7-8-13; Traveling Employee Rulings May Be the "Bermuda Triangle" Where IL WC Gets Lost; Sean Brogan on Wage Loss Ruling; New Federal Definition of "Supervisor" and much more

Synopsis: Will the Three New “Traveling Employee” Rulings Become the new Bermuda Triangle Where Illinois’ Work Comp System Gets Lost?


Editor’s Comment: If you haven’t heard, the IL WC system is reeling from three new Appellate Court rulings that have basically flipped our whole state and our WC system on its ear. As you read this, Illinois no longer truly has a requirement of “arising out of and in the course of” employment for millions of workers. What the three Appellate Court, Workers’ Compensation Division decisions in


1.Venture-Newberg Perini Stone & Webster v. IWCC (rehearing denied, January 29, 2013);

2.             Mlynarczyk v. IWCC (issued May 30, 2013); and

3.            Kertis v. IWCC (issued June 18, 2013)


combine to rule is:


   Any Illinois worker who doesn’t work on the “premises of their employer” is a “traveling employee.” Please note transportation workers who drive trucks, buses and cabs don’t ever actually work on any “premises.” We have no idea whether a police officer, firefighter or streets/sanitation worker is on the “premises of their employer” when they are working on the city streets of the municipality they work for. Following the reasoning of our Appellate Court, Workers’ Compensation Division, almost all construction workers are now “traveling employees.” Any stay-at-home worker is a “traveling employee” and may be globally covered when they get out of bed until they go back to sleep. We don’t know if you work on the “premises of your employer” when you and your employer are permitted users of someone else’s premises, like the cleaning lady in Mlynarczyk.

   A “traveling employee” confusingly doesn’t have to be traveling when injured. They also don’t have to be working or on the clock. We aren’t making this up, folks. A traveling employee would be covered sitting at a restaurant or waiting for a bus. They are covered from the moment they leave their homes to go to work until they return home at the end of the day for all risks of any reasonable nature during the time they are traveling to work or on coffee/lunch break or when they are going home from work.


Actually, here is a scenario for you to consider:


   Your company hires a secretary.

   He/she calls and accepts work and will report for the first day of work at 8am today Monday, July 8.

   You get a call from a lawyer in the afternoon.

   He tells you the secretarial candidate passed away this morning.

   Turns out the candidate was from Milwaukee and was coming to work at your Chicago office.

   He or she was staying at a hotel on their own dime until they could get permanent housing.

   On the way from the hotel to your office, your new worker was tragically killed by a hit and run driver.

   The attorney tells you that you owe over $1M in WC death benefits as a matter of law.

   You tell him she never worked one minute for your company and have no idea why you would owe anything, as the employee was simply on the way to work but never worked for you.


If you aren’t sure—those facts above closely mirror the facts of the Venture-Newberg Perini Stone & Webster v. IWCC ruling. The Appellate Court already awarded Claimant in that claim $1,000,000+ in medical benefits with lots more to follow if the matter isn’t reversed by our IL Supreme Court.


In our view, all of this is “judicial legislation.” The Commission and courts aren’t supposed to over-write the law provided by the legislature. Ever. Every aspect of the “traveling employee” concept is made up by some of the members of the Commission and our courts—in our view, they don’t try to justify it through some compelling public policy or in any other way. As a veteran legislative lobbyist for the IL State Chamber of Commerce pointed out, effective June 28, 2011 or just over two years ago, our Illinois legislature and our Governor reaffirmed their command to everyone in our IL WC system that all injuries have to “arise out of and in the course of employment.” To us, the simple but clear legislative reaffirmation is being completely ignored by some at the Commission and in our reviewing courts in a random and confusing way. We feel the new case law on “traveling employee” has nothing to do with the statute—the word “traveling” doesn’t appear in our IL WC Act or Rules. The word “traveling” isn’t in the Commission’s handbook or any of their claim management forms; the handbook and forms need to be rewritten. As “traveling employee” status clearly trumps the requirement of “arising out of and in the course of,” it should be immediately added to the “stip sheet” or IWCC’s request for hearing form. If you don’t add this new, mandatory and unprecedented legal issue, the parties may not be trying the real issues before the hearing officer.


The definition of “traveling employee” was unquestionably created by our courts and not our legislature. Please also note the “traveling employee” concept has been called “an exception” to the “arising out of and in the course of” requirement by some court rulings—the “exception” is now the wildly expensive new rule for millions of workers in our state.


We have filed an amicus curiae or “friend of the court” brief before our IL Supreme Court on behalf of many of our clients, readers and interested IL business people who consider these new rulings to be over-the-top on providing expensive WC coverage for personal and non-work-related risks Illinois business has never covered. We assert no state in the United States provides workers’ compensation coverage in this global fashion. We further assert if these rulings aren’t reversed, this is going to have a very, very chilling impact on our IL economy and is certain to cause taxes to rise to provide this new and expanded WC coverage.


Our amicus brief was drafted by your editor along with Chris St. Peter, J.D., John P. Campbell, Jr., J.D. and Shawn R. Biery, J.D., MSCC. You can read it by clicking on this link or asking us for an electronic or printed copy.


Brief of Amicus Curiae 


The brief of the solid defense lawyer for the employer in Venture-Newberg Perini Stone & Webster is Ted Powers, J.D. His IL Supreme Court brief can be reviewed by clicking on this link:


Venture-Newberg-Perini Stone & Webster  IL Supreme Court Brief


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Synopsis: An IL WC wage differential award must be calculated as a fixed number at the time of Arbitration of the claim.


Editor’s comment: In United Airlines v. IWCC et al. Claimant appealed a Cook County Circuit Court order reversing the IWCC and reinstating an arbitration decision which awarded him weekly wage differential payments of $277.06, decreasing annually over the course of ten years and terminating in April 2018.


