Partner Kevin Deuschle recently argued and prevailed before the Appellate Court of Illinois, Fifth District. You can find the Court’s decision here and audio of the argument before the Court can be found here.
In this case, the petitioner was employed with the Respondent in the capacity of a Sales Account Executive. She was making a sales visit to an elementary school and was on her way to another appointment when her accident occurred. The Petitioner specifically testified that she was walking on a sidewalk upon exiting the school when she caught her footing on an area of concrete which came up over the grass and fell down. She stated that she fell off of the sidewalk and into the grass, twisting her left ankle and falling on her knee and left side. At trial, the Petitioner testified that she sustained scrapes to her “arms and knees”. She further stated that she was in a hurry as she had to drive an hour to get to her next appointment and also had paperwork to do that day.
Although the Petitioner’s accident occurred in April of 2008, she did not feel hip symptoms under December of 2008 and did not seek medical care and provide a history of injury to a treating doctor while seeking treatment for the hip until February of 2009. She ultimately underwent a hip replacement procedure.
We disputed both that the petitioner’s condition was medically causally related to her fall and that she was subjected to an increased risk of harm when the accident occurred.
On the issue of medical causation, we argued that the following three factors warranted a finding that the Petitioner’s claimed condition of ill-being was not causally related to her alleged accident:
- No notable trauma at the time of the fall;
- No treatment until 10 months after the accident;
- Following depositions, no competent medical testimony establishing a medical causal relationship between the accident and the treatment sought.
The Appellate Court held that the Commission’s adoption of the IME report over the opinion of the treating doctor was not against the manifest weight of the evidence. That, in and of itself, was sufficient for us to win the case as it means that we prevailed on the issue of medical causation. As to the thorny legal issue of whether the petitioner was exposed to an increased risk of harm when the accident occurred (an issue on which we had prevailed at every level), the Appellate Court specifically noted the finding of the Commission, but stated that it was not necessary for them to rule on that issue as we prevailed on the former.
In so holding, the Court avoided having to make a decision as to whether the petitioner, a traveling employee, was exposed to an increased risk of harm when her injury occurred. It should be noted that the fact pattern of this case is quite similar to that presented in the seminal case of Caterpillar v. Industrial Comm’n., 129 III.2d 52 (1989). In that case, the petitioner, who was not a traveling employee, was injured when he twisted his ankle after stepping from curb to a driveway. The Supreme Court, in finding that the case was not compensable stated, “In our opinion, the only reasonable inference which can be drawn from the evidence in the record is that the condition of the premises was not a contributing cause of [the petitioner’s] injury… we do not find that claimant has established that he was exposed to a risk not common to the general public…Curbs, and the risks inherent in traversing them, confront all members of the public.”
The question presented by the instant case was whether the compensability analysis is altered due to the petitioner’s status as a traveling employee.
A review of the relevant case law will certainly lead to the conclusion that a relaxed criteria for analyzing compensability is used when analyzing cases involving a traveling employee, specifically with regard to the increased risk component. Nearly 40 years ago, in Wright v. Industrial Comm’n., the Court stated, “The test for determining whether an injury to a traveling employee arose out of and in the course of his employment is the reasonableness of the conduct in which he was engaged and whether it might normally be anticipated or foreseen by the employer.”
As you can see, however, the effect of relying upon that broad statement is that it collapses the traditional two-prong analysis of “arising out of” and “in the course of” to a simple one step test: Was the conduct in which the employee was engaged in at the time of the accident reasonable and foreseeable?
If, however, one examines the analysis, a few things become apparent: Adopting this analysis is no different that stating that traveling employees can avail themselves of the positional risk doctrine. As questions of “reasonableness and foreseeability” are, at heart, questions of whether an activity occurs in the course of one’s employment — in other words, whether the employee was engaged in the work of the employer at the time of the accident – the court is essentially electing not to conduct a separate risk analysis.
It is essential to examine the rationale for this step, as this can provide the argument for the application of a separate risk analysis. The court, in these cases, finds that the employee is subjected to an increased risk as a traveling employee because, presumably, there is something inherently “risky” about being required to confront the unknown hazards on the open road. Underlying this is perhaps the idea that the act of traveling exposes this employee to the risks of the road with a greater degree of frequency than member of the general public.
In the current climate, the examination of the underlying risk analysis is too often ignored. Although there is good reason for a relaxed risk standard for the travelling employee to satisfy than her workplace bound counterparts, an argument can be made, should be made, that there is still an underlying risk analysis to be performed as there is no rational basis to simply conclude that an employee is exposed to an increased risk of harm in every instance in which an injury is sustained:
- What is the risk of the road presented to the employee?
- Was the employee exposed to that risk with a greater degree of frequency than members of the general public.
Failure to perform the above analysis on the assumption that an increased risk of harm exists simply because an employee is a traveling employee, is no different than finding that traveling employees can avail themselves of the positional risk doctrine. This is obviously a difficult issue for employers in Illinois.
Please feel free to contact us with any questions you might have regarding traveling employees.