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The Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission et al.

December 6, 2012

THE VENTURE-NEWBERG PERINI STONE AND WEBSTER,
APPELLEE,
v.
ILLINOIS WORKERS' COMPENSATION COMMISSION ET AL. APPELLANT.



Appeal from the Circuit Court of Sangamon County. No. 10-MR-509 Honorable Patrick W. Kelley, Ronald Daugherty, Judge, Presiding.

The opinion of the court was delivered by: Justice Hoffman

Workers' Compensation Commission Division

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Holdridge and Stewart concurred in the judgment and opinion. Justice Hudson dissented with opinion, joined by Justice Turner.

OPINION

¶ 1 The claimant, Ronald Daugherty, appeals the decision of the circuit court of Sangamon County finding that he is not entitled to benefits under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) for injuries he sustained while in the employ of the respondent, The Venture-Newberg Perini Stone & Webster (Venture-Newberg). On appeal, the claimant argues that the circuit court erred in setting aside the Commission's determination that his accident, which occurred while he was traveling from his motel to a jobsite, arose out of and in the course of his employment with Venture-Newberg. For the reasons that follow, we agree, and we therefore reverse the judgment of the circuit court and reinstate the Commission's decision.

¶ 2 We begin with a recitation of the relevant facts, drawn from the record of proceedings before the arbitrator. At the time of the accident, the claimant was a 50-year-old pipefitter who resided in Springfield, Illinois. He had worked as a pipefitter for approximately 30 years and was a member of the Plumbers & Pipefitters Union Local 137 (Local 137) based in Springfield. Members of Local 137 bid for jobs at their union hall. Typically, when a member completes a job he or she is terminated and must seek another position. Although members are permitted to take jobs outside of Local 137's home territory provided no work is available locally, they are not required to do so.

¶ 3 Venture-Newberg is a contractor that was hired to perform maintenance and repair work at a nuclear power plant in Cordova, Illinois, operated by Exelon Corporation (Exelon). Cordova is located between 200 and 250 miles from Springfield and is within the home territory of Plumbers & Pipefitters Union Local 25 (Local 25) based in Rock Island, Illinois. Venture-Newberg discussed its manpower needs for the Cordova project with Local 25, and Local 25 posted the positions to its membership. The positions at the Cordova plant were temporary and expected to last only a few weeks. Tradesmen hired for the Cordova job were expected to work between 6, 10-hour days and 7, 12-hour days and could be called in on an emergency basis.

¶ 4 Due to insufficient manpower within its home territory, Local 25 sought members from other locals, including Local 137, to work for Venture-Newberg at the Cordova plant. John Haynes, a business agent with Local 137, advised the claimant of the openings at the Cordova plant. At the time the Cordova jobs were posted, the claimant was unemployed and no work was available locally, so he bid on a job. The claimant and Todd McGill, another member of Local 137, accepted positions at the Cordova plant. Prior to the Cordova job, the claimant had worked for Venture-Newberg on four separate occasions between 2004 and 2006. The length of these four jobs varied and lasted for as few as two weeks to as many as six weeks. The claimant was laid off at the end of each job and had to be rehired for each subsequent job.

¶ 5 The claimant and McGill first reported to work at the Cordova plant on March 23, 2006. After completing their shifts that day, the two men spent the night at the Lynwood Lodge, which is located 30 miles from the jobsite. The men were scheduled to start work the following day at 7 a.m. On the morning of March 24, 2006, the men left the motel for the Cordova plant in McGill's pickup truck. Shortly after 6 a.m., the vehicle, which was being driven by McGill, skidded on a patch of ice while traveling on an overpass. The claimant sustained serious injuries as a result of the motor vehicle accident.

