I was injured at home while working for my employer. Am I entitled to workers’ compensation benefits?

We’ve all seen the ads for “work from home” jobs (spoiler alert – many are scams). However, corporations like Apple, IBM, CVS, and many, many more are frequently advertising work-from-home or telecommuter jobs to employees thus providing a flexible work schedule. The question then arises – what happens if the telecommuting employee is injured at home? For example, what if the employee is injured during a personal coffee break? What if he slips on his driveway? Or, if she trips over her pet while walking to her van to get work supplies?


In deciding on whether an employee’s injury may be compensable, courts have generally considered (1) how regularly the employee works from home, (2) the presence of work equipment at home (e.g. work computer or corporate phone), and/or (3) other conditions particular to that employment that make it necessary for the employee to work from home. The courts specifically look to whether the employee is working from home for his or her convenience, or if it’s necessary from the employer’s standpoint that the employee work from home (e.g. there is no other suitable place of employment offered by the employer).


For example, in Utah, the Court of Appeals held that a sales manager who was spreading salt on his driveway in anticipation of an important business delivery sustained a compensable slip and fall at work. The Court determined that the manager’s motivation in spreading the salt was to assist the employer’s business. [AE Clevite Inc. v. Labor Comm’n, 2000 UT App. 35, 996 P.2d 1072 (2000)]. Also, where a custom decorator for J.C. Penney was walking out to her van in her garage to get fabric samples and tripped over her dog, that injury was also compensable [Sandburg v. J.C. Penney Co, Inc., 260 P.3d 496 (2011)]. The Court explained that the home premises was also her work premises and the decorator had to keep samples in her van to show potential customers.


The bottom line is that when telecommuters are injured at home during the actual performance of their jobs, regardless of how insignificant, the injury may be compensable.


The Wages of Jobs Being Added

Today’s post was shared by US Labor Department and comes from blog.dol.gov

There has been a lot of discussion recently about whether job growth in the U.S. labor market has been concentrated in low-wage jobs, middle-wage, and/or high-wage jobs. To get at the answer, let’s look at how the distribution of wages has changed over time, starting with the Great Recession.

Job losses during the Great Recession were profound, but they were not felt equally across the wage distribution. Figure A shows the average monthly change in employment between 2007 and 2009 by wage level. The blue bars show the actual change in employment by wage level, and the purple line is a benchmark showing what the employment loss would have been at each wage level if job loss had been evenly distributed.* Notably, this means the purple line is a reflection of the 2007 wage distribution. In 2007, around half of workers earned $17 or less per hour, so it might be expected that around half of jobs lost would be lost by workers who earned $17 or less per hour. But Figure A shows that workers who earn $17 or less per hour made up a disproportionately high share of the losses, since most of the blue bars for those wages extend far below the purple line. In particular, very low-wage jobs — in this case jobs that pay $10 per hour or less – saw strongly disproportionate job loss , as did lower-middle-wage jobs — in this case, jobs that pay $13-$16 per hour. On the other hand, very high-wage jobs – jobs that pay around $50 per hour or more – saw job

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Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.



Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.


OSHA Fines Nebraska Railcar Almost $1 Million after Explosion

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

The incident referred to in this article was extremely tragic, as two workers were killed in April. Now OSHA has found that Nebraska Railcar Cleaning Services knew “that moments before the blast, an air quality check indicated a serious risk of an explosion. OSHA says that despite the warning, Nebraska Railcar Cleaning Services sent two employees into the railcar to work without monitoring the air continuously for explosive hazards as required, nor providing the employees with emergency retrieval equipment or properly fitted respirators.”

Sympathies continue to go to the loved ones of both Dallas Foulk and Adrian LaPour.

Nebraska Railcar Cleaning Services has been placed in OSHA’s Severe Violator Enforcement Program and fined $963,000 for “seven egregious willful, three willful, two repeated, 20 serious, and one other than serious safety and health violations.”

In addition, the article said the EPA is doing an investigation regarding the company’s hazardous-waste disposal.

For those who argue that businesses have safety and the best interests of their workers in mind, please read the article linked to above, and really think about that philosophy, especially when an explosion led to workers dying. Then read the quote from the article below and ask yourself about workplace safety again.

“This company has regularly failed to use appropriate equipment and procedures to keep their employees safe, and in this case it had tragic consequences,” Jeff Funke, OSHA Area Director in Omaha, said in a written statement. “The company needs to immediately reevaluate its procedures for entering and cleaning railcars.”

Work Comp Fraud? What Fraud?

Despite what the media portray, workers’ comp fraud is extremely rare.

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Workers are not “getting rich” from worker’s compensation! Accordingly, fraudulent behavior in work comp is very rare—like the one bad apple spoiling the bunch—but often highly publicized. (Because, let’s face it, seeing a surveillance video of someone bowling or water-skiing is far more memorable than a thousand images of an injured worker struggling to get out of bed in the morning or walk a city block).

