August 01, 2013

Cleaning Lady Awarded Compensation for Fall at Home on Lunch Break

August 01, 2013

Stanislawa Mlynarczyk v. IWCC No. 2013 IL App (3d) 120411WC

The Compensation Commission denied Stanislawa Mlynarczyk’s claim for compensation, and she appealed, claiming that she was a “traveling employee” and thus entitled to compensation.  She was employed as a cleaning lady by Janitorial By Sophie working in churches, homes and offices.  She was paid by the job.  Her husband also worked for respondent — he drove employees to and from job sites using respondent’s minivan.

On the date of the accident, petitioner was driven by her husband to clean a church, after which she cleaned two houses.  She finished the second home at 2:30 p.m.  Usually, she worked a full day of jobs from 6:00 a.m. to 4:00 p.m., but on this particular date there were cancellations and she had no further assignments.  However, her employer informed her that if she and her husband were interested in assisting the evening crew on another job, they should return to the church at 4:30 p.m.  Petitioner agreed to do so.

Meanwhile, petitioner and her husband traveled home in the employer’s minivan to eat lunch.  Usually, this break was short — a 15-minute lunch — but on this date, she and her husband remained home for 90 minutes.  She was not paid for this period.  Shortly after 4:00 p.m., her husband returned with the minivan which he parked in their driveway.  As petitioner left the house to enter the minivan, she slipped and fell.  Per her testimony, she was not sure if there was ice beneath the snow.  The exact location of the accident was on the public sidewalk adjacent to her driveway.

Because Respondent provided the means of transportation, the Arbitrator found that petitioner was a traveling employee whose accident was connected to her employment and awarded compensation, penalties, and fees. The Commission reversed, finding that she fell on her personal driveway while walking to the vehicle.  She did not know if there was ice under the snow where she fell and she was not carrying anything relating to her work at the time of the occurrence.  Therefore, she failed to prove she was exposed to a risk connected or incidental to her employment.

The Commission also found that petitioner’s injuries were not sustained in the course of her employment as she had not left her personal property and thus was not exposed to the hazards of the street or the automobile.  She was not being paid at the time of the fall — she was on her own time at the time of the occurrence — and was not at a job location where she would have been performing work for respondent.  Last, the Commission stated that even if petitioner were to be found a traveling employee, it would not circumvent the requirement that the injury arise out of and in the course of her employment.  If the Commission were to find an accident in this case, then “ANY movement … at any time during the day or night would lead to a compensable claim.”

The Appellate Court reversed based on petitioner being a traveling employee, one who is required to travel away from her employer’s premises to perform her job.  According to the Court, it is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographical area to be considered a traveling employee.  Here, petitioner’s duties required her to travel to various locations and thus she qualified as a traveling employee.

Having found petitioner to be a traveling employee, the Commission stated the test for whether a traveling employee’s injury arises out of and in the course of her employee, namely, “the reasonableness of the conduct in which she was engaged at the time of the injury and whether that conduct might have been anticipated or foreseen by the employer.”  Here, the Court found that her injury arose out of her employment since as a “traveling employee,” her exposure to the hazards of the street was “by definition” greater quantitatively than that of the general public, as long as her conduct was reasonable and foreseeable to the employer.  Second, the Court held that because petitioner was a traveling employee, walking to a vehicle used to transport her to work, her injury occurred in the course of her employment.

In regards to the claim that petitioner’s injury was not compensable because it occurred on her property, the Court dismissed this argument, stating that the evidence did not support the assertion that petitioner’s fall occurred on private property.  This was based on petitioner’s testimony that the accident occurred adjacent to the driveway on a public sidewalk leading from the house to the driveway.  Notwithstanding the fact that the “public sidewalk” was that in front of her  home, the Court felt there was supporting evidence to conclude that petitioner was a traveling employee who had “left the physical confines of his or her home on the way to a job assignment.”

The Court sidestepped the argument made by the Commission that finding this case compensable would render any movement by a claimant at any time during the day or night compensable.  The Court stated that the Commission did not explain why it believed this would be the case as another employee seeking benefits would still be required to establish that an injury arose out of and in the course of employment as well as the reasonableness of the conduct in which he or she was engaged at the time of the injury and whether that conduct might have been anticipated or foreseen by the employer.  However, it did remand the case to the Commission to revisit the imposition of penalties and attorney’s fees.


The Court’s comments regarding the Commission’s policy statement that to find Mlynarczyk’s injury compensable would mean that any movement at any time of the day or night would be compensable was disingenuous.  The Commission’s explanation was a very simple one, easy for a layperson to discern.  The fact was that petitioner was injured on or about her own premises, whether or not she was actually on the public sidewalk.  To conclude that the point at which her foot may have been on a public way immediately exposed her to a greater risk, quantitatively, than anyone else walking on that sidewalk in front of her house strains legal reasoning.  Further, petitioner was not “traveling” at the time of the injury.  Rather, she was off the clock, at home, taking lunch.  She had not yet resumed her employment which, presumably, could have included entering the automobile and traveling back to the church.  From a functional point of view, given the nature of petitioner’s employment, she certainly would have been in the course of her employment when she arrived at the church as this was a place of her employment, a place where she performed work duties.  But even if she were granted extra protection while in the van driving to the church, it begs the question because she was not yet en route.  The court appears to have considered her to have remained in the course of her employment despite the fact that she was at home.

The Commission was correct.  The holding here means that any accident, anywhere, at any time of the day or night, for an employee who does not go to work at the same place each and every day, will be compensable.  A worker such as Mlynarczyk does not go to a central place of employment.  If such an employee is to be considered a “traveling employee” then she will be entitled to door-to-door coverage.  This would include slipping and falling on her premises.  The Court sidestepped this issue by finding that she may have been on a public sidewalk at the time she fell.  But it appears the Court was disposed to find this case compensable no matter where the fall occurred.  This could have included inside her home if she were performing some action in preparation for leaving her home to go back to the church.

That the Court intended to expand the meaning of traveling employee, can be found in a footnote in the decision where the Court responded to an argument made by the employer that a worker who must travel from site to site, such as a construction worker, cannot be considered a traveling employee.  The Court rebuked the employer for this argument, stating that the respondent could cite “no authority” for this proposition.  We are now prepared for the Court to find that construction workers are traveling employees, entitled to coverage from the time they leave their homes in the morning until they arrive back home at night because they do not work at a fixed job site.  According to the Court, “[i]t is not necessary for an individual to be a traveling salesman or a company representative who covers a large geographic area to be considered a traveling employee.”  This court went further, noting that petitioner did not work at a fixed job site but rather traveled to various locations throughout the Chicagoland area thereby qualifying as a traveling employee.  If so, then construction workers should enjoy the same status.