2016 IL App (1st) 151693WC
NO. 1-15-1693WC
Opinion filed: February 11, 2016 ________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION ________________________________________________________________________
UNITED AIRLINES, INC., ) Appeal from the ) Circuit Court of Appellant, ) Cook County. ) v. ) No. 13-MR-53 ) THE ILLINOIS WORKERS' COMPENSATION ) Honorable COMMISSION et al. (Kristine Isern, ) Roberto Lopez Cepero, Appellee). ) Judge, presiding. ________________________________________________________________________
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in the judgment and opinion.
OPINION
¶1 The claimant, Kristine Isern, a flight attendant for the employer, United Airlines,
Inc. (United), injured her knee on a flight from Denver, Colorado, to New York's La
Guardia airport. She did not work as a flight attendant on the flight from Denver to New
York, but flew as a passenger. At the time of her injury, she resided in Boulder,
Colorado, and worked on United's flights originating out of John F. Kennedy 2016 IL App (1st) 151693WC
International Airport (JFK airport) in New York City. She was flying to New York the
day before she was scheduled to work on a United flight originating from JFK airport.
¶2 The claimant filed a claim under the Illinois Workers' Compensation Act (the Act)
(820 ILCS 305/1 et seq. (West 2012)) and maintained that, at the time she injured her
knee, she qualified as a "traveling employee" under the Act. The arbitrator agreed and
awarded her benefits under the Act. On review, the Illinois Workers' Compensation
Commission (the Commission) reversed the arbitrator, finding that the claimant did not
qualify as a traveling employee but was merely on her regular commute to work when
she sustained her knee injury. The circuit court reversed the Commission's decision and
reinstated the arbitrator's decision. United now appeals the circuit court's judgment.
¶3 BACKGROUND
¶4 At the time of her injury, the claimant lived in Boulder, Colorado, but her job
duties were exclusively on United's flights originating out of JFK airport in New York
City. When she traveled from her residence to report for work at her base airport, she
usually traveled from her home in Boulder, Colorado, to the airport in Denver and then
on one of United's flights from Denver to New York. United did not pay the claimant for
her time to travel from Colorado to New York and did not reimburse her for any travel
expenses, meals, or hotel costs for traveling to or staying in New York. It paid her only
for the time she performed flight attendant duties on aircraft departing JFK airport. The
claimant began earning wages when the aircraft departed the gate at JFK airport and until
the flight arrived at its destination.
2 2016 IL App (1st) 151693WC
¶5 United did not require its New York City based employees to reside in the New
York City area, and the claimant testified that United had no control over where she
lived. The record includes testimony that 80% of United's New York based flight
attendants commuted to New York from areas outside the New York City area. In 2006,
United offered the claimant a transfer to the Denver airport as her base airport so she
could work from an airport closer to her chosen residence (Boulder, Colorado), but she
declined the transfer and chose to keep JFK airport as her base airport. She testified that
this was her personal preference and that it was her personal choice to commute to New
York from Colorado. United did not derive any benefit from her choice to reside in
Colorado.
¶6 United provided its flight attendants with free parking at their base airports. They
could elect to have free parking privileges at a different airport instead, pending
availability, but it provided parking at only one airport. The claimant elected to have
parking privileges in a United employee parking lot at the airport in Denver. Therefore,
she did not have parking privileges at JKF airport. She could use her employee-parking
pass at the Denver airport while working, vacationing, or picking up a friend at the
airport.
¶7 The claimant's accident occurred on September 13, 2011, on a flight from Denver
to La Guardia airport in New York. She was scheduled to work the following day,
September 14, 2011, on a United flight out of JFK airport. She did not perform any job
duties on the flight from Denver to La Guardia. Even though she was not working on
September 13, 2011, she wore her flight attendant uniform to the Denver airport and 3 2016 IL App (1st) 151693WC
while boarding her flight in order to get through airport security and avoid checking any
bags. Another United employee testified that this was a violation of United's policies.
