TRAVELING EMPLOYEES IN ILLINOIS WORKERS' COMPENSATION PRESENTED BY: RICH LENKOV & EDWARD JORDAN, BRYCE DOWNEY & LENKOV LLC

Transcription

1 TRAVELING EMPLOYEES IN ILLINOIS WORKERS' COMPENSATION PRESENTED BY: RICH LENKOV & EDWARD JORDAN, BRYCE DOWNEY & LENKOV LLC 1

2 Rich Lenkov Bryce Downey & Lenkov (312) (Direct) (312) (Cell) Edward A. Jordan Bryce Downey & Lenkov (312) (Direct) (630) (Cell) 2

3 DEFINITION Employee who is required to travel away from his or her employer s premises to perform their job Travel needs to be an essential element of employment How does travel apply to a Workers Compensation Claim? Deals with the arising out of and in the course of employment analysis of the claim If Petitioner is found to be a traveling employee it expands coverage for injuries 3

4 SOURCE Not mentioned in the Act Created by case law Original intent-an employee that was required to travel was given expanded workers compensation coverage for injuries sustained in the performance of reasonable services for their employer 4

5 COVERAGE Expanded coverage for some injuries not typically covered Coming and going to work Injuries in recreational activities Falls outside of work Injuries sustained doing personal activities 5

6 COVERAGE Determination of compensability is different than other employees Not all injuries to traveling employees are compensable Still must prove injury arose out of and in the course of his or her employment How? 2-Part Test: 1. Reasonableness of the conduct he or she was engaged in at the time of the injury; and 2. Whether conduct employee was engaged in at time of injury might have been anticipated or foreseen by employer 6

7 CASE LAW EXAMPLES 1. Insulated Panel Co. v. Industrial Commission, (2nd Dist., 2001) Business trip to Hawaii Sightseeing trip with other employees Petitioner stepped on rock and slipped and fell Compensable? Yes 7

8 2. Bagcraft Corp. v. Industrial Commission (3 rd Dist., 1998) Employee on business trip Employer provides options for recreational activities for their employees Petitioner rents ATV Injured during ATV ride on the trip Compensable? Yes-Petitioner was a traveling employee and it was reasonable and foreseeable that Petitioner would rent ATV 8

9 COMING AND GOING TO WORK Generally not compensable But: traveling employee-likely compensable Covered for injuries sustained once they leave their home until time they return home Fall at home on way to car Lifting bags or work items into car before start of travel Automobile accident going to work or home from work But traveling employee must be coming or going to a work-related event to be covered 9

10 COMING AND GOING TO WORK Other considerations: Employer can expand workers compensation coverage if they provide transportation for employees If an employee is on call 24 hours per day (police officer, firefighter, etc.), injuries sustained on travel to and from work are compensable 10

11 SPECIAL MISSION Definition: Trip or travel by employee at the direction of his or her employer Can expand coverage for injuries for employees who are not usually required to travel If an employee is on a special mission at direction of employer, injuries sustained during the reasonable performance of his or her duties are compensable 11

12 RECENT CASE LAW Venture-Newberg Prini Stone & Webster v. IWCC (4 th Dist., 2012) Respondent sought out pipefitters to work at its Cordova plant Petitioner accepted a position at the plant through his union in Springfield Petitioner wasn t hired to be a permanent employee of Respondent. He was to be laid off after the work was completed Petitioner not required by Respondent to live nearby, but his house was over 200 miles from the plant Petitioner got a hotel room near the plant. Respondent did not provide lodging or reimbursement for travel 12

13 Venture-Newberg Prini Stone & Webster v. IWCC (4th Dist., 2012) After working for one day at the plant, Petitioner was traveling from motel to work and was injured in a motor vehicle accident Arbitrator denied compensation Workers Compensation Commission reversed Arbitrator and awarded Petitioner benefits Respondent appealed and Circuit Court reversed Workers Compensation Commission and denied claim Petitioner appealed and Appellate Court awarded benefits to Petitioner 13

14 Venture-Newberg Prini Stone & Webster v. IWCC (4th Dist., 2012) Appellate Court found Petitioner to be a traveling employee One who is required to travel away from employer s premises to perform job Noted that Petitioner was assigned to work 200 miles from home Where he worked wasn t the premises of his employer Therefore, as a traveling employee, Petitioner had coverage for injuries traveling to and from work Dissent Petitioner was assigned to work at a specific job site and the assigned location becomes the employer s premises, so Petitioner wasn t a traveling employee 14

15 PRACTICAL IMPLICATIONS Expands who might be considered a traveling employee If an employee is hired out of a union hall and doesn t work on employer s premises, are they all considered traveling employees? Are all temporary workers who don t work at employer s premises now traveling employees and covered for all travel to and from work? Are all construction workers traveling employees because they work at different job sites? 15

16 Stanislawa Mlynarczyk v. IWCC (3 rd Dist. 2013) Accident Date: 12/5/07 Petitioner is a 60 year old janitorial worker She fell on ice and snow in her home driveway and fractured her left arm Petitioner s husband was a driver for Respondent Petitioner completed cleaning assignments and had gone home for a meal Time at home was unpaid Petitioner was going to meet another cleaning crew for an evening assignment 16

