Synopsis: If Illinois Employers Are Responsible under WC for "Traveling Employees," Can/Should They Supervise Them During Non-Work-Related Travel? How Much Do You Feel The Wildly Expanded WC Coverage Will Cost Us???

Editor's comment: As we have advised the IL WC System has newly expanded WC coverage for millions of workers who can be called "traveling employees" to cover risks, injuries and illnesses on the way to and from work and during breaks. We again emphasize a "traveling employee" doesn't have to be "traveling" to get WC coverage. Non-work-related injuries have unquestionably been swept into Illinois’ very generous workers comp and occupational disease coverage. This is going to cost Illinois employers billions once it becomes widely known and workers start to sign up and make claims for this new coverage. No state or country provides such expanded WC coverage for some of the reasons we outline below.

Allowing Motorcycle Use To and From Work for Traveling Employees Now Expands WC Risk/Costs

So here is another test question and fact situation--we have a short-haul truck driver who would qualify for "traveling employee" status, as an essential element of his work is traveling. There is an IL Appellate Court ruling that specifically finds such workers to be TE's or traveling employees. If you aren't sure, such workers are now covered when they leave their homes until they return. If he carelessly spills hot coffee on himself on the way to work at a Wendy's®, the employer would owe for medical care, lost time and any disfigurement or disability that might ensue.

Our concern is the driver mentioned above has an aching back. He is claiming it is due to driving in our trucks. This is what we characterize as a "repetitive working" claim. To defend such claims, we point out the truck seats are truly state of the art--they cost about $15,000 per seat to insure they are the most ergonomic and spine-friendly seats in the world. Our bio-engineers confirm you can't get a bad back or sore spine riding in such seats. Illinois Arbitrators will carefully weigh such evidence in hearings and make a solid call on whether the condition is or is not related to work.

What our truck driver also drives when he isn't in our super-truck-seat at work is his personal motorcycle. Everyone at the truck dock knows he drives a full-dress Harley® to and from work every day. Our expert physician indicates such a worker, at his age and girth, is almost certainly going to have spinal dysfunction from vibration, twisting and bouncing around on a motorcycle riding an hour to and from work every day. Motorcycles may be the least spine friendly means of personal transportation. Motorcycles are also one of the most dangerous conveyances on the planet; thousands of such drivers are injured and killed in statistical comparison to folks that drive cars and trucks.

As we told you in the first several paragraphs at the top of this article, it would appear the employer is now responsible for any problems or accidents this truck driver has riding his motorcycle while going to and from work. We don't see any current method to defend such a claim based on the four "traveling employee" Appellate Court rulings applicable to such facts. You don't and will never again need an Arbitrator or lawyers on either side to deal with such a claim--the money is owed for all WC benefits, as a matter of law, according to our Courts.

We Don’t Feel There is Much to Litigate about the “Foreseeability” of Accidents, as Foreseeability Is In the Eye of the Beholder

The radical lawyers at ITLA who we feel may be behind this new and unprecedented legal expansion of the “traveling employee” concept are suggesting lawyers on both sides and Arbitrators will be able to litigate “foreseeability” of an accident. The IL Appellate Court, WC Division identifies this as a source of needed litigation in the most recent ruling in Admiral Mechanical v. IWCC where they write:

We further disagree with respondent’s overstated fear that the traveling-employee doctrine threatens to turn the Act into a strict-liability statute. The burden remains with the employee to prove causation (Hoffman, 109 Ill. 2d at 199), and the employee fulfills this burden by showing that the conduct he or she was engaged in at the time of the accident was reasonable and foreseeable. Respondent’s protestations to the contrary notwithstanding, this standard has provided employers with viable defenses in various situations. See, e.g., Jensen, 305 Ill. App. 3d at 280-81 (holding that manner in which the claimant used an ATV was not reasonable or foreseeable); Howell Tractor & Equipment Co. v. Industrial Comm’n, 78 Ill. 2d 567, 575-76 (1980) (holding that an employee’s “late-night excursion through an unfamiliar and potentially hazardous area” of a town was not reasonable or foreseeable.”); U.S. Industries, Production Machine Division, 40 Ill. 2d at 475 (“Claimant's action in undertaking a midnight pleasure drive in unfamiliar, mountainous terrain was, in our judgment, a clearly unanticipated, unforeseeable and unreasonable activity not normally to be expected of a traveling employee.”).

