Suspect Telecommuting Employees of Passing Off Accidents as Covered Workers’ Compensation Injuries

Question: Employer’s Concern: Rash of Workers’ Compensation Claims

We’re getting a rash of workers’ comp claims from our telecommuting employees. When the first claim arrived, we honored it. Word spread through our workforce, and more claims arrived.

Fraudulent Claims Suspected

We suspect the last two claims are fraudulent. We believe one employee’s injuries resulted from ice-skating accident; another employee showed us the ski-skating employee’s Facebook post, but we weren’t smart enough to screen-shot it before she took it down.

We suspect the other claim resulted from a slip and fall that had nothing to do with work. We don’t have concrete evidence; our suspicion resulted from the employee’s demeanor during a Zoom interview when we questioned him about his injury. We thought we’d hit record on the Zoom meeting but didn’t so all we have are our notes.

 Hard Line Manager

One of our managers has said for a while that we need to start draw the line on work comp claims resulting from off-site activity or we’ll have half our workforce out on claims. He insists we start with these two.

Answer:

Employees Have Protection under Workers’ CompensationWorkers’ compensation protection generally covers employee injures if they arise out of and in the course of employment, regardless of where the injury occurred.

Laws Vary By State           

Workers’ compensation laws vary by state. Employees and employers can find workers’ compensation procedures outlined on https://www.disabilitysecrets.com/resources/alaska-workers-comp-claims-eligibility-filing-and-appeals.

Employer Protection Against Fradulent Claims

Employers can protect themselves from fraudulent claims by seeking assistance from their workers’ compensation carrier. Given all the regulatory changes that COVID has brought, you may also want to connect with your attorney to draft policies or determine other strategies to manage telecommuting employee workers’ compensation risks.

Employees Need to Prove

Employees typically have the burden of proving their injuries were work-related. “Arising out of” refers to what the employee was doing at the time of the injury. “In the course of” refers to when, where and how the injury happened. To successfully claim workers’ compensation benefits, employees need to show they were acting in their employer’s interest when the injury occurred.

The Home May Be the Worksite

Here’s what you need to tell the manager who wants to draw a hard line regarding “off-site activity” claims. Because you allow remote work, your employee’s workplace includes their home, though not the ski-skating pond nor injuries sustained during personal activities.

Further, when employees protest workers’ compensation denials, Courts have ruled that an employer’s lack of control over the condition of an employee’s home-based work premise is irrelevant. If an employee’s home is an employee’s work site, the hazards an employee encounters when performing work at home are thus hazards of the employee’s employment.

Employer Duty

Further, employers are responsible for providing telecommuters the same safe work environment that they provide employees who work on company property.

Wise Employer Actions

Employers hoping to limit workers’ compensation liability for home-based employees may find it helpful to:
           1. Create a telecommuting policy outlining expectations, that include guidelines for their home offices.

      2. Provide training, perhaps through videos, concerning ergonomic workstation setup and safety measures. Attorney Rebecca Holdiman Miller recommends that “Employers request that employees send them photos of their workspace to add in its designation and limitation. Keeping the photos on file can help investigate a later telework injury report.” With the employee’s permission, employers may also want to visit the employee’s home offices to help identify and eliminate safety hazards.

      3. “If the employer suspects a fraudulent claim,” says Holdiman Miller, “immediately notify the carrier and consult an attorney to decide on a remedy.”  

Is Your Workplace in Trouble?

Finally, I’m concerned that the number of worker comp claims you’re receiving signals the tip of another iceberg—whether that is low morale or hiring practices that don’t screen for integrity. COVID stresses all of us, however, when this many employees file claims, it means something–and you need to ask yourself “what?”

SURVEY OF STATE WORKERS COMPENSATION COMPENSABILITY STATUTES
https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf
“The insurance and business communities are asking many questions about how COVID-19 will impact workers compensation. One that continues to be asked is whether workers compensation claims for COVID-19 are compensable. In most cases, the answer to this question will be determined on a case-by-case basis, under state law.”