¶ 6 At the hearing on his application for adjustment of claim, the claimant testified that it was his "understanding" that in "most cases," Venture-Newberg requested workers to be within an hour of the jobsite so that they are alert and ready for work. He explained that workers "had to be available just at a phone call, and they would call you and maybe you would come in early or you would stay late, so you had to stay within a certain parameter of the plant." The claimant later testified that he did not want to have to work 12 hours and then drive home and that he planned on staying at the Lynwood Lodge because the jobsite was 200 miles from his residence. The claimant stated that it made sense for him, once he finished his shift, to rest at a hotel and prepare for the next day. The claimant acknowledged that Venture-Newberg did not instruct him to stay at the Lynwood Lodge and that Venture-Newberg did not direct which route to take from the motel to the Cordova plant. Further, Venture-Newberg did not reimburse the claimant or McGill for their travel or lodging expenses or pay the men for the time they spent traveling to the jobsite. Additionally, the claimant stated that he was not instructed to arrive early for work on March 24, 2006, was not called into work for an emergency on the day of the accident, and was not on "on-call status" at the time of the accident.

¶ 7 McGill acknowledged that Venture-Newberg never expressly requested employees to reside near the jobsite. However, he opined that driving a distance of more than 200 miles to the jobsite would make it difficult to work a 12-hour shift and to be available in the event of an emergency. McGill testified that the men were not called to the plant for an emergency on the date of the accident and Venture-Newberg did not ask the men to come in early that day. McGill further testified that Venture-Newberg did not direct him and the claimant to take a particular route to the Cordova plant. In addition, Venture-Newberg did not direct him and the claimant to stay at the Lynwood Resort, make the arrangements for him and the claimant to stay at that location, pay for the motel accommodations or the men's travel expenses, or compensate them for time spent traveling from the motel to the jobsite.

¶ 8 Haynes testified that Local 137 covers a "fairly broad" geographical area. As a result, members generally have to travel to get to a particular job or project. Haynes testified that the union agreement does not provide for reimbursement of travel or lodging expenses unless "the contractor has sent [the member] away."

¶ 9 Ronald Cahill testified that, in March 2006, he was employed by Venture-Newberg as a radiological and safety supervisor. Cahill testified that although the claimant worked for Venture-Newberg on several other projects, he was not a permanent employee of the company in March 2006. Cahill explained that Venture-Newberg hired workers through the union and would lay off the workers when a project was completed. Tradesmen began receiving pay when they clocked in at the job site. Cahill testified that Venture-Newberg did not pay travel or lodging expenses for tradesmen working on the Cordova project in March 2006 and that tradesmen were not compensated for the time spent commuting to and from the jobsite. He stated that Venture-Newberg was required to pay travel expenses only if an existing employee was transferred to a different facility. Cahill stated that the claimant was not transferred to the Cordova plant from another facility in March 2006. Cahill acknowledged that the contract between Exelon, its contractors (including Venture-Newberg), and the unions places the onus upon the unions and the contractors to provide a ready, willing, and able workforce to fulfill the requirements of the contract. He also acknowledged that, by staying at a motel, the claimant benefitted Venture-Newberg and helped it comply with the Exelon contract. He noted that the claimant might not be able to assist in the case of an emergency if he had to travel 200 miles to reach the jobsite.

ΒΆ 10 Based on the foregoing evidence, the arbitrator concluded that the claimant failed to sustain his burden of establishing that the motor vehicle accident arose out of and in the course of the claimant's employment with Venture-Newberg. In a divided decision, the Commission reversed the decision of the arbitrator and concluded that the claimant sustained an accident arising out of and in the course of his employment with Venture-Newberg. The Commission acknowledged that, ordinarily, an accident that occurs while an employee is traveling to or from work is not considered one that arises out of or in the course of employment. However, the Commission found two applicable exceptions. First, the Commission concluded that the claimant was in the course of employment while traveling to work because the course or method of travel was determined by the demands or exigencies of the job rather than by the claimant's personal preference as to where he chose to live. Chicago Bridge & Iron, Inc. v. Industrial Comm'n, 248 Ill. App. 3d 687, ...


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