WCLA MCLE Section 11: Voluntary Recreational Programs; Elmhurst Park District: Is Wallyball Compensable? Tuesday November 24, 2009 Ken Peters for Petitioner 12:00 noon to 1:00 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit

Section 11 “Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program. “ Added by PA , effective Sept. 15, 1980

Section 11 Cases Fischer v. IC, 142 Ill.3d 298 (1986): not compensable DA ; decedent dies at company sponsored golf outing (refers to Section 11) Schooley v. IC, 151 Ill.App.3d 1069 (1987): compensable; DA ; Petitioner hurts back playing league softball; Respondent “clearly” directed Petitioner to play Auto-Trol v. IC, 189 Ill.App.3d 1065 (1989): compensable; Petitioner hurt riding motorcycle at company picnic; “clear business emphasis” Cary Fire Protection v. IC, 211 Ill.App.3d 20 (1991): not compensable; firefighter injured in water fight sponsored by firefighter’s association; recreational despite skill enhancement

Section 11 Cases Kozak v. IC, 219 Ill.App.3d 629 (1991): not compensable; decedent died of heart attack playing in tennis tournament; tournament was recreational not promotional and was voluntary despite payment of wages and expenses CTA v. IC, 238 Ill.App.3d 224 (1992): compensable; driver hurt in Respondent’s basketball league; Petitioner “was assigned to participate on the team” Pickett v. IC, 252 Ill.App.3d 355 (1993): not compensable; Cook County sheriff’s officer injured playing league basketball; “completely voluntary” Bagcraft v. IC, 302 Ill.App.3d 334 (1998): compensable; traveling employee killed on ATV at suppliers’ conference; Section 11 does not control traveling employees; “reasonable and forseeable” (See also Insulated Panel, 318 Ill.App.3d 100 (2001))

Section 11 Cases Woodrum v. IC, 336 Ill.App.3d 561 (2003); compensable; factory laborer injured knee playing basketball at company picnic; as a matter of law “ordered or assigned” when Petitioner has to choose between attending or losing pay or benefits Pinckneyville Community Hospital, 365 Ill.App.3d 1062 (2006); compensable; nursing director has stroke giving speech at hospital dinner; Commission reversed Arbitrator and found dinner was not voluntary recreational activity Gooden v. IC, 366 Ill.App.3d 1064 (2006); not compensable; machine operator hurts back playing volleyball at company picnic; not ordered or assigned; was paid either way

Commission Cases Bougart v. Capmark, 09IWCC0556; compensable; assistant vice-president falls at bowling party and injures her back and leg; “encouraged and at the very minimum subtle pressure to attend” Bell v. St. Paul United Church, 08IWCC0329; compensable; minister hurt in MVA on way to “Epiphany Soup & Pie Buffet;” voluntary but assigned according to liberal reading of employment contract Livingston v. Abbott Labs, 07IWCC0324; compensable; auditor hurts ankle playing basketball at “Site Pride” lunch; Personal Comfort trumps Section 11

Commission Cases Carter v. Village of Lansing, 06IWCC1119; not compensable; water department worker injures knee in “Thornton Township Old Fashioned Softball Tournament;” Section 11 applies despite “pressure” by mayor Elvery v. Village of Lombard, 06IWCC1076; compensable; Commission reverses Arbitrator’s denial of benefits; firefighter hurts knee playing informal softball game during his 24-hour shift; Section 11 does not apply; Personal Comfort trumps Orsborn v. Sandusky, 06IWCC0819; not compensable; laborer injured trying to break up fight at company picnic; “attendance at the picnic was completely voluntary”

Sean Murphy v. Elmhurst Park District 02WC Sean Murphy =27 year old “fitness supervisor” DA , Sean asked by “co-employee” to play in Respondent sponsored Wallyball game because one team was short a player Hurt at about 7:30 pm; shift until 8:00 pm Rule against participating in personal, recreational activities while working (?) Sean first declined then relented and played

Sean Murphy v. Elmhurst Park District 02WC Arbitrator Lammie, decided “The Petitioner testified that he felt compelled to participate based on his written job description…’promote programs to patrons, members…develop and maintain positive customer service…available for flexible work schedules’…Section 11 is not applicable…activity clearly benefited the Respondent’s business…Petitioner was not participating in ‘recreactional activity’ but rather was performing duties incidental to his employment…’recreational’ to the employer’s customers does not make that activity ‘recreational’ to the employee involved in it. Bertle v. Healthy Woman, 05IWCC0038” Compensable ; 8(j) medical, TTD 7 2/7 wks; PPD 25% R leg IWCC affirms & adopts (Gore, Rink, Basurto), decided

Elmhurst Park District v. IWCC ___Ill.App.3d___, No WC, Oct. 6, 2009 Cook County Circuit Court (A. White) confirms Appellate Court affirms compensability (Hudson, McCullough, Hoffman, Holdridge & Donovan) Parties agree that participation was voluntary But was it “recreational?” Dictionary definition: “refreshment of strength after toil; diversion; play” Similar to professional athlete, recreation is inherent in fitness supervisor job Not for his own diversion, but to help customers Violation of rule/policy is irrelevant Distinguishes Kozak