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                                        Appellate Court                        Date: 2016.09.20
                                                                               09:22:36 -05'00'




                      Allenbaugh v. Illinois Workers’ Compensation Comm’n,
                                  2016 IL App (3d) 150284WC



Appellate Court            JASON ALLENBAUGH, Petitioner-Appellant, v. THE ILLINOIS
Caption                    WORKERS’ COMPENSATION COMMISSION and THE CITY OF
                           PEORIA POLICE DEPARTMENT, Respondents-Appellees.



District & No.             Third District
                           Docket No. 3-15-0284WC


Rule 23 order filed        June 15, 2016
Motion to publish
allowed                    July 12, 2016
Opinion filed              July 12, 2016



Decision Under             Appeal from the Circuit Court of Peoria County, No. 14-MR-716; the
Review                     Hon. James Mack, Judge, presiding.



Judgment                   Affirmed.



Counsel on                 Stephen P. Kelly, of Peoria, for appellant.
Appeal
                           Boyd O. Roberts III and Kenneth M. Snodgrass, Jr., both of
                           Hasselberg, Grebe, Snodgrass, Urban & Wentworth, of Peoria, for
                           appellee.
     Panel                    JUSTICE HUDSON delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Holdridge and Justices Hoffman, Harris, and Stewart
                              concurred in the judgment and opinion.

                                               OPINION

¶1                                        I. INTRODUCTION
¶2         Claimant, Jason Allenbaugh, appeals a decision of the circuit court of Peoria County
       confirming a decision of the Illinois Workers’ Compensation Commission (Commission)
       denying his claim for benefits under the Workers’ Compensation Act (Act) (820 ILCS 305/1
       et seq. (West 2012)). For the reasons that follow, we affirm.

¶3                                          II. BACKGROUND
¶4          Claimant is a police officer employed by the City of Peoria (respondent). He is a patrol
       officer and typically works second shift, reporting at 2:45 p.m. His job requires him to be
       driving for at least 65% and up to 75% of a shift. On March 5, 2013, claimant was ordered to
       report at 8 a.m. for mandatory training. The training was to take place at police headquarters
       and at the Expo Gardens Opera House. Claimant was en route to police headquarters. It was
       snowing, and there was ice and slush on the road. An oncoming vehicle crossed the center line
       and struck the left front side of claimant’s truck. Claimant was forced into a ditch and struck
       several trees, sustaining neck and back injuries.
¶5          The arbitrator found claimant had sustained a work-related injury. He found that claimant
       was a patrol officer who typically worked second shift. He was ordered to perform mandatory
       training outside his usual duty hours. He was directed to bring various items of police gear to
       the training session. He left his house to attend training at 7:45 a.m. on March 5, 2013. The
       roads were hazardous that day. A third party, who was driving too fast for the hazardous
       conditions, ran into claimant’s truck. Claimant was not at fault. According to claimant and the
       officer who responded to the accident, police officers were on duty 24 hours per day. Based on
       these facts (and without explaining the legal basis for his ruling), the arbitrator found that
       claimant sustained an accident arising out of and in the course of his employment.
¶6          The Commission reversed. It noted claimant’s testimony that he believed he was on duty at
       all times and was required to respond to unlawful acts occurring in his presence; however, it
       further noted that at the time of the accident, claimant was not responding to unlawful conduct
       and was not responding to an emergency. It further cited the testimony of Assistant Chief of
       Police Jerry Mitchell that claimant was not on duty at all times and had no general obligation to
       intervene if he observed unlawful behavior while off duty. Respondent did employ people on
       an on-call basis, but claimant was not assigned to such duty. Mitchell did agree that claimant
       was required to report crimes he observed while not on duty.
¶7          The Commission then found that the mere fact that the training claimant was required to
       attend occurred outside his usual duty hours was not sufficient to avoid the general rule that an
       “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.” It noted claimant was not
       required to drive any particular route and that “he was not performing any activities of


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       employment at the time of the accident.” It agreed that, in other cases, police officers had been
       compensated while commuting where their employer retained control over them; however, this
       was not the case here. The Commission stated that the traveling-employee doctrine did not
       apply where claimant was simply driving his personal vehicle to his normal workplace. The
       dissenting commissioner believed that the traveling-employee doctrine applied because
       claimant was not commuting to his normal shift and the roads were hazardous. The circuit
       court of Peoria County confirmed, and this appeal followed.

¶8                                          III. ANALYSIS
¶9         On appeal, claimant advances two main arguments. First, he asserts that respondent
       maintained sufficient control over him that he remained within the scope of his employment at
       the time of the accident in accordance with City of Springfield v. Industrial Comm’n, 244 Ill.
       App. 3d 408 (1993). Second, he contends that he was a traveling employee when the accident
       occurred. Generally, whether a claimant’s injury arose out of and occurred in the course of
       employment is a question of fact, and review is conducted using the manifest-weight standard.
       Kemp v. Industrial Comm’n, 264 Ill. App. 3d 1108, 1110 (1994). However, where, as here, the
       material facts are undisputed and susceptible to but a single inference, review is de novo.
       Johnson v. Illinois Workers’ Compensation Comm’n, 2011 IL App (2d) 100418WC, ¶ 17.

