Tenor
I. The action is dismissed.
II Extrajudicial costs are not to be reimbursed.
Facts of the case
1
In dispute is the recognition of an occupational accident for the claimant who works from home.
2
The 19… Born on October 30, 2016, the plaintiff reported an accident on November 4, 2014, when he fell on the stairs on the way from the toilet to his home office workplace and suffered a Jones fracture (metatarsal V shaft fracture) of the left foot. Due to an epilepsy condition, he was 100% tied to his home office workplace and could no longer carry out his previous field service work at B-GmbH. Due to a severe soft tissue inflammation in the surgical field, a narrowing of the left foot resulted after the Jones fracture. He was unable to work or underwent rehabilitation from 05/11/2014 up to and including 10/05/2015.
3
In the questionnaire on the course of the accident and in a letter dated 21.12.2016, he stated that the home office was located in the basement of his two-family house. The basement was divided into two units, with each unit having its own staircase. His office, which is used exclusively for business purposes, as well as cellar rooms, a laundry room and a storage room, which are used exclusively by his wife, are located in the basement. On the way from the toilet back to his home office workstation, he overlooked the last step and stepped into the void. He only used the stairs for business purposes, his wife also used the stairs to the laundry and drying room. The living rooms and bedrooms are located on the first floor and second floor.
4
In a decision dated 10.04.2014, the accident on 04.11.2014 was not recognized as an accident at work. Going to the toilet is not insured because it is generally based on a personal need that is not specifically related to the employment relationship. Going to the toilet is only insured on the employer’s premises. At the time of the accident, he was carrying out a personal economic activity and was therefore not insured.
5
The plaintiff lodged an objection against this on 11.04.2017, which was rejected in the notice of objection dated 24.05.2017.
6
In principle, there is no insurance cover for going to the toilet. Insurance cover exists on the way to a place on the business premises itself, where the emergency toilet is to be performed, because the insured person is forced to perform his emergency toilet at another place due to his presence on the business premises. If the home and workplace are in the same building, the journey to relieve oneself is not insured.
7
The claimant brought an action against this before the Munich Social Court (S 23 U 328/17). The return to his home office workplace, even after going to the toilet, was a business trip in the direct interest of the company. During the oral hearing on 31.08.2017, the plaintiff stated that, in addition to him, another colleague also worked in the office three times a week. The employer pays rent for this room and all of the PC equipment is also provided by the employer. Meetings with other people from the company often take place in the room. The office was, so to speak, the meeting point for employees in the surrounding area, as the company’s headquarters were in Holland. The defendant then agreed to issue the plaintiff with a new appealable decision after examining the facts of the case.
8
In response to the defendant’s inquiry, the plaintiff’s employer stated that a colleague had been visiting the plaintiff regularly since 2014, around 30 times a year; the managing director visited him twice a year and, since 2017, another colleague visited him twelve times a year. Meetings are then held on the economic developments of the company. If the plaintiff’s premises were not available, such meetings would take place in the café/bakery. Another employee has been working in this office three times a week since November 2016; she also uses the entrance to the residential building and the plaintiff’s private toilet. The lump sum of € 200 per month would be paid both for the use of the office space and for the costs of office supplies. An employee of the employer stated by telephone on October 30, 2017 that there had also been an employment contract with a home office prior to 2015, but that no office costs had been reimbursed at that time and no other colleagues had been there to work. The meetings with the management had already taken place at the plaintiff’s home before 2015.
9
With the disputed decision dated 25.01.2018, the withdrawal of the decision dated 10.04.2017 denying an accident at work in the version of the objection decision dated 24.05.2017 was rejected. The facts presented by the employer regarding payment and the continued use of the home office workplace did not give rise to any new aspects that could necessitate a new assessment.
10
The plaintiff’s objection filed on 17.02.2018, according to which he was dependent on his home office and was only able to continue participating in the primary labor market for this reason, was rejected in the objection notice dated 24.04.2018. The provisions of the Ninth Book of the German Social Code (SGB IX), which regulate the maintenance or organization of jobs for severely disabled people, do not allow a different assessment of the case law for insurance cover for commuting to and from work at home.
