2-22-16; Can We Use AOO/ICO as the Proper Analysis and Drop the "Traveling Employee" Concept; Kevin Boyle on Important IN Ruling; Is the IWCC Cutting Costs?!!!; IL WC PPP May Save You Millions
/Synopsis: Another Odd “Traveling Employee” Ruling—We Continue Criticism of the Confusing Concept.
Editor’s comment: In United Airlines v. IWCC, No. 1-15-1693WC, issued February 22, 2016,.the IWCC and IL reviewing courts had another back and forth about the “traveling employee” concept. We salute the IL WC Commission and courts for getting the ruling “right.” We caution our readers, students and others to remember out highest courts are always arguably ‘right’ because they set the law and we must respect their rulings. Perhaps the better way to analyze it is to indicate our feeling the IL and national business community will agree with this outcome but perhaps for different reasons. The reason we consider the ruling odd is the words “traveling employee” don’t appear in the IL WC Act or Rules. In contrast to our state, Florida and a few other states do have definitions of the words “traveling employee” and such definitions are used by their administrators and courts to openly and fairly implement the legal concept. Due to the lack of any legal definition in this state, almost any decision based on the term “traveling employee” is probably a political and not legal ruling. When we see the words “traveling employee” as the subject of IWCC and reviewing court rulings, we think of silly but comparable terms like “tumbling acrobat” or “drunken stevedore” and confirm there are no similar legal rules arising from these combination terms. Like the term “traveling employee” we assert if the IL WC Commission and Courts created a “tumbling acrobat” rule, it would also have no relevant legal definition or work comp meaning in our state.
Despite the unquestioned statutory absence of any definition of “traveling employee,” the IL Appellate Court framed their legal analysis as “The issue that we must decide is whether the claimant was a traveling employee when she injured her knee on the United flight from Denver to New York.” A layman’s answer to that simple question is easy—Claimant was unquestionably an airline employee and while flying in an airplane, she was clearly “traveling,” so why didn’t she get WC benefits? The inescapable response is their question and the whole “traveling employee” concept is, in our respectful view, logically and legally flawed. Instead of answering the question, the Court sort of analyzed the issue of what a traveling employee might or might not be but the unanimous opinion clearly reviews the accurate legal framework for all similar claims—AOO/ICO.
Arising Out Of and In the Course Of (or AOO/ICO) is the Accurate IL Legislative Analysis for Any “Traveling Employee” Claim—Please Stop Using the Political and Not Legal Term!
These terms—AOO and ICO are defined in our law. While a child might not immediately comprehend them, to veteran WC participants, they are generally easy to understand. We urge all jurists, administrators, attorneys, risk managers, claims adjusters and everyone else to adhere to them as the proper method to analyze this claim and all similar WC claims. In this claim, the Illinois Appellate Court ruled a flight attendant was not within the course and scope of her employment when she injured herself while traveling as an unpaid passenger going to work for the airline from a New York hub.
There is no dispute Claimant worked as a flight attendant for United Airlines. She lived in Boulder, Colorado, but she worked on United flights out of their hub in New York. In September 2011, she traveled from her home in Boulder, CO to the Denver International Airport. From there, she boarded a New York-bound United flight, traveling basically for free because she worked for the company. Although Claimant was not working on the flight, she wore her flight attendant uniform to the airport and on the plane so she could more easily bypass the TSA and other security stuff that tortures the rest of us while traveling. Once Claimant was on the plane, she went into the tiny airplane bathroom and changed into normal casual clothes.
On her way back to her seat in the airplane, Isern tripped and fell, injuring her knee. We are uncertain why that description of an accident would make it necessarily compensable but it appears the Arbitrator, IWCC and both reviewing courts didn’t question initial compensability of the occurrence.
IL WC Arbitrator David Kane ruled Claimant’s injury was compensable because she qualified as a "traveling employee." He ruled a "traveling employee" is a person whose work duty required her to travel “away from the employer's premises.” Again, in the case of a flight attendant, that definition in the context of this claim is nonsensical—she was in/on the “premises of the employer” or its airplane! The Arbitrator further ruled a “traveling employee” is mystically considered to be "in the course of" her employment from the time she left her Colorado home until she returned home, and any injury sustained by a traveling employee "arises out of" her employment if she is injured while engaging in conduct that was reasonable and foreseeable. Try to contemplate how much this wildly expanded WC coverage would affect the IL transportation industry.
The Illinois Workers' Compensation Commission panel, headed by Commissioner Stephen Mathis reversed Arbitrator Kane, finding Claimant did not qualify as a “traveling employee” under the legal standard established by the IL Supreme Court's 2013 decision in Venture-Newberg-Perini, Stone & Webster v. IWCC.
