The Venture-New berg Perini Stone and Webster v. Illinois Workers' Compensation Commission

2013 IL 115728

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 115728)

THE VENTURE—NEWBERG-PERINI, STONE & WEBSTER,

Appellant, v. THE ILLINOIS WORKERS’ COMPENSATION

COMMISSION (Ronald Daugherty, Appellee).

Opinion filed December 19, 2013.

CHIEF JUSTICE GARMAN delivered the judgment of the court,

with opinion.

Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred

in the judgment and opinion.

Justice Kilbride dissented, with opinion.

OPINION

¶1 Ronald Daugherty was a member of Plumbers & Pipefitters

Union Local 137 (Local 137) based in Springfield, Illinois. Due to a

lack of available work in his local area, Daugherty took a position

with The Venture—Newberg-Perini, Stone & Webster (Venture)

located approximately 200 miles from his home. Daugherty had

temporarily relocated to a nearby motel for the job and was seriously

injured in an automobile accident on his way to work. As a result,

Daugherty sought workers’ compensation benefits.

¶2 The arbitrator found that Daugherty failed to show that the injury

arose out of and in the course of his employment. The Illinois

Workers’ Compensation Commission (Commission) reversed the

arbitrator’s conclusion. On administrative review, the circuit court of

Sangamon County set aside the Commission’s finding. The appellate

court reversed the circuit court’s judgment, finding that Daugherty

was a “traveling employee” at the time of the injury. The appellate

court denied Venture’s petition for rehearing, but granted

certification pursuant to Rule 315(a), and this court granted Venture’s

petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010).

For the following reasons, we reverse the judgment of the appellate

court and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 At the time of the accident, Daugherty was a resident of

Springfield, Illinois, and was a pipefitter and member of Local 137,

working out of Springfield. Members of Local 137 were permitted to

take jobs outside the local territory, but only when no work was

available locally. Due to a lack of available work in the local area,

Daugherty took a position with Venture at a plant located in Cordova,

Illinois, located about 200 miles from Springfield. While working at

the Cordova plant, Daugherty was expected to work 7 days a week,

12 hours a day. Due to the distance and long hours, Daugherty and

his fellow union member, Todd McGill, decided to stay at a local

motel.

¶5 Daugherty and McGill first reported to work at the Cordova plant

on March 23, 2006. After completing work that day, the men went to

Lynwood Lodge to spend the night. The motel was located about 30

miles from the Cordova plant. The men were scheduled to resume

work at 7 a.m. the following day. Around 6 a.m. the next morning,

McGill was driving Daugherty to work in McGill’s pickup truck. The

vehicle skidded on ice while crossing an overpass, and Daugherty

suffered serious injuries. As a result of this accident, Daugherty

sought workers’ compensation benefits.

¶6 Daugherty’s position with the Cordova plant was to be temporary.

Under Local 137’s normal policy, members are terminated at the

completion of a job and are expected to seek a new position.

Daugherty had worked for Cordova on four other short-term

positions in the two years prior to the accident.

¶7 Daugherty testified that it was his understanding that Venture

wanted workers to be within an hour’s drive of the plant, so that they

were available for work when needed. Daugherty’s coworker,

McGill, also testified that Venture did not direct workers where to

stay and that, while Venture desired its employees to be located close

to the plant, the workers were not required to relocate to be closer to

the plant. An employee of Venture, Anthony Cahill, testified that

Venture derived a benefit from workers residing within the local

geographic area due to emergency labor needs. Venture, however, did

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not direct workers where to stay or what route to take to work.

Daugherty was not reimbursed for travel expenses or compensated

for travel time. Cahill noted that only existing employees who were

transferred to another location were compensated for travel expenses.

¶8 The arbitrator concluded that Daugherty had failed to prove that

his injuries arose out of and in the course of his employment. The

arbitrator also found that Daugherty did not qualify for the traveling

employee exception.

¶9 In a divided decision, the Commission reversed the arbitrator’s

decision, concluding that while ordinarily an accident occurring

while an employee travels to work is not considered to be one that

arises out of and in the course of employment, two exceptions applied

here. First, the Commission found the accident occurred within the

course of Daugherty’s employment because Daugherty’s course or

method of travel was determined by the demands and exigencies of

the job, rather than his personal preference. The Commission

acknowledged that Daugherty was not required to stay in the local

area, but found that “as a practical matter,” Daugherty needed to have

stayed within a reasonable commuting distance from the plant.

