The Venture-New berg Perini Stone and Webster v. Illinois Workers' Compensation Commission ( 2013 )

2013 IL 115728
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 115728)
THE VENTURE—NEWBERG-PERINI, STONE & WEBSTER,
Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION
COMMISSION (Ronald Daugherty, Appellee).
Opinion filed December 19, 2013.
CHIEF JUSTICE GARMAN delivered the judgment of the court,
with opinion.
Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred
in the judgment and opinion.
Justice Kilbride dissented, with opinion.
OPINION
¶1 Ronald Daugherty was a member of Plumbers & Pipefitters
Union Local 137 (Local 137) based in Springfield, Illinois. Due to a
lack of available work in his local area, Daugherty took a position
with The Venture—Newberg-Perini, Stone & Webster (Venture)
located approximately 200 miles from his home. Daugherty had
temporarily relocated to a nearby motel for the job and was seriously
injured in an automobile accident on his way to work. As a result,
Daugherty sought workers’ compensation benefits.
¶2 The arbitrator found that Daugherty failed to show that the injury
arose out of and in the course of his employment. The Illinois
Workers’ Compensation Commission (Commission) reversed the
arbitrator’s conclusion. On administrative review, the circuit court of
Sangamon County set aside the Commission’s finding. The appellate
court reversed the circuit court’s judgment, finding that Daugherty
was a “traveling employee” at the time of the injury. The appellate
court denied Venture’s petition for rehearing, but granted
certification pursuant to Rule 315(a), and this court granted Venture’s
petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010).
For the following reasons, we reverse the judgment of the appellate
court and affirm the circuit court’s judgment.
¶3 BACKGROUND
¶4 At the time of the accident, Daugherty was a resident of
Springfield, Illinois, and was a pipefitter and member of Local 137,
working out of Springfield. Members of Local 137 were permitted to
take jobs outside the local territory, but only when no work was
available locally. Due to a lack of available work in the local area,
Daugherty took a position with Venture at a plant located in Cordova,
Illinois, located about 200 miles from Springfield. While working at
the Cordova plant, Daugherty was expected to work 7 days a week,
12 hours a day. Due to the distance and long hours, Daugherty and
his fellow union member, Todd McGill, decided to stay at a local
motel.
¶5 Daugherty and McGill first reported to work at the Cordova plant
on March 23, 2006. After completing work that day, the men went to
Lynwood Lodge to spend the night. The motel was located about 30
miles from the Cordova plant. The men were scheduled to resume
work at 7 a.m. the following day. Around 6 a.m. the next morning,
McGill was driving Daugherty to work in McGill’s pickup truck. The
vehicle skidded on ice while crossing an overpass, and Daugherty
suffered serious injuries. As a result of this accident, Daugherty
sought workers’ compensation benefits.
¶6 Daugherty’s position with the Cordova plant was to be temporary.
Under Local 137’s normal policy, members are terminated at the
completion of a job and are expected to seek a new position.
Daugherty had worked for Cordova on four other short-term
positions in the two years prior to the accident.
¶7 Daugherty testified that it was his understanding that Venture
wanted workers to be within an hour’s drive of the plant, so that they
were available for work when needed. Daugherty’s coworker,
McGill, also testified that Venture did not direct workers where to
stay and that, while Venture desired its employees to be located close
to the plant, the workers were not required to relocate to be closer to
the plant. An employee of Venture, Anthony Cahill, testified that
Venture derived a benefit from workers residing within the local
geographic area due to emergency labor needs. Venture, however, did
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not direct workers where to stay or what route to take to work.
Daugherty was not reimbursed for travel expenses or compensated
for travel time. Cahill noted that only existing employees who were
transferred to another location were compensated for travel expenses.
¶8 The arbitrator concluded that Daugherty had failed to prove that
his injuries arose out of and in the course of his employment. The
arbitrator also found that Daugherty did not qualify for the traveling
employee exception.
