12-17-12; PART 1: Did IL WC Litigation End on 12/6/12?; The Madison County Multi-Billion Tobacco Litigation Is Over; Be Prepared for Ramped-Up OSHA and much more

Synopsis: Did IL WC Litigation End on 12-6-12? Should We Send the Lawyers, Arbitrators and Commissioners Home and Start 24-Hour Coverage of Most IL WC Claims?


Editor’s comment: If you read our KCB&A Update last week, you read about the shocking and sweeping IL WC Appellate ruling in The Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission. We want our readers to understand we consider this ruling a seminal change, a veritable tsunami when it comes to defending WC claims in this nutty state moving forward and another reason you need to always get the best defense attorneys available.


Understanding What Just Hit Both Sides of the IL WC Industry


Well, the forces of ITLA have tried to take advantage of their political advantage to make our WC system more and more liberal. The problem with doing so is, at some magical point, you won’t have “litigation” anymore because there are even more limited WC disputes which can be fought and defenses become much more difficult. When everything is potentially globally compensable, you don’t need as many hearing officers or court reporters and only the best lawyers survive because more cases being flatly compensable mean less plaintiffs who need a lawyer. We feel the majority of Illinois workers now have arguable WC claims under the “traveling employee” doctrine as our State is implementing it.


This became clear to us and our readers after the controversial ruling above was issued on December 6, 2012--we are shortening the case name above to Venture-Newberg. We want our readers to understand the case contains what we feel is an aberrant workers’ comp focus/analysis unlike any in the entire world. If you understand the logic of this legal concept, Claimant Daugherty would have been covered for choking on a hot dog in a snack, for playing softball in a game with his buddies and for rolling off the bed in his sleep. Everything he did while “traveling” the entire time he was in Cordova, IL would have been covered. The majority opinion in Venture-Newberg holds two new game-changing legal concepts are present in the WC system in this state:


  1. If a worker is scheduled/assigned work that isn’t on the “premises” of their employer, they magically become “traveling employees.”
  2. An employer is fully responsible under workers’ compensation for any injury or disease suffered by the worker while they are on the way to or from and/or engaged in any activity most of their day that is “reasonable and foreseeable” to the employer.


While those two sentences don’t seem to be challenging, trust us, they are an unbelievable and massive change to WC benefits, insurance, self-insurance, underwriting and claims handling. If you aren’t sure, Claimant Daughtery in Venture-Newberg was not on the clock or soon to be on the clock—he was in a car crash but still miles away while going to work. Like all union workers, the jobsite wasn’t on the “premises” of their employer. Most union companies have relatively small offices and limited office staff. Yes, you may think that is how construction companies work—they build, maintain and erect construction on someone else’s land and “premises.” If you adhere to the legal standard in Sentence 1 above, all construction workers are now “traveling employees.”


How Many IL Workers Are Now Legally Transformed Into “Traveling Employees”—Short Answer, A LOT!


Several million Illinois workers don’t work on the “premises” of the employer, if you define “premises” as not being the job site, if that property is owned by someone else, as it was in Venture-Newberg. Our research indicates there are about 5.5 million people working in this state. By this new and unprecedented definition, we feel most of them are now going to be “traveling employees.” As we outline above, all construction workers are now in that status.


These workers magically become “traveling employees”:


v  Traveling Salespeople and Related Occupations                              595,820

v  Transportation and Material Moving Occupations                             439,130

v  Construction, Demolition and Extraction Occupations                      201,230

v  Installation, Maintenance, and Repair Occupations                           188,520

v  Building/Grounds Cleaning and Maintenance Occupations               185,200

v  Healthcare Support Occupations                                                       159,410

v  Protective Service Occupations                                                         141,550

v  Computer and Mathematical Occupations                                        128,460


That list above covers over 40% of the workers in our state. Lots of other workers will fall into an odd mix where some folks will be working on the premises of the employer and some folks won’t. For one simple example, most Hospital Emergency Room personnel seem to be working for the hospital that employs them—in fact, lots of them are under contract with a different company that leases them to the hospital. Many hospitals, university and schools also have food/culinary staff that appear to be employed by the hospital or school when in fact they are employed by an off-premises provider that does so. All such individuals are now “traveling employees.”


We also wonder about school teachers and related personnel who basically work on the “premises” of the school but occasionally take the children on school outings/field trips. Are they now globally “traveling employees” or only when on a trip? Do we really need expanded WC coverage for school teachers on their morning trip to work because they are later taking kids to a local museum?


Actually, probably several hundred thousand workers across our state work for and are paid by PEO’s, logistics and staffing companies. None of those workers work on the “premises” of their PEO/staffing/logistics employer who locates/hires and pays them. By the Venture-Newbergdefinition, all staffing employees are now “traveling employees.”


Further, the vast majority of government workers for the state, counties, townships and cities/villages don’t work in City Hall—they go out into the field and work to protect/maintain/inspect businesses/buildings/workplaces that clearly aren’t owned by the government body. For a simple example, firefighters don’t put out a lot of fires in government buildings, they are called to homes and commercial properties that aren’t government-owned properties. In our view, thousands of such IL government workers are now “traveling employees.”