¶8 The claimant used a leisure travel pass to fly from Denver to New York on
September 13, 2011. United provided its employees with unlimited amounts of leisure
travel passes that allowed the employees fee-waived travel on any of United's flights.
The claimant booked flights for her commute to New York using a leisure travel pass in
the same way she booked fee-waived flights for vacations or other leisure travel.
¶9 Use of a leisure travel pass required the claimant to fly on standby. Revenue-
generating passengers were assigned seats before any fee-waived passengers, including
flight attendants commuting to their base airports. In addition, flight attendants
commuting to their base airports on leisure passes did not have any preference or priority
over other standby passengers. Accordingly, United had not guaranteed the claimant a
seat on the flight from Denver to La Guardia. The claimant testified that she could have
commuted to New York by flying on a different airline or by other means of travel. She
made the decision to fly on a United flight, and United had no control or preference
concerning how she traveled to and from her base airport to report for work.
¶ 10 The accident occurred shortly after the claimant boarded her flight. After locating
her assigned seat, she went to the lavatory on the plane to change out of her flight
attendant's uniform and into her regular clothes. She returned to her seat and caught her
foot where the seat row was bolted to the floor. She heard a pop in her left knee and felt
her knee collapse. She testified that there was no defect in the seat. When she stood up
4 2016 IL App (1st) 151693WC
to exit her seat at the end of the flight, her knee collapsed. She was provided a
wheelchair to exit the plane.
¶ 11 The claimant had a room at the Pan America Hotel in New York City to stay the
night before reporting for work at JFK airport the next day. United was not involved in
arranging for the hotel stay and did not reimburse the claimant for her hotel, meals, or
any other expenses for staying in New York. The hotel's van took her to a hospital where
she received emergency care and was diagnosed with a sprain of the lateral collateral
ligament of the knee. She subsequently underwent a magnetic resonance imaging test on
September 22, 2011, which showed a tear of the anterior cruciate ligament. On October
18, 2011, she underwent knee surgery that consisted of an anterior cruciate ligament
reconstruction with debridement of the lateral meniscus and lateral condyle. The
claimant's physician, Dr. McCarty, released her to work full duty as a flight attendant on
April 9, 2012. Since then, the claimant has worked full duty and has not sought any
further medical treatment stemming from the accident.
¶ 12 Sometime after the accident, the claimant transferred her base airport to the San
Francisco, California, airport because her husband was working in Napa, California. At
the time of the hearing, the claimant spent most of her time in Napa although her
permanent residence remained in Colorado. The claimant had transferred her parking
privileges to the San Francisco airport and drove from Napa to the San Francisco airport
for work. She no longer had parking privileges at the Denver airport. If the claimant
stayed at her residence in Colorado, she had to pay to park at the Denver airport in order
to fly to her base airport in San Francisco. 5 2016 IL App (1st) 151693WC
¶ 13 At the arbitration hearing, the parties disputed the issue of whether the claimant's
injury arose out of and in the course of her employment. In resolving this dispute, the
arbitrator found that the claimant qualified as a traveling employee for purposes of
awarding compensation under the Act. The arbitrator stated that there was a lack of case
law on the issue, but was obligated to follow prior Commission decisions finding that a
flight attendant traveling to her work domicile qualified as a traveling employee.
Therefore, the arbitrator found that she sustained a compensable accident that arose out of
and in the course of her employment and awarded temporary total disability benefits,
medical expenses, and permanent partial disability benefits in the amount of 25% of loss
of use of the left leg.
¶ 14 United sought a review of the arbitrator's decision before the Commission. The
Commission reversed the arbitrator's finding that the claimant was a traveling employee
at the time of her injury. The Commission noted that after the arbitrator filed his
decision, the supreme court filed an opinion in Venture-Newberg-Perini, Stone &
Webster v. Illinois Workers' Compensation Comm'n, 2013 IL 115728, 1 N.E.3d 535, in
which the court discussed the criteria for establishing traveling employee status within
the meaning of the Act. The Commission determined that the supreme court's analysis in
Venture-Newberg applied to the facts of the present case and that the analysis established
that the claimant did not qualify as a traveling employee at the time of her accident.