¶9 In a divided decision, the Commission reversed the arbitrator’s
decision, concluding that while ordinarily an accident occurring
while an employee travels to work is not considered to be one that
arises out of and in the course of employment, two exceptions applied
here. First, the Commission found the accident occurred within the
course of Daugherty’s employment because Daugherty’s course or
method of travel was determined by the demands and exigencies of
the job, rather than his personal preference. The Commission
acknowledged that Daugherty was not required to stay in the local
area, but found that “as a practical matter,” Daugherty needed to have
stayed within a reasonable commuting distance from the plant.
Second, the Commission found that Daugherty was a “traveling
employee” at the time of the accident.
¶ 10 On administrative review, the circuit court found that the
Commission misconstrued or misapplied Illinois law and set aside the
Commission’s findings. The appellate court reversed. 2012 IL App
(4th) 110847WC. Relying on this court’s decision in Wright v.
Industrial Comm’n, 62 Ill. 2d 65, 69 (1975), the majority of the
appellate court found that Daugherty qualified as a “traveling
employee” and that his injury arose out of the course of his
employment. Justice Hudson dissented, finding that Daugherty’s
injury, occurring during his commute to work, did not arise out of
and in the course of his employment. The dissent also disagreed with
the majority’s application of the traveling employee exception.
¶ 11 ANALYSIS
¶ 12 Venture argues that the appellate court erred in reversing the
circuit court. First, Venture maintains that Daugherty was not a
traveling employee. Venture focuses on the relevant facts, noting that
Daugherty was a temporary employee and Venture did not send
Daugherty to work at the Cordova plant. Venture also disputes the
Commission’s finding that Daugherty was acting under the direction
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or control of Venture when he chose to relocate closer to the work
site and was injured on the way to work.
¶ 13 Daugherty, however, argues that the Commission’s findings
should be upheld under both exceptions. Daugherty’s position is that
he was a traveling employee because he was an employee who was
traveling away from his home community for his employer.
Daugherty also maintains that his injury arose out of and in the
course of his employment because Daugherty’s course of travel was
determined by the demands and exigencies of the job, rather than his
personal preference.
¶ 14 The parties also dispute the applicable standard of review.
“Before a reviewing court may overturn a decision of the
Commission, the court must find that the award was contrary to law
or that the Commission’s factual determinations were against the
manifest weight of the evidence. [Citation.] On questions of law,
review is de novo, and a court is not bound by the decision of the
Commission. [Citation.] On questions of fact, the Commission’s
decision is against the manifest weight of the evidence only if the
record discloses that the opposite conclusion clearly is the proper
result.” Beelman Trucking v. Illinois Workers’ Compensation
Comm’n, 233 Ill. 2d 364, 370 (2009). Because Daugherty’s argument
fails under either standard, however, we need not resolve the parties’
dispute regarding the standard of review.
¶ 15 Traveling Employee
¶ 16 “The general rule is that an injury incurred by an employee in
going to or returning from the place of employment does not arise out
of or in the course of the employment and, hence, is not
compensable.” Commonwealth Edison Co. v. Industrial Comm’n, 86
Ill. 2d 534, 537 (1981). This court has explained the purpose behind
this rule, noting 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 (1965).
¶ 17 An exception applies, however, when the employee is a
“traveling employee.” “[C]ourts generally regard employees whose
duties require them to travel away from their employer’s premises
(traveling employees) differently from other employees when
considering whether an injury arose out of and in the course of
employment.” Wright v. Industrial Comm’n, 62 Ill. 2d 65, 68 (1975);
Hoffman v. Industrial Comm’n, 109 Ill. 2d 194, 199 (1985).
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¶ 18 If a traveling employee is injured, the court then considers
whether the employee’s activity was compensable. Wright, 62 Ill. 2d
at 69. This court has found that injuries arising from three categories
of acts are compensable: (1) acts the employer instructs the employee
to perform; (2) acts which the employee has a common law or
statutory duty to perform while performing duties for his employer;
(3) acts which the employee might be reasonably expected to perform
incident to his assigned duties. Daugherty argues that the third
category applies here. Considering the third category, this court has
found that traveling employees may be compensated for injuries
incurred while performing an act they were not specifically instructed
to perform. The act, however, must have arisen out of and in the
course of his employment. To make this determination, the court
considers the reasonableness of the act and whether it might have
reasonably been foreseen by the employer.