Claimant appealed, and Circuit Court Judge Roberto Lopez Cepero reversed the IL WC Commission’s ruling. Judge Lopez Cepero found the Supreme Court’s rule from Venture-Newberg-Perini was inapplicable to this Claimant because that landmark decision supposedly involved a worker on a “temporary assignment” and this Claimant was somehow a “permanent” United employee. If you follow the Judge’s thinking, all construction workers would be on “temporary assignments” and they would all magically lose their purported status as “traveling employees” for that reason. Whatever a “permanent worker” might be would be then entitled to the expanded “traveling employee” WC coverage.
In considering the ruling from Judge Lopez Cepero, this Appellate Court, Workers’ Comp panel unanimously ruled the denial in Venture-Newberg-Perini applied to this Claimant. You may recall the Venture-Newberg-Perini case involved a union pipefitter who took a work assignment at a site 200 miles away from his “permanent” residence because there supposedly was no pipefitter work available locally. Please note many pipefitters are similar to gypsies and travel to their well-paid work when/where they can locate it—some of them live out of campers or their cars. Either way, Claimant in that case was not required to take the job and could have refused the assignment if his local pipefitter union had a closer position available. Claimant and a co-worker decided to stay at the Lynwood Lodge, a motel 30 miles away from the job site. Claimant made all the arrangements for his stay on his own. While traveling from the Lodge but still many miles to the job site, the worker’s auto slipped on ice and crashed. He suffered serious injuries with over $1M in medical bills from the motor vehicle accident.
After a relatively shocking decision awarding benefits from the IL Appellate Court, WC Division, the IL Supreme Court reversed and found the accident was not compensable because the pipefitter took the job and he chose where to stay at his own cost, rather than drive the lengthy distance back and forth from his home. In short, our highest court ruled the pipefitter's accident wasn’t “in the course of” employment as it occurred during his unpaid commute. We assure our readers this reversal in Venture-Newberg-Perini probably saved thousands of Illinois jobs because hundreds of employers may have left our state due to the skyrocketing costs such expanded WC coverage might have caused. We point the same criticism at the rulings of Arbitrator Kane and Judge Lopez Cepero—if you don’t understand why/how the “traveling employee” concept would kill jobs in this state, send a reply.
In comparing that ruling to the United Airlines v. IWCC facts, the IL WC Appellate Court reasoned Claimant’s situation was not distinguishable from the worker's situation in Venture-Newberg-Perini. The unanimous ruling noted Claimant made the decision to live in Colorado, and United Airlines had no control over her choice. United also did not pay Claimant a penny for her time traveling from Colorado to New York and she had to make all the arrangements for the trip on her own. Therefore, this Court said, at the time she injured her knee, Claimant "was engaged in her regular commute from her chosen residence to the city where her job assignment was located."
It is our hope the entire IL WC matrix drops the “traveling employee” concept as challenging, confusing and a jobs-killer. The legal terms in our IL WC Act are “arising out of” and “in the course of” employment. Neither the Claimant in Venture-Newberg-Perini or this claim were “in the course of” employment. It is a lot easier for John Q. Public to understand that idea. If we were to simply follow the traditional precepts of AOO/ICO that we all generally understand, there would be no reason for Governor Rauner and his team to try to rein in the “traveling employee” concept with a legislative amendment he continues to press for in Springfield.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: AT&T Gets a Solid Outcome in an Indiana Work Comp/General Liability Decision with Analysis by Kevin Boyle, J.D., Our IN Legal Guru.
Editor’s comment: Can a subsidiary avoid worker’s compensation liability under the exclusive remedy provision when your parent company is as huge as AT&T? In Indiana, the answer is yes. See Hall v. Dallman Contractors, LLC, 2016 WL 412984 (Ind. Ct. App. Feb. 3, 2016).
In this claim, Employee Brenda Hall sued AT&T Services, Inc. among others for her serious arm injuries when she tripped and fell on her way into work in 2007. She tripped over a construction sign placed in a walkway adjacent to an ongoing construction project at an AT&T building. In 2009, the Indiana Worker’s Compensation Board issued a stipulated award to Hall for 29% PPI to her right arm. She filed her civil damages suit in state court with subsequent amendments adding AT&T and its subsidiaries as parties defendant.
AT&T Services, Inc. filed a summary judgment motion alleging Hall’s negligence claim was barred by the exclusive remedy provision under I.C. 22-3-2-6. The trial court granted summary judgment holding that Hall’s employers (AT&T Services, Inc. and Ameritech) were both subsidiaries of defendant AT&T Inc. Therefore, as joint employers of Hall, she was barred from suing them, since she already received worker’s compensation benefits from Ameritech.
The Indiana Court of Appeals affirmed. The Court of Appeals rejected Hall’s supporting cases decided before the 2000 statutory changes to the definition of an ‘employer’ under the Indiana Worker’s Compensation Act. The Court also noted the IN WC Act does not define “subsidiary.” However, under other Indiana statutes, subsidiary is defined as “a subsidiary of a resident domestic corporation “ which ‘means any other corporation of which a majority of the outstanding voting shares entitled to be cast are owned (directly or indirectly) by the resident domestic corporation.’