In our view, all of the cases mentioned could just as easily been determined to be foreseeable as not foreseeable—it was clearly up to the whim of the courts in making that determination. The reason we say it is clearly up to the notion or caprice of the finder of fact is there is no defined legal standard for “foreseeability” of an unexpected occurrence. Most accidents are to some extent the result of bad judgment or error by someone—how “bad” does bad judgment have to be to reach the magical level of being “unforeseeable?” In stark contrast, lots of accidents, like the one involved in Venture-Newberg-Perini didn’t involve any failure or error on the part of the injured worker—in that claim, his co-worker was driving the vehicle, slid on ice and hit a bridge, causing injuries to the claimant. Nothing about that claim by a passenger in a motor vehicle has anything to do with “foreseeability” and from the perspective of the IL WC Appellate Court’s ruling, foreseeability was clearly a “given” and could not have been viewed as a defense. Please also note Mlynarczyk, Kertis and Admiral Mechanical, the other new and controversial “traveling employee” Appellate rulings were completely indefensible, as all the accidents and injuries were locks on the issue of “foreseeability.”

4,609 Americans died on the job in 2011. About 40 percent of work-related fatalities were roadway incidents involving motor vehicles. Smaller numbers of work-related fatalities involved slips, trips, and falls, workers struck by objects and equipment and workplace violence which included 458 homicides. Illinois has now expanded coverage for fatalities to non-work-related risk for TE’s. We ask the rhetorical question—what is there to litigate about the “foreseeability” of a motor vehicle accident going to and coming from work? What is there to litigate about the “foreseeability” of an unexplained slip/trip, fall-down or homicide making the trek to or from your job? Isn’t all human error, poor judgment and/or bad luck arguably “foreseeable?” Illinois used to provide workers’ comp benefits with concerns to litigate what is an "accident" have been swept away by these unprecedented, judicially created and Illinois-only rulings and ill-defined legal standards.

Please understand in the IL WC setting if the truck driver mentioned above with a personal Harley-Davidson needs a spinal fusion and later can't drive a truck due to non-work-related motorcycle vibration, jostling and bouncing, the reserves for such a claim could be well over $1 million for the surgery, post-surgical care, TTD and the expected wage loss differential claim. Our client, his employer will owe such benefits "as a matter of law" under current rulings—in our view, the IL Appellate Court has stripped out all defenses for TE's. What they haven't addressed is how Illinois employers can possibly control these shocking new exposures and costs.

The risk management question we ask our readers is simple--if we owe for his pain and problems due to motorcycle riding, can we order him to stop riding his hog to and from work? Should we start vehicular safety training to address safety while traveling? Can/should Illinois employers inspect and approve all conveyances that bring traveling employees to and from work? If there are lots of injuries and accidents, are they OSHA-recordable? Will OSHA start to supervise safety protocols in this setting? Going further, can we order such workers not to make personal or recreational stops for any reason on the way to and from work? Can we ask them to sign forms/releases confirming if they do make such stops, they will be sanctioned leading to termination?

What Do You Think This Expansion of the Traveling Employee Concept Will Cost? Please Give Us Your Thoughts.

The total cost of workers’ compensation insurance to U.S. employers is more than $95 billion annually. We estimate the IL WC Commission handles about $3-5 billion in WC benefits each year. According to the U.S. Bureau of Labor Statistics, 3 million nonfatal workplace accidents occurred in the United States in 2012. Most of these cases, almost 95 percent, involved occupational injuries while workplace illnesses accounted for the other five percent. Try to imagine our IL WC system adding the cost of non-work-related injuries/illnesses going to-from work and during lunch/coffee breaks.

Right now in the IL WC system, we are certain all construction workers, staffing and transportation workers are TE’s; the IL Courts have clearly defined them as such. Similarly, most all government workers are TE’s. We don’t know how to “cost out” what this new WC coverage will cost our clients and readers.

Right now, our law partners are debating what the new “traveling employee” expansion is going to cost you. Some of us feel it will be a complete monetary disaster for all industries affected by these rulings. In contrast, one of our law partners feels it may be only a 5% bump. It is the consensus of most of the defense attorneys in our firm the biggest catastrophe about the newly expanded concept is going to be in government. Other than the few people who only work at a single desk in a given City/County Hall, basically all other government employees are now “travelers.” For example, police/firemen/EMTs all “travel” as an essential part of their work. All building/electrical/plumbing inspectors and streets workers “travel.” We think the WC costs for IL counties, townships and municipalities can be expected to at least double.

