IICLE Flashpoint – July 2026
Appellate Court Reverses Commission for Applying Wrong Legal Standard
In Subway v. Illinois Workers’ Compensation Commission, 2026 IL App (5th) 250429WC, the Illinois Appellate Court underscored the decisive role of de novo review in workers’ compensation appeals by reversing an award of death benefits after concluding that the Illinois Workers’ Compensation Commission (IWCC) applied the wrong legal standard to a traveling employee claim. The ruling serves as a pointed reminder that while the Commission is afforded deference on its factual findings, no such deference applies when the issue is whether the Commission applied the correct legal test. (¶ 12)
The case arose from a fatal motor vehicle accident involving a Subway employee who was transporting supplies between store locations. The claimant, acting on behalf of the decedent’s minor child, sought benefits under the Illinois Workers’ Compensation Act. The record included evidence of possible cell phone use, speeding, and THC in the decedent’s system, alongside expert testimony offered by the claimant disputing any reliable conclusion of impairment. (¶¶ 2–4)
At arbitration, the parties stipulated that the decedent qualified as a traveling employee. (¶ 2) That classification is critical because it triggers a distinct legal framework: a traveling employee is generally considered within the course of employment for the duration of the trip, but compensability turns on whether the employee’s conduct at the time of injury was reasonable and foreseeable. (¶ 11)
The Arbitrator’s decision focused on whether the decedent engaged in conduct that was intentional or demonstrated a wanton disregard for safety. Finding no such conduct, the arbitrator awarded benefits. (¶ 6) The IWCC affirmed and adopted that reasoning in full, and the circuit court confirmed the Commission. (¶¶ 7–8)
On appeal, the employer challenged not the factual findings, but the legal standard applied and argued for a de novo review of the Commission’s Decision.
The appellate court began by emphasizing that determining what elements a claimant must prove is a question of law, subject to de novo review. (¶ 12) Likewise, identifying whether the Commission applied the correct legal test requires the reviewing court to independently determine the governing standard—again, without deference to the Commission. (¶ 12)
Rather than asking whether the Commission’s findings were against the manifest weight of the evidence—a deferential standard typically applied to factual determinations—the court instead conducted an independent evaluation of the governing law for travelling employee. In doing so, it concluded that the Commission had applied the wrong framework altogether.
Specifically, the arbitrator—and by adoption, the Commission—relied on a misconduct-based standard that asks whether the employee acted intentionally or with wanton disregard for the consequences. (¶¶ 14–15) That test, however, does not govern traveling employee claims. Illinois precedent makes clear that the proper inquiry is whether the employee’s conduct was reasonable and foreseeable from the employer’s perspective. (¶¶ 11, 13)
As the court explained, the misconduct framework effectively allows recovery so long as the employee’s actions do not rise to the level of intentional or reckless wrongdoing. By contrast, the traveling employee doctrine imposes a distinct inquiry: whether the conduct was so unreasonable or unforeseeable that it falls outside the scope of employment. (¶ 16)
Crucially, the appellate court made clear that even if the Commission’s conclusion under the incorrect standard was factually sound, it could not stand. The court further noted that the precedent cases cited by the Commission were rejected later by the court in subsequent cases. The court acknowledged that the finding—that the decedent did not act with wanton disregard—“may well be correct,” but emphasized that it does not answer the legally relevant question for a travelling employee. (¶ 16)
Because the error was legal, not factual, the court did not defer to the Commission. Instead, applying de novo review, it held that the decision was contrary to law and therefore subject to reversal. (¶¶ 12, 17)
Although the appellate court identified the correct legal standard, it declined to apply that standard to the facts in the first instance. Whether the decedent’s conduct was reasonable and foreseeable remains a question of fact within the Commission’s authority. (¶ 11) Accordingly, the court reversed the circuit court, set aside the Commission’s decision, and remanded for reconsideration under the proper legal framework. (¶¶ 18–19)
The decision highlights a critical appellate dynamic that deference to the Commission has limits. While factual findings by the IWCC are reviewed under the manifest weight standard, threshold legal questions—such as the elements of a claim or the applicable test—are reviewed independently.
For practitioners, the implications are clear – the standard of review can determine the outcome. Here, de novo review was not just a procedural detail—it was the mechanism that compelled reversal. In cases involving traveling employees, particular care must be taken to ensure that the correct legal test is applied – whether the conduct of the travelling employee was reasonable and foreseeable.
One aspect of the opinion that practitioners may also find notable is what the opinion does not specifically address. Although the record reflected that THC was detected in the decedent’s system, the court did not discuss the rebuttable presumption contained in Section 11 of the Illinois Workers’ Compensation Act. Under Section 11, a positive test for cannabis, a controlled substance, or an intoxicating compound may give rise to a rebuttable presumption that the employee’s intoxication was the proximate cause of the injury. In this case, the opinion appears to reference only expert testimony offered by the claimant rebutting the presumption that the decedent was impaired by the presence of THC. The absence of any substantive discussion of Section 11 suggests that the statutory presumption either was not at issue on appeal or was otherwise not material to the court’s analysis, which was confined to the Commission’s application of the incorrect legal standard governing traveling employee claims. On remand, however, if Section 11 was properly raised at trial, the Commission may be required to consider not only whether the claimant has rebutted the statutory presumption of intoxication as a proximate cause of the accident, but also whether the decedent’s conduct was reasonable and foreseeable under the traveling employee doctrine. Those inquiries are distinct, and the resolution of one does not necessarily resolve the other.