11
The present complaint of 14.05.2018 is directed against this. The plaintiff essentially argued that the employer had granted him the opportunity to work from home due to his severe disability. Since January 2013, he has been operating an official field office for company C. All sales staff and employees of company C. from the Netherlands who are resident in Germany and Austria are employed by the German company B. He worked there as an account manager, which included the organization of all webshop orders, the preparation of offers and active telephone sales to specialist retail customers. His home office workplace was a completely separate work area in the basement of the detached house. The route from the entrance area to his home office was therefore an official route to work, which he walked several times a day to let colleagues in or say goodbye, to receive or hand over work materials, to inspect returned goods from customers in the delivery drivers’ vehicles and to take photos for forwarding to the head office or to visit the toilet. The toilet on the first floor is also used by his colleague and superiors. The home office is equipped with all technical resources by the employer.
12
The plaintiff also submitted that the costs of the office had been invoiced to the employer (company C.) until the end of 2014 by the commercial agency D. operating at the plaintiff’s address, for which he had also worked until October 30, 2014 (according to the social insurance registration certificate). To this end, he submitted an invoice for November 2014 from Handelsagentur D. to company C. for € 115.95 for a cell phone and a further invoice for € 344.56, of which € 200 was a “flat-rate office fee”.
13
The plaintiff later stated that from 01.05.2011 to 31.12.2012 the invoices had been processed via E., and from 01.01.2013 to 31.12.2014 via the commercial agency D. In a letter dated 03.12.2018, he specified that his sons F. and S. had both worked as drivers for his employer and had only submitted the driver logs to the office, which had been processed by him and invoiced to the employer. Neither of the sons had carried out any direct office work and the office had therefore not been used for any further or other activities.
14
The plaintiff submitted his employment contract with the company B. from 2014, according to which he received remuneration of € 3300 gross per month; in addition, the employer reimbursed the plaintiff for expenses and other expenses that were to be incurred for the company as part of the proper fulfillment of this contract. The plaintiff received a cell phone and a laptop for the performance of his duties. Under “Mission and objectives for 2014”, it is stated, among other things, that the plaintiff is the “local contact for the company C., customers and drivers”.
15
At the request of the court, the employer B. stated in a letter dated 01.05.2019 that the plaintiff had been working from home full-time since 01.05.2011. Computer and laptop had been provided by the company C., costs for telephone and cell phone as well as an office allowance of € 200 per month had been paid by the company. Regular meetings had taken place in the office, which was a sales office of the employer where regular meetings with colleagues were held. The employer did not have a key to the house and office, but it was still a type of business premises. No occupational safety checks had been carried out, as it was a normal access to the office via a normal staircase. The defendant argued that the office was not a place of business, as the employer had no power of disposal and did not take any measures in terms of occupational health and safety. Company B. also submitted a payslip for November 2014, according to which the plaintiff had received € 3,300 gross in that month.
16
During the oral hearing on 4 July 2019, the plaintiff stated that the toilet on the first floor was used by all residents of the house at the time, i.e. him, his wife and his son F. as well as guests and colleagues. There was no other toilet or bathroom on the first floor, but there was a bathroom with toilet on the first floor for the bedrooms. He had already had a commercial agency before May 2011 and had worked for company C. from May 2011. He had made his office available to company C. so that the business could be run from there. From May 2011 until the end of 2013, he had a cooperation agreement with company C., which regulated the income of him and his sons and also provided for an office allowance of € 200. This was a kind of rent for the space as well as a flat rate for electricity, etc. An information poster of the defendant had hung next to his office. In 2014, he was the contact point for customer inquiries, C.’s driver and responsible for southern Bavaria, Austria and South Tyrol. There was no branch of C. in this area. He had official service hours from 8 a.m. to 5 p.m., but was available for longer because the drivers left very early, especially in the morning, and he was the contact person. Hours were not recorded by the employer.
