Home away from Home now Equals Big Bucks in Ill. Workers' Comp

Thursday, December 13, 2012 | 0

We sadly announce another unprecedented, gut-wrenching and controversial appellate ruling for Illinois business and the whole defense industry. A problem with the wild expansion of the “traveling employee” concept is we don’t see any true “cure.” We also assure everyone that all trade workers, including plumbers, pipefitters, electricians and anyone else who arguably “travels,” has complete workers' comp coverage of everything they do on and off work during the pendency of any work assignment. We don’t think that wild expansion of the Illinois Workers' Compensation Act was warranted or makes any sense in this current economy.
 
In The Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission, 2012 IL App (4th) 110847WC (Dec. 6, 2012), claimant was a pipefitter. If you don’t know it, many pipefitters live something of a vagabond existence, happily traveling to wherever there is highly paid and specialized work. When they get there, they make a lot of money but they usually either live in trailers, RVs or low-cost but slightly more expensive motels/hotels during the work. When the work is over, they are laid off and move on to the next job in Illinois or wherever there is similar work.
 
In this claim, claimant came from a Springfield union hall. He was provided work on a temporary assignment in beautiful Cordova, Ill., which has the oldest drag strip in the United States, along with its nuclear power plant, where we assume claimant was on assignment. For those of you who don’t know, Cordova is near the Quad Cities, or about 180 miles north and west of Springfield. Claimant went up there and our research indicates he moved by his own choice and expense into the Lynnwood Lynks & Lodge in Thomson, Ill., 25 miles northeast of Cordova. For reasons we can’t tell, the appellate decision calls this facility the Lynwood “Resort.” There is no question claimant moved in and was staying at this location for the duration of his temporary assignment.
 
Claimant's accident occurred while traveling from this motel to the power plant to work as a pipefitter. He wasn’t on duty and wasn’t being paid a dime while driving or being driven to work. There is no indication claimant was performing any work in the vehicle Normal 0 MicrosoftInternetExplorer4 − he was “going to and coming from” work at the time of injury. The vehicle in which he was riding apparently skidded on ice on a public highway and he suffered injuries. The Commission’s ruling awarded 71+ weeks of temporary total disability, so claimant was off all work for over a year following the occurrence. The Springfield arbitrator assigned to the case denied the claim Normal 0 MicrosoftInternetExplorer4 − while we don’t have access to his written ruling, we feel confident he accurately found claimant wasn’t working at the time of injury, wasn’t on the clock and wasn’t afforded workers' comp benefits for those reasons. We strongly agree with him.
 
The Illinois Workers' Compensation Commission reversed in a split decision. The commission majority implemented what we have told our clients and readers is the magic term, “traveling employee,” to find any action claimant was performing starting with his trip to the Cordova area until his return to his home near Springfield was globally covered under our Illinois Workers' Compensation Act. In reversing the arbitrator, the commission asserted it was “reasonable and foreseeable” claimant would travel a direct route from his lodging to the plant Normal 0 MicrosoftInternetExplorer4 − we have literally no idea why that finding makes any legal or factual difference of any kind. We are certain it was similarly “reasonable and foreseeable” claimant would eat, sleep, bathe, breathe and comb his hair most days. So he and his compadres drove straight to work that day. Who cares? Take a look for the “hidden meaning” of these words below.
 
The Circuit Court reversed and reinstated the award of the arbitrator denying the claim. The matter moved to the Illinois Appellate Court, Workers’ Comp Division.
 
In a 3-2 split ruling, the Appellate Court reinstated the decision of the commission awarding substantial benefits. The Appellate majority did not include the member of the panel from the appellate district in which Springfield sits, Justice John Turner. We assume this is why the majority opinion was written by Justice Thomas Hoffman of Chicago. We assure our readers Justice Hoffman has a great intellect but has authored many controversial rulings both within the workers' comp arena and outside our issues. Justice Hoffman penned the ruling in Metropolitan Water Reclamation District of Greater Chicago v. IWCC where “street risk” first came into our lexicon to award benefits in an unexplained street fall-down for what we feel were risks common to the public.
 
Please remember, the terms “street risk” and “odd-lot total and permanent,” as well as the word “traveling” doesn’t appear and isn’t defined in the Illinois Workers’ Compensation Act or Rules Governing Practice. Like other extralegislative judicial devices or nomenclature in the Illinois workers' compensation field, once one moves to define terms like “street risk,” “odd-lot” and “traveling employee” outside the Act and Rules, you can literally do whatever you like because there are no rules, laws or “stars to guide” your trip. If one court ruling says something outside the legislation and rules, other court rulings can pick up and expand the concepts at their whim, because there are no boundaries on what one can conjure up if one becomes inclined to do so.
 