Second, the Commission found that Daugherty was a “traveling

employee” at the time of the accident.

¶ 10 On administrative review, the circuit court found that the

Commission misconstrued or misapplied Illinois law and set aside the

Commission’s findings. The appellate court reversed. 2012 IL App

(4th) 110847WC. Relying on this court’s decision in Wright v.

Industrial Comm’n, 62 Ill. 2d 65, 69 (1975), the majority of the

appellate court found that Daugherty qualified as a “traveling

employee” and that his injury arose out of the course of his

employment. Justice Hudson dissented, finding that Daugherty’s

injury, occurring during his commute to work, did not arise out of

and in the course of his employment. The dissent also disagreed with

the majority’s application of the traveling employee exception.

¶ 11 ANALYSIS

¶ 12 Venture argues that the appellate court erred in reversing the

circuit court. First, Venture maintains that Daugherty was not a

traveling employee. Venture focuses on the relevant facts, noting that

Daugherty was a temporary employee and Venture did not send

Daugherty to work at the Cordova plant. Venture also disputes the

Commission’s finding that Daugherty was acting under the direction

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or control of Venture when he chose to relocate closer to the work

site and was injured on the way to work.

¶ 13 Daugherty, however, argues that the Commission’s findings

should be upheld under both exceptions. Daugherty’s position is that

he was a traveling employee because he was an employee who was

traveling away from his home community for his employer.

Daugherty also maintains that his injury arose out of and in the

course of his employment because Daugherty’s course of travel was

determined by the demands and exigencies of the job, rather than his

personal preference.

¶ 14 The parties also dispute the applicable standard of review.

“Before a reviewing court may overturn a decision of the

Commission, the court must find that the award was contrary to law

or that the Commission’s factual determinations were against the

manifest weight of the evidence. [Citation.] On questions of law,

review is de novo, and a court is not bound by the decision of the

Commission. [Citation.] On questions of fact, the Commission’s

decision is against the manifest weight of the evidence only if the

record discloses that the opposite conclusion clearly is the proper

result.” Beelman Trucking v. Illinois Workers’ Compensation

Comm’n, 233 Ill. 2d 364, 370 (2009). Because Daugherty’s argument

fails under either standard, however, we need not resolve the parties’

dispute regarding the standard of review.

¶ 15 Traveling Employee

¶ 16 “The general rule is that an injury incurred by an employee in

going to or returning from the place of employment does not arise out

of or in the course of the employment and, hence, is not

compensable.” Commonwealth Edison Co. v. Industrial Comm’n, 86

Ill. 2d 534, 537 (1981). This court has explained the purpose behind

this rule, noting that “the 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.” Sjostrom v. Sproule,

33 Ill. 2d 40, 43 (1965).

¶ 17 An exception applies, however, when the employee is a

“traveling employee.” “[C]ourts generally regard employees whose

duties require them to travel away from their employer’s premises

(traveling employees) differently from other employees when

considering whether an injury arose out of and in the course of

employment.” Wright v. Industrial Comm’n, 62 Ill. 2d 65, 68 (1975);

Hoffman v. Industrial Comm’n, 109 Ill. 2d 194, 199 (1985).

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¶ 18 If a traveling employee is injured, the court then considers

whether the employee’s activity was compensable. Wright, 62 Ill. 2d

at 69. This court has found that injuries arising from three categories

of acts are compensable: (1) acts the employer instructs the employee

to perform; (2) acts which the employee has a common law or

statutory duty to perform while performing duties for his employer;

(3) acts which the employee might be reasonably expected to perform

incident to his assigned duties. Daugherty argues that the third

category applies here. Considering the third category, this court has

found that traveling employees may be compensated for injuries

incurred while performing an act they were not specifically instructed

to perform. The act, however, must have arisen out of and in the

course of his employment. To make this determination, the court

considers the reasonableness of the act and whether it might have

reasonably been foreseen by the employer.

