For years, Illinois has had a frustrating and ever-enlarging umbrella of protection for Traveling Employees. The extension of workers compensation coverage has included not only a broader definition of what constitutes a traveling Employee, but an almost all inclusive embrace of activities considered to be ‘compensable.’
On December 19, 2013, the Illinois Supreme Court reversed an Appellate Court decision and reined in the Traveling Employee Doctrine. Venture-Newberg-Perini, et al v. IWCC. This is a decidedly good opinion for employers and will affect how we look at Traveling Employee cases. The primary point in the case was defining who/what is a ‘traveling employee.’
The general rule in Illinois is that injuries incurred going to or returning from work do not arise out of, nor do they occur in the course of, the employment. The concept has been that the trip to and from work is a product of and employee’s decision about where to live; a matter in which the employer has no interest.
An exception applies when the employment requires travel away from the employer’s premises. These ‘traveling employees’ are treated differently when considering whether an injury arises out of and occurs in the course of the employment. The different treatment has isolated 3 categories of acts that are compensable: (1) acts the employer instructs the employee to perform, (2) acts which the employee has a legal duty to perform while working, (3) acts which the employee might be reasonably expected to perform incident to his assigned duties. (emphasis supplied).
This latter category has proven to be the catalyst for expansion of compensability. The IWCC and courts have looked to find that an activity was “reasonable and foreseeable” by the employer.
In Venture-Newberg, petitioner took a temporary job at a plant some 200 miles from where he lived. Petitioner was a Union Pipefitter. He took the job because there was no work closer to home. He stayed in a motel some 30 miles from the job site. Petitioner testified that the employer wanted workers to be within an hour’s drive of the plant. The plant did not require workers to relocate. There was no reimbursement for travel expenses and no direction to workers about where to stay or what route to take to work.
Petitioner was seriously injured one morning in a vehicle incident en route from a motel to the plant.
The Arbitrator concluded that petitioner was not a traveling employee and that he failed to prove arising out of/in the course of.
The Commission determined that as a ‘practical matter’ petitioner’s course or method of travel was determined by the job. Petitioner was determined to be a ‘traveling employee’ and benefits were awarded. The Circuit Court reversed the decision and then the Appellate Court, relying on case law, found that petitioner was a ‘traveling employee’ entitled to workers compensation.
The Supreme Court honed in on the concept of personal choice. They determined that petitioner was no different than any other employee who drove to work on a daily basis. Petitioner took the job, which was temporary, at a plant 200 miles from home with full knowledge of the commute. The course or method of travel was not determined by the demands of the job. There was no reimbursement of travel expenses. Petitioner made the personal decision to accept the position with the additional travel and travel risks that it entailed.
What to take away from the case? Petitioner was not a Traveling Employee. Consider that if the Supreme Court had affirmed the Appellate Court, an employee who chose to relocate closer to a temporary job site could recover benefits if injured on the way to work but an employee who permanently resided close to the job site would not be entitled to benefits if injured on the way to work.
In a given fact situation, look to whether the employment actually
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