premises of one's [ER]”Garcia v. WCAB (1974) 39 CCC 206, 208 (writ denied)www.bradfordbarthel.com5829
4/14/2021No Personal Doctrine where: EE brought a loaded gun to work and tested it mother performed personal errand for her daughteron ER's premises reason: b/c purely personal errand departurefrom employment relationship (though remainedon premises) apt mgr w/dual roles (premises manager) tenant;injured on premises while acting only as tenant, notaoe/coewww.bradfordbarthel.com59Is there a (relatively) new secretweapon?Virtually all case law pre-20022002 CCR 14300.5(b)adopted; re ER obligation toreport injuries & keep recordsclaims to define when injuries that take place in thework environment.are not work-relatedwww.bradfordbarthel.com6030
4/14/2021CCR 14300.5(b)(2) gives specificexamples:"Are there situations where an injury or illness occurs in the workenvironment and is not considered work-related? Yes. An injury orillness occurring in the work environment that falls under one of thefollowing exceptions is not work-related, and therefore is notrecordable:A. At the time of the injury or illness, the employee was present in thework environment as a member of the general public rather thanas an employee.B. The injury or illness involves signs or symptoms that surface atwork but result solely from a non-work-related event or exposurethat occurs outside the work environment.www.bradfordbarthel.com61CCR 14300.5(b)(2) gives specificexamples:C.The injury or illness results solely from voluntary participation.in a wellness program orin a medical, fitness, or recreational activity such asblood donationphysical examinationflu shot (unless explicit exception)exercise classracquetball, orbaseballwww.bradfordbarthel.com6231
4/14/2021D.The injury or illness is solely the result of an employee EX [EE] is injured "choking on a sandwich while in the employer'sestablishment.not.considered work-related." eating, drinking, orpreparing food or drink for personal consumption (whether boughton the employer's premises or brought in).Note : If the employee is made ill by ingesting food contaminated byworkplace contaminants (such as lead), orgets food poisoning from food supplied by the employer, work-relatedwww.bradfordbarthel.com63CCR 14300.5(b)(2) gives specificexamples:E. The injury or illness is solely the result of anemployee doing personal tasks (unrelated to theiremployment) at the establishment outside of theemployee's assigned working hours.F. The injury or illness is solely the result of personalgrooming self-medication for a non-work-related condition,or is intentionally self-inflicted.www.bradfordbarthel.com6432
4/14/2021CCR 14300.5(b)(2) gives specificexamples:G. The injury or illness is caused by a [MVA]and occurs on a company parking lot or companyaccess road while the employee is commuting to orfrom work.H. The illness is the common cold or flu (Note:contagious diseases such as TB, brucellosis,hepatitis A, or plague are aoe/coe if EE is infectedat work).www.bradfordbarthel.com65CCR 14300.5(b)(2) gives specificexamples:I. The illness is a mental illness.Mental illness will not be consideredwork-related unless the employeevoluntarily provides ER w/opinion fromlicensed health care professional withappropriate training and experiencestating that the employee has a mentalillness that is work-related.www.bradfordbarthel.com6633
4/14/2021www.bradfordbarthel.com67Defending Against "Bad Habit"Injuries/Deathsthough job may contemplatetolerance for personalhabits, long-term effect ofmay not be compensablewww.bradfordbarthel.com6834
4/14/2021Bovert v. Johns-Manville Sales Corp.(1977) 42 CCC 765 (appeals board en banc)F: smoked on premises & home for years chronicbronchitis (in another case death)H: not compensable69Bovert v. Johns-Manville Sales Corp.R: "personal comfort doctrine” may not include"insidious, detrimental systemic effects ofa personal habit.solely under the control of, and in the selfindulgence of the employee, which habit isneither required by, nor in furtherance of, theemployment."www.bradfordbarthel.com7035
4/14/2021Bovert v. Johns-Manville Sales Corp.HOWEVER, different result (maybe) if second-hand smoke smoker quit but started again due to job stress“ the test of causation is satisfied in that one canreasonably infer that, but for the employment,[EE] would not have contracted the disease."www.bradfordbarthel.com71GENERAL RULE:individual acts of convenience normallycompensable, but cumulative effectsof personal habit are not.Seems to avoid successful claims for: obesity ("I could eat as much as I wantedat work") drinking — alcohol or soda — sexual habitswww.bradfordbarthel.com7236
4/14/2021Seems to avoid successful claims for: anger management consuming caffeine consuming sugarBe careful: if habit developed or resumed due towork, may be compensablewww.bradfordbarthel.com73Serris v. WCAB (1994) 59 CCC 371F:H:R:WCJ alleged smoking injurynot work-relatedmere non-industrial habit;job not stressfulno causal relationship between smoking and stresswww.bradfordbarthel.com7437
4/14/2021Allmon v. WCAB(1976) 41 CCC 314 (writ denied)F: alcoholism alleged increase when work stressincreasedH: def winR: alcoholism pre-existed the job(not caused by it)www.bradfordbarthel.com75Playing with Weapons?AOE/COE depends on ee's reasonable beliefF: correctional officer was allowed to carry non-duty concealed weapon off dutynot req'dnot allowed to carry duty weapon when off dutyshot hand off duty w/own weaponargued kept gun for fear of off-duty assault from former prisonersH: ER winR: fears of off-duty assault "not reasonable"Nottingham v. WCAB (1999) 64 CCC 274 (writ denied)7638
4/14/2021Ssssssh! Defense has a "secret weapon"It's called: LC 3600 defensesThey include: intoxication defense intentionally inflicted injury defense willful & deliberate suicide initial physical aggressor felony conviction rule voluntary participation in on-duty recreational, social, or athletic activity post-term psych claims etc(see Jan 2016 Webinar, 1.5 CE hrs)www.bradfordbarthel.com77Ugh! Do I really need to [re]learn allof those!?!?YESIf personal comfort doctrine conflicts witha statutory defense to injury.it will be supersededwww.bradfordbarthel.com7839
4/14/2021F: injury was sustained as a result of an off-dutyrecreational, social or athletic activity EE played basketball during lunch hour claimed aoe/coe b/c felt "more relaxed" and betterable to do job unpaid ER didn't sanction/sponsorwww.bradfordbarthel.com79I: compensable per personal comfortdoctrineH: noR: activity was covered by LC 3600(a)(9) as offduty recreationTodd v. WCAB (1988) 53 CCC 65www.bradfordbarthel.com8040
4/14/2021Investigations(COVID-19 and EVERYTHING ELSE)Likely no (defense) witnesses of injuryOptions?Social med
Apr 14, 2021 · Santa Rosa Junior College v. WCAB (Smythe) "a home does not become a second job site simply because one's employment requires long working hours and the employer knows that the employee frequently brings