17
The witness stated that he was in the vicinity of the plaintiff about every two to three weeks in 2014 and then visited the plaintiff about twice a week, for about two to three hours each time. In his opinion, the office was a branch office of the company, which paid a monthly fee for it. A risk assessment or an occupational safety inspection had not been carried out. There was no kind of compulsory attendance in the sense that the plaintiff had to be at the workplace at certain times. The plaintiff’s main work was behind the computer, so the company naturally expected the plaintiff to be in his office and work during his working hours. The plaintiff added that drivers came several times a week in 2014.
18
The plaintiff requested,
annulling the decision of 25.01.2018 in the form of the objection decision of 24.04.2018, the defendant is obliged to annul the decision of 10.04.2017 in the form of the objection decision of 24.05.2017 and to recognize the accident event of 04.11.2014 as an accident at work.
19
The defendant’s representative requested,
dismiss the action.
20
To supplement the facts of the case, reference is made to the court files as well as the files of the defendant and the court proceedings S 23 U 328/17.
Reasons for the decision
21
The admissible action is not successful on the merits.
22
The action, which was filed in due form and time, is aimed at revoking the disputed review decision of 25.01.2018 in the form of the objection decision of 24.04.2018 and obliging the defendant to revoke the decision of 10.04.2017 rejecting an accident at work in the form of the objection decision of 24.05.2017 as well as the obligation to recognize an accident at work. It is admissible as a combined action for rescission and an action to compel (Section 54 (1) sentence 1 of the Social Courts Act, SGG; cf. on the right to choose between an action for declaratory judgment and an action to compel in the case of the desired recognition of accidents at work: BSG judgments of 05.07.2016 – B 2 U 5/15 R and of 15.5.2012 – B 2 U 8/11 R).
23
However, the plaintiff has no claim under Section 44 of the Tenth Book of the German Social Code (SGB X) to oblige the defendant to revoke the decision of 10.04.2017 in the form of the objection notice of 24.05.2017 and to recognize the accident of 04.11.2014 as an accident at work pursuant to Section 8 para. 1 of the Seventh Book of the German Social Code (SGB VII).
24
According to § 44 para. 1 sentence 1 SGB X, an administrative act must be withdrawn with effect for the past, even after it has become incontestable, if it becomes apparent in an individual case that the law was incorrectly applied when an administrative act was issued or that facts were assumed that prove to be incorrect and if social benefits were therefore wrongly not provided or contributions were wrongly levied. At the request of the claimant at the hearing on August 31, 2017, the defendant rightly reviewed the decision of April 10, 2017 in the form of the objection notice of May 24, 2017. However, the requirements for revoking this decision are not met, as the claimant did not suffer an accident at work on November 4, 2014 within the meaning of Section 8 para. 1 SGB VII when he fell on the stairs on his way from the toilet back to his home office.
25
According to § 8 Para. 1 sentence 1 SGB VII, accidents suffered by insured persons as a result of an activity that justifies insurance cover in accordance with §§ 2, 3 or 6 SGB VII (insured activity). According to § 8 Para. 1 sentence 2 SGB VII, accidents are temporary events that affect the body from the outside and lead to damage to health or death. An accident at work therefore requires that the injured person has fulfilled the legal requirements of an insured activity by performing a task prior to the accident in question and is therefore an insured person (internal or factual connection). The activity must have caused a temporally limited event affecting the body from the outside and thereby objectively and legally substantially caused the insured person’s initial health damage or death (accident causality and causality giving rise to liability; see BSG of 05.07.2016 – B 2 U 19/14 R).
26
The plaintiff did suffer an accident and thus indisputably suffered a health impairment. He was also insured as an employee by law. However, his activity at the time of the accident – descending the stairs – was not materially related to the insured activity. At the time of the accident, he was neither in employment within the meaning of § 2 para. 1 No. 1 SGB VII (see 1.) nor was he traveling to and from work in connection with this (see 2.). The plaintiff was also not on an insured journey to visit the toilet (see 3.). Finally, at the time of the accident, he was not protected by the commuting accident insurance pursuant to § 8 para. 2 No. 1 SGB VII at the time of the accident (see 4.).