The Court noted that the designated evidence showed that Ameritech owned 8.15% of AT & T Services at the time of Hall's fall, which was clearly not a majority of the outstanding voting shares. Strangely, no further evidence was presented concerning the “complex corporate structure” involved, but the opinion containsa detailed flowchart to explain the complex corporate AT&T structure.
Either way, we feel IN employers have to be happy with the ruling that avoids a double-recovery for Claimant Hall.
Kevin Boyle, J.D. is our top IN GL/WC guru and he researched and wrote this article. He can be reached for further advice and counsel at kboyle@keefe-law.com.
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Synopsis: Is the IL WC Commission Continuing to Cut Costs and Unnecessary Expense?
Editor’s comment: We note the recent announcement from our IL work comp administrators indicating the Peoria satellite office is no longer going to be staffed on a full-time basis. We have always considered the concept of “satellite government offices” to be controversial and a waste of taxpayers’ money because most of the services provided, like printing and distributing IWCC forms is something almost anyone can do for themselves online.
Several years ago, we saw the Collinsville IWCC office appeared to have lost its full-time staffer but someone new might have again been added. We assume there will no longer be a full-time staff member at the IWCC’s Peoria office. We strongly suggest full-time staffers at both Rockford and Springfield be eliminated and/or given actual work to do. If cost-cutting is apace, we salute Chairperson Fratianni and General Counsel Ron Rascia. We hope the IWCC continues to carefully cut staff/costs/expenses wherever it can to save money in a state government that is over $100B in debt. The tax dollars they save all come from IL business.
We appreciate your thoughts and comments. Please post them on our award-winning blog.
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Synopsis: An Absolute No-Brainer—When Will Illinois Governments and Municipalities Get IL Work Comp Preferred Provider Programs to Cut Medical Costs and Save Taxpayers Millions?
Editor’s comment: We saw a national news source last week report Woodford County, outside Peoria was evaluating a WC Preferred Provider Program for their Injured Workers. In an effort to prevent doctor shopping by injured workers and tackle spiraling workers’ comp premiums, the County Board of Woodford County is mulling a Workers’ Comp Preferred Provider Program, according to The Woodford County Journal newspaper.
The Board was scheduled to vote on the proposal and, if approved, it would require injured county workers to seek care from physicians and facilities in the PPP network. Injured workers can refuse to see a doctor in the network, but it would count as one of their two choices of medical providers in Section 8(a-3) of the IL WC Act.
The Board noted besides giving the county more control over work-related medical treatment of injured workers, medical providers in their network would charge and accept lower medical reimbursements. In short, it is a win-win for this local government. The County Board also noted, all of the major medical facilities in the Woodford County area are members of the IL WC PPP network.
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The PPP would be administered at no cost to the County, according to the newspaper. They report Woodford County’s workers’ compensation insurance premiums have exploded to $324,000 in the current budget year from $107,000 in 2009 due to increasing claims costs and higher claims frequency, according to the report. If they want free legal claims audits with action plans on how to save millions and close claims, we hope they send us a reply.
We urge Governor Rauner and his IL State WC administration to also get locked in to a WC PPP for the same cost-saving reasons. As they pay over $100M in annual WC costs, a WC PPP could literally save billions over the years.
If your local government or business wants the best thoughts from the legal team at KCB&A on how to save WC claim costs, please also feel free to send a reply.
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Synopsis: Need WC Training? Learn from the KCB&A Experts about New WC Rules and Decisions from 2015 and Beyond .
Editor’s comment: In our view, training and expertise in new work comp developments is critically important for you to keep ahead of your competition in claims and risk management. We have culled out the important decisions and changes to law for the last year to add to our 2016-17 IL WC Law Textbook. We can present the most important of them for you and your adjusting/risk management staff in a complimentary onsite lunch and learn at your office. We can also “webinar” your remote workers who want to keep pace with the office staff. Let us know if you are interested in a lunch hour presentation that we assure you will be informative and entertaining.
Here is the outline created by John P. Campbell, J.D. and Nathan Bernard, J.D. for your consideration:
When is a Physical Problem Repetitive Trauma versus Repetitive Working?
Question: How Exactly Do You Tackle an IL WC Fraud Claim? IL Courts Play the Laurel and Hardy Game of “Who’s on First?”
IL WC Wage Differential Exposure Expanding based on Recent Appellate Court Ruling.
Defense/Respondent Contact with Treating Doctors Met with Shocking Penalty and Sanction from Circuit Court Judge.
Traveling Employee Expansion When Handling Work Equipment While at Home.
Medicare Set-Aside Process as SMART Act is Implemented.
Comparing How Impairment Ratings are Considered at the IWCC.
We can also do a half-day or whole day seminar to teach all the nuances of IL WC. Let us know is you have interest—all you have to do is send a reply.