12-31-2024; Happy New Year!!!; New and Baffling "Traveling Employee" Appellate Ruling; Illinois' MInimum Wage Will Rise to $15 an hour and much more
/Synopsis: Happy New Year to You and All Friends of the Firm!!!
Editor’s comment: It is hard to believe 2024 is coming to a close but we keep on fighting the good fight for Illinois Employers, Insurance Carriers and Government Bodies in the Workers’ Compensation field. If you have IL WC defense files you need to close, please remember our motto—“The Only Good File Is A Closed File!!!” We close them faster than any other WC Defense firm.
Synopsis: The Illinois Appellate Court, WC Division issues a rather shocking “traveling employee” ruling that is challenging for us to fit into the IL WC matrix when we consider past precedent. Please note this is a multi-million dollar ruling that, to some extent, conflicts with prior rulings of the IL Supreme Court and the IL Appellate Court, WC Division. We are sure this decision isn’t an outlier—it is clearly becoming the law in this State. We are also sure this ruling dramatically expands work comp coverage and the cost of workers’ comp in Illinois.
Editor’s comment: Please also note the traditional and age-old concept of “traveling employee” is supposed to apply to workers who go to foreign countries or distant areas where there are challenging language barriers and customs that you and I might not be aware of. In other States, the concept wasn’t traditionally used for someone who works/drives to normal and ordinary jobs in an area they are familiar with. This Appellate Court, WC Division is greatly expanding that concept at what will be an enormous cost and high reserves for villages/towns and other Illinois employers.
I cannot countenance the logic of this baffling appellate ruling—there is no question Claimant was commuting to and from work and wasn’t actually doing any work when injured. He was not being paid for his time during travel. Numerous and longstanding Illinois appellate rulings and at least one Supreme Court ruling find that typical commuting to and from work doesn’t equate with WC coverage—in my view, the main rationale for such rulings was the workers weren’t being paid or supervised during the commute. Now, I feel no one will be able to tell when normal commuting equates with expensive workers comp coverage.
In light of this decision, one can only wonder if employers in this State can or should ban/bar workers from using motorcycles, scooters or even skateboards or roller blades for that matter, for travel to and from work, because of the increased possibility of serious WC claims.
Respondent Mechanical, Inc. appealed an order of the circuit court of Ogle County confirming a decision of the Illinois Workers’ Compensation Commission granting claimant Richard Boyden’s application for benefits under the Illinois Workers’ Compensation Act. The employer, Mechanical, Inc. asserted the IL WC Commission’s finding Claimant was not a traveling employee at the time he was injured.
The unanimous Appellate Court, WC Division majority affirmed. As they almost always do, they published a “non-published” decision. If you don’t know what this means, send a reply. We do not know if there are other appeals to follow and this article is based on the Appellate Court, WC Division’s current ruling.
Claimant was involved in a motor-vehicle accident en route from his home to the one of the employer’s various job sites.
Following a hearing, the Arbitrator issued a decision finding Claimant was a “traveling employee” at the time of the accident and sustained injuries arising out of and occurring in the course of his employment with Mechanical, Inc.; the employer was given proper notice of the accident; and claimant’s injuries were causally related to the accident. The Arbitrator awarded claimant over half a million in medical expenses, substantial temporary total disability (TTD) benefits and prospective medical treatment. I am sure Claimant is totally and permanently disabled—this makes the permanency well into six and possibly seven figures, depending on how long Claimant lives.
The IL WC Commission reversed and found the claim did not arise out of or occur in the course of employment. The Circuit Court flipped that ruling and found Claimant was a “traveler.” The Appellate Court, WC Division affirmed that ruling.
Please note the term “traveling employee” doesn’t appear in the IL WC Act or Rules—for that reason, if the IL WC Commission or our courts are going to judicially designate someone a “traveler,” you can completely make up any legal or factual concept you want because you are not limited by legislation or rules.
The following evidence was adduced at the arbitration hearing.
Claimant was employed by Mechanical, Inc. as a plumber and pipefitter for a year and change prior to the accident.
