In the news this past week was the titillating tale of an Australian woman, a government employee, injured while having sex. She sought compensation from her employer as a result of her injuries. The case was in the news because, last Wednesday,
Australia's High Court, the country's highest judicial tribunal, issued a decision this week reversing lower court orders which had found the injuries compensable under Australia's Safety, Rehabilitation and Compensation Act of 1988 (that nation's worker's compensation statute).
This item was reported by Chicago media outlets with varying degrees of snickering and innuendo, especially by those who read deeply enough into the original press coverage to discover that the injury occurred when either the woman or her companion (no one really knows for sure) pulled a glass light fixture from its mount above the bed, causing it to strike the woman in the face.
As a lawyer (but
not a worker's compensation specialist), I couldn't help but wonder if this fact about someone actively pulling the light fixture from the wall was not just a matter of prurient interest but, rather, a critical factor in the Australian court's analysis: In tort law, this might be referred to as an intervening cause.
The way I looked at it, because the woman had to stay overnight at the motel as part of her work assignment, if the fixture had come loose of its own volition and struck the woman while she was sleeping, she probably would have had no problem collecting worker's compensation benefits (in addition to whatever claim she might have against the motel). Then, I speculated, if the fixture came off on its own, it should have made no difference if she'd been sleeping or engaged in some sort of consensual activity.
Therefore, I thought, perhaps the fact that the cause of the actual injury was somebody pulling the fixture off the wall -- something not at all work related -- was the reason why the injury was not compensable.
But that's not the way the Australian High Court saw it. The case is
Comcare v PVYW, [2013] HCA 41.
The High Court's majority opinion states, at ¶60, "[F]or an injury occurring in an interval in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place." The Australian court concluded (¶61) that an injury will be compensable where it "was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage" or where the "injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be."
I wondered how an Illinois court might resolve a similar case.
As near as I could tell, there is no factually similar case in Illinois. But, after actually doing a little research, as opposed to merely speculating, it appears an Illinois court looking at similar facts would consider the injured woman a "traveling employee." According to
Cox v. Illinois Worker's Compensation Commission, 406 Ill.App.3d 541, 545 (1st Dist 2010), "A 'traveling employee' is one who is required to travel away from his employer's premises in order to perform his job."
Cox explains, "The determination of whether an injury to a traveling employee arose out of and in the course of employment is governed by different rules than are applicable to other employees. * * * As a general rule, a traveling employee is held to be in the course of his employment from the time that he leaves home until he returns. * * * However, a finding that a claimant is a traveling employee does not relieve him from the burden of proving that his injury arose out of and in the course of employment. * * * 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 the conduct might normally be anticipated or foreseen by the employer. * * * Under such an analysis, a traveling employee may be compensated for an injury as long as the injury was sustained while he was engaged in an activity which was both reasonable and foreseeable." (406 Ill.App.3d at 545-6, citations omitted.)
My original notion that the case might turn on a question of intervening cause is pretty well put to rest by
Potenzo v. Illinois Workers' Compensation Commission, 378 Ill.App.3d 113 (1st Dist. 2007).
In
Potenzo, a driver making deliveries at a Jewel Food Store in Uptown was using a hand control, trying to lower two pallets of goods on a hydraulic-lift platform, "when he felt someone grab his ankle." As he turned to look, "he was hit in the back of the head, and he immediately lost consciousness." (378 Ill.App.3d at 114.)
The employer made what sounds to my non-specialist ears something like a causation argument, taking the position that the driver faced the same risk of getting mugged as anyone else out on the streets of Chicago. The employer argued that the driver "failed to carry his burden of establishing that, when assaulted on February 27, 1995, he was exposed to a greater danger than the general public, and as a consequence, failed to establish that his injuries arose out of his employment." (378 Ill.App.3d at 117.)
But the driver insisted that he was a traveling employee, required to unload trucks in alleys and loading docks at odd hours and, as such, "his employment 'caused him to incur the special risk of contact with street crime and violence' and, as a consequence, he was not required to establish that the risk of being attacked was peculiar to his employment, only that his employment exposed him to the same risk as the general public." (378 Ill.App.3d at 117.)
Under Illinois law, according to the
Potenzo court, there are three types of risks to which a worker might be exposed (378 Ill.App.3d at 116):
- risks distinctly associated with the employment
- risks which are personal to the employee, and
- neutral risks which have no particular employment or personal characteristics
The risk that the driver might get unloaded on while attempting to unload was one of these "neutral risks." (378 Ill.App.3d at 117.) And the
Potenzo court agreed that the driver could not establish why he was attacked, nor was the Appellate Court inclined to disagree with the Commission's finding that the driver failed to establish that he was working in a high crime area or dangerous neighborhood when he was attacked. (378 Ill.App.3d at 118.)