¶ 19 The parties primarily rely on two cases: Wright, 62 Ill. 2d 65, and

Chicago Bridge & Iron, Inc. v. Industrial Comm’n, 248 Ill. App. 3d

687 (1993). In Wright, an employee, Myrtis Wright, was a field

erection supervisor who was frequently required to travel to out-of-

state locations and stay there for months at a time. Wright, 62 Ill. 2d

at 67. In addition to his hourly wage, Wright received per diem for

traveling expenses as well as mileage reimbursement. Id. Wright was

working at a job site located in Tennessee and had rented a motel

room located near the job site. Id. On a Saturday afternoon, Wright

was killed in a car accident. Id. Testimony during the trial showed

that it was unclear as to where Wright was traveling at the time of the

accident. Id. at 68. This court found that the traveling employee

exception applied, noting that “[i]t would be inconsistent to deprive

an employee of benefits of workmen’s compensation simply because

he must travel to a specific location for a period of time to fulfill the

terms of his employment and yet grant the benefits to another

employee because he continuously travels.” Id. at 69.

¶ 20 In Chicago Bridge & Iron, Danny Reed was hired by the

employer and was “periodically required” to travel to various job

sites out of state. Chicago Bridge & Iron, 248 Ill. App. 3d at 688.

Reed had worked exclusively for the employer for 19 years, but his

employment was not continuous, as he was terminated at the end of

each temporary job and rehired as necessary. Id. at 692-93. Reed was

compensated for mileage when traveling to work sites. Id. at 689.

One such job site was located in Minnesota, and Reed stayed in a

motel near the job site. Id. Reed was injured in a car accident when

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driving from the motel to the job location. Id. The appellate court

found that the traveling employee exception applied. Id. at 694.

¶ 21 Courts in Illinois have considered a variety of other examples of

traveling employees, including traveling salesmen (Urban v.

Industrial Comm’n, 34 Ill. 2d 159 (1966)); a field mechanic who

traveled to service heavy-duty equipment (Howell Tractor &

Equipment Co. v. Industrial Comm’n, 78 Ill. 2d 567 (1980)); a

director of health services for a regional office of education who

traveled to meet with local schools (Hoffman v. Industrial Comm’n,

109 Ill. 2d 194 (1985)); a union official who traveled to attend

hearings and negotiate on behalf of his union (District 141,

International Ass’n of Machinists & Aerospace Workers v. Industrial

Comm’n, 79 Ill. 2d 544 (1980)); a bank manager traveling between

two bank branches (Kertis v. Illinois Workers’ Compensation

Comm’n, 2013 IL App (2d) 120252WC); and a truck driver (Potenzo

v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d 113

(2007)).

¶ 22 Prior to applying Wright and Chicago Bridge & Iron to the

instant case, it is helpful to review the relevant facts. In reaching its

conclusion, the Commission made the following findings of fact: (1)

Daugherty testified that it was his understanding that Venture wanted

workers to be within an hour’s traveling distance from the plant; (2)

union workers were not reimbursed for travel accommodations or

compensated for travel time for positions taken outside their local

territory (and Venture did not reimburse Daugherty for his travel for

this job); (3) Daugherty was not required to take the job at the

Cordova plant and would not have been permitted to take the job if

his local union had a job available, as union workers could take jobs

outside their local territory only if jobs were not available within the

local territory; (4) Daugherty had worked on four short-term projects

for Venture in 2004 and 2006, and at the end of each project, he was

laid off and no longer considered an employee of Venture; (5) Todd

McGill, a fellow union member who shared a motel room with

Daugherty and was driving the truck involved in the accident,

testified that Venture did not make motel arrangements, tell them

where to stay or pay for travel expenses. McGill also testified that he

was not required to relocate closer to the work site, but acknowledged

that Venture desired its employees to be located closer to the plant.

¶ 23 Wright was a permanent employee who was regularly required by

his employer to travel out of state. Wright’s employer reimbursed

him with per diem and mileage expenses. Reed, the plaintiff in

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Chicago Bridge & Iron, was not a permanent employee, but he had

worked exclusively for the employer for 19 years. Like Wright, Reed

was reimbursed for his mileage expenses and was “required” to travel

for the position. Furthermore, in each of the remaining cases cited

above, the employee was regularly employed and directed by his or

her employer to travel to a remote location. Urban v. Industrial

Comm’n, 34 Ill. 2d 159 (1966); Howell Tractor & Equipment Co. v.

