April 2026; Disputed Work-Related Death of "Traveler" Reviewed; AI and Workers Comp and more
/Synopsis: Illinois WC Appellate Solid Ruling on Disputed Work-Related Death of “Traveler” Leaves Us Guessing… Subway v. IL WC Commission.
Editor’s comment: First, the term “traveling employee” isn’t defined anywhere in the IL WC Act or Rules. The IWCC and courts can interpret it, as they feel it best. Typically, the lack of statutory direction means we are going to see unexpected outcomes related to indefinable “travelers” when such cases reach our usually liberal IL WC reviewing court. Welcome to the People’s Republic of Illinois, as my old friend would say. This ruling is less than liberal and is crystal clear to your editor.
Does the Traveling Employee Concept bring global coverage of anything an Illinois Worker does outside the “office?”
Please note lots and lots of workers no longer work full-time in an office—there are now “remote” workers and “hybrid” workers, whatever that means. As I have advised everyone in the IL WC matrix who will listen, if you provide “global coverage” of any event to make it covered under WC, you no longer need lawyers, whether they be hearing officers or attorneys on both sides. Work comp becomes more like group health and short-term disability—fill out the form and you get the coverage offered. Yes, I agree IL WC without any defenses is going to be pricy.
The concept of “traveling employee” in most States of the United States relates to “duh” employees who are injured while on a “trip.” On the other side of that coin--if a claimant is an office worker and goes to a local pharmacy to buy a pack of gum, in my view, they aren’t a “traveler,” as they are doing normal life activities and need to be careful. The higher protections that I feel should be afforded to “traveling employees” means the person is in a foreign country or distant place that might have unexpected risks, language, police and dangers. There is nothing unexpected about going to buy gum at a local store—you don’t need to add the “traveling employee” concept to confuse everyone. If you ask me, stick to traditional work relation analysis.
In this ruling, Claimant is the heir of a decedent. She is seeking benefits for Decedent’s fatal “one-car” automobile accident while the Decedent was employed by respondent Subway, her employer. She was traveling from one small-town IL location to another, moving supplies. Nothing exciting about that trip.
Benefits were awarded and the employer appealed to the IL WC Appellate court. The Appellate Court, WC Division reversed the judgment of the circuit court and set aside the Commission’s decision and remanded this matter to the IWCC panel for findings on “reasonable and foreseeable.” As a veteran defense attorney, I am perplexed. Keep reading, please.
At the Arbitration hearing, evidence presented was
(1) A death certificate,
(2) Decedent’s medical and funeral bills,
(3) An expert opinion report from Dr. Ronald Henson,
(4) a certified Illinois State Police investigation report, and
(5) a certified coroner’s report.
As I indicated above, the hearing evidence also included a stipulation Decedent was driving from a Subway store in Gillespie, Illinois, to another Subway store in Litchfield, Illinois, to deliver restaurant supplies. That is about a ten-mile trip on wide-open IL state roads and would be expected to take about 10 mins.
For reasons I don’t understand and completely disagree with, the record reflects the arbitrator and counsel for the employer agreed decedent was to be considered a “traveling employee” for purposes of determining this claim for benefits under the IL WC Act. From my perspective as a critic of IL WC law, there isn’t anything unusual or dangerous to drive that far on the roads that were used. I strongly criticize the decision to stipulate to “traveling employee.”
The evidence presented showed that during the trip, the decedent was involved in a severe “one-car” collision, in which her vehicle slammed into the rear of a stopped truck and trailer, causing her passing. The term “one-car” collision is a technical term used to cover the fact only one vehicle was moving.
With respect to the deceased and family, Decedent didn’t survive the impact. From my reading of the Appellate Court ruling, there were no skid marks and no evasive maneuvers demonstrated by braking marks. While we should feel remorse for the loss of this worker to her friends and family, the event as described could have readily killed the truck driver and, if Decedent was driving by a schoolyard or church, this one-vehicle event could have been calamitous.
Emergency room records contain a nurse’s note that “no attempt to stop was made” and a notation of “distraction injury.” A certified Illinois State Police investigative report stated that a firefighter at the scene collected a cell phone from the decedent’s vehicle and told the investigating officer it was playing a video when he picked it up.
