Articles & Updates

Recent Traveling Employee Cases in Illinois

by James M. Gallen

Two recent decisions issued by the Workers’ Compensation Commission Division of the Appellate Court of Illinois and one by the Supreme Court address the question of the compensability of injuries suffered by a traveling employee. 

In Mlynarczyk v. Illinois Workers’ Compensation Commission, the claimant, Stanislawa Mlynarczyk, and her husband were employed by a janitorial service.  On the day in question the Mlynarczyks were assigned to clean a church and two homes. The employer provided a van, which driven by petitioner’s husband, to transport them from job to job. They finished cleaning the second home at about 2:30 p.m.  They normally had a full day of jobs running from 6:00 a.m. to 4:00 p.m. however, because of cancellations due to the holiday season, they had no other jobs but could return to the church at 4:30 to assist the evening crew.  In the meantime, the Mlynarczyks traveled home to have lunch.  Normally the Mlynarczyks took a 15 minute break for lunch but, because of the timing gap, they remained home for about 90 minutes on this day.  Shortly after 4:00 p.m. the petitioner’s husband returned to the minivan to warm it up.  The minivan was parked in the driveway of the house where petitioner and her husband resided.  At 4:10 p.m. petitioner left the house to return to work.  As she walked around the rear of the minivan she slipped and fell.  Petitioner testified that the accident occurred “adjacent to the driveway on a ‘public sidewalk’ leading from the house to the driveway.”  The petitioner suffered an injury to her left hand.  The Arbitrator awarded benefits but this was reversed by the Commission.  The Appellate Court concluded that the Commission erred as a matter of law in denying the benefits.  It pointed out that petitioner was a “traveling employee” who was required to travel away from her employer’s premises to perform her job.  As a traveling employee the test of whether the injury arose out of and in the course of the employment is the reasonableness of the conduct in which he was engaged at the time of the injury and whether that conduct might have been anticipated or foreseen by the employer.  The Court held that the evidence established that the claimant’s injury occurred after she left home, while walking to a vehicle used to transport her to work.  “Because claimant is a traveling employee, the injury occurred in the course of her employment.”  Additionally, the Court found that the injury arose out of the employment, pointing out that claimant’s walk to the minivan constituted the initial part of her journey to her work assignment.  “As such, it is reasonable and foreseeable.” 

The issue was raised as to whether or not the petitioner had left her private property when the injury occurred.  The Court found that the evidence did not support the premise that the claimant’s fall occurred on private property because the claimant’s unrebutted testimony was that the accident occurred adjacent to the driveway on a “public sidewalk”.  The Court also noted that the employer cited no authority in support of its claim that a traveling employee who has left the physical confines of his or her home on the way to a job assignment and sustains an injury on private property cannot be subject to the hazards of the street. 

The second case is Kertis v. Illinois Workers’ Compensation Commission, in which the petitioner was a branch manager for two branches of employer’s bank.  The petitioner regularly traveled between the two offices.  While traveling from one branch to another he parked in a municipal parking lot, as was his custom.  He exited his parked car and began walking across a parking lot toward the branch office.  As he approached the parking lot’s only entrance a car drove into the lot.  While attempting to avoid the oncoming car, petitioner stepped into a pothole and fell.  He suffered injuries to his lower back and right hip.  The Arbitrator had denied the claim because petitioner had failed to establish that he was exposed to a risk to a greater degree than the general public, finding that the risk that the claimant was exposed to was “common to the general public and not unique to [the claimant].”  The Arbitrator observed that claimant had “offered no evidence to suggest that the area in question represented an increased risk greater than the general public would be exposed to on a daily basis.”  The Commission affirmed the decision.  The Court overturned the Commission’s decision finding that petitioner was a traveling employee and the standard is, therefore, whether he was injured while engaging in conduct that was reasonable and foreseeable, i.e., conduct that “might normally be anticipated or foreseen by the employer.”  Finding that the conduct was foreseeable the Court awarded compensation.  Because the appeal could be resolved under the analysis applicable to traveling employees, it did not need to address the claimant’s alternative argument that he was exposed to a neutral risk more frequently than members of the general public by virtue of his employment. 

The Supreme Court Case is The Venture-Newberg-Perini, Stone & Webster vs. Illinois Workers’ Compensation Commission.  In this case the petitioner was a member of the Plumbers & Pipefitters Union Local 137 in Springfield, Illinois.  The petitioner had worked for Venture in four short term jobs over the preceding two years, being laid off when the job was completed.  Local 137’s rules provided that its members could only take work outside of the local territory only when no work was available locally.  The petitioner took a position with Venture at a plant in Cordova, Illinois, about 200 miles from Springfield.  He was expected to work 12 hours per day, 7 days per week.  Because of the location the petitioner and a coworker stayed at a motel.  Although there was evidence that Venture preferred the employees to be located close to the plant, there was none that it required proximity or that Venture directed either where the employees would stay or the route they would take to reach the plant.  Petitioner was neither paid for travel time nor reimbursed for expenses.  While driving to the plant site on the second day on the job the petitioner was severely injured in an automobile accident.

 The arbitrator concluded that the petitioner had failed to prove that his injuries arose out of and in the course of his employment and that the petitioner did not qualify for the traveling employee exception.  A divided Commission reversed, finding that the accident occurred in the course of the employment because the course or method of travel was determined by the demands and exigencies of the job, rather than his personal preference and that, as a practical matter, he needed to stay within a reasonable commuting distance from the plant and that he was a traveling employee.  The Circuit Court reversed and denied the claim.  A divided Appellate Court reversed and reinstated the Commission’s decision.  The Supreme Court, with a dissent, reversed and reinstated the Appellate Court.

The Supreme Court found that the petitioner was not a permanent or a long term-exclusive employee of Venture nor was there anything in his contract that required him to travel out of his union’s territory to take the position with Venture.  Accepting the job was a personal decision that the benefits of the pay outweighed the personal cost of traveling.  The petitioner was hired to work at a specific location and was not directed by Venture to travel from his work site to another location.  Finally, Venture did not reimburse the petitioner for his travel expenses nor did it assist the petitioner in making his travel arrangements.  Due to these facts, the Commission’s conclusion that the petitioner was a traveling employee was against the manifest weight of the evidence.  The Supreme Court also pointed out that if the holding was otherwise an employee, he would be entitled to benefits while traveling to the job site because he chose to take a job at a distance from his home whereas an employee who worked close to home would not be entitled to benefits for an injury arising while traveling to or from the workplace.


Mlynarczyk v. Illinois Workers’ Compensation Commission, 2013 IL App (3d) 120411WC, 3-12-0411 WC. 

Kertis v. Illinois Workers’ Compensation Commission, 203 IL App (2d) 120252 WC.

No. 2-12-0252 WC.

The Venture-Newberg-Perini, Stone And Webster v. Illinois Workers’ Compensation Commission, 2013 IL 15728