Therefore, relying on a 2010 ruling he wrote named Cox v. Illinois Workers' Compensation Commission, Justice Hoffman and this appellate majority ruled a “traveling employee” is any worker “who travels away from the employer’s premises.” Well, folks, that is just about everyone but office and factory workers working at their posts. All trades Normal 0 MicrosoftInternetExplorer4 − workers, lawyers, truck drivers, police officers, firefighters, garbage collectors, home health care workers Normal 0 MicrosoftInternetExplorer4 − basically everyone at some point in their work can reach the hallowed status of “traveling employee” because most of us work outside an office or fixed work site. Please also remember 99% of all staffing workers work “away from the employer’s premises.” Actually, a worker working from home is a “traveling employee” by that definition and injuries working in one’s home should be covered.
 
As we feel the Illinois courts are operating wholly outside the legislation and rules, we don’t know if Justice Hoffman and the majority feel “traveling employee” is a transient or permanent status Normal 0 MicrosoftInternetExplorer4 − by that we mean, are you only a traveling employee when you are on a “travel” or if you ever travel, do you attain and then remain a “traveling employee” as a workers’ comp status for your whole career? Only the shadow knows, folks because we don’t have any definition other than what our courts tell us.
 
Please note the status of “traveling employee” should provide global coverage of any and every injury from the minute the worker walks out of their door until they get to work, start getting paid, go off work and then walk back into their home. Justice Hoffman and the majority in Cox ruled “as a general rule, a traveling employee is held to be in the course of his employment from the time that he leaves home until he returns.” So even though you aren’t being paid and your employer has literally no control over what you are doing before and after being at work until you reach home (if you go home), the employer still “owns” full liability for your personal and non-work-related actions and decisions.
 
However, while it appears to us our reviewing courts are conjuring, calling up and creating this expanded body of workers' compensation coverage, there is another requirement. Citing a 1980 ruling named Howell Tractor v. Industrial Commission, the Appellate majority indicates “the test of whether a traveling employee's injury arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged at the time of his injury and whether that conduct might have been anticipated or foreseen by [the employer].” We want our readers and everyone to understand this “legal standard” means basically any action by a human that isn’t completely insane or wholly unexpected from the moment they leave their home to go to work until they return is now covered by workers’ comp in this state. We consider that to be a gigantic expansion of WC coverage Normal 0 MicrosoftInternetExplorer4 − the vast majority of workers, we have no true accident defense or limitation of “arising out of and in the course of” employment as the Act appears to require. Please remember between the Cox ruling and this current decision, the Illinois Legislature again restated the need for accidents to “arise out of and occur in the course of” employ Normal 0 MicrosoftInternetExplorer4 − perhaps this majority missed that restatement of the limits in our law or perhaps we again need the legislation to again be clarified.
 
What does this truly mean? Is there a bottom line? Well, if we are all magically “traveling employees” in this state and everything we might reasonably and foreseeably do is covered, falling on ice walking down your own stairs at home would now be covered by Illinois workers' compensation. The woman from New South Wales who had a light fixture strike her on the head during romance in a hotel room would be covered if she were from this state. A firefighter at a convention who was wrestling like a schoolboy and tore his shoulder got Illinois workers' compensation benefits as a “traveling employee.” A street cop turning to give directions was covered when he claimed he strained his back. Do we truly want to cover all activities of off-duty truck drivers in truck stops under Illinois workers' compensation? Global workers' comp coverage of any and all accidents, be they personal or professional is global coverage Normal 0 MicrosoftInternetExplorer4 − once we expand beyond the parameters of the legislation and rules, you lose any thresholds, limits or boundaries. Illinois appears to have gone that route to the detriment of us all.
 
Claimant in the Venture-Newberg-Perini Stone and Webster v. IWCC ruling was staying at a temporary home on a temporary assignment. He was traveling “to and from work,” which is a status that should never be covered under workers’ compensation Normal 0 MicrosoftInternetExplorer4 − you drive to work however you drive and you pick your route and take your own risks in doing so. Unless the Illinois Supreme Court takes and reverses this ruling, claimant has already been awarded over $70,000 in TTD for what we feel should be a non-work-related occurrence. He will probably receive several hundred thousand dollars more in workers' comp benefits that no state should award.
 
Skip the workers' comp legislative “hair-cuts” we were discussing last week. In our view, if we keep expanding workers' comp coverage in this fashion, we may move past California, Montana and Alaska to No. 1 in the whole country in workers' comp costs. Underwriting workers' comp risk in this state is going to be almost impossible to do. If you don’t think the folks at major Illinois employers like Caterpillar, Nestlé, Boeing, United Airlines and others are looking at what we are doing and shaking their heads in disgust and thinking of moving elsewhere, you aren’t paying attention.
 
As a final note, we have been brainstorming to try to find a “cure” or path out of this mess. One thought we had was to follow the trucking industry for “owner-operator” coverage. A union employer like this one might tell the workers they can’t start work unless and until they pay for their own WC coverage. We aren’t sure if there are any other paths out of this interesting predicament Normal 0 MicrosoftInternetExplorer4 − if you have any thoughts, please let us know.

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