Okay, So There Are A LOT of Traveling Employees in Our State—How Does That Affect WC Coverage?


Well folks, as you read this, Illinois employers are now globally responsible under IL WC for almost all illnesses and injuries of any nature from the moment such workers walk out the door of their homes to go to work until they are back home. Actually, workers who work in their homesare also “traveling employees” because they aren’t working at their employer’s premises, as this ruling mandates.


By “almost all” the limiting language is no longer “arising out of” and “in the course of” employ—please remember Claimant Daughtery in Venture-Newberg unquestionably wasn’t on the clock and wasn’t doing anything for his employer other than coming to work like millions of other workers. We aren’t aware of any state in the U.S., other than maybe Crazy California, where benefits would be payable to such a worker. To make this event compensable, the IL Appellate majority stuck the employer with Sentence 2 above—if the employee can attain “traveling employee” status, the employer is responsible for any behavior, incident or illness felt to be the result of “reasonable and foreseeable” activity.


What does that mean? Well, we feel it means Illinois employers are now responsible for literally anything that happens to a worker other than for the worker’s insane, criminal or psychotic behavior. Please note the person driving in Venture-Newberg appears to have been going too fast for conditions and the vehicle slid on ice, causing injuries to claimant. Obviously, the Appellate Court majority ruled it “reasonable and foreseeable” for someone to drive too fast for conditions, despite the fact that is arguably criminal behavior. Painting with a very broad brush, this major IL employer is now on the hook for over a million in medical bills, lost time and permanency.


Traditional IL WC Accident Defenses/Limitations are Gone With This Wind


Please note our view the IL Appellate Court has completely replaced the statutory requirement for “arising out of” and “in the course of” employ with this new “reasonable and foreseeable” standard for millions of workers. This new legal standard creates an indefensible situation where just about any and every activity can be work-related. In our view, all traditional accident defenses are gone. We provide this quick list of traditional defenses:


ü  Arising out of

ü  In the Course of

ü  Risk Common to the Public

ü  Idiopathic/Unexplained Falls

ü  Aggressor in a Fight

ü  Frolic and Detour

ü  Horseplay

ü  Intoxication


We feel they are all gone and swept under an Illinois WC rug. For example, “traveling employees” will still get WC benefits if they fall for no apparent reason—how can you say falling without any reason isn’t “reasonable and foreseeable.” As we advised last week, a traveling employee engaged in horseplay, like the firefighter wrestling in a hotel room received benefits, as his childish antics were “reasonable and foreseeable.” Claimant Daugherty could have fallen in the bathtub taking a shower on a weekend and such injuries would now be compensable.


Do you get it? Are you starting to see this theory is the Royal Straight Flush???? for the claimant bar and their clients? Well, they have to be careful what they wish for—if a claim is much more likely to be compensable, it is much more likely to simply be accepted so no plaintiff lawyer will ever be needed.


The Problem with Judicial Legislation Is It Isn’t Legislation


If you aren’t sure what judicial legislation might be, it is judges moving on a case-by-case path to create new rules, concepts and, in this case, benefits not outlined in the laws provided by to all of us by our legislature. Judges/Justices don’t hold legislative hearings or truly take comment from the groups affected. They don’t balance interests other than the interests of the parties litigating the claim. We assure our readers Venture-Newberg and its progeny Cox v. IWCC are random judicial legislation of the worst sort. We also point out the same Appellate Court justice wrote both majority opinions—in Venture-Newberg the majority opinion adhered to the “manifest weight of the evidence” standard to award benefits while in Cox they reversed the Commission’s denial as against the “manifest weight” of the evidence to award benefits. Does anyone see a trend there—basically, we feel the IL Appellate Court is effectively mandating the term “traveling employee” equals global WC benefits.


The traditional or historic workers’ comp concept of “traveling employee” is outlined in Professors Arthur and Lex Larsen’s compendium on workers’ compensation. The term “traveling employee” was supposed to be someone whose employment sent them to a wholly foreign place for work. In a foreign country, the worker faces challenges in coping with foreign language, customs, diseases and dangers. It makes sense to globally cover a worker in such a setting. The expansion of WC coverage and limited defenses for workers traveling out of the country provides appropriate protection to most businesspeople who face extraordinary risk and the impact on insurance costs/premiums/underwriting are miniscule.


But to the extent the “traveling employee” concept has expanded from probably a couple of thousand workers who would travel abroad for work for major Illinois employers to millions of workers for businesses large and small who perform routine work within the boundaries of our state and face the same risks “common to the public” that we all face, you have to stop and consider what happened. Looking at our legislation, we assure you that you can look and look all day; you won’t find the term “traveling employee” outlined in the IL WC Act or Rules. There is no “source of law” or definition of the concept. In contrast, unlike Illinois, several states codified “traveling employee” and provide guidance.


For example, Florida Statutes, Title XXXI, Chapter 440 § 440.092 state


(4) TRAVELING EMPLOYEES—An employee who is required to travel in connection with his or her employment who suffers an injury in travel status shall be eligible for benefits under this chapter only if the injury arises out of and in the course of employment while he or she is actively engaged in the duties of employment. This subsection applies to travel necessarily incident to performance of the employee’s job responsibility but does not include travel to and from work as provided in subsection (2).