Industrial Comm’n, 78 Ill. 2d 567 (1980); Hoffman v. Industrial

Comm’n, 109 Ill. 2d 194 (1985); District 141, International Ass’n of

Machinists & Aerospace Workers v. Industrial Comm’n, 79 Ill. 2d

544 (1980); Kertis v. Illinois Workers’ Compensation Comm’n, 2013

IL App (2d) 120252WC; Potenzo v. Illinois Workers’ Compensation

Comm’n, 378 Ill. App. 3d 113 (2007).

¶ 24 Unlike the plaintiff in Wright, Daugherty was not a permanent

employee of the employer. Nor was Daugherty working for Venture

on a long-term exclusive basis. He had worked only four other short-

term Venture projects over the two years preceding the accident.

Furthermore, nothing in Daugherty’s contract required him to travel

out of his union’s territory to take the position with Venture. As

Daugherty testified, he made the personal decision that the benefits

of the pay outweighed the personal cost of traveling. Daugherty was

hired to work at a specific location and was not directed by Venture

to travel away from this work site to another location.1 Rather,

Daugherty merely traveled from the premises to his residing location,

as did all other employees. Finally, Venture did not reimburse

Daugherty for his travel expenses, nor did it assist Daugherty in

making his travel arrangements. Due to these facts, the Commission’s

conclusion that Daugherty was a traveling employee was against the

manifest weight of the evidence.

¶ 25 Not only does the case law fail to support Daugherty’s position

that he qualified for the traveling employee exception, but the

appellate court position raises serious policy concerns. For example,

while an employee who chooses to relocate closer to a temporary job

site can receive benefits if injured on the way to work, an employee

1

Daugherty argues that Venture’s home “employment premises” was in

Wilmington, Illinois, while this job location was in Cordova, Illinois.

Regardless of whether Venture’s home location was in Wilmington,

Daugherty was hired solely to perform work at the Cordova job site.

Therefore, this is the premises at which Daugherty was employed.

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who permanently resides close to the job site is not entitled to

benefits if injured on the way to work.

¶ 26 Because we conclude that Daugherty was not a traveling

employee at the time of the accident, we need not consider whether

the injury was compensable.

¶ 27 Demands & Exigencies of the Job

¶ 28 The Commission also found that the accident occurred within the

course of Daugherty’s employment because Daugherty’s course or

method of travel was determined by the demands and exigencies of

the job, rather than his personal preference.

¶ 29 In Sjostrom v. Sproule, 33 Ill. 2d 40 (1965), this court considered

a case where the plaintiff was injured in a car accident on the way to

work. The court found that the injuries were compensable because

“the plaintiff’s injuries arose out of and in the course of his

employment since his trip to work was ‘determined by the demands

of his employment rather than personal factors.’ ” See Unger v.

Continental Assurance Co., 107 Ill. 2d 79, 87-88 (1985) (discussing

Sjostrom). Similar to this case, the plaintiff was riding in a car driven

by the plaintiff’s coworker. However, unlike the present case, a

supervisor directed the plaintiff and the coworker to ride together and

the employees were reimbursed for travel costs.

¶ 30 In Chicago Bridge & Iron, the appellate court also considered

whether Reed’s injury arose out of and in the course of employment

when he was injured while traveling to work. The court noted that the

proper test is whether the “course or method of travel is determined

by the demands or exigencies of the job rather than by his own

personal preference as to where he chooses to live.” Chicago Bridge

& Iron, Inc. v. Industrial Comm’n, 248 Ill. App. 3d 687, 693 (1993).

In that case, however, the court found that Reed, the plaintiff, was not

acting in the course of employment because the employer did not

direct Reed’s route to work, and Reed was free to choose any route

in traveling to work. The court also noted that while Reed was

reimbursed for travel expenses, he was not paid for time spent

traveling. Therefore, the court concluded that Reed was not in the

course of employment when the injury occurred.