27
1. 1 No. 1 SGB VII exists if an injured person, in order to fulfill a legal relationship established by him, in particular an employment relationship, performs his own activity as part of the company of another person for the purpose that the results of his performance directly benefit or disadvantage him and not himself (see § 136 para. 3 No. 1 SGB VII). Objectively, it depends on the integration of the injured person’s actions into the company of another person and subjectively on the intention, at least also directed towards this, that one’s own activity should bring direct benefits for the company of the other person. Employment within the meaning of § 2 para. 1 No. 1 SGB VII is therefore exercised if the activity is at least intended and directed towards either fulfilling an objectively existing primary or secondary obligation from the underlying legal relationship, or the injured person performs an objectively not owed act in order to fulfill a supposed obligation from the legal relationship, provided that he could assume, according to the particular circumstances of his employment at the time of the activity, that he was subject to such an obligation, or he exercises company-related rights from the legal relationship (st Rspr., cf. BSG judgments of 05.07.2016- B 2 U 5/15 R, of 23.4.2015 -B 2 U 5/14 R, of 26.6.2014 – B 2 U 7/13 R, of 15.5.2012 – B 2 U 8/11 R, of 13.11.2012 – B 2 U 27/11 R).
28
However, the plaintiff was not using the stairs at the time of the accident in order to fulfill a (supposed) primary or secondary obligation arising from his employment relationship as a sales representative or to exercise his own company-related right serving internal company interests. He was not acting in the direct interests of the company, but solely in his own interests on the way to a highly personal activity (general opinion on going to the toilet, see Schwerdtfeger in Lauterbach, Unfallversicherung – SGB VII, 49th EL 12/12, § 8 SGB VII, para. 218; Keller in Hauck/Noftz, SGB, 06/18, § 8 SGB VII, para. 137a; Mertens/Bereiter-Hahn, Gesetzliche Unfallversicherung, EL 3/18, § 8, para. 7.34, Bieresborn in: Schlegel/Voelzke, jurisPK-SGB VII, 2nd ed. 2014, § 2 SGB VII; BayLSG, judgment of 06.05.2003 – L 3 U 323/01 and LSG Baden-Württemberg, judgment of 30.07.2015 – L 6 U 526/13). In principle, there is also no obligation under employment law to take health-promoting measures to maintain the ability to work (see BSG judgment of 05.07.2016 – B 2 U 5/15 R mwN).
29
2. at the time of the accident, the plaintiff was not on a business trip within the meaning of § 8 para. 1 sentence 1 in conjunction with § 2 para. 1 No. 1 SGB VII.
30
a) Business trips are trips that are made in the course of the insured activity, are part of the insured activity and are therefore equivalent to business work (established case law, see BSG judgments of 05.07.2016 – B 2 U 5/15 R, of 12.1.2010 – B 2 U 35/08 R, of 02.04.2009 – B 2 U 25/07 R, of 12.12.2006 – B 2 U 1/06 R, of 06.05.2003 – B 2 U 33/02 R). They are undertaken in the direct interest of the company and differ from journeys to and from the place of work within the meaning of § 8 para. 2 No. 1 SGB VII in that they do not merely precede or follow the insured activity; they are not limited to the company premises, but can also occur outside the company premises (see BSG judgments of 05.07.2016 – B 2 U 5/15 R, of 18.06.2013 – B 2 U 7/12 R and of 28.02.1990 – 2 RU 34/89). Whether a journey is made in the direct interest of the company and is therefore materially related to the insured activity is generally determined by the objectified action tendency of the insured person, i.e. whether the insured person wanted to carry out an activity serving the employing company and whether this action tendency is confirmed by the objective circumstances of the individual case (see BSG judgment of 05.07.2016 – B 2 U 5/15 R; Keller, loc. cit., § 8 SGB VII, para. 32).
31
b) The BSG has stated in its case law that a commute that is in the direct interest of the company can generally only be considered outside a (private) residential building. If the home and the workplace are located in the same building, a business commute is also conceivable in exceptional cases in the domestic area if it is made in the performance of the insured activity.
