WCLA MCLE

1
WCLA MCLE

• Section 11 Voluntary Recreational Programs
  Elmhurst Park District Is Wallyball Compensable?
• Tuesday November 24, 2009
• Ken Peters for Petitioner
• 1200 noon to 100 pm
• James R. Thompson Center Auditorium, Chicago, IL
• 1 hour general MCLE credit

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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 PA81-1482, effective Sept. 15, 1980

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Section 11 Cases

• Fischer v. IC, 142 Ill.3d 298 (1986) not
  compensable DA 6-19-76 decedent dies at company
  sponsored golf outing (refers to Section 11)
• Schooley v. IC, 151 Ill.App.3d 1069 (1987)
  compensable DA 8-3-81 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 firefighters
  association recreational despite skill
  enhancement

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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 Respondents
  basketball league Petitioner was assigned to
  participate on the team
• Pickett v. IC, 252 Ill.App.3d 355 (1993) not
  compensable Cook County sheriffs 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))

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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

6
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

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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 Arbitrators
  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

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Sean Murphy v. Elmhurst Park District02WC012477

• Sean Murphy 27 year old fitness supervisor
• DA 1-3-02, Sean asked by co-employee to play in
  Respondent sponsored Wallyball game because one
  team was short a player
• Hurt at about 730 pm shift until 800 pm
• Rule against participating in personal,
  recreational activities while working (?)
• Sean first declined then relented and played

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Sean Murphy v. Elmhurst Park District02WC012477

• Arbitrator Lammie, decided 9-26-05
• The Petitioner testified that he felt compelled
  to participate based on his written job
  descriptionpromote programs to patrons,
  membersdevelop and maintain positive customer
  serviceavailable for flexible work
  schedulesSection 11 is not applicableactivity
  clearly benefited the Respondents
  businessPetitioner was not participating in
  recreactional activity but rather was
  performing duties incidental to his
  employmentrecreational to the employers
  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 3-30-07

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Elmhurst Park District v. IWCC___Ill.App.3d___,
No.1-08-2289WC, 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