¶ 15 The Commission emphasized that the claimant chose to live in Colorado, that
United did not tell the claimant where to live, that United did not derive any benefit from
her choice to live in Colorado, that United did not compensate the claimant for her time 6 2016 IL App (1st) 151693WC
or travel expenses incurred during her voluntary commute, that the claimant selected her
own flight and did not receive any preferential treatment from United as a commuting
employee, and that there was no evidence that the claimant's travel "was determined by
the demands or exigencies of her job." The Commission concluded that "[h]er travel on
that date arose out of the personal choices she made to maintain her residence in
Colorado" and maintain her base airport in New York. Therefore, the claimant's travel
was "due to her personal choice only."
¶ 16 The claimant appealed the Commission's decision to the circuit court. The circuit
court reversed the Commission's decision and reinstated the arbitrator's decision. The
circuit court believed that the undisputed facts were distinguishable from the facts in
Venture-Newberg. Specifically, the circuit court noted that the claimant in the present
case, unlike the employee in Venture-Newberg, was not a temporary employee. At the
time of the arbitration hearing, the claimant had worked for United for approximately 16
years. In addition, the circuit court believed that the claimant's transportation on
September 13, 2011, was "necessary to the exigencies of her work." For this conclusion,
the circuit court emphasized that United paid for her parking at the airport in Denver and
provided her with free air travel to her base airport. The court concluded that United
preferred that the claimant "take certain mode of transportation" in commuting to work.
The circuit court concluded that when the claimant boarded the flight from Denver to
New York, she "essentially began her work." The circuit court believed that the
claimant's regular commute to work ended when she "set foot in the airport after getting
7 2016 IL App (1st) 151693WC
out of her car" and that, at that time, she "effectively was in the course of her employment
when she was injured." United appeals the circuit court's judgment.
¶ 17 ANALYSIS
¶ 18 The issue that we must decide is whether the claimant was a traveling employee
when she injured her knee on the United flight from Denver to New York.
¶ 19 In order for an injured worker to recover compensation benefits under the Act, the
worker has to show that her injuries arose out of and in the course of her employment.
Jensen v. Industrial Comm'n, 305 Ill. App. 3d 274, 277, 711 N.E.2d 1129, 1132 (1999).
The issue of whether an injury arose out of and in the course of employment is usually a
question of fact that will not be reversed unless it is contrary to the manifest weight of the
evidence. Id. at 277-78, 711 N.E.2d at 1132. "In order for a finding to be against the
manifest weight of the evidence, an opposite conclusion must be clearly apparent." Id. at
278, 711 N.E.2d at 1132. The claimant, however, argues that the proper standard of
review in the present case is de novo. When the facts are undisputed and susceptible to
but a single inference, our review is de novo. Kertis v. Illinois Workers' Compensation
Comm'n, 2013 IL App (2d) 120252WC, ¶ 13, 991 N.E.2d 868. In the present case,
however, the circuit court improperly reversed the Commission's decision under either
standard of review. Therefore, we need not decide which standard of review applies. See
Venture-Newberg, 2013 IL 115728, ¶ 14 ("Because [the employee's] argument fails under
either standard ***, we need not resolve the parties' dispute regarding the standard of
review.").
8 2016 IL App (1st) 151693WC
¶ 20 Generally, an employee injured while going to or returning from her place of
employment has not sustained an injury that arose out of or in the course of the
employment. Commonwealth Edison Co. v. Industrial Comm'n, 86 Ill. 2d 534, 537, 428
N.E.2d 165, 166 (1981). In explaining the purpose of this rule, the supreme court stated
that "the employee's trip to and from work is the product of his own decision as to where
he wants to live, a matter in which his employer ordinarily has no interest." Sjostrom v.
Sproule, 33 Ill. 2d 40, 43, 210 N.E.2d 209, 211 (1965). An exception to this rule applies
when an employee qualifies as a "traveling employee." "A 'traveling employee' is one
whose work duties require him to travel away from his employer's premises." Pryor v.
Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130874WC, ¶ 20, 27 N.E.3d
678. A traveling employee is considered to be "in the course of" her employment from
the time she leaves her home until she returns. Id. An injury sustained by a traveling
employee "arises out of" her employment if she is injured while engaging in conduct that
was reasonable and foreseeable. Id.
¶ 21 In order to qualify as a traveling employee, the work-related travel "must be more
than a regular commute from the employee's home to the employer's premises." Id. ¶ 22.
Our supreme court recently discussed this requirement and the criteria for an employee to
qualify as a traveling employee in Venture-Newberg. We agree with the Commission
that the Venture-Newberg court's analysis controls our analysis in the present case.
¶ 22 In Venture-Newberg, the employee was a union pipefitter who took a temporary
job assignment at a job site that was located 200 miles away from his home because there
was no work available locally. Venture-Newberg, 2013 IL 115728, ¶ 4. He was not 9 2016 IL App (1st) 151693WC
required to take the job and could not have taken the job if his local union had a job
available. Id. ¶ 22. The employer expected the employee to work at the job site 7 days a
week, 12 hours per day; therefore, he and another union member decided to stay at a local
motel. Id. ¶ 4. The motel was located 30 miles from the job site. Id. ¶ 5. The employer
did not make the motel arrangements or tell the workers where to stay. Id. ¶ 22. On the
second day of the job assignment, the employee was injured in a vehicle accident during
the drive from the motel to the jobsite. Id. ¶ 5. He sought compensation benefits under
the Act. Id.
¶ 23 The employee testified that the employer wanted workers to be within an hour's
drive of the jobsite, so that they were available for work when needed. Id. at ¶ 7. Other
testimony established that while the employer desired the workers to be close to the job
site, it did not direct workers where to stay and did not require workers to relocate to be
closer to the job site. Id. In addition, the employer did not reimburse the workers for
travel expenses or compensate them for travel time. Id. On appeal, the supreme court
addressed the issue of whether the employee qualified as a "traveling employee" when he
sustained his injuries in the vehicle accident. Id. ¶ 12.
¶ 24 In its analysis, the court noted that the claimant was not a permanent employee of
the employer. Id. ¶ 24. The court further noted:
"[N]othing in [the employee's] contract required him to travel out of his union's
territory to take the position with [the employer]. *** [H]e made the personal
decision that the benefits of the pay outweighed the personal cost of traveling.
[The employee] was hired to work at a specific location and was not directed by 10 2016 IL App (1st) 151693WC
[the employer] to travel away from this work site to another location. Rather, [the
employee] merely traveled from the premises to his residing location, as did all
other employees. Finally, [the employer] did not reimburse [the employee] for his
travel expenses, nor did it assist [the employee] in making his travel arrangements.
Due to these facts, the Commission's conclusion that [the employee] was a
traveling employee was against the manifest weight of the evidence." Id.
¶ 25 Under a similar analysis, the undisputed facts of the present case establish that
United had no control over where the claimant chose to live and derived no benefit from
her choice to live in Colorado. The claimant's job duties were on flights departing JFK
airport, and she earned wages only for her time working as a flight attendant on those
flights. She did not perform any job duties during her travel from Colorado to New York.
United did not pay her for her time traveling from Denver to New York and did not
reimburse her for her overnight stay in New York prior to beginning her workday the
following day. The claimant's decision to fly to La Guardia airport the day before her
assigned work duties at JFK airport was not directed or arranged by United.
¶ 26 The claimant's choice of residence was a personal decision that the benefits of
living in Colorado outweighed the personal cost of traveling from Colorado to New York.
At the time the claimant injured her knee, she was engaged in her regular commute from
her chosen residence to the city where her job assignment was located. These facts are
substantially similar to the facts outlined by the supreme court in Venture-Newberg and
establish that the claimant was not a "traveling employee" at the time she injured her
11 2016 IL App (1st) 151693WC
knee. She was simply injured while commuting from her residence to the city of her base
airport the day before she was to report to her work site.