32
In the case of accidents in the domestic area, the criterion of the “objective” frequency of use of the accident location was previously used to determine whether a route was taken in the direct interest of the company (see BSG judgments of 12.12.2006 – B 2 U 1/06 R and of 27.10.1987 – 2 RU 32/87). According to more recent and convincing case law, however, the distinction according to the objectified tendency to act also applies here (clearly now: BSG, judgments of 27.11.2018 – B 2 U 8/17 R and of 31.8.2017 – B 2 U 9/16 R; cf. previously already BSG judgments of 05.07.2016 – B 2 U 5/15 R and of 18.06.2013 – B 2 U 7/12 R; see Ricke in Kasseler Kommentar, Sozialversicherungsrecht, 103. EL, 3/19, § 8 SGB VI, para. 129b, Keller, loc. cit, § 8 para. 33b ff).
33
c) Based on this, the return journey from the toilet to the office was not a business journey, regardless of the specific extent of the business or private use of the stairs leading to the basement. This is because, as already explained above, going to the toilet is fundamentally a personal economic activity. This also applies to the return journey to the workplace, as the journey to the workplace in the domestic area is not a business journey either (see Mertens/Bereiter-Hahn, loc. cit., Section 8, para. 7.14.2. b, aa and Schwerdtfeger, loc. cit., Section 8 para. 256). The fact that the plaintiff is dependent on using the stairs in order to be able to pursue his employment at all cannot justify the direct operational interest (BSG, judgment of 05.07.2016 – B 2 U 5/15 R).
34
d) The fact that the exercise of employment in a home office leads to a shift from activities serving the company to the home area does not justify a different assessment according to the case law of the BSG. of the BSG does not justify a different assessment. This is because work in the insured person’s home that serves business interests does not take away the character of the domestic sphere of life outside the specific study or room (see BSG ruling of July 5, 2016 – B 2 U 5/15 R with reference to ruling of November 7, 2000 – B 2 U 39/99 R). The background to this is that the insured person is more familiar with the risks inherent in the private home and is responsible for these by virtue of his power of disposal over the home itself. The employer is also regularly prohibited from taking preventive, risk-reducing measures outside the company premises. Employers are responsible for implementing measures to prevent accidents at work and occupational illnesses, for preventing work-related health hazards and for providing effective first aid (Section 21 (1) SGB VII). However, the obligation to carry out preventive measures in the domestic area is limited to the respective business premises, which in any case does not include domestic premises outside a physically separate home office (as stated with detailed and convincing justification: BSG ruling from 05.07.2016 – B 2 U 5/15 R).
35
3. the plaintiff was also not on an insured route to relieve himself at the time of the accident.
36
a) Accidents on the way to and from work have been recognized as occupational accidents in established case law. This is based on the idea that the presence at the workplace forces the insured person to perform his or her emergency urination, which is an act that regularly cannot be postponed, serves the continuation of work directly afterwards and is therefore also in the indirect interest of the employer, in a different place than he or she would have done from his or her home. The coincidence of both business-related characteristics, the necessary purpose of the action and the business-related nature of the journey to the toilet, creates the essential internal connection between the business and the journey to and from the toilet (general principle, see BSG, judgment of December 6, 1989 – 2 RU 5/89; Schwerdtfeger, loc. cit. 218a; Krasney in Krasney / Burchardt / Kruschinsky / Becker, Gesetzliche Unfallversicherung (SGB VII) 11/15, § 8 para. 83 and Spellbrink, Unfallversicherungsschutz bei Tätigkeiten im Homeoffice und bei Rufbereitschaft, in NSZ 2016, p. 527, 529 f). The same argument was used to recognize journeys to and from food intake as insured journeys: These are routes that are characterized in their point of departure and destination by the need to be personally present at the place of employment and to carry out operational activities there, also the food intake during working hours serves to maintain the ability to work (see the previously mentioned sources as well as BSG judgments of 05.07.2016 – B 2 U 5/15 R and of 18.06.2013 – B 2 U 7/12 R).
