Synopsis: Trying to Make Sense of Where To Draw the Line—Understanding The “Traveling Employee” Concept in Workers’ Comp.

 

Editor’s comment: To some extent, I feel the Petitioner’s Bar in Illinois and other states is always looking for a “gotcha” concept that renders any injury that can be in any way related to something to do with work as fully compensable. The closest concept to being a “gotcha” in work comp is the nebulous and ever-changing concept of the “traveling employee.” The concept is grounded in a sort of common sense—if your employer sends you to a strange and foreign place, let’s say Borneo, and you get injured from a risk in Borneo that is due to the strangeness and foreign-ness of that distant shore, you should be covered for it, even though that risk is from a common source, like eating breakfast. So if the food in Borneo makes you deathly ill, eating breakfast could be a work-related risk. Almost all risks to a “traveling employee” are work-related unless their actions are so far afield and unreasonable, they somehow lose that coverage to the Commission and Courts. Please always remember there is no definition or limitation of “traveling employee” in the IL WC Act. Whatever you do with the concept, you are making it up.

 

That said, when a worker “travels” or goes to places they are used to and visit regularly, that shouldn’t provide global “gotcha” coverage of all risks. In short, the “traveling employee” doctrine has been a political football in workers’ compensation law since WC legislation was first enacted in the U.S. in the early 1900s. Whether created by statute in some states or developed by common law decisions in IL, this odd doctrine sporadically increases the scope of an employer’s WC lia­bility and is an exception to the long-standing rule that injuries sustained while going to and coming from work are not compensable. The ratio­nale for the “coming and going” rule is an employee’s trip to and from work is the result of the employee’s personal decision about where to live, which is not a matter of strong con­cern for the employer.

 

While it appears the intent of the “traveling employee” doctrine is to cover employees who due to the nature of their employment traveled and stayed away from home overnight, the doctrine has expanded in some states to cover circumstances when the work takes an employee away from the primary work premises for varied reasons and for shorter durations. The doctrine is of par­ticular importance today because many jobs involve employee travel, not only as a part of the job, as with a traveling sales­man or over-the-road truck driver, but also between various company facilities and between job sites. The latter may involve employees hired out of a union hall for a specific job at a far-away location or home health-care workers who leave home, travel from patient to patient, and never truly have a “base of employment.” As I outline below, magically making all such workers into “traveling employees” can be very, very expensive.

 

Insurance carriers, TPA’s and employers have difficulty with the “trav­eling employee” doctrine because it not only expands the situations that will be con­sidered “in the course of” employment, but also may be ruled to dramatically lower accident compensability. While terminology varies from state to state, the “nontravel­ing employee” generally has to prove an injury “arose out of” the employment. This usually means an employee must prove that he or she faced a risk at the time of an accident greater than the risks faced by the general public and are “unique” to the workplace. This com­pensability standard, however, is almost missing for a worker who is termed a “traveling employee.” Most states require a traveling employee only to prove the risk leading to an accident was “reasonably foreseeable.” Other states adopt a continuous employ­ment doctrine for a traveling employee, which finds virtually any activity an employee undertakes while traveling to be compensable unless there is a clear deviation from expected work activity. In fact, this altered compensability standard in most states can equate to “gotcha” strict lia­bility unless a claimant is deemed to be on a purely personal deviation and away from any vestige of work. For the trav­eling employee, traditional compensabil­ity analysis is ended, and most every injury or disease that occurs while the travel contin­ues is deemed compensable.

While this reduced burden of compen­sability worked well for employees facing unusual risks while traveling to strange and foreign places, particularly those traveling away from their homes and offices on overnight trips, liberal expansion of the traveling employee doctrine to workers who have only incidental travel as part of their duties is challenging for employers, insurance carriers and TPA’s. As work has become more mobile, many jobs include at least some inci­dental travel throughout the course of a workday. As the traveling employee doc­trine is expanded to include more of these work settings, workers’ compensation might end up covering broad portions of the work­ing population even when there is little, if any, connection between an injury and the employment.

 

One example I always draw that I don’t feel creates a “traveling employee” is our great Illinois WC Arbitrators. Many of them are assigned to three different hearing sites, by rule. They go to the three hearing sites with great regularity and eat at the same restaurants and park in the same parking spaces. They do not face risks that anyone would feel unusual. If an Arbitrator were traveling from their home to one of their hearing sites and got into a one-car accident that would typically not be compensable other than for a “traveling employee,” I would be hard-pressed to feel an Arbitrator would be covered, as they aren’t traveling overnight or to a truly “foreign” place.

