Synopsis: The IL WC Appellate Court Giveth and the Court Taketh Away in So-Called “Traveling Employee” Claims.
Editor’s comment: One recent IL Appellate Court Workers’ Compensation Division’s decision confirms accidental injuries occurring during a claimant’s regular commute to his employer’s premises are not compensable under a “traveling employee” theory of recovery. Another IL Appellate WC ruling appears to reverse the Caterpillar Tractor ruling by our IL Supreme Court to make tripping over normal street curbs while “traveling” compensable. As we indicate below, we don’t feel either worker fits the traditional classification of what a “traveling employee” is supposed to be—now anyone injured during the slightest bit of work movement appears to get expanded WC coverage.
WC Benefits Taken Away – By Joseph D’Amato, J.D.
In their ruling in Pryor v. Illinois Workers’ Compensation Comm’n, we see the first major reviewing court analysis of a “traveling employee” fact pattern since our IL Supreme Court’s reversal of compensability in The Venture-Newberg-Perini, Stone & Webster v. Illinois Workers’ Compensation Comm’n in 2013.
Petitioner Pryor worked for Respondent as a car hauler. His job responsibilities included loading automobiles onto an 18-wheel car hauling truck at Respondent’s terminal in Belvidere, Illinois. Petitioner would then drive the 18-wheeler to various dealerships and unload the cars. To get to work, Petitioner drove his personal vehicle from his home to Respondent’s Belvidere terminal and back.
One or two nights per week, Petitioner spent the night at a hotel while on the road delivering cars to dealerships. Respondent provided each car hauler with a list of motels so overnight stays at one of those hotels could be conveniently booked while haulers were on the road. Petitioner testified he packed a suitcase with a change of clothes when he anticipated staying over night at a hotel. The evidence at trial demonstrated Petitioner usually drove to Respondent’s terminal in his personal vehicle and placed the suitcase in the 18-wheeler.
On the morning of the incident, Petitioner was at home and arose at 4 a.m. to get ready for work. He testified he planned to drive to the Belvidere terminal that morning to “start his work.” Petitioner anticipated being out of town for overnight work that evening, so he packed a suitcase with a change of clothes and other items for the trip. Petitioner testified he injured his low back while placing his suitcase in his personal vehicle.
At trial, Petitioner argued he was a “traveling employee” at the time of the incident at his home, as his job duties required him to “travel away” from Respondent’s premises at the Belvidere terminal to deliver cars and occasionally stay overnight in motels during the week. The Arbitrator and IWCC both held the risk giving rise to the incident was personal in nature and denied Petitioner’s claim. The Circuit Court of Winnebago County upheld the IWCC’s decision and Petitioner appealed to the Appellate Court Workers’ Compensation Division.
On appeal, the Appellate Court, WC Division used a “traveling employee” analysis to determine whether Petitioner’s injury arose out of and in the course of his employment. The Court noted an injury suffered by a traveling employee is compensable under the Act if it occurs while the employee is traveling for work. However, the Court confirmed the trip at issue must be more than a regular commute from the employee’s house to the employer’s premises; otherwise, every employee commuting from his home to a fixed workplace on a daily basis would be considered a “traveling employee” and the exception would swallow the rule. The Court poses the threshold question as follows: had Petitioner embarked on a work-related trip at the time he was injured or was he merely beginning his regular commute to Respondent’s premises?
The Court found Petitioner was preparing to begin his regular commute to a fixed jobsite (i.e., the Belvidere terminal) as a necessary precondition to any subsequent work-related travel and therefore, the traveling employee exception did not apply and recovery was properly denied by the IWCC.
We feel this decision offers solid precedence for the concept accidents occurring in the regular course of a commute to a fixed location are not compensable; however, we caution employers, risk managers and carriers to watch out for cases where a claimant is injured during any work-related deviation from what is a “regular commute.” Under the reasoning in this decision, an accident occurring in that circumstance would likely be compensable. This article was researched and written by Joe D’Amato, JD. Joe can be reached for questions and comments at firstname.lastname@example.org.
Appellate Reversal to Provide WC Benefits in Fall-down Claim
In Nee v. Illinois Workers Compensation Commission, the worker was a plumbing inspector for the beleaguered City of Chicago. We note the City pays around $100M in WC benefits annually and is awash in red ink from those payments, fake pensions and lots of other over-spending. We are unaware of any other U.S. municipality that has a worse-run WC defense system and we consider it a “secret scandal” because the media never considers it.
In the Nee claim, Claimant testified, after finishing an inspection during his work day, he "tripped on a curb" and fell as he was walking back to his car to go to his next assignment. During the arbitration hearing, the claimant testified he was not sure if the curb was level with the sidewalk, but he thought it might have been higher. Claimant was asked and answered:
Q. Do you remember the street and the condition of the street in any way?
A. What I don't recollect is I didn't take a picture or even look, stare at the curb, to tell you if it was high or cracked. I don't know. I didn't take a look[;] all I know I tripped on it and I fell.
Please note Claimant wasn’t carrying anything that blocked his view of the curb nor was he rushing due to his work. There is no indication the curb had any construction issues or required maintenance. There was no testimony about ice, snow or foreign objects, as factors in the fall. It appears Claimant fell due solely to his own clumsiness or inattention in relation to what he needed to do to step over a normal city curb. Doesn’t this ruling reverse this same panel’s decision in First Cash Financial Services v. IC where they ruled the employee had to prove some reason for the fall-down—Claimant Nee clearly didn’t prove any reason for falling. If you ask us, the IWCC got this one right—compensation denied.
