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When Does a Traveling Employee Actually Begin to "Travel"?

In Pryor v. Illinois Workers' Compensation Commission, 2015 IL App (2d) 130874WC, the Illinois Appellate Court, Workers' Compensation Commission Division, addressed the issue of whether a traveling employee's injury "arose out of" and "in the course of" his employment when the injury occurred while moving a suitcase into his personal vehicle while still at his residence. Pryor, 2015 IL App (2d) 130874WC, ¶ 7. The appellate court concluded that while a traveling employee has a lower threshold of reasonableness concerning his actions, under the facts of this case, where the claimant came to his employer's premises prior to commencing his job as a truck driver, the employee was not a traveling employee until he reached his employer's premises which triggered the start of his work day as a delivery driver. Thus, the employee's injury while loading a suitcase into his personal vehicle prior to going to work to retrieve his work truck was not compensable, as it did not "arise out of" or "in the course of" his employment..

The claimant, Lanyon Pryor, was employed by Cassen Transport and his duties included delivering new automobiles to various Chrysler dealerships. Id. ¶ 5. The claimant's responsibilities included loading automobiles onto an 18 wheel car-hauling tractor trailer at the employer's terminal in Belvidere, Illinois, and driving to various dealerships where the vehicles were unloaded. Id. ¶ 5. The claimant would usually drive his personal vehicle from his home to the Belvidere terminal. Id. Two nights a week, the claimant would spend the night at a hotel while on the road delivering to dealerships. Id. ¶ 6. When he anticipated an overnight stay, he would pack a suitcase with a change of clothes. Id. Once he arrived at the terminal, he would place his suitcase into the semi-tractor and proceed with deliveries. Id.

On July 21, 2008, the claimant planned to drive to the Belvidere terminal that morning to "start [his] work." Id. ¶ 7. The claimant had packed a suitcase with his change of clothes and took it to his personal vehicle at his residence. Id. The claimant set the suitcase down and after opening the car door, reached down to pick up the suitcase to load it into his personal vehicle. He then "bent and turned to the back seat of the car" and felt "unbearable" pain throughout his back and legs. Id.

Later that day, the claimant's wife drove him to his chiropractor's office with whom he had began treating six days earlier on July 15, 2008. Id. ¶ 8. The claimant said that his pain originally arose on July 10, 2008, while chaining a car onto the car-hauling truck. Id. ¶ 8, n. 1. Dr. Kassim's chiropractic chart, however, failed to document any such work related accident. Id. Dr. Kassim recommended that the claimant go to the emergency room and the claimant proceeded to Saint Alexis Hospital and received an injection for pain relief. Id. ¶ 8-9. Eventually, the claimant was able to return to work as of August 18, 2008, and at arbitration on March 14, 2011, testified that his low back was "fine." Id. ¶ 9.

At arbitration, Cassen Transport's Operations Manager, Charles Anderson, testified that the claimant called in sick on July 14, 15 and 16, reporting sciatic nerve problems due to a "motorcycle ride." Id. ¶ 11. On cross examination, the claimant acknowledged that he could not recall if he made such a statement to Anderson and admitted that he rode his motorcycle approximately 250 miles to Wisconsin and back on July 12, 2008. Id.

The Arbitrator found that the claimant failed to prove he sustained an accident that "arose out of" and "in the course of" his employment on July 21, 2008. Id. ¶ 12. The Arbitrator concluded that the claimant "would be considered a traveling employee from when he arrives at [the employer's] terminal, loads his vehicle, delivers his vehicles to a destination, and returns to the terminal." Id. The Arbitrator concluded that "lifting an overnight bag is not sufficient to put [the claimant] "in the course of" his employment." Id. The Arbitrator relied upon the Supreme Court's decision in Orsini v. Industrial Comm'n, 117 Ill. 2d 38 (1987), wherein it was noted that for an injury to arise out of the employment, the risk must be peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment. Pryor, 2015 IL App (2d) 130874WC, ¶ 12. Additionally, the Arbitrator concluded that the claimant's condition was not causally related to the lifting incident of July 21, 2008. Id. ¶ 13.

The Commission unanimously affirmed the Arbitrator's decision, and the circuit court confirmed the Commission's decision. Id., ¶¶ 2, 3.

On appeal, the claimant argued that he was a "traveling employee" as his job required him to travel and that he was "in the course of" his employment from the moment he left his house as opposed to when he arrived at the terminal. Id. ¶ 14. He further argued that his injury "arose out of" his employment under the traveling employee doctrine as it was reasonable and foreseeable that he would load a bag into his car in preparation for his work travels. Id.

