Appellate Court Analyzes “Increased Risk” for Traveling Employee
The First District Appellate Court recently examined the compensability of an accident involving a traveling employee and evaluated whether the claimant was at a risk greater than that of the general public.
In Nee v. Illinois Workers’ Comp. Comm’n, 2015 IL App (1st) 132609WC, the claimant, a plumbing inspector for the City of Chicago, had to travel to approximately five to seven different sites each work day. The claimant had finished an inspection and was on his way to another when he tripped on a curb and fell, injuring his knee.
Arbitrator Kane found that the petitioner’s accident arose out of and in the course of his employment; the Illinois Workers’ Compensation Commission then unanimously reversed and the Circuit Court confirmed that reversal.
The First District Appellate Court found that the claimant’s act of stepping up on the curb was clearly reasonable and foreseeable; accordingly, the accident occurred in the course of his employment. Nevertheless, the Court decided that further analysis was necessary, stating, “However, the fact that a claimant is a traveling employee does not relieve him of the burden of proving that his injury arose out of his employment.”
The Court then listed the types of risk an employee may face: (1) risks that are distinctly associated with the employment: (2) risks that are personal to the employee; and (3) neutral risks that do not have any particular employment or personal characteristics. The Court found the petitioner’s risk in this instance to be neutral and noted that there was nothing unusual about this particular curb. Furthermore, the Court reiterated that in order for an accident involving a neutral risk to be compensable, the claimant must have been exposed to a greater risk than that of the general public.
The Court then decided that, as a traveling employee, the claimant was presumed to have been exposed to a greater degree of risk than that of the general public, citing the “street risk” doctrine. Based on this rationale, the Court determined that the petitioner’s accident arose out of his employment, in addition to deciding that the accident occurred in the course of his employment, and reversed the Circuit Court and Commission.
Separating an analysis of traveling employees into (1) a determination of whether the actions of employee at the time of the accident were “reasonable and foreseeable” for the issue of whether an accident was in the course of employment and then (2) a determination of whether the risk that an employee faces meets the threshold of arising out of their employment, is a *massive* step in the right direction for Illinois employers given that the Commission has historically avoided performing a separate risk analysis in these cases. Traveling employee cases often require a layered examination of the issues involved and Inman & Fitzgibbons will continue to keep you updated on the case law developments affecting traveling employees and, of course, don’t hesitate to contact us if you have questions or concerns on the topic!