Illinois Appellate Court Revisits the issues of Traveling Employees and Increased Risk

A recent Illinois appellate decision, Kenaga v. Village of Hoffman Estates, 2017 IL App (1st) 161859WC-U, is interesting as it not only touches on a hot-button topic in the Workers’ Compensation field, but also for the analysis of the various courts involved.

The claimant was a police officer for 24 years. As part of his duties, he was required to testify at the courthouse on his day off. He was compensated for his time in court, but not for the time spent traveling to and from the courthouse. He used his personal vehicle to get to the courthouse and parked in the municipal garage that was reserved for law enforcement officers. After appearing in court, the claimant descended a flight of stairs in the parking garage and missed a step. As a result, he grabbed the hand rail and felt an immediate pain in his right arm. He found to have suffered a complete tear of the distal bicep tendon.

An issue in this particular case was whether the claimant was a traveling employee. In Illinois, an employee is considered a traveling employee if his job duties require travel away from the employer’s premises. According to the decision in *this* case, if the petitioner is considered a traveling employee, then any act the employee is directed to perform by the employer, any action the employee has a common-law duty to perform, and any act that the employee can reasonably be expected to perform are all compensable. The Arbitrator concluded that the claimant fell into this classification, both in terms of his ordinary duties and the specific tasks that he was performing for the respondent at the time of the accident. The case was appealed to the Commission, who reversed, finding that the fall down the stairs was the result of a neutral risk and there was no evidence of a defect. The Commission did not address whether the claimant was a traveling employee. The Circuit Court affirmed the decision of the Commission, applying a similar analysis.

The Appellate Court reversed the Commission and Circuit Court decisions. It noted that the undisputed facts established that the claimant qualified as a traveling employee at the time of the injury. It first noted the general rule that an employee traveling to or from work is generally not within the scope of employment. However, it stated that an exception exists where an employer causes (or requires) its employee to travel away from a regular work place. The duties of a police officer, particularly within these facts, fall under this exception. As such, it found that his conduct was both reasonable and foreseeable to the respondent, stating that “we have little trouble concluding that traversing a flight of stairs between the place the claimant was performing his work-related duties and the place designated for him to park while performing those duties was both reasonable and foreseeable. The case was remanded to the Commission for further proceedings to determine what benefits the claimant was entitled.

This case is interesting for a couple of reasons. Initially, there were multiple layers that reviewed these facts (Arbitrator, 3 Commissioners, Circuit Court Judge, and 5 Appellate Court Justices) Of those that reviewed this case, 4 (3 members of the Commission and the Circuit Court Judge) did not mention nor analyze this issue under the traveling employee doctrine, while 6 opined that this claim clearly involved a traveling employee. The take away is that the traveling employee doctrine is a complex issue and even the experts are in disagreement as to whether to apply this standard, let alone the actual analysis of the standard.

As to the actual analysis, in this case, the Appellate Court explicitly stated that a risk analysis is not necessary under the traveling employee doctrine, a position that is squarely at odds with prior Illinois Appellate Court decisions on similar issues, namely the recent case of Nee v. Illinois Workers’ Compensation Comm’n, 2015 IL App (1st) 132609WC, where the necessity for a risk analysis was discussed at length.  As is evident here, this issue is nowhere near resolved, though it should be pointed out that Nee was a published decision, whereas the instant case was not and, thus, cannot be cited as precedent.

Stay with us as we continue to monitor the developments of the traveling employee doctrine on this blog.

Thanks to attorney Frank Johnston for providing the above summary and analysis.  Frank practices out of I&F’s Champaign office and is a member of the I&F Legislative Watch Group .

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