¶ 19 The parties primarily rely on two cases: Wright, 62 Ill. 2d 65, and
Chicago Bridge & Iron, Inc. v. Industrial Comm’n, 248 Ill. App. 3d
687 (1993). In Wright, an employee, Myrtis Wright, was a field
erection supervisor who was frequently required to travel to out-of-
state locations and stay there for months at a time. Wright, 62 Ill. 2d
at 67. In addition to his hourly wage, Wright received per diem for
traveling expenses as well as mileage reimbursement. Id. Wright was
working at a job site located in Tennessee and had rented a motel
room located near the job site. Id. On a Saturday afternoon, Wright
was killed in a car accident. Id. Testimony during the trial showed
that it was unclear as to where Wright was traveling at the time of the
accident. Id. at 68. This court found that the traveling employee
exception applied, noting that “[i]t would be inconsistent to deprive
an employee of benefits of workmen’s compensation simply because
he must travel to a specific location for a period of time to fulfill the
terms of his employment and yet grant the benefits to another
employee because he continuously travels.” Id. at 69.
¶ 20 In Chicago Bridge & Iron, Danny Reed was hired by the
employer and was “periodically required” to travel to various job
sites out of state. Chicago Bridge & Iron, 248 Ill. App. 3d at 688.
Reed had worked exclusively for the employer for 19 years, but his
employment was not continuous, as he was terminated at the end of
each temporary job and rehired as necessary. Id. at 692-93. Reed was
compensated for mileage when traveling to work sites. Id. at 689.
One such job site was located in Minnesota, and Reed stayed in a
motel near the job site. Id. Reed was injured in a car accident when
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driving from the motel to the job location. Id. The appellate court
found that the traveling employee exception applied. Id. at 694.
¶ 21 Courts in Illinois have considered a variety of other examples of
traveling employees, including traveling salesmen (Urban v.
Industrial Comm’n, 34 Ill. 2d 159 (1966)); a field mechanic who
traveled to service heavy-duty equipment (Howell Tractor &
Equipment Co. v. Industrial Comm’n, 78 Ill. 2d 567 (1980)); a
director of health services for a regional office of education who
traveled to meet with local schools (Hoffman v. Industrial Comm’n,
109 Ill. 2d 194 (1985)); a union official who traveled to attend
hearings and negotiate on behalf of his union (District 141,
International Ass’n of Machinists & Aerospace Workers v. Industrial
Comm’n, 79 Ill. 2d 544 (1980)); a bank manager traveling between
two bank branches (Kertis v. Illinois Workers’ Compensation
Comm’n, 2013 IL App (2d) 120252WC); and a truck driver (Potenzo
v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d 113
(2007)).
¶ 22 Prior to applying Wright and Chicago Bridge & Iron to the
instant case, it is helpful to review the relevant facts. In reaching its
conclusion, the Commission made the following findings of fact: (1)
Daugherty testified that it was his understanding that Venture wanted
workers to be within an hour’s traveling distance from the plant; (2)
union workers were not reimbursed for travel accommodations or
compensated for travel time for positions taken outside their local
territory (and Venture did not reimburse Daugherty for his travel for
this job); (3) Daugherty was not required to take the job at the
Cordova plant and would not have been permitted to take the job if
his local union had a job available, as union workers could take jobs
outside their local territory only if jobs were not available within the
local territory; (4) Daugherty had worked on four short-term projects
for Venture in 2004 and 2006, and at the end of each project, he was
laid off and no longer considered an employee of Venture; (5) Todd
McGill, a fellow union member who shared a motel room with
Daugherty and was driving the truck involved in the accident,
testified that Venture did not make motel arrangements, tell them
where to stay or pay for travel expenses. McGill also testified that he
was not required to relocate closer to the work site, but acknowledged
that Venture desired its employees to be located closer to the plant.
¶ 23 Wright was a permanent employee who was regularly required by
his employer to travel out of state. Wright’s employer reimbursed
him with per diem and mileage expenses. Reed, the plaintiff in
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Chicago Bridge & Iron, was not a permanent employee, but he had
worked exclusively for the employer for 19 years. Like Wright, Reed
was reimbursed for his mileage expenses and was “required” to travel
for the position. Furthermore, in each of the remaining cases cited
above, the employee was regularly employed and directed by his or
her employer to travel to a remote location. Urban v. Industrial
Comm’n, 34 Ill. 2d 159 (1966); Howell Tractor & Equipment Co. v.
