madam clerk please call the last case in the morning one fifteen sixteen ninety three fifteenth seventh worth thirty nine arrears you also you may approach and proceed thank you good morning may i please the court half full my name is karen kun i'm here on behalf of united airlines this i assert as a flight attendant who was injured on a flight from her home in denver to laguardia airport she was not working on that flight she was scheduled to work the following day out of jfk as well established the accidents occurring while coming and going to work are not compensable there's two issues raised here whether she was somehow a traveling employee at the time of the accident or whether she could fall into a community exception because the travel is due to the demands and exigencies of her employment we believe the commission in this case got it right and holding that the accident was not compensable our arguments here today are slightly different than the rationale they provided we don't disagree with their analysis but we think that their decision was bolstered by the subsequent canyon prior decision she was not traveling for work at the time she was commuting and in order to understand and be clear on the circumstances that occasion that travel you have to be very clear on the facts in the record and how the travel came about well the defects here are really the basic facts are not disputed are they the facts are not disputed but the circuit court got the facts completely wrong well that's probably true that's probably true but we don't care let's just talk about what the law is that applies to the facts we know she's living in colorado we know she's flying out of jfk she's living in colorado she's flying out of jfk so let's start out with the basic principle that if you are effective worker or you're working at mcdonald's or anywhere and you drive there is your commute if you're that's part of your regular commute do you get compensated if you have an accident no okay and that's what you're saying applies here that's already said she is not on the clock she was not working when she was traveling flying from colorado to new york with anybody say she was working no she testified she was not working she testified there was no business purpose for a basis is she a traveling employee we don't think she was she's not a traveling employee she chose to live in colorado exactly she could have lived two miles from she's traveling where commute exactly when she gets out of the airplane that's something different about this obviously when she gets to jfk when she gets to her employment premises then she starts her workrelated job can i ask him why that wasn't a regular commute to new york that anybody else would be committing to their job whether it's two miles or a thousand miles you're still convenient three yes but let me ask you this and this is has been impacted by venture newburg right obviously the supreme court took the case from this panel is there any difference if somebody is a you know working at a permanent location or as a temporary employee is that they're on the analysis well dr newburg was a temporary employee it was not a permanent point but the what deserting bird found what the supreme court found was that he was not directed there by his employer so the question is whose choice is it so if it's a temporary job where the employer says we need you to go down here for awhile and work this other job that's at the employer's direction and then the accident is compensable eventually newburg the employer the employee chose to live miles away from the employment site and in this case you're saying she did the exact same thing he chose to live in another state exactly okay and she did that for sixteen years so it occurs to me your argument boils down to the fact that even if you're dealing with a traveling employee if the injury occurs in nonworkrelated travel to where you begin your workday from home and in that particular case it does not arise out of the employment yes it does not occur in the course of your employment yes your employment does not by a definition but your definition of a traveling employee it's someone who travels away from the employment premises to perform their job duties in this case her employment premises for the purposes of that analysis is jfk she was based on jfk on trips started and ended at jfk and so while she's working on those trips if she's on layover in shanghai she can go out to eat she can ride an elephant she can do whatever she want as long as it's reasonable and foreseeable she's in the course of her employment however her regular commute is not covered she's not a traveling employee while she's on her regular commute to the office just as lang and pryor on his regular commute to his employer's premises is not covering oh if she had a stop off somewhere first on the way to jfk and do something that was work related then the argument might be different correct that's the traditional traveling employee but your argument is very simple she is simply doing her regular commute to jfk to begin her workday if somebody driving to a factory would be as an accident exactly and so how does the circuit court got it wrong because they got the first first they got the first three facts wrong they started it by saying the facts are not dispute they then said on september three w we we don't care what the circuit court did were terrible to commission and it was unfortunate i asked that question in all fairness just to they didn't base it on what would the facts that were in the record they made some assumptions and some stuff they said no i was drinking the question justice hudson yes sir the record as long as you look just look at the record in this case i don't think there's any questions she was just on her regular commute miss icer testified you know she's not paid for any of these expenses she's not directed by her employer she's not even guaranteed a seat while she's commuting there's no way of guaranteeing she's going to make a community shift that's a risk that she takes by commuting well we are talking about it what was the commute under the direction of the employer and you're saying it was not it was not because if it was we have a different animal that's what your argument would be that is my argument okay uh huh well it seems that you well understand my arguments i'm going to stand on my brief talk to my council okay thank you okay thank you council council may you respond the petitioner this is groundhogs day the movie from bill murray i tried this case before i tried it in two thousand and three i tried it with the exact same facts that are in front of the entire panel today and the commission said back in two thousand and three which by the way was never overturned and is still the controlling law here today the commissioner jacks that the petitioner was merely in transit on her way to work so as to take her out of the course of employment at the time of her fall rather than record supports finding that the petitioner is properly considered a traveling employee under the app and that worked for respondent clearly created the necessity for travel i think that was a commission decision it was a commission decision how is the controlling law when it's not overturned by your arms precedential