4-23-12; Illinois Taxpayers May Lose Twice When Two State Employees Go For A Joyride

For a while there was a large billboard on Interstate 80 near the Indiana-Illinois border that stated something like, “Ill-Annoyed About Taxes.” The billboard contained one of the many writings in Illinois to speak loudly about how this state is unable to pay its bills and obligations. Illinois taxpayers are already heavily burdened with state debt insofar as we have to pay a near-10% sales tax for every single item bought in this state. Our Gov and legislators have raised our income taxes and tolls also. Well, hold onto your seatbelts Illinois taxpayers because our State just got hit with another big bill because of a joyride taken by two state employees. 

In the appellate ruling of Isom v. Barham, our Appellate Court outlined the new debt that is to be placed on Illinois taxpayers to pay both the workers’ compensation benefits of the negligent driver of a state-owned automobile and a $1 million dollar verdict for the wrongful death of a state-employed passenger in the same vehicle. 

In Isom, the widow of a state-employed prison-dietician brought suit after her husband died in a single car automobile accident. The evidence indicated the warden of an Illinois state prison had caused the accident. Ultimately both the warden and the dietician’s widow were awarded money from the taxpayers of Illinois because of the accident.

The warden got workers’ compensation benefits since it was determined he was acting in his official capacity and within the scope of his employment when he rammed a state-owned car into a tree while driving home after stopping at a bar following a political event. In addition, the dietician’s widow got a $1 million dollar verdict when the trial court ruled the workers’ compensation exclusivity provision in Section 5 of our WC Act did not bar the prison-dietician’s widow from suing her husband’s boss, the warden, in a tort action arising from the accident. 

The case arose when the prison warden used his state-owned car to take the state’s prison director to a political event.  After dropping off the director, he and the decedent went to a bar where the warden drank a couple of beers. After the warden and the decedent left the bar, the warden drove the state- owned car off the road and into a tree.  Sadly, the dietician, who was the passenger in the car, died of his injuries at the scene of the accident.

Based on their investigation, prosecutors charged the warden with reckless homicide and he was convicted and sentenced to four years in prison.  This conviction was later reversed on appeal based on the argument that there had been insufficient evidence to prove the warden was guilty beyond a reasonable doubt. 

In addition to the criminal charges, the decedent’s widow sued the warden for killing her husband.  During trial, the warden raised the Workers’ Compensation Act’s exclusivity provision as an affirmative defense. In asserting this defense, the warden’s attorney argued that the exclusivity provision of the Workers’ Compensation Act barred recovery because the decedent had been working within the scope of his employment when he died.  Despite the widow’s arguments that her husband had not been in the scope of his employment when he died, both sides agreed and stipulated that the warden had been within the scope of his employment at the time of the accident. 

The widow asked the trial court to rule as matter of law her husband was not within the scope of his employment as the prison dietician when he was riding in the car with the warden. Ultimately, both the trial court and the Appellate Court agreed with her argument and ruled her husband had been outside of the scope of his employment when he died. Of course, this ruling cleared the way for the widow to recover in her wrongful death case since she was no longer constrained from taking a smaller recovery by bringing a workers’ compensation case as a workers’ compensation widow. 

Everyone who is reading this blog undoubtedly knows Section 5 of the Workers’ Compensation Act operates to make workers’ compensation benefits the exclusive remedy for an injured employee who brings suit against a negligent co-employee. Ultimately, the trial court in Isom ruled as a matter of law Decedent had been outside the scope of his employment during the accident since Decedent accompanied the warden voluntarily and not as an obligation of his work. Other factors the court looked at to rule in favor of the widow included the fact the warden had not asked Decedent to accompany him to the fundraiser and because the warden, and not Decedent, was driving the car when the accident occurred. The Appellate Court agreed with this ruling and stated, “no reasonable person could conclude the decedent had been acting within the scope of his employment as a dietician” when he died.

As we outline in the first article above, Decedent could have been treated as a “traveling employee” because he was an employee and clearly was “traveling” when this unfortunate event occurred. We consider this another example how the Illinois courts sometimes contradict themselves to use “both sides” of the law to insure hefty benefits are provided no matter what path things need to go.

One has to feel sorry for the widow of the prison dietician since she lost her husband in such a tragic accident. Although it is sad that a life was lost, the outcome of this case raises a legal paradox: could the warden be acting within the scope of employment so he could recover workers’ compensation benefits while his state-employed passenger was, at the same time, so clearly outside the scope of employment so his widow could benefit from the more than $1 million dollar verdict she would have lost if her husband had been inside the same employment scope as his warden-boss?

Whatever happens, in this state, you can only be sure the taxpayers are the losers. We appreciate your thoughts and comments. Please do not hesitate to post them on our award-winning blog.

This article was researched and written by Ellen Keefe-Garner, J.D., RN, BSN. She is happy to send you the website for the case above and can be reached at EMKeefe@keefe-law.com.

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.