Industrial Comm’n, 78 Ill. 2d 567 (1980); Hoffman v. Industrial
Comm’n, 109 Ill. 2d 194 (1985); District 141, International Ass’n of
Machinists & Aerospace Workers v. Industrial Comm’n, 79 Ill. 2d
544 (1980); Kertis v. Illinois Workers’ Compensation Comm’n, 2013
IL App (2d) 120252WC; Potenzo v. Illinois Workers’ Compensation
Comm’n, 378 Ill. App. 3d 113 (2007).
¶ 24 Unlike the plaintiff in Wright, Daugherty was not a permanent
employee of the employer. Nor was Daugherty working for Venture
on a long-term exclusive basis. He had worked only four other short-
term Venture projects over the two years preceding the accident.
Furthermore, nothing in Daugherty’s contract required him to travel
out of his union’s territory to take the position with Venture. As
Daugherty testified, he made the personal decision that the benefits
of the pay outweighed the personal cost of traveling. Daugherty was
hired to work at a specific location and was not directed by Venture
to travel away from this work site to another location.1 Rather,
Daugherty merely traveled from the premises to his residing location,
as did all other employees. Finally, Venture did not reimburse
Daugherty for his travel expenses, nor did it assist Daugherty in
making his travel arrangements. Due to these facts, the Commission’s
conclusion that Daugherty was a traveling employee was against the
manifest weight of the evidence.
¶ 25 Not only does the case law fail to support Daugherty’s position
that he qualified for the traveling employee exception, but the
appellate court position raises serious policy concerns. For example,
while an employee who chooses to relocate closer to a temporary job
site can receive benefits if injured on the way to work, an employee
1
Daugherty argues that Venture’s home “employment premises” was in
Wilmington, Illinois, while this job location was in Cordova, Illinois.
Regardless of whether Venture’s home location was in Wilmington,
Daugherty was hired solely to perform work at the Cordova job site.
Therefore, this is the premises at which Daugherty was employed.
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who permanently resides close to the job site is not entitled to
benefits if injured on the way to work.
¶ 26 Because we conclude that Daugherty was not a traveling
employee at the time of the accident, we need not consider whether
the injury was compensable.
¶ 27 Demands & Exigencies of the Job
¶ 28 The Commission also found that the accident occurred within the
course of Daugherty’s employment because Daugherty’s course or
method of travel was determined by the demands and exigencies of
the job, rather than his personal preference.
¶ 29 In Sjostrom v. Sproule, 33 Ill. 2d 40 (1965), this court considered
a case where the plaintiff was injured in a car accident on the way to
work. The court found that the injuries were compensable because
“the plaintiff’s injuries arose out of and in the course of his
employment since his trip to work was ‘determined by the demands
of his employment rather than personal factors.’ ” See Unger v.
Continental Assurance Co., 107 Ill. 2d 79, 87-88 (1985) (discussing
Sjostrom). Similar to this case, the plaintiff was riding in a car driven
by the plaintiff’s coworker. However, unlike the present case, a
supervisor directed the plaintiff and the coworker to ride together and
the employees were reimbursed for travel costs.
¶ 30 In Chicago Bridge & Iron, the appellate court also considered
whether Reed’s injury arose out of and in the course of employment
when he was injured while traveling to work. The court noted that the
proper test is whether the “course or method of travel is determined
by the demands or exigencies of the job rather than by his own
personal preference as to where he chooses to live.” Chicago Bridge
& Iron, Inc. v. Industrial Comm’n, 248 Ill. App. 3d 687, 693 (1993).
In that case, however, the court found that Reed, the plaintiff, was not
acting in the course of employment because the employer did not
direct Reed’s route to work, and Reed was free to choose any route
in traveling to work. The court also noted that while Reed was
reimbursed for travel expenses, he was not paid for time spent
traveling. Therefore, the court concluded that Reed was not in the
course of employment when the injury occurred.