However, the
Potenzo court concluded, "The undisputed evidence in this case establishes that the claimant was a traveling employee whose duties required him to travel the streets and unload a truck in areas accessible to the public. The risk of being assaulted, although one to which the general public is exposed, was a risk to which the claimant, by virtue to his employment, was exposed to a greater degree than the general public. * * * [T]here is no evidence in this case which would support an inference that the attack upon the claimant was based on a purely personal motive. Finally, it is undisputed that, when he was assaulted, the claimant was in the process of unloading his truck, an activity which was reasonably foreseeable by Jewel." (378 Ill.App.3d at 119.) The Appellate Court set aside the Commission's decision and ordered that benefits be awarded to the injured truck driver.
So intervening cause is definitely not an issue, but reasonableness and foreseeability are primary considerations that we might an expect an Illinois court to consider if a case similar to the Australian case arose in Illinois.
Therefore (again, speaking as a non-specialist), I have to suspect that an Illinois court evaluating such a case might find guidance in
Howell Tractor & Equipment Co. v. Industrial Commission, 78 Ill. 2d 567 (1980).
In
Howell Tractor, the soon-to-be injured employee and a colleague were dispatched to Logansport, Indiana to repair a road resurfacing machine. The duo picked up the spare parts they needed and headed to Logansport. They disassembled the machine, finding and fixing the problem they expected that same afternoon. But, as they were repairing the reported problem they saw that another part was missing from the motor. That, they reasoned, might be contributing to the overheating problem that gave rise to their service call. After consulting with the manufacturer, who suggested they tear down the motor again and made provisional arrangements to ship out a replacement motor if that failed, the Howell employees secured permission from their manager to stay overnight. (78 Ill.2d 570-571.)
They went out for dinner and drinks with the road project foreman. Then, borrowing clothes from the foreman, they drove out to one place, and then a different place, closing the second one. One of the Howell employees went to the bathroom, but when he came back he found that his comrades had left. The employee had never been to Logansport before, and he might have called a cab, but, somehow, he thought it might be a good idea to walk back to the motel. He soon realized he was lost, but then he remembered that there was a railroad crossing near the motel, so when he found some railroad tracks, he decided he just might find the motel if he walked alongside them. This proved to be as bad an idea as it sounds: The employee's arm was snagged by a passing train, and when he wriggled free and fell off, the train ran over his leg. (78 Ill.2d at 571-573.)
The Supreme Court found that the employee in this case was not entitled to benefits. The court explained, "Although the protection afforded a traveling employee by the [Act] * * * is considerably more extensive than that afforded other employees, the purposes of the Act do not require the employer to serve as an insurer for a traveling employee. * * * The burden of establishing compensability rests upon the claimant, and proof that he would not have been at the place where the injury occurred but for his employment is not alone sufficient." (78 Ill.2d at 574, citations omitted.)
Further explaining, the
Howell Tractor court stated, "Assuming here that claimant's conduct in borrowing dressier clothes, showering and leaving the motel after 10 p.m. was reasonable and foreseeable, it ceased being so, in our judgment, when claimant decided to part with his companions and return to the motel alone. Although the claimant testified he thought he knew how to reach the motel, he had never been in Logansport before. He, [the foreman and his colleague] had driven a total of 20 minutes to reach the tavern where they parted. He didn't ask anyone for directions to the motel, nor did he inquire about the taxi service which was available. Instead, about 2 a.m. in the morning and after admittedly having five drinks, he set out on foot in an unsavory section of the town to reach his motel some three miles away without being certain which direction or how far it was. In our opinion that action is simply not reasonable, nor could an employer be expected to reasonably foresee that an employee would make such a rash decision." (78 Ill.2d at 574-5.)
The court concluded (78 Ill.2d at 575-6), "In the case now before us even though the initial decision to have a few drinks with [his comrades] is assumed to be unobjectionable, the decision to walk back to the motel resulted in a late-night excursion through an unfamiliar and potentially hazardous area.... Eschewing taxi service and guidance in locating the motel, [the employee] predictably became lost and, at that hour in the morning, apparently saw no one to assist him. As the arbitrator below decided, any conclusion that this rash course of conduct is reasonable and foreseeable is against the manifest weight of the evidence."
Even with these cases providing guidance, I can't begin to guess how an Illinois court might resolve a case similar to the one decided last week in Australia. If this case arose in Illinois, the result
might have been different... although not, presumably, the giggling media coverage.
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For further reading: High Court rules out compensation to public servant injured while having sex in a motel (
The Australian)
Australian loses compensation case for sex injury (AP coverage, this link to the Waterton, South Dakota
Public Opinion)
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