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.

We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

4-17-12; Volunteer remains a volunteer when our Appellate Court refuses to read an “employment relationship” into a volunteer agreement

In McKinney v. The Salvation Army, claimant was injured while participating in the Salvation Army’s rehabilitation program. Participants of the program were required to sign two documents as a condition of admission. The first document contained an exculpatory agreement clause and indicated participants were not considered employees of the Salvation Army but were expected to voluntarily perform assigned duties. The second document provided that work therapy was essential to participants’ rehabilitation and was never to be considered employment.

Four month after gaining admission to the program, the claimant suffered wrist injuries when he fell from a ladder while performing tasks as part of his work therapy. He subsequently filed a workers’ compensation claim against the Salvation Army. An arbitrator denied the claim finding the claimant was not an employee of the Salvation Army.

The claimant was involuntarily discharged from the rehabilitation program after filing his workers’ compensation claim. He then filed a civil complaint alleging harm from the Salvation Army’s negligence and his retaliatory discharge from the program after filing the workers’ compensation claim.

The Appellate Court, Fourth District, upheld the trial court’s entry of summary judgment as to the negligence counts in favor of the Salvation Army reasoning the exculpatory clause was enforceable and not against public policy as claimant was neither an employee of the Salvation Army nor did he suffer a lack in bargaining power which would have prevented him from negotiating around the exculpatory clause.  

Also interesting, are the Salvation Army’s arguments for its motion to dismiss the retaliatory discharge complaint at the trial court level. The Salvation Army argued claimant could not prove retaliatory discharge because he at no time was an employee of the Salvation Army. As “employment” was an essential element of retaliatory discharge, the Salvation Army argued claimant could not carry his burden of proof because he was barred by res judicata from relitigating the issue of whether there was an employment relationship after the workers’ compensation arbitrator found conclusively against the claimant on the issue.

Although the trial court made no specific findings when it dismissed claimant’s retaliatory discharge claim and the issue was not appealed, we think it was a creative argument that can and should be advocated in similar cases where a workers’ compensation arbitrator has found an employment relationship did not exist and there is a related retaliatory discharge claim.

We appreciate your thoughts and comments. This article was researched and written by Sean C. Brogan, J.D. Sean can be reached at sbrogan@keefe-law.com.

4-17-12; Will County Forest Preserve District Redux. Does the IL WC Act need legislative clarification to confirm a shoulder is still the arm?

You read about the recent Appellate Court, Workers’ Compensation Division ruling which indicated injuries to the “shoulder” cannot be compensated as being part of the “arm” and are now, by law, a part of the “body as a whole.” To recap—in Will County Forest Preserve District v. IWCC, (No. 3-11-0077WC, issued February 17, 2012), the Illinois Appellate Court, Workers’ Compensation Division was faced with a claimant who suffered an injury to his shoulder. He underwent a shoulder injury with uneventful surgery. He returned to work to work full duty. There was no dispute claimant already received 15% LOU of the same arm in a prior settlement.

If you know Illinois WC law, awards and settlements under Section 8(e) of our IL WC Act provide for a “credit” to the employer for a second, third or successive injury from any prior settlement or award. So for example, in this claim, Petitioner would have to receive an award or settlement of 50% LOU of the arm to actually receive 35% PPD at present. To get the odd streak moving forward, a now-retired Arbitrator issued a PPD award for the shoulder/arm injury under a different section of our Act. He provided claimant 25% “body as a whole” under Section 8(d-2) of the Act for this shoulder injury. In so doing, the Arbitrator first awarded a ton of money in permanency for someone who was back to full work at the same rate of pay. The Arbitrator also noted there would be no statutory credit given to the employer for the prior settlement of 15% LOU of the same arm—Section 8(d-2) doesn’t have such a provision. The IWCC, Circuit Court and Appellate Court all affirmed.

We were advised at least one Arbitrator has announced his/her intention to apply this new “no-credit” concept for arm/shoulder injuries to leg/hip injuries.

It appears that ruling has spurred at least one lawmaker to mount an effort to take some action to keep common sense in a sometimes nonsensical system. Representative Dwight Kay (R) 112th District has filed a proposal to clarify. The synopsis as introduced amends the Workers' Compensation Act to provide that, in computing the compensation to be paid to an employee who, before the accident for which the employee claims compensation, had previously sustained an injury resulting in the payment of compensation for a percentage of partial disability, that percentage of partial disability shall be deducted from any award made for a subsequent injury to the same portion of the body as was involved in the prior injury for which compensation was paid; however, nothing in those provisions permits cumulative awards for compensation for partial disability to exceed 500 weeks, which shall constitute complete loss of use of the body as a whole.

Essentially, that provision appears to be an attempt to limit cumulative awards to the value of the total loss of the body—while it may not be the implementation of a credit for “man as a whole” awards, it does appear to read as a limitation which after multiple claims could effectively end PPD for a person who has received “man as a whole” awards up to 500 weeks.

It also provides that, for purposes of computing compensation in nonfatal cases, injuries to the shoulder shall be considered to be injuries to part of the arm and injuries to the hip shall be considered to be injuries to part of the leg and also provides that those amendatory changes are declarative of existing law and are not new enactments and that the legislation would be effective immediately.

We will have to wait and see if the legislation goes through although it could be rendered moot if the Illinois Supreme Court grants certiorari or the Appellate Court grants reported motion for rehearing pending in the Will County Forest Preserve District v. IWCC case and decides to revert back to the 100 years of case law they overturned with that decision. Until then, the confusion continues with any claim ripe for settlement or hearing where “shoulder” is mentioned in the medical notes.

We welcome your thoughts and comments. Please feel free to post them on our award-winning blog or you can LiveChat about it—information on LiveChat is on our website; see below. This article was researched and written by Shawn R. Biery, J.D., MSSC. You can email Shawn at sbiery@keefe-law.com.