¶ 31 Unlike the plaintiff in Sjostrom, Daugherty’s course and method
of travel was not directed by Venture. While Daugherty’s decision to
stay at a motel closer to the work site was a logical one, as the work
site was 200 miles from his home, it was a personal decision. Nothing
in Daugherty’s contract required him to travel out of his union’s
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territory to take the position with Venture. Instead, it was
Daugherty’s personal preference to accept the position and the travel
distance that it entailed. The Commission recognized that Venture did
not require Daugherty to relocate closer to the job site. While
Daugherty testified that it was his understanding that Venture wanted
workers to be within an hour’s traveling distance from the plant, there
was no evidence that this was required or even suggested by Venture.
Daugherty’s coworker, McGill, testified that Venture did not tell
them where to stay and that he was not required to relocate closer to
the work site. Also unlike the plaintiff in Sjostrom, Daugherty and
McGill were not instructed to ride together, but made the personal
decision to do so in order to save money.
¶ 32 Daugherty is much more similar to Reed in Chicago Bridge &
Iron, as Daugherty was free to choose his own route to work. Even
more persuasive than in Chicago Bridge & Iron, Venture did not
reimburse Daugherty for travel costs. Daugherty was simply no
different from any other employee who has to drive to work on a
daily basis. Therefore, the Commission’s finding that Daugherty’s
method of travel was determined by the demands and exigencies of
the job, rather than his personal preference, was against the manifest
weight of the evidence.
¶ 33 CONCLUSION
¶ 34 While there is no question that Daugherty was seriously injured,
the facts of this case do not support Daugherty’s argument that he
was entitled to workers’ compensation benefits. Daugherty made the
personal decision to accept a temporary position with Venture at a
plant located approximately 200 miles from his home. Venture did
not direct Daugherty to accept the position at Cordova, and
Daugherty accepted this temporary position with full knowledge of
the commute it involved. Daugherty was not a traveling employee.
¶ 35 Additionally, Daugherty’s course or method of travel was not
determined by the demands and exigencies of the job. Venture did
not reimburse Daugherty for travel expenses or time spent traveling.
Venture did not direct Daugherty’s travel or require him to take a
certain route to work. Instead, Daugherty made the personal decision
to accept the position at Cordova and the additional travel and travel
risks that it entailed.
¶ 36 The appellate court judgment is reversed and the circuit court
judgment affirmed.
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¶ 37 Appellate court judgment reversed.
¶ 38 Circuit court judgment affirmed.
¶ 39 JUSTICE KILBRIDE, dissenting:
¶ 40 I agree with the appellate court’s judgment affirming the
Commission’s conclusion that Daugherty qualified for workers’
compensation benefits because he was a “traveling employee” at the
time of the incident and his injuries arose out of and in the course of
his employment. Because the majority reverses that judgment and
rejects the Commission’s decision, I dissent.
¶ 41 Initially, unlike the majority, I would clearly state that a manifest
weight of the evidence standard applies here. See supra ¶ 14
(deciding not to resolve the parties’ dispute regarding the proper
standard of review). A reviewing court is permitted to reverse the
Commission’s decision only when the award is contrary to law or the
Commission’s factual findings were against the manifest weight of
the evidence. While legal questions are subject to de novo review,
questions of fact are subject to a manifest weight of the evidence
standard. Beelman Trucking v. Illinois Workers’ Compensation
Comm’n, 233 Ill. 2d 364, 370 (2009). Elaborating on the proper
standard of review, this court explained that “if undisputed facts upon
any issue permit more than one reasonable inference, the
determination of such issues presents a question of fact, and the
conclusion of the Commission will not be disturbed on review unless
it is contrary to the manifest weight of the evidence.” Caterpillar
Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 60 (1989).
¶ 42 Here, the parties disagree on whether the employer, Venture-
Newberg, expected or required Daugherty to stay within a certain
proximity to the employment site, and the record contains testimony
that permits different reasonable inferences on this point, supporting
application of the manifest weight of the standard. Caterpillar
Tractor Co., 129 Ill. 2d at 60. In addition, the arbitrator and the
Commission reached opposite conclusions after reviewing the
evidence, demonstrating that reasonable inferences from the evidence
could reasonably yield different conclusions. This provides additional
justification for application of a manifest weight of the evidence
standard. See Illinois Valley Irrigation, Inc. v. Industrial Comm’n, 66
Ill. 2d 234, 239 (1977) (applying manifest weight of evidence
standard when arbitrator and the Commission reached contrary
conclusions).
