4-23-12; The "Traveling Employee" Concept Pushes the Envelope on WC Coverage For Injuries During “Romance.”

As we have advised our readers the two most controversial topics in workers' compensation across our state and maybe our planet are causation and the expansion of coverage of off-work injuries following the wildly controversial concept of the "traveling employee."

We have already advised legislation has been presented to limit causation in this state--primarily due to the thousands of carpal, cubital tunnel and shoulder claims being 'created' across Illinois by friendly doctors and claimant lawyers. As we have advised, causation has to be carefully considered by our hearing officers to provide common sense limitation on coverage. We have audited claims for some central and southern IL companies and literally every pending claim has causation issues.

What is a "Traveling Employee" and why is it so controversial?

Lots of our readers have sent us news of a controversial WC ruling from a federal court in New South Wales that provided benefits for a worker who became romantically involved while on a business trip. When she was injured "in the course" of the entanglement, she made a claim and benefits were awarded! As we have advised, we consider such awards to be randomly made and completely on the whim of the hearing officer. From our review of the article, we are certain and everyone agreed the employee wasn't "in the course" of employment when the injury occurred.

The legal fiction used to provide such benefits for what clearly weren't "work-related" and/or on the employer's dime was the "traveling employee" concept. Basically, the concept covers literally anything one does for the entire trip—on a "leave-your-house-until-you-get-back-home" basis. As we hope anyone but the most liberal claimant attorney might note, the idea becomes ludicrous when folks become injured while participating in activities of daily life that have nothing whatsoever to do with work or their business trip.

In the New South Wales claim, ComCare, the NSW government agency in charge of adjudicating claims rejected her compensation claim. The agency said the woman had to prove her injury had been caused by an activity that had been "implied" or "encouraged" by her employer. The federal court saw it differently and is quoted as saying:

If the applicant had been injured while playing a game of cards in her motel room she would have been entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity.” The judge further added: "In the absence of any misconduct or an intentionally self-inflicted injury, the fact that the applicant was engaged in [romantic] activity rather than some other lawful recreational activity does not lead to any different result.

With respect to the NSW judge, we consider that statement total nonsense. It is our strong argument if legislatures intended such results, they would have said so in the legislation. Almost all “traveling employee” rulings are created solely by judges and not legislators. Another facet of the "traveling employee" concept to provide global coverage of all activities of any sort is there is no legislative guidance of any kind in the workers' compensation acts of the four states KC&A does business in--the words "traveling employee" are not contained together in the laws of Illinois, Michigan, Indiana or Wisconsin. In fact, we are not aware of a single workers' compensation statute in the United States that has those words defined. If you are aware of a legislative definition, please send it along.

To the extent the words "traveling employee" don't appear in the enabling legislation and have a "whatever-the-hearing-officer-wants-it-to-mean" definition, we feel it is a constitutional due process and equal protection violation to expand workers’ compensation law utilizing this nebulous, confusing and vague concept. Billions of dollars in workers' comp benefits are at stake and they should not be doled out on a random and indefinable basis. For those reasons, we strongly urge all members of the defense industry to start challenging the "traveling employee" concept on constitutional grounds.

Due to the lack of any legislative guidance, the main trade-off that supports all workers' compensation legislation is unquestionably stripped out. The exchange of rights that led to the development of workers' compensation law was protection for the employer from common law or general liability suits in exchange for fast and certain benefits for all injured workers. In creating the exchange, employers were not told nor did they expect the impossible-to-understand expansion of coverage for all acts of daily life including “lawful recreational activity” when the employee "travels" at any time and for any reason while working. There never was nor could there ever be a common law claim against an employer for purely personal actions like romantic entanglements, bathing, walking down a street, brushing your teeth or getting dressed that coincidentally occur on a business trip. We consider it farcical to expand workers' compensation coverage to all injuries arising in such actions.

Another aspect of the "traveling employee" concept is everyone on the Plaintiff/Petitioner side always tries to cite to "Larson's" which is a national and international source of workers' compensation law. By citing to a longstanding and well-known source, it appears to give credence to the nutty "traveling employee" idea. With respect to the legacy of the great Professor Arthur Larson and his progeny, we want to voice this strong objection--in our view, we assert an objective review of Larson's provides documentation of how random and whimsical the "traveling employee" concept is when implemented across the globe.

If you look it up, we further assert research provides no real guidance or definition of the concept. Researching the concept in Larson's or on WestLaw will simply tell you in the State of Washington, they occasionally and randomly did this and in Michigan they haphazardly do that with "traveling employees." There is no clear definition and, as we have outlined above, the definition is an enigma, surrounded by a conundrum, leading to a puzzle. In our view, many states workers' comp systems don't specifically or extensively reject the concept, their hearing officers simply and quietly don't let claimant attorneys go that direction with claims.

Most claimant lawyers, hearing officers and others don’t even know to use the “traveling employee” concept—are they routinely committing malpractice?

While there isn’t a lot to cull from, the recent main appellate rulings on denials of workers’ compensation claims in Illinois are:

·         First Cash Financial v. IWCC – Claimant fell down walking or “traveling” in a bathroom and couldn’t ascribe any problem with the floor or room—under a “traveling employee” analysis, the fall-down would have been covered.

·         Sisbro v. IWCC – Claimant suffered a fractured ankle stepping out of a truck and the claim was denied by the Appellate Court due to claimant’s longstanding medical condition. The matter later bounced back and forth to the Supreme Court to finally be reversed by our highest court on manifest weight of the evidence. If a “traveling employee” analysis had been used, there would have been literally no defense of any kind.

·         Twice Over Clean v. IWCC – Claimant suffered a heart attack while working in Minnesota. The claim was denied by the Appellate Court as claimant’s treating doctor opined claimant’s heart was so occluded, he could have had a heart attack doing literally anything including brushing his teeth. Again, this claim bounced up and down between the Appellate and Supreme Court to eventually be awarded benefits on a manifest weight standard. If our courts had simply used the “traveling employee” analysis, there would have been no defense.

The point of all of this is every worker “travels.” If all work and “lawful recreational activities” are globally covered for everyone who has a job when they leave their home to work (or work from home), we will have completely discarded the actual limiting language in our WC Act of “arising out of” and “in the course of.” If you aren’t sure that WC expansion isn’t mildly expensive—it will destroy all businesses and governments in its path.

We are aware of numerous claims involving questionable accidents for injuries to truckers, garbage handlers, nurses, lawyers, schoolteachers, tech folks, plumbers and lots of workers who occasionally or regularly “travel” as part of their jobs. In the vast majority of disputes, the claimant attorneys don’t ask for or seek benefits under the “traveling employee” concept—they do their best to litigate and win accident disputes like parking lot fall downs or safety violations or alcohol-drug abuse but seemingly forget to ask for coverage under this concept. If you academically review 100 workers’ comp disputed accident decisions, the vast majority of them would arguably be covered if the “traveling employee” concept were utilized. We are happy to provide even more examples. We find it comical to consider hundreds of claimant lawyers could be criticized and possibly sued for not routinely seeking benefits under this global and impossible-to-defend theory of accident coverage—maybe if they did so, the concept would come out into the light and be discarded for the nonsense that it represents.

In our view, there is no true body of law that defines what a “traveling employee” might be in a repeatable and reliable fashion. As you will see from the second article below, lots of claimant lawyers and judges/justices don’t even use it and/or know to use it. It is our strong hope our hearing officers in Midwest U.S. WC systems start to focus in on what all legislatures require--events have to "arise out of" and occur "in the course of" employment. Employers don't pay workers to become romantically entangled and benefits should not be awarded if they are injured doing so.

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