Final Exam Test Question from Adjunct WC Law Professors

Friday, June 14, 2013 | 0

Three cleaning people live in the same house in North Prospect, Ill. They are dressed and ready and going to work. They are not on the clock nor are they being paid to go to work. The hours spent traveling to and from work do not count toward Family Medical Leave Act, unemployment, seniority or anything else. They are paid the same hourly amount for the cleaning work they do, $10 per hour.
 
Annie Applebaum is leaving the house and is going to clean the building wholly owned and operated by her employer, Sandy’s Cleaning Service. Billy Buffington is going to clean your house — he will drop Annie off at the Sandy’s Cleaning Service headquarters and then drive to your home. Clara Cowbell is going to start the day working with Annie at the corporate HQ and then travel to your home to help Billy finish things.
 
On the way out the door to get into the minivan, they all fall down. They didn’t know a sheet of ice had landed on North Prospect overnight. They all suffer fractured wrists in the fall-downs. They call for an ambulance and they are given top-notch medical care for their injuries. The respective cost of these three workers' compensation claims is $20,000 for medical care, $10,000 in lost time and if they were to receive workers' compensation benefits, their impairment ratings would provide $20,000 in permanency.
 
All right, students. Under current Illinois workers' compensation law, which of the three cleaners would get benefits and why? Please carefully outline the source of law upon which you rely, be it the Illinois Workers' Compensation Act, Rules Governing Practice or applicable case law from our appellate courts or Supreme Court.
 
The answer is clear but mildly shocking to us because all three workers are going to be doing the same thing and all face the same risks and challenges in their jobs. We don’t think there are more than a handful of Illinois workers' compensation professionals including our knowledgeable arbitrators and commissioners who truly know the answer. Turns out, Annie Applebaum doesn’t get a dime and her claim would be denied. She is going to work at her employer’s building and therefore cannot attain what the Illinois workers' compensation system is now calling “traveling employee” status. She would fall under the traditional analysis Illinois used to use for all workers in the IL WC Act at 820 ILCS 305/1(d) which states (emphasis added):
 
To obtain compensation under this Act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment.
 
In short, Annie isn’t “in the course of” employ and wouldn’t get benefits. In contrast to Annie Applebaum, her coworker Billy Buffington is going to work at your house and that property isn’t owned by his employer, Sandy’s Cleaning Service. As such he is now a “traveling employee” because he is not going to work at the “premises of his employer.” As a traveling employee, we no longer care about the statutory workers' compensation requirement of being “in the course of” employ. Under this new theory, he is covered under workers' compensation for any reasonable and foreseeable action/risk that causes injury from the moment he closed the door on his residence until he completed his work day and returned home and again closed the door.
 
Following the stunning ruling on May 30, 2013, in Mylnarczyk v. IWCC, Claimant Buffington would be entitled to $50,000 in benefits “as a matter of law.” If the insurance carrier/third-party administrator were to deny such benefits, a claim for Section 19K and 19L penalties and Section 16 attorney’s fees should lie. Yes, Illinois workers' compensation law for a random grouping of workers has moved to a new, unprecedented, random and impossible-to-defend legal standard. Please also note employers won’t truly be able to investigate claims on your workers’ driveways and sidewalks. Employers and insurance carriers will now, for the first time, be responsible for such workers’ poor driving habits—injuries from an auto accident on the way to or from work for such a worker is now the employer’s responsibility.
 
As a solid student, you might want to add analysis and your concerns about the risk that led to the fall-down; the overnight sheet of ice that descended on North Prospect is clearly a “risk common to the public” and not an increased risk that faced these workers. Numerous rulings, including the 1989 decision in Caterpillar Tractor v. Industrial Commission which is the last workers' compensation fall-down ruling from our highest court found such a fall isn’t compensable. Well, in Mylnarczyk you may note our Appellate Court, Workers’ Compensation Division appears to have moved to another new legal concept that doesn’t appear in our legislation or rules — “street risk” or “risks of the street” to extend mandatory coverage of workers' compensation claims that weren’t previously covered. As veteran law professors, we have no idea what “street risk” might mean or where you can look it up other than the two Illinois workers' compensation cases that seek to haphazardly define it.
 