As Illinois doesn’t have such statutory language, in our state the “traveling employee” status/designation is as clear as mud—once an employee reaches “traveling employee” status, we have no way to know if they maintain it while traveling, while assigned to a single jobsite for a specific term or for their entire career with that employer? To be more precise, are all truck/bus/cab drivers “traveling employees” whenever they start out for any work or is it while they are “traveling” or in movement? Do we have to take claim after claim to the Appellate Court to get their piecemeal outline of coverage?


Further, what is the reason for this newly expanded WC coverage? Do we want cab drivers and construction workers to have additional protection and coverage for silly but “reasonable and foreseeable” things they might do away from work and on the way home? And if you compare Florida law cited above to the facts of the Venture-Newberg ruling our Courts could have ruled this event non-compensable in about six different ways. Does anyone feel this new, unnecessary and overbroad legal concept has an unconstitutionally vague definition?


We Need/Demand Clarity Or We Are Looking At The End Of Our System of Workers’ Comp Litigation In IL?


Right now, we feel ITLA and its forces are trying to quietly and slowly “spring” the traveling employee concept on the defense industry in selected claims. Basically, we feel they are using it as an “ace in the hole” to guarantee the toughest claims are winning hands for Plaintiffs/Petitioners. They are hoping everyone keeps it hush-hush and we assure our readers they don’t like to read articles like this one that let everyone know what is happening. The problem we have is our conviction this unparalleled concept isn’t good for anyone in the workers’ compensation system other than folks like the fellow in Venture-Newberg who unfortunately got seriously hurt while NOT working along with his lawyer who will get hundreds of thousands in unexpected attorney fees.


We consider this to be the sort of chicanery we are used to from the claimant bar in this state. If we are truly going to mystically make several million workers “traveling employees,” we feel IL WC insurance companies and more important, their underwriters have to know it. We truly feel the main way they may adapt is to start charging greatly increased premiums based on expanded and basically universal coverage of all such WC claims. Basically, we feel the IL WC insurance concept may soon be acutely expensive “24-hour WC coverage” for all such workers.


Under this new ITLA legal model, IL WC risk managers and adjusters aren’t going to let some claims go to either side because they can’t be defended on the issue of accident. They may start to treat many WC claims like group health claims—“you have a job and a problem, you are covered; fill out these forms and we may start paying.” Please also remember IL WC accident disputes sometimes come with hefty penalties and fees for not paying benefits—the next ironworker, trucker or school teacher who alleges an injury going to or coming from work or wrestling like a school kid in a bar between shifts might cause unforeseen penalties/fees if unsuspecting IL WC adjusters don’t rapidly accept/pay. While there are other legal issues in IL workers’ comp claims requiring solid defense attorneys, we don’t feel our IWCC and reviewing courts should greatly expand WC coverage and strip out accident defenses.


If/when that happens, there may be little need for lawyers, hearing officers or litigation because it will be a major challenge to defend “traveling employee” status and a bigger challenge to defend “reasonable and foreseeable” as a limiting factor. We also feel these increased WC insurance costs aren’t going to be well-received by major employers like Caterpillar, Nestlé, United Airlines and the rest. Greatly increased WC premiums may kill many small and mid-sized employers.


Where Is the Traveling Employee Concept At Right Now and Where Is It Going?


Well, we are asking our clients and readers to keep fighting and using KCB&A to lead this crucial fight. Please don’t move your worksites and employees out of Illinois just yet. Please let this situation advance and watch this space for developments. We are fairly sure the two dissenting Justices in this Venture-Newberg Appellate Court ruling may certify it for further appeal to the IL Supreme Court. If they certify it, we hope IL Supreme Court Chief Justice Thomas L. Kilbride and the other members of the Supreme Court accept and then hear the appeal. We assure our readers we will be asking everyone to consider joining us in writing an amicus curiae or “friend of the court” brief to let our highest Court know the challenge we will all face if this unprecedented situation “sticks” and WC benefits and coverage expand to become global coverage for accidents/illnesses both at and away from work for millions of IL workers.


On the legislative side, we know Senate President Cullerton and House Speaker Madigan have staff who read this KCB&A Update every week. Both of them wanted things to calm down and they both supported a “haircut” for all sides in lowering WC benefits with the 2011 Amendments to the IL WC Act. We can’t believe they want things in the WC arena to go wildly higher and they may take action to stop what is happening. We are certain they don’t want Illinois to become less business-friendly in this economy. It is possible they will get our message and consider legislation to rein in the courts and limit the whole “traveling employee” thing. We also hope IL State Chamber President Doug Whitley and his legislative team ask their other WC defense gurus to find out what just hit their membership. Their input and support in seeking legislative reform may also help. Finally, we hope the bipartisan IL Workers’ Compensation Lawyers Ass’n steps up and seeks to return things to the IL WC system we have had for over 100 years.


We appreciate your thoughts and comments. Please post them on our award-winning blog.