¶ 31 Unlike the plaintiff in Sjostrom, Daugherty’s course and method

of travel was not directed by Venture. While Daugherty’s decision to

stay at a motel closer to the work site was a logical one, as the work

site was 200 miles from his home, it was a personal decision. Nothing

in Daugherty’s contract required him to travel out of his union’s

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territory to take the position with Venture. Instead, it was

Daugherty’s personal preference to accept the position and the travel

distance that it entailed. The Commission recognized that Venture did

not require Daugherty to relocate closer to the job site. While

Daugherty testified that it was his understanding that Venture wanted

workers to be within an hour’s traveling distance from the plant, there

was no evidence that this was required or even suggested by Venture.

Daugherty’s coworker, McGill, testified that Venture did not tell

them where to stay and that he was not required to relocate closer to

the work site. Also unlike the plaintiff in Sjostrom, Daugherty and

McGill were not instructed to ride together, but made the personal

decision to do so in order to save money.

¶ 32 Daugherty is much more similar to Reed in Chicago Bridge &

Iron, as Daugherty was free to choose his own route to work. Even

more persuasive than in Chicago Bridge & Iron, Venture did not

reimburse Daugherty for travel costs. Daugherty was simply no

different from any other employee who has to drive to work on a

daily basis. Therefore, the Commission’s finding that Daugherty’s

method of travel was determined by the demands and exigencies of

the job, rather than his personal preference, was against the manifest

weight of the evidence.

¶ 33 CONCLUSION

¶ 34 While there is no question that Daugherty was seriously injured,

the facts of this case do not support Daugherty’s argument that he

was entitled to workers’ compensation benefits. Daugherty made the

personal decision to accept a temporary position with Venture at a

plant located approximately 200 miles from his home. Venture did

not direct Daugherty to accept the position at Cordova, and

Daugherty accepted this temporary position with full knowledge of

the commute it involved. Daugherty was not a traveling employee.

¶ 35 Additionally, Daugherty’s course or method of travel was not

determined by the demands and exigencies of the job. Venture did

not reimburse Daugherty for travel expenses or time spent traveling.

Venture did not direct Daugherty’s travel or require him to take a

certain route to work. Instead, Daugherty made the personal decision

to accept the position at Cordova and the additional travel and travel

risks that it entailed.

¶ 36 The appellate court judgment is reversed and the circuit court

judgment affirmed.

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¶ 37 Appellate court judgment reversed.

¶ 38 Circuit court judgment affirmed.

¶ 39 JUSTICE KILBRIDE, dissenting:

¶ 40 I agree with the appellate court’s judgment affirming the

Commission’s conclusion that Daugherty qualified for workers’

compensation benefits because he was a “traveling employee” at the

time of the incident and his injuries arose out of and in the course of

his employment. Because the majority reverses that judgment and

rejects the Commission’s decision, I dissent.

¶ 41 Initially, unlike the majority, I would clearly state that a manifest

weight of the evidence standard applies here. See supra ¶ 14

(deciding not to resolve the parties’ dispute regarding the proper

standard of review). A reviewing court is permitted to reverse the

Commission’s decision only when the award is contrary to law or the

Commission’s factual findings were against the manifest weight of

the evidence. While legal questions are subject to de novo review,

questions of fact are subject to a manifest weight of the evidence

standard. Beelman Trucking v. Illinois Workers’ Compensation

Comm’n, 233 Ill. 2d 364, 370 (2009). Elaborating on the proper

standard of review, this court explained that “if undisputed facts upon

any issue permit more than one reasonable inference, the

determination of such issues presents a question of fact, and the

conclusion of the Commission will not be disturbed on review unless

it is contrary to the manifest weight of the evidence.” Caterpillar

Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 60 (1989).

¶ 42 Here, the parties disagree on whether the employer, Venture-

Newberg, expected or required Daugherty to stay within a certain

proximity to the employment site, and the record contains testimony

that permits different reasonable inferences on this point, supporting

application of the manifest weight of the standard. Caterpillar

Tractor Co., 129 Ill. 2d at 60. In addition, the arbitrator and the

Commission reached opposite conclusions after reviewing the

evidence, demonstrating that reasonable inferences from the evidence

could reasonably yield different conclusions. This provides additional

justification for application of a manifest weight of the evidence

standard. See Illinois Valley Irrigation, Inc. v. Industrial Comm’n, 66

Ill. 2d 234, 239 (1977) (applying manifest weight of evidence

standard when arbitrator and the Commission reached contrary

conclusions).