Okay, students—what about worker No. 3, Clara Cowbell? Does she get workers' compensation benefits when her initial assignment and the direction of her travels was a trip to the employer’s premises? Does she become a “traveling employee” due to the plans for later coming to your home to help Billy Buffington?

The answer to that question is no one knows. As it is our reasoned legal impression this whole analysis is judicial legislation or more precisely, legal concepts crafted by our judiciary from terms that don’t appear in the statute, they can do whatever they want with any given set of facts. With the greatest respect to the august members of our reviewing courts, the words “traveling employee” and “street risk” aren’t in our legislation. No one knows what to do with poor Clara. We don’t know when “traveling status” is obtained and whether you keep it for a day, a week or a month if you ever work away from the “premises of your employer.”

As professors, we feel Illinois business and insurance carriers should only owe for benefits our Legislature provided to workers. The guiding language is “arising out of” and “in the course of”—this has always required a worker to be on the clock and facing risks of—in this case, cleaning stuff. To our knowledge there is no state or country in the world that provides workers' compensation benefits to workers who aren’t working but are routinely going to and from work. Illinois didn’t provide such coverage for the first 104 years of our Illinois Workers' Compensation Act, but we assure you Illinois is doing so right now.
 
Please also notice the wild range of outcomes for three similarly situated workers with the same accidents and same injuries—one worker is certain to get benefits; one worker is certain to be denied benefits and one worker is a “no-one-knows.” We could see the workers being denied benefits for similar injuries filing constitutional challenges due to the lack of equal protection and due process being accorded them in this unusual new analysis of our laws. We ask the rhetorical question—why treat them different? What difference does and should it make who owns the premises where they are expected to work that day? Isn’t the employer and the employees who you hire to have your house cleaned a permitted entrant into your house? Doesn’t that make your home the “premises of the employer” during the term of your contract with the employer?
 
We feel this new “traveling employee” analysis, if it remains in place will cripple Illinois business and cause dramatic increases in workers' compensation costs due to wildly expanded coverage. All the savings from the workers' compensation legislative reforms in 2005 and 2011 will be lost—it is our view these two legal concepts will soon make Illinois the most expensive WC system of all 50 of the United States, by a wide margin. We also feel it is going to cause the concept of “opting-out” of the Illinois workers' compensation system to become more appealing to Illinois major employers and government bodies because they are not going to want to be responsible under our generous system for poor employee driving habits along with folks who fall on their own driveways and sidewalks and/or workers who get into “foreseeable” trouble away from their jobs on the way home. We also consider this concept will set up an Illinois workers' compensation fraud-festival because it will be virtually impossible to confirm or deny falls at someone’s home or adjoining streets and sidewalks. All a fraudulent claimant will have to do to get workers' compensation benefits is be sure to tell the doctors and employers they were injured in their driveway on the way to work, even if they were hurt playing softball with their friends.
 
Right now, we want all the Illinois third-party administrators, insurance carriers and self-insured employers in this state to understand, the old laws and rules are out, at least for the time being. Right now, the new analysis for “traveling employee” is Venture-Newburg Perini Stone & Webster v. IWCC and Mylnarczyk v. IWCC; one ruling is already before the Illinois Supreme Court and we seek your help to put your company or association name on an amicus brief in support of the great defense lawyers who are trying to have our Supreme Court reverse this ruling. We also hope Mylnarczyk is certified for further appeal and the Supreme Court takes it also.

Eugene Keefe is a founding partner for the Keefe, Anderson, Biery Associates workers' compensation defense law firm in Chicago. This column was reprinted with his permission from the firm's client newsletter.