¶ 10                                              A. Control
¶ 11       Claimant first argues respondent maintained sufficient control over him that he was within
       the scope of his employment at the time of the accident. See City of Springfield, 244 Ill. App.
3d at 411. Plaintiff relies heavily on City of Springfield. In that case, a police officer was
       injured in an automobile accident while returning to the police station from lunch. The officer
       was a sergeant in the detective bureau and was assigned an unmarked police car for 24 hours
       per day. The officer was required to monitor the radio while using the car at all times, and he
       was to respond to any calls he received, even if he was off duty. He drove the car home to eat
       lunch on most days, and on the day of the accident, he was returning to work from lunch when
       a motorist ran a stop sign and collided with him. The officer was also given a beeper to
       facilitate responding to calls. He could do whatever he wanted during his lunch break. At the
       time of the accident, he was not responding to a call or emergency situation.
¶ 12       Claimant contends that City of Springfield controls here. He argues that respondent
       maintained similar control over him as the respondent did over the officer in City of
       Springfield. In response, he points out that he was “ordered to report to the police station in a
       winter storm” and that the “roads were dangerous.” While the officer in City of Springfield
       presumably was required to return to work after lunch just as claimant was ordered—and
       hence required—to attend training, the City of Springfield court made no mention of the
       officer’s obligation to return to the stationhouse after lunch in announcing its holding. See id.
       Indeed, it seems to us that all employees are required to go to work. Thus, we fail to see how
       the fact that claimant was going someplace he was required to go for work distinguishes his
       situation from normal commuting. Claimant cites nothing to support the proposition that one’s
       obligation to go to the place where one works supports an inference that one is within the scope
       of employment while commuting. Claimant states he would have been subject to discipline if
       he missed the training session; this is simply another way of saying he was ordered to attend
       and that attendance was mandatory. Claimant also asserts he was required to drive in

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       hazardous weather, but he does not explain how this renders his situation different from typical
       commuting.
¶ 13        Claimant relies on the fact that the training session was outside his usual hours of
       employment. We note that in City of Springfield, the officer was injured during his customary
       lunch break. Accordingly, City of Springfield sheds no light on this aspect of the instant
       situation. Claimant cites no other case where such a fact was given weight in finding an
       employee to be within the scope of his employment while commuting. Claimant points out
       that, per departmental directive, he was ordered to bring several items of equipment with him.
       It is true that the City of Springfield court relied on the fact that the officer had a radio (that was
       required to be on at all times) and a beeper with him at the time of the accident. However, in
       City of Springfield, the court mentioned that equipment because it allowed the respondent to
       maintain control over the officer while he was otherwise off duty. In claimant’s case, he was
       required to bring to training his nightstick, gun belt, handcuffs and key, tazer, holster, and
       training uniform. Unlike a radio and beeper, none of these items allowed respondent to
       maintain control over claimant. Therefore, City of Springfield is distinguishable on this basis.
¶ 14        In sum, City of Springfield provides no meaningful support for claimant’s position, and he
       identifies no other authorities where the facts he seeks to rely on were given weight in
       assessing whether an employee remained within the scope of employment while otherwise
       commuting.

¶ 15                                       B. Traveling Employee
¶ 16       Next, claimant contends that he was a traveling employee at the time of the accident. Of
       course, accidents that occur when an employee is traveling to and from work do not generally
       arise out of or occur in the course of employment. The Venture—Newberg-Perini v. Illinois
       Workers’ Compensation Comm’n, 2013 IL 115728, ¶ 16. However, if the employee is
       classified as a “traveling employee,” an exception exists. Id. ¶ 17. A traveling employee is an
       employee whose job duties require him or her to travel away from the employer’s premises. Id.
       For a traveling employee, any act the employee is directed to perform by the employer, any act
       the employee has a common-law duty to perform, and any act that the employee can
       reasonably be expected to perform are all compensable. Id. ¶ 18. Commuting is not
       encompassed by the doctrine. See Pryor v. Illinois Workers’ Compensation Comm’n, 2015 IL
       App (2d) 130874WC, ¶ 22 (“An injury suffered by a traveling employee is compensable under
       the Act if the injury occurs while the employee is traveling for work, i.e., during a work-related
       trip. However, the work-related trip at issue must be more than a regular commute from the
       employee’s home to the employer’s premises.”).
¶ 17       Claimant argues that he is required to drive for much of his usual shift. However, that is not
       what claimant was doing at the time he was injured, and he cites no authority that holds that
       where an employee regularly drives as part of his duties, his or her commute is brought within
       the scope of the employment. Our research has uncovered no support for this proposition as
       well. Claimant then contends that he was required to travel to the police station and then to the
       Expo Gardens on the day he was injured. While true, it is undisputed that at the time he was
       injured, he was driving from his home to the police station. Finally, claimant again asserts that
       respondent required him to drive in hazardous conditions. We fail to see how this distinguishes
       claimant’s situation from that of any other commuter in the northern half of this country.


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¶ 18       Indeed, claimant cites no case where an employee has been found to be within the scope of
       employment on similar facts. The Commission observed, “We do not believe that the traveling
       employee doctrine should be extended to include any claimant who is involved in an accident
       on the way to their normal workplace, driving their personal vehicle without any additional
       compensation and not performing any duties incidental to their employment when the only
       basis for finding so is a department order that the claimant’s regular work shift was different
       for that particular day.” We agree with the Commission.

¶ 19                                      IV. CONCLUSION
¶ 20      In light of the foregoing, the order of the circuit court of Peoria County confirming the
       decision of the Commission is affirmed.

¶ 21      Affirmed.




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