Claimant sustained a compensable right wrist injury in December 2004. At the time of the injury claimant was a ramp service worker, earning $20.66 per hour. He was released to full duty on a trial basis in April 2006. Two day after his return to work, claimant sustained a compensable right shoulder injury while lifting a bag. In July 2007, claimant was released with permanent restrictions which precluded a return to his former position. However, claimant eventually returned to work as a station operations representative (SOR). While the position initially paid $20.63 per hour, 40 hours a week his hourly wage was reduced to $9.92 because of a union agreement. 


A labor relations analyst testified on behalf of United. She testified claimant would progress to the top of the SOR scale in March 2018, earning $21.77 per hour based on current union agreements covering 2005 through 2009. She admitted her projections did not take into consideration various market factors and new union agreements being negotiated. 


The Arbitrator found claimant was entitled to wage differential benefits under Section 8(d)(1) of the Act, but the benefits would decrease annually over the course of ten years and terminate in April 2018 at which time claimant would be earning more as an SOR than he would have had he remained a ramp service worker.


The Commission modified the arbitrator's wage differential award to provide Claimant would receive $277.06 per week continuing for the duration of his disability. The Commission noted "that wage differential can only be determined based on what [wages are] at the time of hearing." Thus, it was improper for the Arbitrator to calculate wage differential payments past the date of the arbitration hearing. On judicial review, the Circuit Court set aside the Commission's decision and reinstated the arbitration decision.


The Appellate Court, Workers’ Compensation Division reinstated the Commission's decision holding Section 8(d)(1) of the Act does not provide for a varying amount to be paid out at future dates. Rather, the award must be based on the average amount of the claimant's wages at the time of the accident and the average amount which the claimant is earning or able to earn in suitable employment following the accident. United was able to present evidence beyond current wages to establish long-term earning capacity such as wage increases, overtime and increased work hours; however, the award must be calculated as a fixed number at the arbitration hearing. The Appellate Court found the Commission's award of $277.06 per week was not against the manifest weight of the evidence as the labor relations analyst's testimony was speculative and did not consider changes in the union agreements or other market factors.


This colloquy again brings up the intention of our legislation in passing Section 19H which supposedly allows for wage differential awards to be modified for sixty months following an award. In the Cassens Transportation v. IWCC ruling, the Appellate Court, Workers’ Compensation Division effectively blocked what appears to be the intention of the statutory change.


This article was researched and written by Sean C. Brogan, J.D. You can reach Sean for comments at sbrogan@keefe-law.com.


Synopsis: SCOTUS Denotatively Limits the Definition of “Supervisor”—Ruling is Required Reading for HR managers.


Editor’s comment: In Vance v. Ball State University, the Supreme Court of the United States (or SCOTUS) adopted our IL Seventh Circuit’s narrow definition of “supervisor” under Title VII.  In doing so the Supreme Court rejected the EEOC and other federal appellate courts broader definition of “supervisor,” which included employees who lacked the authority to make tangible employment actions, but may have directed other employees’ day-to-day activities. 


In this new ruling, the Supreme Court provided U.S. employers a stronger dividing line between supervisors vis a vis co-workers and a better understanding of which employees fit within the scope of “supervisor” as defined in Title VII. This is critical for managers and employers as the standards for liability in employment practices discrimination and harassment cases may differ depending on whether the alleged offender is a supervisor or a co-worker. 


By narrowing the definition of “supervisor,” the U.S. Supreme Court in effect limited the liability employers can face under Title VII. Under the narrower definition of supervisor, in order to hold the employer vicariously liable for a supervisor’s actions in violation of Title VII, the supervisor must be an employee authorized by the employer to take tangible employment actions against another employee, such as






   Reassigning with significantly different responsibilities or

   Causing significant changes in benefits.


This new definition should make it more difficult for employees to prevail on claims involving non-supervisory co-worker discrimination or harassment claims, unless the employer was aware of the alleged misconduct and did not take action to remedy it. To take advantage of the new Supreme Court ruling, employers and HR managers may want to review day-to-day operations and job descriptions to ensure they accurately reflect which supervisors or managers have the authority to make tangible employment action consistent with the bullet-points listed above. 


While the Supreme Court narrowed the definition of “supervisor,” it recognized an employer could still be held liable for effectively delegating tangible employment decision powers to an employee, even if he or she is not a supervisor in title or authority, by relying on the employee’s recommendations in making the important employment decisions outlined above. Moreover, employers should be aware state and local anti-discrimination statutes may not follow federal law or definitions with respect to who qualifies as a “supervisor.” For example, under the Illinois Human Rights Act, employers are subject to strict liability for any harassment or discrimination committed by a “supervisor.” Unlike this federal guideline, Illinois courts have tended to find “supervisor” status for a broader portion of your workforce.


KCB&A’s top EPLI defense lawyer is Chris St. Peter, J.D. He can be reached for questions or comment at cstpeter@keefe-law.com.


Synopsis: KCBA welcomes general liability, employment law and litigation defense specialist Chris St. Peter from the law firm of Winston & Strawn LLP??


Editor’s comment: Keefe, Campbell, Biery & Associates proudly announce the addition of Christopher H. St. Peter, J.D. to our legal team. Chris joins us from Winston & Strawn LLP, where his practice involved all aspects of complex commercial litigation in state and federal court.  Chris graduated with honors from Chicago-Kent College of Law, where he was an executive articles editor of the Chicago-Kent Law Review and an extern for the Honorable Magistrate Judge Arlander Keys in the U.S. District Court, Northern District of Illinois. Chris will focus his practice on a full range of defense work, including general liability, employment law, product liability, and contract disputes.  Chris can be contacted at any time at (773) 301-7244 or cstpeter@keefe-law.com.?