The accident report noted cell phone use, no use of a safety belt, speeding, and failure to reduce speed to avoid a crash. A toxicology analysis in the Montgomery County coroner’s report showed cardiac blood testing was positive for lots of different types/levels of marijuana.
This isn’t in the Appellate Court’s ruling but please also note from Secretary of State Alexi Giannoulis website: Distracted Driving Rules in Illinois--Illinois law prohibits the use of electronic communication devices to write, send, or read text messages, emails, or other electronic communications while driving. In 2024, legislation went into effect that also made it illegal to use teleconferencing apps, watch videos, or access social media sites while driving. Hands-free devices or Bluetooth technology is allowed for persons aged 19 and older. But even using hands-free technology is considered a distraction while driving and can be dangerous. If you must make a phone call, even with hands-free technology, it is recommended that you pull off to the side of the road before making the call. The only time Illinois drivers can use a cellphone that is not hands-free is:
To report an emergency situation.
While parked on the shoulder of a roadway.
While stopped due to normal traffic being obstructed and the vehicle is in neutral or park.
Drivers who are in a crash resulting from distracted driving may face criminal penalties and incarceration.
Dr. Ronald Henson, a consultant with Beran Consulting, Lab Works, and Media Services Inc., and an expert in drug and alcohol toxicology, physiology, and pharmacology, reviewed the police accident report, the County coroner’s preliminary death report, and the toxicology report. His report noted his concerns about the science, measurements and use of marijuana by decedent. He did not opine THC, the active drug in marijuana wasn’t present in Decedent.
Please note in Illinois WC, Section 11 covers the situation of a worker using marijuana prior to injury. The use of marijuana in the workplace is governed by the Cannabis Regulation and Tax Act, which allows employers to enforce drug-free workplace policies and conduct drug tests. The IL WC Act uses a "good faith belief" standard for impairment, meaning employers can treat an employee as impaired if they display specific symptoms that reduce job performance. In short, when a worker tests positive for cannabis after a workplace accident, it creates a rebuttable presumption that their intoxication caused the accident, making it the burden of proof for the employee to show that their cannabis use did not cause the injury.
On this evidence, the arbitrator found that the decedent’s death occurred due to an accident that occurred during the course of her employment and awarded the claimant a weekly death benefit as well as medical and funeral expense benefits. There is no question the value of the death benefit could exceed $1,000,000. In the analysis, the arbitrator did not specifically discuss decedent’s status as a “traveling employee,” rather the decision concluded that claimant’s entitlement to benefits depended more generally on the question of whether the decedent removed herself from the protections of the Act by committing any actions “intentionally, with knowledge that they were likely to result in serious injury, or with a wanton disregard of the probable consequences.”
The arbitrator specifically concluded that the evidence of decedent’s possible “speeding, distraction by use of a cell phone while driving and/or being under the influence of marijuana” did not support denial. I am mildly surprised to report the Arbitrator doesn’t appear to mention the rebuttable presumption that intoxication caused the accident.
The employer appealed the arbitrator’s decision to the Commission, contending in part that the arbitrator applied the incorrect legal test for traveling employees under the Act. The Commission affirmed and adopted the arbitrator’s decision in its entirety. It doesn’t appear they considered or ruled on the rebuttable presumption either. The employer then appealed the Commission’s decision. The circuit court confirmed the Commission’s decision, and this appeal followed.
On appeal, the employer contended the Commission erred by adopting the arbitrator’s decision, which did not utilize the law applicable to traveling employees. The Appellate Court, WC Division found the Commission’s decision was erroneous in what I consider an unusual fashion.
The reviewing court properly ruled an employee’s injury is typically compensable under the Act only if it “aris[es] out of” and “in the course of” her employment. They found the employee bears the burden of proving each of these elements by a preponderance of the evidence. An injury occurs in the course of the employment when it is sustained while a claimant is at work or while she performs reasonable activities in conjunction with her employment. An injury arises out of one’s employment if it originates from a risk connected with, or incidental to, the employment, so as to create a causal connection between the employment and the accidental injury. The question whether a claimant’s injury arose out of her employment is typically a question of fact to be resolved by the Commission, whose finding will not be disturbed by the reviewing courts unless it is against the manifest weight of the evidence.