Please also note this ruling is based on a misguided stipulation by the defense counsel for the City of Chicago that Petitioner was a “traveling employee.” This worker’s job required him to walk and drive throughout a city he was thoroughly familiar with. The legal concept of “traveling employee” was never intended to be for employees-in-normal-motion. The legal definition of a “traveling employee” was intended to provide extra WC coverage for workers who were sent to foreign places with heightened risks from unknown food, currency, language and street risks. The concept of “traveling employee” was not supposed to provide extra WC coverage for anyone who happened to be in any sort of movement of any kind while at work. When anyone “moving” gets global coverage of all risks, you have dramatically expanded coverage for thousands of injuries/conditions/diseases from activities of daily life.
In our respectful view, the last legal statement about a curb or street fall-down from the IL Supreme Court in Caterpillar Tractor would mandate denial of this claim. In Caterpillar, the employee also didn’t watch where he was going and tripped on a normal curb. Our highest court basically said, oops--compensation denied. Instead, in this claim, the Appellate Court, WC Division ruled when a traveling employee is exposed to a certain “risk” while working, he is presumed to have been exposed to a greater degree than the general public. They felt this employee, who was a plumbing inspector for the City of Chicago, was exposed to risk of traversing a curb to a greater degree than a member of general public by virtue of status as a traveling employee at time of accident. Based on that reasoning, they reversed the IWCC on “manifest weight” and awarded benefits.
Again, with respect to the members of this court, Illinois has never been a “positional risk” state—we have always rejected the idea that risks of everyday life are compensable just because someone is at work. The risks described in this ruling are normal risks we all face every day of every year, both at home and at work. We ask our readers, how does it make any difference if it is a curb or a flat surface? If this employee were simply walking across a flat, dry, clean, well-lit street or workplace and tripped over his own feet, wouldn’t this same ruling mandate compensability? We don’t and have never felt such claims were compensable. Please also remember anyone crossing a curb is always “traveling” because no one works in an office or plant that is on a curb. For all these reasons, we hope our IL Supreme Court takes this claim and carefully considers it, in the interests of keeping IL WC theory in line with other states.
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Synopsis: Changes In Light of New Appointments with Suggestions from KCB&A.
Editor’s comment: The IL WC Commission announced guidelines for handling of settlement contracts and motions for cases assigned to New IWCC Chair Fratianni-Atsaves and Commissioner Luskin. The recent promotions of Arbitrator Fratianni-Atsaves to Chairman of the IWCC and Arbitrator Luskin to the position of Commissioner of the IWCC have created a question as to how settlement contracts, motions etc. for their dockets should be handled until a permanent arbitrator has been assigned. In Zone 5 the Commission has asked all correspondence previously sent to Chairperson Fratianni-Atsaves should be sent to either Arbitrator Andros or Arbitrator Falcioni for handling. Both of these arbitrators have the authority to act on motions and approve settlement contracts. In Zone 6, they want all correspondence previously sent to Arbitrator Luskin to be sent to either Arbitrator Cronin or Arbitrator Doherty for handling. Both of these arbitrators have the authority to act on motions and approve settlement contracts. In the event settlement contracts are sent to the Commission the case will be reassigned to the pro se arbitrator of the day for review and/or approval.
Our suggestion is the Commission should consider not “replacing” Ms. Fratianni-Atsaves or Mr. Luskin at all but move their files permanently to the other arbitrators and save business taxpayers the money. One of our law partners confirmed the status calls they handled are busy, bustling calls and need to be properly balanced. We feel that is a strong idea also. We feel the remaining IL WC arbitrators are a solid, professional group and should be able to step in, balance their new claims and handle things seamlessly.
Another strong suggestion is to take a long, hard look at the controversial “satellite offices” where the IWCC has onsite staff that print and hand out forms that are available online. We have no idea who created these unneeded offices or why but we assert the money to fund them is completely wasted. We are sure the Collinsville office hasn’t been staffed in years and no one appears to care in the slightest—we feel the savings should be expanded across the state.
We are happy to learn former Acting Chair Ronald Rascia remains with the IWCC as counsel to Chairman Fratianni-Atsaves and the other commissioners. He is a hard-working professional and should assist the Commission during this current transition.
Synopsis: Nebraska Bill Denying WC Benefits For Claimants Who Lie During the Hiring Process—Is It a Model for Other States? Thoughts and Analysis by Lindsay R. Vanderford, J.D.
Editor’s comment: Should it be against the law to lie during the hiring process? If you block your employer from knowing about or accommodating your pre-existing conditions, should you pay a price? We feel NE Bill 158 would bring positive change to Nebraska’s WC and hiring arenas. The impact of this change may be felt in Illinois and the other states where KCB&A provides defense advice—Wisconsin, Iowa, Indiana and Michigan. The Nebraska Legislature's Business and Labor Committee has scheduled a hearing today on a bill that would deny all WC compensation to claimants who lie about their mental or physical condition when applying for a job and the condition is connected to the cause of a later workplace injury. NE Bill 158 would prohibit benefit payments to claimants who knowingly and willfully made a "false representation as to his or her physical or medical condition" when the employer relied upon that representation when hiring and a "causal connection" exists between the false representation and the injury. Sen. John McCollister introduced the bill in Nebraska's unicameral Legislature in January, and it was assigned to the Business and Labor Committee.
What impact will the outcome of that proposed legislation have on Illinois? With bills such as Illinois HB 2421 attempting to change the IL WC Act’s definition of accident and injury, we would hope a bill paralleling the Nebraska’s denial-of-compensation-for-hiding-your-problems paradigm is not too far behind. Only too often do we deal with claims of injury occurring just days after the worker began a job he knew would create a greater risk of injury due to a pre-existing condition he or she falsely represented.
We await what we hope will be a step in the right direction in Nebraska law—Go Big Red! Perhaps this potential change will make an impression on other states. This article was researched and written by Lindsay R. Vanderford, J.D.