value to us where are we going to done let's assume you were absolutely correct have you heard of adventure uber uber just doesn't make a decision that she's a traveling employee that actually uber it makes a decision that she isn't a traveling employee uber then goes to the decision that let's go to the second analysis does her commute create an exception for the general rule that community is how could it ever who chose the little total who told her to live in colorado but venturing uber is a case where a petitioner gets transferred to a job that's two hundred miles from where his home is get a hotel and take that job and he likes to drive to and from the hotel that's the sheet that for his job but the difference between that is judge the difference between that is venture uber is a short time parttime position it's not sixteen years in duration the petitioner is not reimbursed for monthly travel the petitioner is that she's not reimbursed for the travel from colorado to new york she was giving travel expenses that she uses for travel from new york to colorado let me ask you a honest question did she get reimbursed for travel from colorado or new york reimburses as a hot for parking for parking for her park lands free for airline travel street both of those benefits are provided by united she can use those benefits to fly to hong kong so can anybody mr mckenzie mr mckenzie i'm going to make it real simple for you a guy is a traveling salesman and every day he begins his work and his employer's office and then travels around with seller's goods all day comes back to his employer's office and then goes home or you need to suggest me to traveling from his house to his employer's office in the morning is compensable that's what it says is it make sure you're part of a traveling to play when you're committing to work melissa says that a traveling employee and employee who trails is considered in the course of their employment the moment he or she leaves his report mr leona would you please be quiet while i'm talking to several generally that's true when you leave your home and begin your travel and that means beginning your job many traveling employees leave from their house to go see their clients et cetera and so on and we would say then that the incident he leaves his house he is a traveling employee in this particular case no one told this woman to live in colorado she couldn't live in new york and she didn't have to travel that well let me grab something out of his answer why is that person he decided a traveling employee because from the moment they leave their house they're working they're doing their work performance okay she's at an airplane not in uniform you tell me what work she was doing when she was flying from cloud rattle to new york what job related activities where she performed and if there were an urgency contingency she would've had to work at flight just like a flight attendant and she got out of her uniform she wasn't working at anything if there was an emergency contingency she would have to work and that again will confusing a travel and employee analysis with the analysis under venture uber which isn't a traveling plan it's just under an analysis because she wasn't doing anything related to a job until she gets to jail f k the commission in larson states that in order to make her international flight the petitioner is required to fly from power to chicago the commission notes the petitioner chose to live in colorado nevertheless united approved this arrangement reimbursed the majority of her monthly parking as a matter of course supplied petitioner with bond limited flight passes this from what case are getting this is a piece i tried i mean i haven't unfortunately was there's no precedential value that that doesn't bear in anything what was the commission in ninety in two thousand and three you know what happened if you would cite that in your brief and we ignore it we have to ignore it we're legally required to ignore that decision how if you were to find her not to be a traveling employee at the time how does she not qualify under the community exception standard i'm not saying that she she isn't traveling to play at the time but she's not traveling to play how does it she job is that you fall under the community and exception that says that generally a commute to and from work isn't considered to be compensable provides for your means to and from work your employer provides for your parking your employer provides for your plane fare to and from new york city though they look at the kids so that's that's an exception in the record to suggest that the only way from her residence to tell you there is by fine precisely no mean it's it's the only practical way that she could get there the question is if it's not there is no evidence that this is the only way that united is not providing her way to get there she's deciding to avail herself of united she can drive there if you want you know eighty of their new based flight attendants to commute to and from work from different some different areas of the country why did they do that there's nothing about this case we're going to take it out of the general rule that a commute to start your workday is not compensable period i mean there's a there's a whole bunch of cases that say otherwise judge we'll call her attention i'd like to hear what that is either one curtis so a traveling employee travel an employee has an analysis which is on your right which is three prong that's not the analysis that they use in leona newburg they use and analysis that they say this person isn't a traveling employee and by the way they don't they don't deviate from the community and exception standard that'd be you know that this is a person that had lived there in newburg for i think the testimony was three or four months as compared to my client that lived there for sixteen years that united knew about that united act and we asked to that united provided can we turn him into a feminine point unless they're engaged in some kind of employment related duties or activities she's not until she gets to jfk he's not being compensated by united when she's flying to colorado are they paying her to fly from colorado to new york are they paying her to do that different are the travel are they paying them for ten o'clock well that's the answer go how's it different mlr so the these two couples clean homes and they clean a home and then they go home for lunch together and they're having lunch together and they get a call that they're supposed to go get another job they're not being paid during this time oh by the way warm up their car just like sarah finds that the case i argued in front of your honor they're not sarah wasn't trailing at the time sarah was going out to one of her car as was the melissa she leaves the house he is engaging in workrelated activities because she's going to take the next cleaning job as directly okay your claimant in this case was merely going to begin the workday okay think the law is differently judged so i disagree with you on that you may find out what i can say i respectfully disagree with you on that i mean i i i certainly laid out the law and there's been a number of cases concerning this which the commission notes that that there's been a number of