However, they found a “traveling employee” is one whose work required her to travel away from her employer’s office. The determination whether an injury to a traveling employee arises out of and in the course of her employment is governed by different rules than the rules applicable to other employees. A traveling employee is deemed to be in the course of her employment from the time that she leaves home until she returns. An injury sustained by a traveling employee arises out of her employment if she was injured while engaging in conduct that was reasonable and foreseeable, i.e., conduct that “might normally be anticipated or foreseen by the employer.” Whether an employee was injured while engaging in conduct that was reasonable and foreseeable to the employer is a question of fact to be resolved by the Commission. The reviewing court will typically confirm the Commission’s determination on this question unless it is against the manifest weight of the evidence. However, “[w]hether a claimant must prove certain elements to establish a compensable claim is purely a question of law and it is therefore reviewed de novo.” And, to determine whether an incorrect legal standard was applied requires a reviewing court to first determine the correct legal standard, which is also a question of law that our reviewing court would review de novo.
The unanimous ruling by the IL WC Appellate Court found evidence included a stipulation decedent was driving from one Subway store to another Subway store to deliver restaurant supplies at the time of the incident. As such, the arbitrator and counsel for the employer agreed that the decedent was to be considered a “traveling employee” for purposes of determining this claim for benefits under the IL WC Act. And the arbitrator and the Commission were obligated to analyze the claim for benefits in this matter under the applicable “reasonable and foreseeable” legal test outlined above, a request that was specifically made by Subway in the statement of exceptions to the arbitrator’s decision it filed with the Commission below.
The record was clear that here the Commission “affirmed and adopted” the decision of the arbitrator in full and without further analysis. As noted by the Appellate Court, the arbitrator’s decision itself made no reference to nor any attempt to apply the “reasonable and foreseeable” test applicable to traveling employees. Rather, the arbitrator’s decision, adopted by the Commission, analyzed the issue by considering whether decedent committed actions “intentionally, with knowledge that they were likely to result in serious injury, or with a wanton disregard of the probable consequences.”
As I outline above, Decedent was almost certainly breaking several laws. She was stoned from marijuana use, speeding and subject to criminal penalties for watching her cell phone while driving. I again point out and do so sadly, she was a potentially lethal danger to everyone around her.
In summary, the IL Appellate Court, WC Division found the matter must be remanded to the Commission for a proper analysis under the correct “reasonable and foreseeable” legal test for traveling employees. I feel the Commission has to openly consider the facts above.
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Synopsis: Is workers’ comp ready for AI in the workplace? What are we going to do with all these humans???
Editor’s comment: AI feels like a tsunami to me. It is going to keep coming at us whether we like it or don’t. Hybrid workplaces are blurring responsibility across employers and tech providers.
My law partner confirmed we have the ability to put a stack of medical records into a scanner and AI will review, digest and summarize the stack in minutes/seconds!!
As labor shortages and skills gaps increase across industries, businesses are increasingly turning to artificial intelligence not just to boost productivity, but to fill workforce gaps. What began as a tool for efficiency is quickly becoming a structural solution to hiring constraints, and risk and claims specialists warn the shift is already reshaping workplace risk in ways that could significantly alter the future of workers’ compensation.
As of early 2026, roughly half of US employees now use AI in some capacity at work, with 28% using it at least weekly and 13% using it daily, according to Gallup research. While you would think it would have the opposite effect, among US firms deploying AI, 38% report increasing headcount compared to 23% reducing it.
In sectors such as manufacturing, logistics, and construction, automation and AI-enabled systems are stepping in to manage repetitive, physically demanding, or high-risk tasks. In office environments, generative AI tools are augmenting administrative, customer service, and analytical functions, reducing reliance on scarce talent and allowing existing employees to focus on higher-value work.
AI risks in the workplace
At the same time, so-called “physical AI”, including autonomous systems, robotics, and smart machinery, are performing more and more tasks. This evolution is shifting workplace exposure away from traditional human-driven incidents toward risks tied to system failures, software errors, and machine downtime.
AI-powered systems can also reduce accidents. Computer vision tools and predictive analytics are already being deployed to identify hazards before incidents occur, enabling earlier intervention and improving overall workplace safety.
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