We are asking our readers—what do you think? What is this going to mean for your organization to have to include non-work-related injuries with work injuries? We appreciate your thoughts and comments. Please feel free to post them on our award-winning blog.

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Synopsis: IL Employers Now Have to Revisit Company Vehicle Provision/Maintenance/Use.

Editor’s comment: We want our readers to also understand a related and new IL WC coverage expansion--if you allow workers to use company vehicles when off work, two Appellate Court rulings confirm you are now a guarantor under IL WC of their health and safety for all activities they do with the vehicle during, after and before work. We aren’t making this up, folks.

If you let them use the company or government vehicle for personal, off-work use, we assure you that you now owe

· IL WC benefits if they are injured driving their children to a ball game;

· If they are injured at a grocery store buying groceries and get hit in the parking lot;

· For all risks, injuries and illnesses using company vehicles on weekends and holidays.

Our further suggestion is to consider requiring/ordering workers to limit personal use for trips going to and coming from work. You might want them to use the work vehicle only to go to and from work sites. Try to insure they have alternate personal vehicles so they aren't using your car or truck on weekends and holidays. Make sure company vehicles are kept in safe condition and regularly inspected.

We appreciate your thoughts and comments. Please feel free to post them on our award-winning blog.

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Synopsis: Illinois Appellate Court rules a change in pathology or nature of an injury constitutes an intervening accident, unless you’re talking about an award for permanency. Analysis by Timothy J. O’Gorman, J.D.

Editor’s Comment: Petitioner in National Freight Industries v. Illinois Workers’ Compensation Comm’n suffered two injuries involving his low back while working for two separate employers. The first occurred in 2006 while pulling boxes of freight off a truck, Petitioner experienced a “pop” in his low back and felt sharp pain radiating into his right leg. Petitioner was working at Fischer Lumber at the time of his first injury. Petitioner continued to treat for this injury and went back to work for National Freight in 2007. While working as a driver for National Freight, the second Respondent, Petitioner was involved in a motor vehicle accident in 2008.

At hearing, the Arbitrator found Petitioner’s 2008 incident proved to be an intervening and superseding event at which point Fischer Lumber’s liability was cut off. The Commission affirmed the decision of the Arbitrator seemingly placing the bill at the feet of whichever employer a Petitioner works for last in regard to TTD/medical benefits. The IWCC also affirmed the decision that since no MMI date had been established on the first accident, permanency could not be determined regarding the first injury. According to the Commission, National Freight Industries would have to pay the full brunt of Petitioner’s remaining benefits for both indemnity and medical.

Petitioner appealed and the case was affirmed by the Madison County Circuit Court which resulted in three consistent opinions. Petitioner appealed to the Illinois Appellate Court, Workers’ Compensation Division—their ruling went contrary to all three lower court decisions and overturned the decision of the Commission on the issue of permanency. The Appellate Court found Petitioner was able to maintain his claim to permanency against both Respondents National Freight & Fischer Lumber whereas the three previous decisions only allowed for a permanency determination against National Freight.

The reason the three previous panels disallowed a permanency determination against Fischer Lumber is because Petitioner was not yet at MMI at the time of what we feel should have been intervening and superseding accident. Typically, no one can make a determination of how permanent a condition will affect someone’s ability or disability until a doctor finishes treatment and declares Petitioner as good as they are going to get. After that, the parties and the judge/Commissioners can make a determination as to how the injury will affect their life. Until that point, no one knows how much or little a person will improve with more treatment.

The decision of the Appellate Court now creates a scenario where an interim permanency determination will be left to what we feel is speculation which, by definition, is typically not allowed to be taken into account. Our penultimate reviewing court apparently will not allow the concept of “intervening and superseding” event to apply in our state—it is almost as if two or more injuries to the same body part have to mystically result in two or more permanency awards, as a matter of law.

IL Employees and employers may now have to fight over how disabled someone “could have been” at the end of treatment for an initial accident without any medical evidence pointing one way or the other. The IL Appellate Court has changed the way employers will now have to view an employee’s course of treatment and the goal to bring Petitioner’s back to MMI is more important than ever.

If any of our readers have questions regarding this or any workers’ compensation matter, please feel free to call Tim O’Gorman at (312)-756-3724 or email him at togorman@keefe-law.com.

KCBA Blog

9-30-13; Should IL Employers Manage "Travelers" Away From Work?; New IL WC Rule for Company Vehicles; Two or More Accidents = Two or More Awards, Analysis by Tim O'Gorman and much more