Generally, an accident occurring while an employee is traveling to or from work is not considered to have arisen out of or in the course of employment, since the trip to and from work is the result of the employee’s decision about where to live, a matter of no concern to the employer, but there are exceptions to the rule, including the exception applicable to instances wherein travel is necessitated by the employment, such as driving to or from sales calls and the exception applicable when an employer provides transportation for the employer’s benefit.

Claimant John Thompson sought benefits pursuant to the Workers’ Compensation Act for injuries suffered on July 9, 1996, while in the employ of Complete Vending Services Inc.

At the time of the accident, claimant had worked for the employer almost 20 years, the last five of which were as a service technician. As a service technician, claimant was on call 24 hours a day, seven days a week, to repair employer’s vending machines in his designated service area. His normal working hours were 8:30 am to 5 p.m. and his duties involved repairing vending machines and rebuilding equipment in one of employer’s shops when not out on service calls. Claimant drove a company vehicle to and from work and for all service calls.

The employer purchased the van and provided the license plates and insurance for the vehicle. Gas for the van paid for with employer’s credit card. Claimant was not permitted to drive the company van for any personal uses and, in fact, mileage to and from his home was added to his W2 Wage and Tax statement at the end of the year.

The night before the accident, claimant was contacted by employer’s answering service informing him that Central DuPage Hospital had a machine down and wanted ti fixed. Claimant called the contact person at the hospital, and it was then decided he could wait until first thing in the morning to repair the machine.

The next morning, July 9, 1996, claimant left home at approximately 8:15 am. His intention was to stop in at the office on the way to DuPage Hospital to tell them where he was going and to see if any other service calls had come in that he could make while out. The office was directly on the route to the hospital. Claimant was approximately two miles from his home when the accident occurred. Claimant lives approximately 5 ½ miles from employer’s office.

Claimant testified he looked down to grab a cup of coffee he had brought from home when he rear-ended a garbage truck. Claimant suffered a significant laceration to his forehead, which required plastic surgery, and a right ankle fracture with dislocation, which required an open reduction with internal fixation to repair the damage. At the time of the arbitration hearing in December, claimant still had hardware in his foot, as he had yet to heal the fracture site and had not been released to return to work. The employer initially paid claimant five weeks of wages and then stopped all payments. The arbitrator awarded claimant medical and temporary total disability benefits after finding the accident arose out of and in the course of claimant’s employment.

The arbitrator further awarded penalties pursuant to section 19(a)(1) of the act. On appeal, the Industrial Commission affirmed the decision of the arbitrator, and the Kane County Circuit Court confirmed the decision of the Commission.

Employer appealed both the decision in favor of claimant and the award of penalties. Claimant requested an additional award of penalties pursuant to Supreme Court Rule 375(b)(155 Ill. 2d R. 375(b)) for employer’s pursuit of a frivolous appeal.

The Illinois Appellate Court, in an opinion written by Justice Philip J. Rarick, with Justice Thomas R. Rakowski specially concurring, ruled as follows:

“It was reasonable for the commission to conclude claimant’s injuries stemming from the accident of July 9 arose out of and in the course of his employment…As the arbitrator specifically noted, employer obviously was gaining a benefit in having claimant stop at employer’s office before making the service call. Clearly claimant was not operating or acting outside the course of his employment at the time of the accident. Given all the circumstances presented, employer providing the transportation and claimant acting pursuant to his job requirements and for the benefit of employer-we cannot say the commission erred in finding compensability…

“The arbitrator awarded penalties after finding that employer’s argument, based on the mere fact that claimant had to “reimburse” employer for his travel to and from work, was irrelevant to a determination of whether claimant met one of the exceptions for compensability. Claimant also contends employer had no valid argument either before the arbitrator and commission or on appeal.

“Yet, one commission did agree with employer’s argument and concluded claimant was injured on his own personal time while traveling to work. The dissenting commissioner believed claimant’s commute to the office the morning of the accident was no different from any other employee’s commute to work or, for that matter, claimant’s regular commute to work…

“Given the fact that one commissioner dissented…it is unreasonable to impose penalties upon employer for bringing this allegedly frivolous appeal.

“For the aforementioned reasons, the decision of the Circuit Court of Kane County confirming the decision of the Industrial Commission pertaining to the issue of compensability and the award of benefits is affirmed. We reverse, however, the imposition of penalties…”

Complete Vending v. Industrial Commission, Illinois Appellate Court, Second District, 305 Ill.App.3d 1047, 714 N.E.2d 239, Ill.Dec. 472 (199)