In the final days of the May term, the Illinois Supreme Court allowed petitions for leave to appeal in five new civil cases. Our preview of the new cases concludes with Venture-Newberg Perini Stone & Webster v. Illinois Workers’ Compensation Commission. Venture-Newberg poses the following question: when is a union pipefitter who accepts a short-term job too far from home to commute a “traveling employee” entitled to workers’ compensation benefits for injuries received while traveling to work?
The employer in Venture-Newberg is a contractor hired to perform maintenance and repair work at a nuclear plant in Cordova, Illinois, more than 200 miles from Springfield. The union local for the Cordova region was unable to fill all the available jobs, so the openings were posted in other union halls, including the union local in Springfield where the claimant was a member. The claimant bid on the job and was hired; he found lodging about thirty miles from Cordova for the duration of the job, which was only scheduled to be a few weeks. The claimant was injured early on the second day of work while traveling from his lodging to the plant.
The general rule in workers’ compensation law is that injuries occurring while the employee is commuting to or from work do not arise out of and in the course of employment and are therefore not compensable. The arbitrator initially concluded that none of the exceptions to that rule applied and recommended that the claim be denied, but the Workers’ Compensation Commission reversed.
The Commission found that two exceptions to the general rule were applicable. First, the Commission held that the claimant was injured in the course of employment because the course or method of travel was determined by the exigencies of the claimant's job rather than the claimant’s personal preference about where to live. Second, the Commission found that the claimant was a traveling employee: “one who is required to travel away from his employer’s premises in order to perform his job.” On administrative review, the Sangamon County Circuit Court rejected the Commission’s conclusions and set aside the decision.
During the hearing, the claimant had testified that his understanding was that the employer generally preferred that employees be within an hour of the job site so that they could respond to emergencies requiring them to report early or stay late. He acknowledged that the employer had dictated neither the specific place where he should stay or the route he should take to the plant, and that he was not called into work early on the day of the accident. A fellow employee testified that although the employer had never requested that employees reside near the job site, it would be difficult to work a 12-hour shift and be available for emergencies after driving 200 miles each way.
The Appellate Court concluded that the claimant was a traveling employee for two reasons: (1) he was assigned to work at a nuclear power plant 200 miles from his home; and (2) the premises were not those of his employer. Further, the Court found that the claimant's conduct in finding overnight lodging should have been reasonably anticipated by his employer, given that the claimant was recruited to work more than 200 miles from his home. For these reasons, the claimant's commuting injury arose out of and in the course of his employment, according to the Court.
Justice Hudson dissented, joined by Justice Turner. The dissenters noted that under the majority's rationale, "everyone hired at the Cordova plant on a temporary basis, even individuals residing in close proximity to the plant, would arguably became a traveling employee." The dissenters argued that the traveling employee exception was inapplicable since the employee had not worked for the employer for an extended period of time. The dissenters argued that when a temporary employee is assigned to work at only one location for a limited time, the work site becomes the employer's premises for purposes of the traveling employee exception. Finally, the dissenting justices argued that the exigency exception was inapplicable, since the employer exercised insufficient control over the employee's lodging and method of transportation to work.