17 Arbitrator found Petitioner to be a traveling employee and awarded benefits Workers Compensation Commission reverses Arbitrator Found that Petitioner did not leave her own property or enter the vehicle Even if Petitioner were a traveling employee, the accident did not arise out of her employment Appealed to Circuit Court-Affirmed IWCC and denied benefits 17

18 Illinois Appellate Court reversed and reinstated benefits Found Petitioner did not work at a fixed job site Therefore, Petitioner was a traveling employee Fall at home while leaving her home to get to the car was reasonable and foreseeable Therefore, injury was compensable under Workers Compensation Act 18

19 IMPLICATIONS Like Venture-Newberg, this case expands who might be considered a traveling employee Petitioner was required to travel to different locations for her job and didn t work at one fixed location Appears Courts will focus on whether Petitioner works on the employer s premises. If not, then traveling employee 19

20 PRACTICE TIPS: Quick investigation on the when, where and why of the accident When-what time of the work day did the accident happen? Where-location of accident. Was it on employer s premises? Why-what was the employee doing at the time of the accident and why were they injured? Get recorded statement of Petitioner Pin them down to a version of the accident Talk with employer to verify Petitioner s alleged accident Make sure employer knew of travel Determine how much Petitioner travels as part of job Determine if Petitioner was required to travel by his or her employer 20

21 PRACTICE TIPS: If Petitioner was required to travel or regularly travels as part of their position, most claims are compensable As long as Petitioner was doing something reasonable and foreseeable at time of injury and was traveling, the IWCC will likely award benefits Quick determination is needed due to exposure for penalties for non-payment of TTD and medical expenses 21

22 TRAVELING EMPLOYEEE-HYPOTHETICAL CASE Petitioner works for employer as a regional manager She travels 60-70% of her time at work She travels for work on a daily basis When traveling to other locations, she uses her own automobile and is reimbursed for mileage On accident date, Petitioner is scheduled to leave work to drive to another town for a meeting 22

23 HYPOTHETICAL CASE: Petitioner goes out to warm up her car She plans to go back into the office and then back to her car to start her drive As she is exiting her car after warming it up, she slips and falls on ice Compensable? Is she traveling? Is Petitioner a traveling employee? 23

24 HYPOTHETICAL CASE: Yes, injury was found compensable Petitioner was found to be a traveling employee Leaving the office to warm up her car was considered to be a part of her travel It was reasonable and foreseeable she would warm up her car and fall on ice Do you agree? See: Northern Illinois Special Recreation Association v. IWCC, (1 st Dist. 2013) 24

25 PARKING LOT INJURIES Like traveling employee law, injuries in parking lots can expand the typical arising out of and in the course of determination Look to the relationship between the parking lot and employment Does the employer in some way provide the parking facility where the injury occurred? Does the employer direct or control where employees park? If the injury occurs in a company owned and maintained lot, typically compensable Falls on potholes, cracks in lot, snow or ice, water or other liquid Petitioner must still prove an increased risk Typically must prove some defect or dangerous condition caused the injury 25

26 PARKING LOT INJURIES Determine whether employer maintains and provides the parking lot for its employees use If yes-typically compensable and parking lot becomes part of premises If no-does employer direct or control where employees park? More control by an employer where employees can park the more likely case is compensable Limited choice of employee where to park means a greater increased risk than the general public If employee lot is provided and employee choses not to park in the lot Not compensable If employees park in a public lot, does employer own, control or maintain the lot? 26

27 RECENT PARKING LOT CASE LAW Pett v. Lake County (Illinois Workers Compensation Commission, 2013) Correctional officer parked in employee lot Petitioner was rushing to get to a roll call To get to building entrance, he had to cross a driveway used exclusively for county vehicles While crossing the driveway, he tripped on a raised portion of the curb 27

28 TRAVELING EMPLOYEES Pett v. Lake County (Illinois Workers Compensation Commission, 2013) Case found compensable General public must traverse curbs But, employee who must take a particular route where public would not traverse faces an increased risk In this case, Petitioner went from employee parking lot to employee entrance over an area not traversed by general public 28

29 TRAVELING EMPLOYEES PARKING LOT INJURIES Practice Tips: Determine where accident happened Find out what Petitioner was doing at time of accident Traveling? What type of parking lot? Employer owned or maintained? Does employer tell employees where to park? What caused fall? If employer provides parking for employees, make sure it is maintained, inspected and cleaned regularly 29

30 OUR NEXT WEBINAR Defending Repetitive Trauma in Illinois Workers Compensation 9/19/13 10:00 11:00 AM For more information and to register, click here Click here to download a copy of our 8/13 Illinois Workers Compensation Newsletter 30

31 Questions? 31

32 Rich Lenkov Bryce Downey & Lenkov (312) (Direct) (312) (Cell) Edward Jordan Bryce Downey & Lenkov (312) (Direct) (630) (Cell) 32