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¶ 43 Thus, I believe a manifest weight of the evidence standard applies
in this case. Under this deferential standard, a reviewing court may
reverse the Commission’s decision only if the record discloses that
the opposite conclusion clearly is the proper result. Beelman
Trucking, 233 Ill. 2d at 370.
¶ 44 An employee is entitled to workers’ compensation benefits for an
injury only if the injury arises out of and in the course of his
employment. 820 ILCS 305/2 (West 2008); Illinois Bell Telephone
Co. v. Industrial Comm’n, 131 Ill. 2d 478, 483 (1989). Generally, an
injury incurred by an employee traveling to or from his place of
employment is not recoverable because it does not arise out of or in
the course of the employment. Commonwealth Edison Co. v.
Industrial Comm’n, 86 Ill. 2d 534, 537 (1981). The justification for
this general rule is 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 (1965).
¶ 45 An exception to this rule applies, however, when the employee is
classified as a “traveling employee.” This well-established exception
applies to employees who are required to travel away from their
employer’s premises. Hoffman v. Industrial Comm’n, 109 Ill. 2d 194,
199 (1985); Wright v. Industrial Comm’n, 62 Ill. 2d 65, 68 (1975);
Cox v. Illinois Workers’ Compensation Comm’n, 406 Ill. App. 3d
541, 545 (2010). Nonetheless, as with all employees, a traveling
employee’s injuries are compensable only if they arise out of and in
the course of his employment. Hoffman, 109 Ill. 2d at 199.
¶ 46 In relevant part, acts that an employee might be reasonably
expected to perform incident to his assigned duties are considered to
arise out of and in the course of employment. Wright, 62 Ill. 2d at 69.
More specifically, in the context of a traveling employee, this court
has explained that “[t]he 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.” Wright, 62 Ill. 2d at 69-70 (citing David Wexler & Co. v.
Industrial Comm’n, 52 Ill. 2d 506, 510 (1972)). Cognizant of the
deferential standard of review and the law governing the “traveling
employee” exception, I now detail the evidence considered by the
Commission.
¶ 47 At the time of the incident, Daugherty was employed by Venture-
Newberg, a company based in Wilmington, Illinois. Venture-
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Newberg contracted with Exelon Generation Company, LLC, to
provide skilled tradesmen for maintenance or repair work at power
plants owned and operated by Exelon. Typically, Venture-Newberg
filled Exelon openings with local union tradesmen. When positions
could not be filled locally, Venture-Newberg posted the jobs with
remote union locations. Thus, when local union tradesmen were
unavailable, Venture-Newberg filled the positions with tradesmen
who lived outside the area. Necessarily, these individuals must travel
to reach the distant work site.
¶ 48 This is precisely what occurred here. At the time of the incident,
Daugherty was a member of Local 137 and a pipefitter with 30 years’
experience. Daugherty lived in Springfield, Illinois, over 200 miles
away from Exelon’s Cordova plant. Between 2004 and 2006,
Daugherty worked on multiple occasions for Venture-Newberg at
various Exelon-owned power plants throughout Illinois, including the
Cordova plant, the LaSalle plant, and the Clinton plant. Venture-
Newberg hired Daugherty on a temporary basis for each project, and
his temporary employment terminated upon completion of each
project. Based on this work history, Daugherty had passed the
required background check and acquired the specialized skills
necessary for that type of work.
¶ 49 In March 2006, Venture-Newburg was unable to fill a position at
the Cordova plant locally and sought remote union workers.
Daugherty bid for the job and was selected by Venture-Newburg for
temporary assignment to a position at the Cordova plant. The position
required Daugherty to work 12-hour days, seven days a week.
¶ 50 Daugherty testified that Venture-Newburg required its workers
to be “available at just a phone call.” Daugherty explained that he
needed to stay within a certain distance from the plant because
Venture-Newburg might ask him to work early or to work late.
