The coming and going rule in workers’ compensation seems to be contested in the courts an awful lot, and a recent case out of Illinois caught my eye because the employee in question was a flight attendant, so traveling is not an unusual activity. The case was decided in the Illinois Court of Appeals and the employee who was injured was denied benefits based on her case’s circumstances.

Kristine Isern worked as a flight attendant for United Airlines and was on a flight from Denver to New York in 2011 when she injured her knee. She was not working this flight, she was traveling to New York because she lived in Denver but was scheduled to work on a flight out of New York the following day. Her flights were based out of New York even though she lived in Colorado, so she had to travel to her base airport often. On this particular flight she wore her flight attendant uniform to get through security and avoid checking bags, which is against the airline’s policy. She injured her knee when she went to the bathroom on the plane to change from her uniform to street clothes, and on her way back to her seat she caught her foot on the leg of the seat and felt a pop in her knee. She got off the plane on a wheelchair and went to the hospital. She had knee surgery to repair her ACL a month after the accident and has since fully recovered and returned to work.

The airline did not pay the employee for the time she spent on these flights from Denver to New York and she was not reimbursed for flights, hotels or meals during the time she spent traveling. She was paid only for the time she spent working flights out of the John F. Kennedy (JFK) airport. She had an employee-parking pass at the Denver airport. She had been offered a transfer in 2006 to make Denver her base airport but she kept JFK as her base airport. The airline did not benefit from her living and working arrangement, and she had elected to stay in Denver and continue working in New York. She also used a leisure travel pass on this flight, which the airline provides to their employees. The passes let the passenger fly for free but they have to be on standby, so they can only fly if the plane is not full with paying customers and if there are paying customers on standby those with leisure travel passes do not get preferential treatment. Her employer did not make the decision for her to fly United, she made this choice.

United is based in Illinois, and so the claimant filed a workers’ compensation claim in that state rather than Colorado or New York. She was initially awarded benefits by an arbiter because she said she was a traveling employee. The state’s Workers’ Compensation Commission reversed that decision when her employer appealed, saying that she was commuting to work like she normally did when she sustained the injury and under the coming and going rule she was not eligible for benefits. It was the claimant’s decision to live where she did; she was not ordered to fly United and received no special treatment by flying United. They said that the decision to travel and the decision about how she traveled was her personal choice and the employer was not responsible for any injuries incurred during that travel. The circuit court reversed the decision again so it ended up in the appeals court, and they reversed it to deny the employee workers’ compensation benefits.

The appeals court decided that she was not really within the course and scope of her employment at the time of the injury. She was traveling to her place of work because of her personal choice of where to live, decisions which her employer had no control over. The ruling would have been the same if she had been an employee living in New York and was traveling to the New York airport for her duties. Just because she was coming from Denver did not change the details and subsequent eligibility of her case for workers’ compensation purposes. A traveling employee is someone who would be required to travel away from the employer’s premises as part of their work duties, though commutes to and from work are not part of that exception. While she did travel for her job, at this time she was not performing duties of her employment yet. This commute was not atypical either, as she often flew from Denver to New York to be able to perform her duties.

An attorney for Isern says he plans to take her case to the Illinois Supreme Court.