¶ 27 The circuit court found it significant that, unlike the injured worker in Venture-
Newberg, the claimant in the present case was a permanent employee. At the time of the
arbitration hearing, she had worked for United approximately 16 years. The circuit court
also found it significant that United provided the claimant with parking privileges at the
airport in Denver and that the claimant almost always used her leisure travel pass on
United flights to reach her work. We do not believe that these facts qualified the
claimant as a traveling employee.
¶ 28 Although the supreme court did note that the injured employee in Venture-
Newberg was a temporary employee, the court's analysis focused on facts that showed
that the employee was injured during his commute from his chosen residence. This same
analysis applies in the present case, regardless of whether the claimant was a temporary
or permanent employee. In its analysis, the Venture-Newberg court discussed a policy
concern it had in allowing the employee to qualify as a traveling employee under the
facts of that case. The court stated, "[W]hile an employee who chooses to relocate closer
to a temporary job site can receive benefits if injured on the way to work, an employee
who permanently resides close to the job site is not entitled to benefits if injured on the
way to work." Id. ¶ 25. This policy statement emphasizes that the court focused on the
nature of the claimant's travel, not on the permanency of his employment.
¶ 29 Also, this policy concern noted by the supreme court in Venture-Newberg is the
same in the present case. A United flight attendant with JFK airport as his or her base 12 2016 IL App (1st) 151693WC
airport and who permanently resides in the New York City area would not be entitled to
benefits as a traveling employee if he or she is injured during his or her regular commute
to the airport. Likewise, a United flight attendant based out of the same airport should
not qualify as a traveling employee if she is injured in her regular commute to JFK airport
merely because she chose to live in Colorado instead of New York City and had a longer
commute. Whether the claimant resides in New York City or in Colorado is a personal
decision in which United has no interest.
¶ 30 The circuit court also focused on the claimant's parking privileges at Denver
airport and that she commuted on a fee-waived United flight. These facts do not
transform the claimant from a regular commuter into a traveling employee. The evidence
at the hearing established that United provided its flight attendants with free parking at
the airport from which the flight attendants were based. A flight attendant could choose
to have a parking pass at another airport instead, but was allowed parking at only one
location. The claimant's selection of the location of her parking privileges was her
personal choice and stemmed from her choice of residence. It does not qualify her as a
traveling employee.
¶ 31 The Commission's analysis correctly emphasized the facts showing that United
did not compensate the claimant for her time or expenses for commuting to New York
from Colorado. The claimant selected her own mode of transportation and lodging for
the commute. United had no control over what modality of transportation the claimant
chose to arrive at JFK airport or even when she arrived in the New York City area. The
13 2016 IL App (1st) 151693WC
claimant was injured in a flight to La Guardia airport on the day before she was
scheduled to work on a United flight out of JFK airport.
¶ 32 The claimant did not have to pay for the flight from the Denver airport to La
Guardia airport because she chose to fly standby while using a leisure travel pass.
However, the pass was an employment benefit available to all United employees for
personal travel regardless of how far the employees had to commute to work. The pass
was not a benefit offered to the claimant because she resided in Colorado while working
out of JFK airport. United did not provide her with preferential status on fee-waived
flights as a commuting employee. The claimant's decision to use a leisure travel pass to
commute from Colorado to New York did not transform her regular commute into a
demand or exigency of her job. The method and time of travel was the result of her
personal choices for her own benefit and from which United derived no benefit. Under
these facts, the Commission ruled correctly in finding that the claimant did not qualify as
a traveling employee at the time of her injury. See Pryor, 2015 IL App (2d) 130874WC,
¶ 29 ("[T]he claimant was injured during a regular commute from his home to his
employer's premises, before he embarked upon a work trip away from his employer's
premises. Thus, the Commission's finding that the claimant's injury did not arise out of
or in the course of his employment was not against the manifest weight of the
evidence.").
¶ 33 CONCLUSION
¶ 34 For the foregoing reasons, we reverse the judgment of the circuit court and
reinstate the Commission's decision. 14 2016 IL App (1st) 151693WC
¶ 35 Reversed; Commission decision reinstated.