Daugherty further testified that he was required to stay within an hour
of the plant to fulfill his job duties, and he chose to stay at a motel
approximately 30 miles away from the Cordova plant. Daugherty’s
coworker, Todd McGill, confirmed that Venture-Newberg
emphasized the benefit of an employee being local or geographically
close. In contrast, Venture-Newberg denied that Daugherty was
required to stay within an hour of the plant. Venture-Newburg,
however, conceded that it benefitted from having workers who were
willing and able to stay within the geographic location of the
employment site.
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¶ 51 Ultimately, Daugherty and McGill first worked at the Cordova
plant for a 12-hour shift on March 23, 2006. The men stayed
overnight at a hotel about 30 miles away from the plant. At around 6
a.m. the next day, the two men were involved in a traffic accident on
their way to the Cordova plant, and Daugherty suffered significant
injuries.
¶ 52 Reviewing this evidence, I agree with the Commission that
Daugherty should be considered a traveling employee at the time he
sustained his injuries. There can be no question that Daugherty, who
lived over 200 miles away from the Cordova plant work site, had to
travel away from his employer’s premises in Wilmington, Illinois.
Even assuming, as the majority concludes in a footnote with no legal
analysis, that Cordova, Illinois, the location of the plant, should be
considered his employer’s premises (supra ¶ 24 n.1), Daugherty
would have had to travel to that site because he lived 200 miles away
in Springfield.
¶ 53 Moreover, Exelon contracted with Venture-Newberg with the
express purpose to obtain qualified nonlocal tradesmen from remote
union locations because of the lack of available qualified local union
tradesmen. In other words, Exelon and Venture-Newberg agreed to
hire union tradesmen from outside of the area who would necessarily
be required to travel to the area to work. In fact, as Daugherty’s
experience reveals, he was required to travel over 200 miles to reach
the Cordova plant to complete the job he was hired by Venture-
Newberg to perform. By definition, then, Daugherty was required to
travel from his employer’s premises and qualifies as a traveling
employee. See Wright, 62 Ill. 2d at 68 (traveling employee exception
applies to employees who are required to travel away from their
employer’s premises).
¶ 54 Of course, concluding that Daugherty was a traveling employee
does not end the requisite inquiry. Daugherty can receive workers’
compensation benefits for his injuries only if they arose out of and in
the course of his employment. Hoffman, 109 Ill. 2d at 199. As this
court has explained, a traveling employee’s injuries arose out of and
in the course of his employment if he was engaged in reasonable
conduct at the time of his injury and his employer might normally
anticipate or foresee that conduct. Wright, 62 Ill. 2d at 69-70. Here,
Daugherty was injured as he traveled in a vehicle to the Cordova
plant from the motel where he was staying while he completed his
temporary work assignment outside of his local area. This conduct
was entirely reasonable, and his employer, who hired Daugherty with
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the express purpose to travel to a remote work site, certainly would
have anticipated it. Consequently, in accordance with the test
articulated by this court in Wright, Daugherty’s injuries arose from
and in the course of his employment. Wright, 62 Ill. 2d at 68.
¶ 55 The appellate court here reached the same conclusion. As the
appellate court found, “Venture-Newberg must have anticipated that
[Daugherty], recruited to work at Exelon’s facility over 200 miles
from [his] home, would be required to travel and arrange for
convenient lodging in order to perform the duties of his job, and that
it was reasonable and foreseeable that he would travel a direct route
from the lodge at which he was staying to Exelon’s facility.” 2012 IL
App (4th) 110847WC, ¶ 15.
¶ 56 The majority reverses the appellate court’s judgment and rejects
the Commission’s assessment of the evidence and its related
determination that Daugherty was entitled to workers’ compensation
benefits. Supra ¶ 2. Without ever actually stating it, the majority
implicitly holds that an opposite conclusion is clearly evident from
the record. Supra ¶ 14 (declining to identify the proper standard of
review but declaring that Daugherty’s argument fails under both a de
novo standard and the more deferential manifest weight of the
evidence standard).
¶ 57 For the foregoing reasons, I cannot agree. Instead, I believe the
Commission’s conclusion is not contrary to the manifest weight of
the evidence, and the appellate court’s judgment reaching the same
conclusion should be affirmed. Accordingly, I respectfully dissent.
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