What Do You Think?
An injured employee in Illinois may be entitled to workers’ compensation benefits as long as she was not acting intentionally or recklessly. But what if she were injured while driving from one employee location to another? Does that same standard apply? A case involving a Subway worker who smashed into a truck while driving between stores addresses that question.
The Subway restaurant employee, a minor, was traveling from one subway to another to deliver restaurant supplies when she careened into a truck. When police pulled a cell phone from the car, they found it was still playing a video. A nurse at the hospital where the employee died shortly thereafter from blunt force trauma noted that the employee was distracted and had made no attempt to stop.
The employee’s mother filed for workers’ compensation benefits, including funeral expenses. The arbitrator agreed with both the claimant and Subway that the employee was a “travelling employee” for purposes of workers’ compensation.
The arbitrator applied the following test to determine whether the accident occurred in the course and scope of employment: whether the employee committed any actions “intentionally, with knowledge that they were likely to result in serious injury, or with a wanton disregard of the probable consequences.” He found that she did not commit such acts and awarded benefits. The commission affirmed.
Subway appealed, arguing that the arbitrator applied the wrong test.
Was the arbitrator’s decision legally flawed?
A. No. The intentionality/wanton disregard test applies to travelling employees.
B. No. A different test applies to travelling employees versus regular employees.
If you selected B, you agreed with the court in Subway v. Illinois Workers’ Compensation Commission, No. 5-25-0429WC (Il. Ct. App. 04/13/26), which sent the case back to the Commission.
What are the rules on traveling employees in your state? Simply Research has that.
An injury sustained by a traveling employee arises out of her employment if she was injured while engaging in conduct that was reasonable and foreseeable. This means that the conduct was the type of conduct that an employer might normally anticipate or foresee.
Given that the decedent was a travelling employee at the time of the injury, the arbitrator was supposed to analyze the claim under the “reasonable and foreseeable” legal test. The arbitrator applied the wrong test.
“The Commission’s conclusion that decedent’s actions did not rise to that level may well be correct, but this conclusion does not answer the relevant question of if—as a traveling employee—her actions were merely so unreasonable and unforeseeable as to remove her from the protections of the Act,” the court said.
The court reversed the decision and sent the case back to the Commission to reconsider the claim using the correct standard.
