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Case # G1953353
Matter of Matrix Absence Management
2019 NY Wrk. Comp. G1953353

BOARD PANEL DECISION

By: Chair Rodriguez

Ruling:

The Full Board, at its meeting on April 16, 2019, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 17, 2018.

ISSUE

The issue presented for Mandatory Full Board Review is whether claimant had an accidental injury arising out of and in the course of his employment.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim.

The Board Panel majority affirmed the WCLJ.

The dissenting Board Panel member would find that claimant's accident arose out of and in the course of employment.

The claimant filed an application for Mandatory Full Board Review on August 15, 2018, arguing that his accident arose out of and in the course of his employment because he was injured while setting up his home office, which was for the benefit of his employer, and that the terms of the agreement between the claimant and the employer were not dispositive.

The carrier filed a rebuttal on September 4, 2018, arguing that claimant's injuries did not arise out of and in the course of employment and requests that the decision of the Board Panel majority be adopted by the Full Board. In the alternative, the carrier argues that the "case should be restored to the calendar to complete the development of the record with the testimony of the employer's witnesses."

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

Claimant filed a C-3 (Employee Claim) on August 23, 2017, alleging that on June 13, 2016, while moving and installing "ergonomically correct office furniture" in his home office, he sustained injuries to his back, both knees, and right shoulder, as well as "psychological overlay." Claimant indicated that he stopped working due to his injuries on July 24, 2017.

The carrier controverted the claim.

The earliest medical evidence in the record is an October 18, 2016, report by Dr. Cash, who stated that claimant was complaining of low back pain, numbness in both thighs, and weakness into his right leg. Dr. Cash reported that these symptoms were,

of gradual onset (several years ago) caused by doing labor. There is a history of similar pain progressive recent after moving furniture. He has not gone to the ER for pain. He was not working at the time. He had back pain years ago from repetitive stress and he now has recurrence after he moving furniture down steps and he lost control of the furniture.

At a hearing on January 17, 2018, claimant testified by telephone that he started working as a claims examiner for the employer, a third-party administrator, on April 25, 2016. He was "hired by agreement as a telecommuter" and worked from home (transcript, 1/17/18 hearing, p. 4). On June 13, 2016, he was "managing some furniture, namely a desk, a drawer, a chair, up the stairs in my home, I lost a little footing on the stairs there and I felt a tweak or a pop in my back" (p. 5). He clarified that he was carrying office furniture when he was injured. He reported the injury to his supervisor within a week of when it occurred. His employer did not provide the furniture or pay for it. He was going to use the furniture to work for the employer from his home. The employer provided claimant with "a tower, two monitors and a keyboard" (p. 8). Claimant ordered the furniture for his home office himself. According to claimant, he notified his employer that he had purchased the furniture, but the employer refused to pay for it, which claimant believed was contrary to their agreement. Claimant's attorney indicated that he had no further questions for claimant with regard to this claim.

On cross examination, claimant testified that before purchasing the furniture he spoke to M.W. at the employer who told him that the employer would not pay for the furniture. At the hearing, the claimant produced a three-page document described as the "Matrix Absence Management Telecommuting Agreement," which was marked as claimant's Exhibit Number 1 (p. 13). The furniture was delivered to his home between 10:00 and 10:30 am on June 13, 2016. He brought the packages containing the furniture into the foyer, then during his lunch hour moved the packages upstairs and began to assemble the furniture.

Although the carrier had not finished cross-examining the claimant and had three witnesses available to testify by telephone, the WCLJ interjected and indicated that he was finding that "this claimed accident did not arise out of and in the course of employment" (p.16) because claimant was injured while moving furniture in his home that he had purchased, which the employer had declined to pay for. The WCLJ noted that the Matrix Absence Management Telecommuting Agreement provided that requests for supplies would not be reimbursed unless ordered through and approved by the employer. The claimant's attorney stated, "Just note my exception, Judge" (p. 17). The resulting decision disallowing the claim was filed January 22, 2018.

