Attorney Loses Claim for Benefits when Injured on the Way to Work

The Commission recently affirmed the Arbitrator’s decision in a case – Djokic v. National Union Fire Insurance, in which benefits were denied after the Arbitrator found that the Petitioner was not a “traveling employee,” that she was not required to take work home from the office, and that her briefcase full of files was not the cause of her accident.

Injuries that occur off the employer’s premises are generally not compensable unless (1) the employee’s presence was required in the performance of his or her duties, and (2) the employee is thereby exposed to a risk common to the general public but to a degree greater than other persons. Both elements must be fulfilled in order for an injury to be compensable.

In this case, the Petitioner sustained an injury to her leg when she slipped on ice and fell while crossing a street near her office building on the morning of Tuesday, January 18, 2011. The Petitioner worked as an attorney for an insurance company in Chicago. She had taken a train from her residence in northwest Indiana and exited at a stop near her Chicago office. The Petitioner testified that she was carrying a briefcase full of files that she had taken home to review over the weekend, which weighed between 10 and 20 pounds. She testified that she sometimes goes directly to the Illinois Workers’ Compensation Commission instead of going to her office first. However, on the day of the accident, the Petitioner testified that she planned to drop off the files that she had in her briefcase and to pick up the file that she needed for a hearing at the Commission.

The Petitioner was carrying her own personal briefcase. Her accident occurred on a public sidewalk on a public street. The Petitioner testified that there was a light snow on the ground and the reason that she fell was because of a patch of ice. The petitioner denied that there were any specific work hours in regard to her employment, but acknowledged that regularly scheduled workdays were Monday through Friday. The Petitioner testified that she had a company-issued Blackberry that she usually turned on at 7:00 a.m. to respond to emails, but that she was not using same at the time of her slip and fall. In addition, there was testimony from two of the Petitioner’s co-workers, both attorneys, that they sometimes took work home, but that it was not required.

The Arbitrator noted that there was no evidence presented that Petitioner was required to carry files back and forth from the office and rejected the Petitioner’s argument that she was working on those files for the benefit of her employer. Furthermore, the Arbitrator found that the evidence indicated that the patch of ice on a public street had caused the petitioner’s fall and not the briefcase.

The Arbitrator found that the Petitioner’s accident did not “arise out of” her employment since the accident occurred on a public sidewalk on a public street and that the risk of injury was the same as the risk assumed by the general public. The Arbitrator also found that the Petitioner’s accident did not occur “in the course of” her employment because the act of coming from and going to work is not in the course of employment.

The Arbitrator cited Caterpillar Tractor Co. v. Industrial Commission, 129 Ill.2d 52, 133 Ill.Dec. 454, 541 N.E.2d 665 (1989) in finding that “the Courts have held that injuries that occur on an employer’s premises within a reasonable time before or after work are generally considered to occur in the course of employment . . . However, in order for the claim to be compensable, there must be a risk associated with the employment and not a risk common to the general public.” The Arbitrator found that the petitioner was not engaged in her employment at the time of the injury, but was rather simply traveling to her place of employment.

The Arbitrator noted that there were exceptions to the general rule that accidents that occur while an employee is traveling to or from work are not compensable. The exception applies when the employee is traveling to or from work and the course or method of travel is determined by the demands or exigencies of the job rather than by the personal preference as to where the employee chooses to live. Chicago Bridge & Iron v. Industrial Commission (1993), 248 Ill.App.3d 687, 618 N.E.2d 1143, 188 Ill.Dec 573). In this case, the Arbitrator found that there was no evidence presented that the petitioner’s course or method of travel was required by the Respondent.

The second exception indicated by the Arbitrator concerning travel to and from work is the exception of the “traveling employee.” In Wright v. Industrial Commission, 62 Ill.2d 65, 338 N.E.2d 379 Ill. (1975), the Supreme Court of Illinois determined that a traveling employee was defined as one who is required to travel away from the employer’s premises in order to perform his job. In this case, the Petitioner testified that she worked regularly at her office location from Monday through Friday, that she was not compensated for her travel time and that she admitted that she was not a traveling employee at the time of this accident. In addition, the Petitioner’s supervisor testified that taking work home was never required.

Pursuant to the above-cited case law, the Arbitrator found that the petitioner’s injuries were not compensable.  The Arbitrator’s decision was affirmed and adopted upon review by the Commission.

Thanks to attorney Mark Carter for following this case and providing the summary.

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