A state appeals panel ruled a United Airlines flight attendant cannot collect workers’ compensation benefits simply because she was injured on an airplane while on her way to work.
The five-justice panel in the 1st District Appellate Court’s workers' compensation commission division ruled that United employee Kristine Isern did not meet the definition of a “traveling employee,” and thus cannot collect on her claims under the Illinois Workers’ Compensation Act.
A Colorado resident, Isern was flying in September 2011 from Denver to New York City the day before she was assigned to work a flight leaving from John F. Kennedy International airport.
During the flight, Isern tripped and tore the ACL in her left knee. She needed an ambulance to exit the plane.
She filed a workers’ compensation claim in Illinois, where United is based, and an arbitrator in 2013 awarded her $46,000 in temporary total disability benefits, medical expenses and permanent partial disability benefits.
The Workers’ Compensation Commission reversed the arbitrator’s award, only to have that decision overturned by a Cook County judge. The panel’s decision reverses the circuit court ruling and reinstates the commission’s decision.
Traveling employees are defined as workers who are required to travel away from the employer’s premises to perform their jobs. However, employees who are merely traveling to work who are injured cannot claim those benefits.
The panel took its cue from a 2013 Illinois Supreme Court ruling in Venture-Newberg Perini, Stone & Webster v. Illinois Workers’ Compensation Comm’n, 2013 IL 115728, which held a contract worker who stayed at a motel for a job cannot claim workers’ compensation benefits after being injured on his morning commute.
That’s is because the worker voluntarily chose to take a job was 200 miles away from his home and opted to stay in a hotel closer to the job site, the high court found.
“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 knee,” 5th District Justice Bruce D. Stewart wrote. “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.”
As a United flight attendant, Isern had free parking at one airport of her choosing and could use special passes that waived fees on United flights. But beyond those perks, the airline does not provide other compensation for an employee’s commute.
Isern used both of these benefits before she boarded the United flight to LaGuardia Airport from Denver.
After the arbitrator awarded Isern her benefits, the high court made its ruling in Venture-Newberg. United asked the Illinois Workers’ Compensation Commission to review the arbitrator’s decision.
The commission reversed the arbitrator’s award on July 17, 2014, after reviewing the high court’s decision in Venture-Newberg.
Isern appealed the commission’s decision in Cook County Circuit Court. Circuit Judge Robert Lopez Cepero reversed the commission’s decision on May 7.
Lopez Cepero found the facts in Venture-Newberg distinguishable from Isern’s case. For instance, Isern is a permanent employee, not a temporary contract worker.
Secondly, because United provided Isern with free parking and fee-waived travel, the airline preferred Isern to travel this way, Lopez Cepero added. Therefore, Lopez Cepero found that Isern’s commute ended when she entered the Denver airport. United filed an appeal.
The appeals panel disagreed. The status of the employee, the panel found, does not matter in analyzing whether a worker is considered a traveling employee under the Venture-Newberg test.
The panel also rejected Lopez Cepero’s finding that Isern’s use of her free parking and a fee-waived United flight made her a traveling employee. Instead, the panel found that Isern’s method of travel was entirely her choice, and that United did not benefit from this.
Isern chose to live in Colorado and fly regularly to New York for work; she chose her own accommodations for the flight; she did not work during that flight; and she did not pay for it, the panel noted.
Moreover, the perks United provided Isern are provided to all employees for personal travel.
“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,” Stewart wrote. “The method and time of travel was the result of her personal choices for her own benefit and from which United derived no benefit.”
One of Isern’s attorneys, Brian J. McManus, sharply criticized the panel’s opinion in an interview, arguing United does derive a benefit from having flight attendants like Isern commute in this fashion.
“To say United has no benefit from having her on the flight is crazy. This is what she had to do for 10 years. United could have said no,” said McManus, of Brian J. McManus & Associates.
McManus pointed out that, in the event of an emergency, Isern would have been obligated to assist the flight crew.
McManus said the panel skewed and ignored certain facts, like how mechanics and ticket agents do not use the perks they are provided in a way Isern had to. Her flights would have cost up to $400 without those perks, he added.
He also contends the panel’s opinion ignores the law and creates an inconsistency the Supreme Court must now address.
“It seems like we’re getting a lot of decisions based on political expediency rather than law and justice, in my opinion,” he said.
He also leveled a charge against Justice Thomas E. Hoffman — one of the five justices who concurred on the decision — saying he was determined to change the law with it.
“Hoffman was bound and determined to change the law somehow with this decision. I don’t think he followed the law,” McManus said.
“It’s a decision where, to be honest, I felt Justice Hoffman didn’t really afford an opportunity to really argue the case,” he added.
Mark P. Connolly, a colleague of McManus who also represented Isern, said McManus wasn’t present at oral arguments — his son, Brian J. McManus Jr., delivered the arguments.
McManus said he plans to appeal to the Supreme Court.
United was represented by Karen Elizabeth Coon of Wiedner & McAuliffe, Ltd. Coon welcomed the panel’s opinion, saying it further reinforces the high court’s findings on traveling employees in Venture-Newberg, and the subsequent 2nd District ruling on the issue in Pryor v. Illinois Workers' Compensation Comm'n, 2015 IL App (2d) 130874WC.
In the Pryor case, a car delivery person sought workers’ compensation benefits after he injured his lower back packing his suitcase into the trunk of his car in preparation for an overnight work trip. The 2nd District panel rejected his arguments that he was a traveling employee.
Justices William E. Holdridge, Donald C. Hudson, Thomas M. Harris Jr. and Hoffman concurred with the opinion.
The case is United Airlines, Inc., v. The Illinois Workers’ Compensation Commission, et al., 2016 IL App (1st) 151693WC