Claimant requested administrative review, arguing that his accident arose out and in the course of employment because it occurred in his home office during work hours while moving "ergonomically correct office furniture/equipment" which was in part "for the benefit of his employer so that the claimant could properly do his job, as the furniture he had in his home office did not allow him to do so without pain." Claimant further argued that the WCLJ "made his ruling prior to the completion of claimant's testimony and the record is not fully developed." Claimant noted that the Matrix Absence Management Telecommuting Agreement (Agreement) submitted into evidence at the January 17, 2018, hearing had not been scanned into the Board's Electronic Case Folder, and attached a copy of the document. Paragraph 6 of Agreement states, in relevant part, that, "Requests for Supplies, Equipment, Repair or other services will not be reimbursed unless ordered through and approved by Matrix Purchasing."

In rebuttal, the carrier argued that claimant's injuries did not arise out and in the course of employment. In the alternative, the carrier argues that the matter should be continued for further development of the record on the issues of notice and whether an accident occurred.

LEGAL ANALYSIS

A fundamental tenet of the Workers' Compensation Law is that "[a]n employee's injury is compensable only if it arises out of and in the course of the employment" (Matter of Button v Buttton, 166 AD3d 1258 [2018], quoting Matter of Brennan v New York State Dept. of Health, 159 AD3d 1250 [2018]). However, injuries that occur as the result of "purely personal activities are deemed outside the scope of employment and not compensable" (Matter of Marquis v Frank's Vacuum Truck Service, Inc., 29 AD3d 1038 [2006]).

When, as here, an employee works from home, the distinction between what is work related and what is personal is not always as apparent as when an employee works at the employer's premises. More people are regularly working from home today than ever before (Want to work from home more often? New data from Gallup could help convince your boss, Washington Post, February 16, 2017; Out of the Office: More People Are Working Remotely, Survey Finds, New York Times, February 15, 2017), and legal standards developed to address whether an injury occurring in a traditional employer-controlled workspace is compensable cannot always be reasonably applied to injuries to employees working from home.

Different standards have been adopted to analyze whether injuries are compensable based on where an employee is required to work. For example, recognizing that employees who are required to travel to a "new environment" for work are "susceptible to a greater risk of injury while engaged in a reasonable activity" (Matter of Wilson v Detroit Hockey Club, 104 AD2d 168 [1984], affd. 66 NY2d 848 [1985]), Courts have found that any injuries that occur during a work-related trip while the employee was "engaged in a reasonable activity (i.e., showering) attendant to, although not directly related to her employment duties," are compensable (Matter of Capizzi v Southern Dist. Reporters, 61 NY2d 50 (1984).

In contrast, the scope of compensable injuries to employees working from home should be limited in recognition of the distinctive nature of their work environment. Employees who work from home, outside the direct physical control of their employers, are potentially able to alternate between work related and personal activities when they choose. For this reason, injuries sustained by employees working from home should only be found to be compensable when they occur during the employee's regular work hours and while the employee is "actually performing her employment duties" (Matter of McRae v Eagan Real Estate, 170 AD2d 900 [1991]). Injuries which occur while claimant is not actively performing his or her work duties, such as taking a short break, getting something to eat, exercising or using the bathroom, for example, should be found to have arisen from "purely personal activities [that] are outside the scope of employment and not compensable" (Matter of McFarland v Lindy's Taxi, Inc., 49 AD3d 1111[2008]).

In the present case, claimant was injured in his home while carrying furniture into his home office. The record reflects that the furniture was chosen and paid for by the claimant. The employer did not authorize the purchase of the furniture, did not pay for it, and did not require the claimant to purchase it. While the accident occurred in the middle of claimant's work day, he testified that he was on his lunch break at time of the injury. Because claimant's injury occurred while he was moving furniture, rather than performing his work duties as a claims adjustor, and the employer did not pay for the furniture or direct claimant to obtain it, the record supports a finding that the activities that claimant was engaged in where not sufficiently work related to render his injuries compensable.

Therefore, the Full Board finds the preponderance of the evidence in the record supports a finding that claimant's injuries did not arise out of and in the course of his employment.

CONCLUSION

ACCORDINGLY, the WCLJ decision filed January 22, 2018, is AFFIRMED. The claim is disallowed and closed.