The appellate court began its analysis by noting that the question was governed by a de novo standard of review because the facts were undisputed or susceptible of but a single inference. Id. ¶ 18. The court noted that the general rule is that an injury incurred by an employee while going to or returning from the place of employment does not "arise out of" or "in the course of" the employment citing The Venture-Newberg-Perini, Stone & Webster v. Illinois Workers' Compensation Comm'n, 2013 IL 115728, ¶ 16. The appellate court stated that the rationale for this rule is that an employee's trip to and from his work is the product of his own decision as to where he wants to live, which is a matter over which the employer ordinarily has no interest. Pryor, 2015 IL App (2d) 130874WC, ¶ 19. An exception exists for traveling employees as the traveling employee is deemed to be "in the course of" his employment from the time he leaves his home until he returns. Id. ¶ 20. Injuries to a traveling employee arise out of their employment if the injury occurs while engaging in conduct that is reasonable and foreseeable e.g. conduct that "might normally be anticipated or foreseen by the employer." Id.

The court then addressed the issue of whether the claimant Pryor's injury occurred while engaging in conduct that was reasonable and foreseeable to his employer. Id. ¶ 21. The court framed the issue as whether the claimant was traveling for work at the time of his injury. Id. ¶ 22. The court stated that a work-related trip must be more than a regular commute from the employee's home to the employer's premises. Id. Otherwise, every employee who commutes from his home to a fixed workplace that is owned or controlled by his employer would be deemed a "traveling employee." Id. If this were the case, the exception for traveling employees would "swallow the rule barring recovery for injuries incurred while traveling to and from work." Id.

On appeal, the claimant argued that compensability was supported by the appellate court's prior holding inMlynarczyk v. Illinois Workers' Compensation Comm'n, 2013 IL App. (3d) 120411WC. In Mlynarczyk, the claimant was employed by a cleaning service and was walking to her company provided minivan to return to a jobsite when she slipped and fell, fracturing her wrist. Mlynarczyk, 2013 IL App (3d) 120411WC, ¶ 16. The fall occurred on a public sidewalk leading from the house to the driveway. Pryor, 2015 IL App (2d) 130874WC, ¶ 24. The appellate court there found that claim compensable, noting that the injury was reasonable and foreseeable as the accident occurred while walking to the vehicle used to transport her to her work assignment for the employer and the claimant's walk to the minivan "constituted the initial part of her journey to her work assignment." Id. ¶ 24.

In Pryor, the appellate court distinguished Mlynarczyk, as there, the claimant was departing her residence to travel to a jobsite to provide cleaning services whereas in Pryor the claimant was intending to drive to the Belvidere terminal where he would then begin his work. Id. ¶ 29.

The claimant also relied upon the appellate court's previous holding in Complete Vending Services, Inc. v. Industrial Comm'n, 305 Ill. App. 3d 1047 (2d Dist. 1999), where the claimant was a service technician who was on call 24 hours a day, 7 days a week and was injured in an auto accident while traveling to a service call. Pryor, 2015 IL App (2d) 130874WC, ¶ 26. In Complete Vending Services, the claimant departed his home in a company vehicle and intended to stop by the employer's office on his way to the service call to inquire as to whether there were any additional service calls to be made at that time.Complete Vending Services, 305 Ill. App. 3d at 1048-1049. It was noted that the company office was directly on the route to the service call that the claimant was making. Id. The appellate court distinguishedComplete Vending Services noting that the driving to the Belvidere terminal was a regular commute to a fixed jobsite as opposed to the claimant in Mlynarczyk, who had no such "fixed jobsite." Pryor, 2015 IL App (2d) 130874WC, ¶ 29. Accordingly, the Pryor court concluded that the trip to the Belvidere facility was not part of a continuous trip from his home to a jobsite away from the employer's premises. Id. Likewise, the court noted that Pryor's injury did not occur on a trip from the employer's premises to a distinct work location such as in Kertis v. Illinois Workers' Compensation Comm'n, 2013 IL App (2d) 120252WC, nor did the injury occur during travels from a remote jobsite to the claimant's residence such as in Cox v. Illinois Workers' Compensation Comm'n, 406 Ill. App. 3d 541, 546 (1st Dist. 2010).

The Pryor decision illustrates the degree to which subtle fact differences can lead to different results in accidents involving traveling employees. The proper analysis must include several factors such as: (1) Was the claimant traveling to a company facility as opposed to a remote jobsite? (2) Was the claimant operating a company vehicle? (3) Was the claimant injured while on a public street and exposed to a "street risk?" (4) Was the claimant carrying work related materials at the time of injury? (5) Was the claimant "on call" and departing the personal residence pursuant to a service call?

© 2023 Heyl, Royster, Voelker & Allen, P.CNational Law Review, Volume V, Number 91

About this Author

Brad Peterson, Workers Compensation, Heyl Royster Law Firm

Brad's practice is divided between workers' compensation, civil litigation and Medicare Secondary Payer Act compliance. He is experienced in the defense of construction and motor carrier liability, insurance coverage, workers' compensation, and Medicare Secondary Payer Act compliance.

For over a decade Brad has had a special interest in Medicare Set-Aside Trusts and the Medicare Secondary Payer Act. He has written and spoken extensively on these issues. Brad was one of the first attorneys in the State of Illinois to publish an article regarding...