Under Wisconsin’s nationally-recognized model, a worker who suffers an on-the-job-injury receives workers’ compensation benefits without regard to fault. By virtue of the work comp system, injured workers cannot sue their employers or receive jury awards. Instead, injured workers are eligible for lower, defined benefits, like lost wages and medical expenses—again, we’re not talking about “pie in the sky” numbers that would incentivize bad behavior!

“Fraud” is minimal to non-existent

  • In the last published study, Dept. of Workforce Development (DWD) concluded that public perception of workers’ compensation fraud is exaggerated. In a six year span, the amount of prosecuted fraud was less than one in 20,000 work injuries…or 0.0001%.1

Industry insiders don’t think this is a big deal

  • Rick Parks, the President/CEO of Society Insurance: “From the view of thousands of claims over decades, fraud is minimal in Wisconsin”2 
  • Chris Reader of Wisconsin Manufacturers & Commerce: despite the “sensational stories,” fraud is “few and far between” in the system.3

Current law already allows criminal prosecution for alleged “fraud”

  • Worker’s Compensation Division already has an existing fraud hotline for the public. Also, a carrier can report an alleged fraudulent claim to the DWD. After an investigation, DWD can refer to district attorney for prosecution of criminal insurance fraud. Thus, if there is fraudulent behavior, under current law, there can be a crime found.

Independent Medical Examinations provide protection against “fraud”

  • Insurance carriers can require an injured worker to be seen by a handpicked independent medical examiner, or IME. If questions exist about a worker’s injury, symptoms, or disability, the IME can provide an opinion—allowing a carrier to deny the worker’s claim.

“Fraud” goes both ways

  • We want fair competition in the marketplace and in business. Misclassifying employees or workplaces results in “stolen” premium dollars and an unfair business advantage. Likewise, limiting or under-reporting work injuries undermines the fairness and credibility of our efficient work comp ratings process and system.



1 Department of Workforce Development, Annual Report for Calendar Year 1999 Allegations of Worker’s Compensation Fraud (annual average of 3 prosecuted cases out of 60,000 injuries).

2 Senate and Assembly Committees on Labor, Informational Meeting, 7/31/13: WisconsinEye at 3:18:30.

3 Senate and Assembly Committees on Labor, Informational Meeting, 7/31/13: WisconsinEye at 2:13:00.

States with Opt-Out Workers’ Comp System are Strict on Injured Workers

Dallas attorney Bill Minick (Photo credit Dylan Hollingsworth for ProPublica)

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

Yesterday we tweeted a recent ABC news article that a worker was killed when he fell at a construction site in Charlotte. I’d hate to think that his or her family would be limited to recovering only $250,000 in the event the worker left behind dependent family members and young children. Money can’t begin to replace someone who is lost to us too early from an accident at work, but $250,000 would hardly cover a lifetime of income that the family will lose, especially if young children are left behind.


To read more on how the Opt-Out system is affecting injured workers in Texas and Oklahoma, go to: ProPublica: Inside Corporate America’s Campaign to Ditch Workers’ Comp.

Why I Am Thankful – Two Photographs

Recently I took photographs of two men who remind me of why I am thankful every day. One man is sitting in a wheelchair at a restaurant, with his right hand in a contorted position and he is being fed by another person. The other man, also in a restaurant, is in shorts and is holding a small child in his arms.  But something is missing – his right leg – he has a flesh colored prosthetic device as a substitute.

photo for LTJ blog 2 10.9.15 copyI have spent a lifetime helping disabled people and I have never heard any of them say “You know, Mr. Jernigan, when I got up to go to work that day, I knew I was going to be severely injured and my life would change forever.” We never know when life will take a turn like that. We never know when we will lose our independence and sometimes our dignity. Fortunately, that day will never come for most of us. But it could.

When I think about the man in the wheelchair and the man holding his child, I think how lucky I am, and I am thankful each and every day.

Is Cancer a Compensable Workers’ Compensation Claim?

Sometimes prospective clients ask whether they developed cancer as a result of their job. Most claims arise from accidents and obviously cancer is a slowly developing process. However, cancer can be an occupational-related disease for which medical and disability benefits may be awarded under the North Carolina Workers’ Compensation Act. A doctor must give his or her medical opinion to a reasonable degree of medical probability that the patient was at an increased risk of developing the disease (i.e. cancer) as compared to the general population, and did in fact develop the disease as a result of exposure to a cancer causing substance at work.


Case in point:  in September, a Texas firefighter was awarded workers’ compensation benefits after he developed lung, colon, and liver cancer. In the firefighter’s case, he had been a firefighter for over 20 years and was exposed to “carcinogens such as firetruck exhaust, heat, smoke, and chemicals.” The Texas administrative law judge awarded benefits, but keep in mind “Texas has a presumptive disability law that says firefighters and other first responders are presumed to have developed cancer while on the job under certain conditions.” Unfortunately, North Carolina does not have this presumption for our first responders and firefighters, and the burden of proof is more difficult in this state.


Here is a link to the OSHA website containing standards that apply to substances that are classified as carcinogens or potential carcinogens according to the National Toxicity Program.