2020 COVID-19 REGULATORY AND LEGISLATIVE ACTIVITY
https://www.ncci.com/Articles/Pages/II_Covid-19-RegLeg-Activity.pdf

2020 STATE ACTIVITY: COVID-19 WC COMPENSABILITY PRESUMPTIONS
https://www.ncci.com/Articles/Documents/II_Covid-19-Presumptions.pdf

Legislative Activity
https://www.ncci.com/Articles/Pages/II_LegislativeActivity.aspx

COVID-19: Workers’ Compensation
https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx#:~:text=States%20are%20taking%20action%20to,and%20covered%20under%20workers’%20compensation.

© 2020, Lynne Curry

Lynne Curry, Ph.D., SPHR, is the author of “Beating the Workplace Bully” (AMACOM, 2016, https://amzn.to/30V5JO6) and “Solutions”, https://amzn.to/2GYlnAN (both books are rated 4.8 out of 5 stars on Amazon.com). Send your questions to her at Ask a Coach at www.workplacecoachblog.com or lynnewriter10@gmail.com or www.communicationworks.net or follower her on twitter @lynnecurry10.

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5 thoughts on “Suspect Telecommuting Employees of Passing Off Accidents as Covered Workers’ Compensation Injuries

  1. A case for our times! The distinctions on injuries arising from and during work are helpful, as is the reminder that the employee has the burden of proving that the injury was work-related. Thanks for bringing this clear focus to workers’ comp and the reminder that it still applies to telecommuting workers, with responsibilities on both sides.

  2. This is as implied comment. In Alaska, unless the law has substantially changed since I last worked claims, the presumption is the WC claim is valid when an employee files it. The burden to rebut validity is on the employer, via an IME or other acceptable evidence. The employee may then attempt to rebut that by disproving the employers case that their injury is not work-related. In practice there is a relatively narrow window of time within which the employer – self-insured or not – has to pay compensation benefits. Of course, if the employer/carrier then finds evidence that supports controverting (denying) the claim, those benefits may be halted, and in some cases, paid back.

    1. Michael, thanks! It’s a useful comment and is why I posted a state resource on the Alaska version of the article. The laws in this area vary from state to state.

    1. Workers’ Compensation and COVID Cases State Law Charts

      SURVEY OF STATE WORKERS COMPENSATION COMPENSABILITY STATUTES
      https://www.ncci.com/Articles/Pages/Insights-Compensability-Statutory-Survey-May-2020.pdf
      “The insurance and business communities are asking many questions about how COVID-19 will impact workers compensation. One that continues to be asked is whether workers compensation claims for COVID-19 are compensable. In most cases, the answer to this question will be determined on a case-by-case basis, under state law.”

      2020 COVID-19 REGULATORY AND LEGISLATIVE ACTIVITY
      https://www.ncci.com/Articles/Pages/II_Covid-19-RegLeg-Activity.pdf

      2020 STATE ACTIVITY: COVID-19 WC COMPENSABILITY PRESUMPTIONS
      https://www.ncci.com/Articles/Documents/II_Covid-19-Presumptions.pdf

      Legislative Activity
      https://www.ncci.com/Articles/Pages/II_LegislativeActivity.aspx

      COVID-19: Workers’ Compensation
      https://www.ncsl.org/research/labor-and-employment/covid-19-workers-compensation.aspx#:~:text=States%20are%20taking%20action%20to,and%20covered%20under%20workers'%20compensation.
      State Response to COVID-19
      “States are taking action to extend workers’ compensation coverage to include first responders and health care workers impacted by COVID-19. A common approach is to amend state policy so that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation. This presumption places the burden on the employer and insurer to prove that the infection was not work-related making it easier for those workers to file successful claims. Some employers and insurers have raised concerns that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges.”

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