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New Delaware Interpretation of Home Health Worker Employment Agreements and Entitlement to Worker’s Compensation, with Drafting Tips

hands on steering wheelDo you employ home health aides or other travelling employees?  Based on a new Delaware Supreme Court case, the terms of these employees’ existing and new employment agreements should be reviewed.  The right terms can help protect the employer from excessive worker’s compensation claims, based on a new Delaware Supreme Court case.

The Court made it clear the specific terms of the employment agreement will likely determine whether the employee was injured by an accident arising out of and in the course of employment and thereby entitled to worker’s compensation.  As my colleagues  Kimberly Hoffman, Esq.  and James Landon, Esq. explained in Urban Lawyer recently, many cost savings strategies in medicine now center on moving the physical locus of caregiving into the residential home.  Therefore, the potential for increased workman’s compensation claims from home health employees may rise, too, possibly increasing the employer’s insurance costs.  This case gives some good guidelines for employers wanting to mitigate that risk.

The Delaware Supreme Court in Spellman v. Christiana Care Health Services, examined the issue of whether a home health aide who was involved in a car accident was entitled to workers’ compensation for her personal injuries.  Mary Spellman was employed as a home health aide for Christiana’s Visiting Nurse Association (“Christiana”).  According to the terms of her employment agreement, Spellman travelled in her personal vehicle to patients’ homes and paid for her own gas and car insurance.  Christiana reimbursed her for mileage incurred in driving from one patient’s home to another.  She was not, however, reimbursed for the mileage she incurred while traveling from her home to the home of her first patient and from the home of her last patient to her home.  Employees used Telephony, a telephone-based system used by all Christiana’s home health aides, to “clock in” and “clock out” of work.  When leaving a patient’s home to visit another patient, the employee would use Telephony to “check in” for travel time in order to be reimbursed for mileage.  After arriving at the next patient’s home, the employee would use Telephony to “check out” of travel time and “clock in” to work time.

Spellman had an appointment with a patient at 7:45 a.m. After the appointment, she used Telephony to check in to her travel time.  She arrived at her next patient’s home at 9:15 a.m. and she used Telephony to check out of travel time.  Spellman had a scheduled personal doctor’s appointment after that patient appointment, and she blocked the time for her appointment so that she could not be reached by Christiana during that time.  Spellman clocked out after she finished with the patient at 10:30 a.m. and headed to her home to freshen up prior to her personal doctor’s appointment.  Consistent with her employment agreement, she was not reimbursed for mileage from the patient’s home to her home.  After she traveled approximately one mile from the patient’s home en route to her home, she hit an icy patch in the road, lost control of her car, and hit a tree.  As a result, she injured her head and hip.  She filed a Petition to Determine Compensation Due from Christiana.  She claimed that the injuries she suffered in the car accident were compensable under the Delaware Worker’s Compensation Act.

In order to obtain worker’s compensation for personal injuries, the claimant must prove that the injuries sustained were “by accident arising out of and in the course of employment.”  The Court explained that the fundamental inquiry regarding the scope of employment is whether, under the totality of the circumstances, the employment contract between employer and employee contemplated that the employee’s activity at the time of injury should be regarded as work-related and therefore compensable.  The analysis begins with the employment agreement.  If the terms of the agreement resolve the issue as to whether the injury arose out of and occurred in the course of the claimant’s employment, the analysis ends there. If the contract-related evidence is insufficient to resolve the “scope of employment issue” then the Courts may apply the “going and coming” rule and its various exceptions.  Under the “going and coming rule” injuries resulting from accidents during an employee’s regular travel to and from work are non-compensable.  The Court cautioned, however, that the “going and coming” rule and its exceptions are to be used as analytic tools and are not required to be applied under all factual circumstances.

The Court concluded that the terms of the employment agreement between Spellman and Christiana resolved the issue, and she was not entitled to worker’s compensation.  The contractual terms made it clear as to when Spellman would be deemed “on the job” and entitled to expense reimbursement.  Therefore, it was clear that Spellman was not acting in the course of, and her injury did not arise from, her employment.

Employment agreements will likely dictate the outcome on issues such as whether an employee may be entitled to worker’s compensation.  It is important to craft clear contractual terms and require employees to consistently follow the employer’s policies and procedures.  The good news for employers: with diligence in contract drafting, worker’s compensation claims, and therefore expenses, can be kept lower.

Top Tips for Home Health Employee Agreements

  • Have a written agreement.

  • Define which trips are work related: home to first patient?  Patient’s home to lunch break?  Be clear.

  • Specify an obligation to carry adequate automobile insurance coverage.

Author:  Allyson B. DiRocco, Esquire is a member of the Employment Law Practice at Morris James LLP.

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