37
b) Based on this, the previous case law of the BSG of the BSG denied insurance cover on the way from the home office to the food intake (for the way to the home kitchen to fetch water: BSG judgment of 05.07.2016 – B 2 U 5/15 R; for the way to the restaurant: BSG judgment of 18.06.2013 – B 2 U 7/12 R; agreeing Keller, loc. cit., para. 20b; Ricke, loc. cit., para. 129c; Spellbrink, loc. cit., p. 530). According to the BSG, the fact that an insured person had to take the stairs to get to the kitchen because he had previously been in his home office does not mean that the journey was work-related in these cases. Rather, insurance cover was ruled out because the insured persons were not subject to any operational requirements or constraints in terms of space or time with regard to eating. This is because the journey to the kitchen/restaurant was neither spatially determined by a place of business outside the home nor was it to be completed within a time frame, nor was it related to the work already performed (BSG, judgments of 05.07.2016 – B 2 U 5/15 R and of 18.06.2013 – B 2 U 7/12 R).
38
c) Based on this, no insured journey of the plaintiff from the toilet to his home office workplace can be assumed in the present case either. The toilet and basement stairs are to be assigned to the private area (aa). Based on this, the way back from the toilet was not work-related (bb). The fact that the plaintiff works full-time in his home office (cc) and is dependent on it due to his epilepsy (dd) does not indicate otherwise.
39
aa) Despite the particularities of the specific case, the court is convinced that the toilet on the first floor of the plaintiff’s house and the cellar stairs are to be assigned to the domestic and not the business area. There are no sufficient indications that the toilet or the basement stairs are business premises.
40
Insured persons who work from home with the approval and financial support of their employer (see the distinction between a purely additional private work opportunity at home and a place of work regulated by an employment contract, which can be a workplace within the meaning of SGB VII: BSG, judgment of 18.06.2013 – B 2 U 7/12 R), insurance cover generally only exists within the workplace, i.e. the workroom set up for teleworking. Moreover, according to the convincing opinion of the BSG – as already explained in detail above – work in the home of an insured person serving business interests outside the specific study or room does not take away the character of the domestic sphere of life (see BSG judgments of 05.07.2016 – B 2 U 5/15 R, juris para. 26 and 27, and of 7.11.2000 – B 2 U 39/99 R).
41
In exceptional cases, however, a domestic toilet can be part of the workplace. This was assumed by the BSG in the event that a toilet was essentially used for business purposes or the employer had rented a workshop in the insured person’s house, because a toilet was then to be considered a workplace in accordance with the Workplace Ordinance (see BSG, judgment of 31.05.1967 – 2 RU 218/64 for stairs between the house and the hairdressing salon on the first floor, which was also used by customers and employees, and judgment of 23.06.1982 – 9b/8 RU 8/81 for a workshop rented by the employer for the production of brushes in the basement of his own house; see also Krasney, loc. cit, § 8 para. 83, Schwerdtfeger, loc. cit., para. 218a; Mertens/Bereiter-Hahn, loc. cit., § 8 para. 7.34). The same must apply if the restroom is part of the work area due to an employment contract provision (see Keller, loc. cit., § 8, para. 20b).
42
Based on the case law outlined above, the court assumes that a distinction based on the question of whether the toilet/staircase was essentially used for business purposes is no longer relevant today, as otherwise this criterion, which was rightly rejected by the BSG and is also vague, would become important again. This can at best be an indication for the question of whether a toilet is to be considered part of the business premises. This depends above all on the legal, i.e. employment contract and, if applicable, rental agreement. In the overall assessment, this means that neither the toilet on the first floor of the plaintiff’s house nor the basement stairs are to be considered part of the business premises.