The only equipment he was required to bring to work was a pencil, tape measure, channel locks, and torpedo level.
Claimant worked at various work sites, as plumbers and pipefitters usually do.
Claimant worked for Mechanical, Inc. for about a year and a half to the day of the accident.
Claimant never reported to the employer’s shop or office; rather, he would drive directly to whichever job site he was assigned.
He travelled to work sites in his personal vehicle or whatever contrivance that might take him to a job site and choosing the route was up to him.
If he refused to go to a job site that he had been directed to report to, he would be laid off.
On May 8, 2018, Claimant was traveling to a job site but never arrived, as he was involved in a motor vehicle accident.
This was claimant’s first day on this particular job.
He was to report to work at a jobsite.
Claimant came over a hill and “saw headlights coming toward him.” The oncoming vehicle was in claimant’s lane, and it collided with him.
The driver of the other vehicle may have passed before the accident or may have lost control to then run off the road into Claimant’s vehicle and was killed.
Claimant was transported by helicopter to Mercy Hospital in Rockford.
Claimant suffered severe injuries.
Claimant identified job sites he had worked at for Mechanical over the years. A number of these locations involved multiple, noncontinuous work periods.
Claimant acknowledged that he was familiar with the roads he was traveling on.
Claimant admitted he was not compensated for his travel time or expenses
Claimant admitted he was not paid for his time until he reported to the job site.
Claimant was not transporting any tools or supplies with him.
Mechanical, Inc. did not direct claimant regarding where to live.
There were none of employer’s logos or other advertising on his vehicle.
The employer’s corporate safety director identified a provision in the Collective Bargaining Agreement that provided for “portal pay” for service employees “traveling from job to job on off time hours.” Claimant did not fall under this provision.
Mechanical, Inc. provided Claimant with tools and supplies he used at the job site.
Employer never told Claimant what kind of vehicle to operate or what route to take to a job site. We can safely say that Claimant could have driven a helicopter, scooter or bicycle to work—the employer didn’t care about how Claimant got to work, just that he showed up on time and was ready to go.
I would point out Claimant could have stayed at a hotel near a jobsite or pitched a tent to walk to work—the employer couldn’t have cared less where Claimant was other than showing up for work on time.
A supervisor opined traveling was not part of claimant’s job.
He also testified Claimant was not compensated for travel time to and from work.
Because Mechanical, Inc. did not consider claimant’s accident to be work related, it did not report the accident on the OSHA log.
Another supervisor agreed travel was “not an integral part of the work [claimant] performed for [employer].”
On cross-examination, he admitted Claimant did not work at the employer’s “premise or property.”
He did not “work at a property owned and operated by [employer].” Employer “controlled where claimant went day to day for those job sites.” A foreman would tell claimant “where and when to report each day.”
The Appellate Court cites the major ruling form the Illinois Supreme Court that denied benefits under facts very similar to these-- “The general rule is that an injury incurred by an employee in going to or returning from the place of employment does not arise out of or in the course of the employment and, hence, is not compensable.” Venture—Newberg-Perini, Stone & Weber v. Illinois Workers’ Compensation Comm’n, 2013 IL 115728.
This is because “the employee’s trip to and from work is the product of his own decision as to where he wants to live, a matter in which his employer ordinarily has no interest.” Id.
The Appellate Court, WC Division also said “We note that generally, ordinary commuters are not traveling employees because their travels are a consequence of their choice of where to live,” citing Venture—Newberg-Perini, Stone & Weber v. IWCC. Despite this citation, benefits were awarded under the facts summarized above. We find this to be a clear expansion of the “traveling employee” concept in this State.
In summary, we will have to wait and see where these liberal courts are going to “travel” (pardon the pun) As I have advised, Illinois is going to remain a “blue” State for the next generation and beyond. If you aren’t sure why, please send a reply.
Synopsis: The Illinois Minimum Wage Goes Up to $15 an hour at Midnight Tonight.
Editors comment: Please note this will change reserves and negotiations relating to IL wage loss differential claims—anyone with a full time job will get at least $15 an hour—we recommend you reconsider reserves on such claims. Send a reply if you need guidance.