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¶ 43 Thus, I believe a manifest weight of the evidence standard applies

in this case. Under this deferential standard, a reviewing court may

reverse the Commission’s decision only if the record discloses that

the opposite conclusion clearly is the proper result. Beelman

Trucking, 233 Ill. 2d at 370.

¶ 44 An employee is entitled to workers’ compensation benefits for an

injury only if the injury arises out of and in the course of his

employment. 820 ILCS 305/2 (West 2008); Illinois Bell Telephone

Co. v. Industrial Comm’n, 131 Ill. 2d 478, 483 (1989). Generally, an

injury incurred by an employee traveling to or from his place of

employment is not recoverable because it does not arise out of or in

the course of the employment. Commonwealth Edison Co. v.

Industrial Comm’n, 86 Ill. 2d 534, 537 (1981). The justification for

this general rule is that “the 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.” Sjostrom v. Sproule,

33 Ill. 2d 40, 43 (1965).

¶ 45 An exception to this rule applies, however, when the employee is

classified as a “traveling employee.” This well-established exception

applies to employees who are required to travel away from their

employer’s premises. Hoffman v. Industrial Comm’n, 109 Ill. 2d 194,

199 (1985); Wright v. Industrial Comm’n, 62 Ill. 2d 65, 68 (1975);

Cox v. Illinois Workers’ Compensation Comm’n, 406 Ill. App. 3d

541, 545 (2010). Nonetheless, as with all employees, a traveling

employee’s injuries are compensable only if they arise out of and in

the course of his employment. Hoffman, 109 Ill. 2d at 199.

¶ 46 In relevant part, acts that an employee might be reasonably

expected to perform incident to his assigned duties are considered to

arise out of and in the course of employment. Wright, 62 Ill. 2d at 69.

More specifically, in the context of a traveling employee, this court

has explained that “[t]he test for determining whether an injury to a

traveling employee arose out of and in the course of his employment

is the reasonableness of the conduct in which he was engaged and

whether it might normally be anticipated or foreseen by the

employer.” Wright, 62 Ill. 2d at 69-70 (citing David Wexler & Co. v.

Industrial Comm’n, 52 Ill. 2d 506, 510 (1972)). Cognizant of the

deferential standard of review and the law governing the “traveling

employee” exception, I now detail the evidence considered by the

Commission.

¶ 47 At the time of the incident, Daugherty was employed by Venture-

Newberg, a company based in Wilmington, Illinois. Venture-

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Newberg contracted with Exelon Generation Company, LLC, to

provide skilled tradesmen for maintenance or repair work at power

plants owned and operated by Exelon. Typically, Venture-Newberg

filled Exelon openings with local union tradesmen. When positions

could not be filled locally, Venture-Newberg posted the jobs with

remote union locations. Thus, when local union tradesmen were

unavailable, Venture-Newberg filled the positions with tradesmen

who lived outside the area. Necessarily, these individuals must travel

to reach the distant work site.

¶ 48 This is precisely what occurred here. At the time of the incident,

Daugherty was a member of Local 137 and a pipefitter with 30 years’

experience. Daugherty lived in Springfield, Illinois, over 200 miles

away from Exelon’s Cordova plant. Between 2004 and 2006,

Daugherty worked on multiple occasions for Venture-Newberg at

various Exelon-owned power plants throughout Illinois, including the

Cordova plant, the LaSalle plant, and the Clinton plant. Venture-

Newberg hired Daugherty on a temporary basis for each project, and

his temporary employment terminated upon completion of each

project. Based on this work history, Daugherty had passed the

required background check and acquired the specialized skills

necessary for that type of work.

¶ 49 In March 2006, Venture-Newburg was unable to fill a position at

the Cordova plant locally and sought remote union workers.

Daugherty bid for the job and was selected by Venture-Newburg for

temporary assignment to a position at the Cordova plant. The position

required Daugherty to work 12-hour days, seven days a week.

¶ 50 Daugherty testified that Venture-Newburg required its workers

to be “available at just a phone call.” Daugherty explained that he

needed to stay within a certain distance from the plant because

Venture-Newburg might ask him to work early or to work late.