43
It must be taken into account that the plaintiff received a cell phone and a laptop from the employer for working from home in accordance with the employment contract dated January 7, 2014. Furthermore, in addition to the costs for the landline and cell phone, an office allowance of 200 per month was paid by the company B. / C., although at the time of the dispute this was still via the commercial agency D.. This means that the plaintiff’s office is undoubtedly a place of work (as defined by the criteria of the BSG according to the ruling of 18.06.2013 – B 2 U 7/12 R). This was not only the plaintiff’s sole workplace, but undoubtedly also served as a meeting room for various employees of the company B. / C., as the plaintiff and the witnesses reported in agreement and credibly. Thus, meetings between the plaintiff and the witness took place there several times a month, as well as with other employees of B. / C. at less frequent intervals. There was no official office of the company B. / C. for the areas of Southern Germany / Austria / South Tyrol for which the plaintiff was responsible. In addition, the plaintiff’s office was the contact point for the drivers of the company B. / C. on their way to deliveries or with complaints. As a result, the office undoubtedly had an important function as a “hub” for B. / C., as the employer had also stated in the written information of May 1, 2019 and the witness at the hearing. The function of the office thus clearly went beyond a pure home office workplace for the plaintiff. The basement stairs and the toilet on the first floor were also regularly used by other B. / C. employees.
44
Nevertheless, taking into account the overall circumstances, the court does not assume that the toilet or the basement stairs were part of the business premises. In doing so, the court first considers the spatial circumstances in that the toilet and the office were not somehow separate and closely connected units. Rather, the toilet was located on the first floor and was therefore – as the sole toilet on the first floor – also used by all other residents and private guests. The staircase also provided access to the private basement rooms (storage, laundry and boiler room).
45
However, the decisive factor here is that the court was convinced that the employer did not have the power of disposition that would justify attribution to its sphere of risk. As already explained above, the assumption of insurance cover for journeys to/from the toilet is based, among other things, on the business-related nature of the journey. The background to this is the integration of the employee into the company sphere, for which the employer is fundamentally responsible and over which it can exert an influence, including through the preventive measures required by law. These decisive criteria are not fulfilled here. As can be seen from the information provided on 01.05.2019 and the witness statement, the employer did not have a key to the building. In addition, as the witness credibly stated, the employer did not carry out any security measures/checks/inspections etc. Rather, the witness stated in this context that the employer only provided the material resources and paid a lump sum for the room. Neither the employer nor the plaintiff was able to produce the corresponding agreement. However, the court concluded from the term “flat-rate office costs” and the lack of a key that this was not a genuine lease within the meaning of Section 535 of the German Civil Code (BGB), in which the tenant becomes the owner of the property and has power of disposal and responsibility for the condition of the property. The case therefore differs from the case decided by the BSG in 1982, where the workshop in the house of the plaintiff there had been rented by the employer within the meaning of § 535 BGB. The employment contract also only stipulates that the employer provides a laptop and cell phone; no provision to the effect that the stairs or the toilet are part of the work area under the employment contract can be inferred from the employment contract.
46
The court is therefore convinced that the plaintiff’s office is a place of work, but the basement stairs and toilet are not themselves a place of work, but are part of the plaintiff’s private sphere. It should also be noted that the Workplace Ordinance pursuant to Section 2 only applies to places in buildings that are located on the premises of a company or a construction site, which is why a classification of the toilet as part of the workplace pursuant to Section 2 para. 4 No. 3 of the Workplace Ordinance (which the BSG referred to in its decision of 23.06.1983 – 9b/ 8 RU 8/81) is out of the question here, as the plaintiff’s house is not to be regarded as a business within the meaning of the Workplace Ordinance.
47
bb) Assuming that the toilet and cellar stairs were in principle part of the private sphere, the plaintiff’s return journey from the toilet to his home office was not insured. The route was not business-related.
48
In its corresponding decisions, the BSG had based its decision on the route to the supply of food/drinks on whether the route was spatially determined by a place of work outside the home or whether it was to be completed within a time frame and whether it was related to the work already performed (BSG, judgments of 05.07.2016 – B 2 U 5/15 R and of 18.06.2013 – B 2 U 7/12 R). This is not the case here.