 

Three Illinois decisions provide insight into what constitutes unreasonable actions and resulted in denial for workers who argued they were “traveling employees.” In Howell Tractor & Equip. Co. v. Illinois Industrial Comm’n, issued in 1980, the Appellate Court held an employee’s conduct in walking or staggering back to a motel alone in an unfa­miliar town after drinking at a tavern con­stituted unreasonable personal action. In Humphrey v. Illinois Industrial Comm’n, issued in 1979, the Appellate Court upheld denial of compensation when an employee was injured while returning to his motel after partying on a work day. Finally, in U. S. Industries v. Illinois Industrial Comm’n., issued in 1968, an employee injured on a midnight pleasure drive in unfamiliar, mountainous terrain was held to be engaged in unreason­able activity and benefits were denied.

 

Dramatic Expansion of the “Traveling Employee” Doctrine is a Business Buster

 

Please understand the concept of global coverage of anything a human does isn’t what workers’ comp is for—WC insurance costs are virtually limitless, as there are no “caps” on some WC benefits, like lifetime medical care. If a lawyer or Arbitrator or truck driver is provided global coverage of any risk of injury or disease they encounter due to routine and ordinary travel that we all make as part of work or religion or education or any activity, you are wildly increasing workers’ comp coverage and costs. In some way, you have to keep the nexus between work and injury/illness to make sense of the WC coverage concept. In the IL Supreme Court’s famous ruling in a case called Venture-Newberg-Perini, et. als., we think they drew a line in the sand to confirm not all workers who are in movement reach the standard needed to become “traveling employees.”

 

We feel the defense team at KCB&A can help you understand how the IWCC and courts will draw that important line. If you have questions about a specific “traveling employee” claim, send a reply.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: Governor Pritzker Appoints Four to IL WC Advisory Board.

 

Editor’s comment: We hope they actually “advise” someone unlike prior boards that wear the blue ribbons and do little to nothing.

 

Mark Denzler will serve on the Workers’ Compensation Advisory Board. Mr. Denzler currently serves as the President and CEO of the Illinois Manufacturers’ Association representing nearly 4,000 facilities across the state. Prior to joining the IMA, he worked as a Public Affairs Specialist for State Farm Insurance and worked in the Illinois General Assembly. Denzler is a current member of the IL Workers’ Compensation Advisory Board, having been appointed by the two previous administrations. He earned his undergraduate degree from Illinois Wesleyan University and graduate degree from the University of Illinois-Springfield.

Karen Harris will serve on the Workers’ Compensation Advisory Board. Ms. Harris currently serves as Senior Vice President and General Counsel of the Illinois Health and Hospital Association, a trade association representing over 200 hospitals and 50 health systems. In addition, she is the current Executive Director of the Illinois Association of Healthcare Attorneys. Prior to joining IHA, Harris was a Partner in the Health Care Practice Group of Saul, Ewing, Arnstein & Lehr LLP. Additionally, she served as Regional General Counsel at Aetna U.S. Healthcare, Inc. Harris earned honors in 2018 as a Chicago Business Journal Women of Influence honoree and in 2017 as one of the most influential minority lawyers in Chicago by Crain’s Business Journal. Harris earned her Bachelor of Arts from Princeton University and Juris Doctor from Harvard Law School.

Mark Prince will serve on the Workers’ Compensation Advisory Board. Mr. Prince has been a self-employed attorney in Illinois for 31 years. He has spent his career representing southern Illinoisans who have been injured on the job or by the negligence of others. Previously, Prince served as President of the Illinois Trial Lawyers Association and is a current member of the Executive Committee. Prince has been awarded two Trial Lawyer Excellence Awards from the Chicago Verdict Reporter and has served on the Workers’ Compensation Advisory Board in the past. He earned his Bachelor of Science from Sangamon State University and a Juris Doctor from Southern Illinois University School of Law. 

 

Dave Weaver will serve on the Workers’ Compensation Advisory Board. Mr. Weaver currently serves as the Directing Business Representative of the District 9, International Association of Machinists and Aerospace Workers Union, and President of the Illinois State Council of Machinists. Previously, Weaver has worked as a Business Representative with District 9, International Association of Machinists and Aerospace Workers Union, until being appointed Assistant Business Director. In addition, Weaver served the AFL-CIO as Labor Liaison with United Way of Greater St. Louis, Illinois Division and as Illinois Vice-President. Weaver began his career as a Machinist as an Apprentice Mechanic and a Journeyman Mechanic in Belleville, Illinois.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.