Daugherty further testified that he was required to stay within an hour

of the plant to fulfill his job duties, and he chose to stay at a motel

approximately 30 miles away from the Cordova plant. Daugherty’s

coworker, Todd McGill, confirmed that Venture-Newberg

emphasized the benefit of an employee being local or geographically

close. In contrast, Venture-Newberg denied that Daugherty was

required to stay within an hour of the plant. Venture-Newburg,

however, conceded that it benefitted from having workers who were

willing and able to stay within the geographic location of the

employment site.

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¶ 51 Ultimately, Daugherty and McGill first worked at the Cordova

plant for a 12-hour shift on March 23, 2006. The men stayed

overnight at a hotel about 30 miles away from the plant. At around 6

a.m. the next day, the two men were involved in a traffic accident on

their way to the Cordova plant, and Daugherty suffered significant

injuries.

¶ 52 Reviewing this evidence, I agree with the Commission that

Daugherty should be considered a traveling employee at the time he

sustained his injuries. There can be no question that Daugherty, who

lived over 200 miles away from the Cordova plant work site, had to

travel away from his employer’s premises in Wilmington, Illinois.

Even assuming, as the majority concludes in a footnote with no legal

analysis, that Cordova, Illinois, the location of the plant, should be

considered his employer’s premises (supra ¶ 24 n.1), Daugherty

would have had to travel to that site because he lived 200 miles away

in Springfield.

¶ 53 Moreover, Exelon contracted with Venture-Newberg with the

express purpose to obtain qualified nonlocal tradesmen from remote

union locations because of the lack of available qualified local union

tradesmen. In other words, Exelon and Venture-Newberg agreed to

hire union tradesmen from outside of the area who would necessarily

be required to travel to the area to work. In fact, as Daugherty’s

experience reveals, he was required to travel over 200 miles to reach

the Cordova plant to complete the job he was hired by Venture-

Newberg to perform. By definition, then, Daugherty was required to

travel from his employer’s premises and qualifies as a traveling

employee. See Wright, 62 Ill. 2d at 68 (traveling employee exception

applies to employees who are required to travel away from their

employer’s premises).

¶ 54 Of course, concluding that Daugherty was a traveling employee

does not end the requisite inquiry. Daugherty can receive workers’

compensation benefits for his injuries only if they arose out of and in

the course of his employment. Hoffman, 109 Ill. 2d at 199. As this

court has explained, a traveling employee’s injuries arose out of and

in the course of his employment if he was engaged in reasonable

conduct at the time of his injury and his employer might normally

anticipate or foresee that conduct. Wright, 62 Ill. 2d at 69-70. Here,

Daugherty was injured as he traveled in a vehicle to the Cordova

plant from the motel where he was staying while he completed his

temporary work assignment outside of his local area. This conduct

was entirely reasonable, and his employer, who hired Daugherty with

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the express purpose to travel to a remote work site, certainly would

have anticipated it. Consequently, in accordance with the test

articulated by this court in Wright, Daugherty’s injuries arose from

and in the course of his employment. Wright, 62 Ill. 2d at 68.

¶ 55 The appellate court here reached the same conclusion. As the

appellate court found, “Venture-Newberg must have anticipated that

[Daugherty], recruited to work at Exelon’s facility over 200 miles

from [his] home, would be required to travel and arrange for

convenient lodging in order to perform the duties of his job, and that

it was reasonable and foreseeable that he would travel a direct route

from the lodge at which he was staying to Exelon’s facility.” 2012 IL

App (4th) 110847WC, ¶ 15.

¶ 56 The majority reverses the appellate court’s judgment and rejects

the Commission’s assessment of the evidence and its related

determination that Daugherty was entitled to workers’ compensation

benefits. Supra ¶ 2. Without ever actually stating it, the majority

implicitly holds that an opposite conclusion is clearly evident from

the record. Supra ¶ 14 (declining to identify the proper standard of

review but declaring that Daugherty’s argument fails under both a de

novo standard and the more deferential manifest weight of the

evidence standard).

¶ 57 For the foregoing reasons, I cannot agree. Instead, I believe the

Commission’s conclusion is not contrary to the manifest weight of

the evidence, and the appellate court’s judgment reaching the same

conclusion should be affirmed. Accordingly, I respectfully dissent.

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