49
The place of work was within the plaintiff’s home and he was not subject to such tight time constraints that would justify assuming a significant integration into operational matters and thus that the commute was work-related. It is true that the plaintiff was expected to work and be present during normal working hours, also in order to act as a contact person for drivers. However, hours were not recorded and, according to the witness, there was no specific obligation to be present. According to the plaintiff, the drivers usually called briefly before arriving and announced their arrival. This does not indicate any time requirements or any integration of the plaintiff into the operations of the company B. / C. that goes beyond what is usual in the home office; because even in the home office, presence at the workplace is generally required within certain times. It is also not apparent that going to the toilet was related to the work already performed (e.g. operational urgency).
50
As a result, the decisive characteristics that support the business-related nature of the route are not fulfilled here (also for the route to a private toilet in the home office: Ricke, loc. cit., para. 129c; Keller, loc. cit., para. 20b).
51
cc) The fact that the plaintiff – as can be seen from the submitted employment contract and the convincing statements of the plaintiff and the witness – worked 100% in the home office does not, by way of exception, mean that the commute was operational.
52
In the aforementioned decision of 18.06.2013 (B 2 U 7/12 R), the BSG stated that, for reasons of equality, it could possibly be required that full-time home office workers must at least be covered by insurance for one trip to eat or provide food every day (Spellbrink, loc. cit., p. 530). However, the court does not assume that, for reasons of equality, a certain number of daily trips to the toilet must be covered by accident insurance for people who work 100% from home.
53
This is because there are significant differences with regard to the purpose and background of accident insurance cover that justify different legal treatment. It must be taken into account that the BSG based the work-related nature of the journey to the toilet on two aspects, namely on the one hand the necessity of going to the toilet to maintain the ability to work, which also applies here, and on the other hand the work-related nature of the journey. In this respect, there are significant differences between going to the toilet within the company and in the home office. Against the background of the liability-replacing function of statutory accident insurance (see Spellbrink, loc. cit., p. 528), the insurance is based on the idea of the employer’s liability for the defects of its work equipment and the equipment of the workplace, even in the case of private activities such as going to the toilet. The employee moves into the (also spatial) sphere of the employer and thus into the employer’s sphere of risk because he is integrated into an external company and its spatial and temporal organization. However, this idea does not apply to the home office, at least after leaving the actual place of work, i.e. basically the study (according to the BSG in its ruling of July 5, 2016 – B 2 U 5/15 R; see aa above). In the home office, there is no spatial or temporal integration into a business; rather, when leaving the business premises, an insured person enters their home area and thus their own sphere of risk. This is also removed from the control and prevention by the employer otherwise provided for in statutory accident insurance law (see Spellbrink, loc. cit., p. 530). As already explained above, the BSG has also repeatedly stated that work in the home of an insured person that serves business interests outside the specific study or room does not take away the character of the domestic sphere of life.
54
The court thus assumes that going to the toilet from the home office to a toilet in the home area and the return journey is not covered by accident insurance simply because an insured person – such as the plaintiff here – works 100% of the time in the home office.
55
dd) In this case, the fact that the plaintiff – as he himself had stated – was dependent on working 100% from home due to his epilepsy does not mean that the journey to / from the toilet was work-related. Further investigations into the plaintiff’s epilepsy were therefore not necessary.
56
The plaintiff’s epilepsy is not an illness that is in any way related to the occupational activity (cf. on this aspect BSG judgment of 05.07.2016 – B 2 U 5/15 R: need to drink was not work-related). Against this background, reference can be made to the argumentation under cc).
57
4. at the time of the accident, the plaintiff was also not protected by the commuting accident insurance pursuant to § 8 para. 2 No. 1 SGB VII at the time of the accident, as this insurance cover only begins when he walks through the outside door of the house in which the apartment is located (see BSG, judgment of 05.07.2016 – B 2 U 5/15 R mwN).
58
As a result, due to the lack of insurance cover at the time of the accident, the court was convinced that the accident on November 4, 2014 was not an accident at work within the meaning of Section 8 para. 1 SGB VII. There is no entitlement to an obligation on the part of the defendant to revoke the decision of 10.04.2017 in the form of the objection decision of 24.05.2017 in accordance with Section 44 SGB X and to recognize an accident at work.
59
The action was therefore dismissed.
60
The decision on costs is based on Section 193 SGG and follows the result on the merits.