2016 IL App (1st) 153034WC
Opinion filed: November 10, 2016
NO. 1-15-3034WC
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION ________________________________________________________________________
CALUMET SCHOOL DISTRICT # 132, ) Appeal from the ) Circuit Court of Appellee, ) Cook County. ) v. ) No. 15-L-50266 ) THE ILLINOIS WORKERS' ) Honorable COMPENSATION COMMISSION, et al. ) Robert Lopez Cepero, (Jonathan Jordan, Appellant). ) Judge, presiding. ________________________________________________________________________
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in the judgment and opinion.
OPINION
¶1 The claimant, Jonathan Jordan, a middle school science teacher, filed an
application for adjustment of claim under the Workers' Compensation Act (Act) (820
ILCS 305/1 et seq. (West 2010)), against the employer, Calumet School District #132,
seeking compensation for an accidental injury he sustained on March 23, 2011, while
participating in a student/teacher basketball game in the employer's gymnasium after
school. After an arbitration hearing, the arbitrator awarded the claimant benefits under
the Act, finding that he was not engaged in a "voluntary recreational program" under No. 1-15-3034WC
section 11 of the Act (820 ILCS 305/11 (West 2010)) at the time of his injury and that his
injury arose out of and in the course of his employment. The employer sought review of
the arbitrator's decision before the Illinois Workers' Compensation Commission
(Commission), which affirmed and adopted the arbitrator's decision. The employer filed
a timely petition for judicial review in the circuit court of Cook County, which reversed
the Commission's decision, finding that the claimant was participating in a "voluntary
recreational program" under section 11 of the Act at the time of his injury and that his
injury, therefore, did not arise out of and in the course of his employment. The claimant
filed a timely appeal. For the reasons that follow, we reverse the judgment of the circuit
court and reinstate the Commission's decision.
¶2 BACKGROUND
¶3 On April 12, 2011, the claimant filed an application for adjustment of claim under
the Act against the employer, seeking compensation for an accidental injury he sustained
on March 23, 2011. The following facts are taken from the evidence presented at the
arbitration hearing, which was held on August 8 and September 17, 2013.
¶4 At the time of his injury, the claimant was a science teacher for the employer at
Calumet Middle School (school). He had a contract to teach for the 2010 to 2011 school
year, with a starting date of August 23, 2010, and a salary of $37,554 per year. The
employer offered a wage statement, which showed that the claimant received bi-weekly
gross payments of $1,444.38, netting $1,075.56.
2 No. 1-15-3034WC
¶5 The claimant was also an instructor at Triton College at the time of his injury. He
earned $4,007 for the fall semester at Triton College, which the employer stipulated was
to be included in calculating his average weekly wage.
¶6 The claimant testified that all teachers were expected to attend and participate in
afterschool activities involving student participation, such as open houses, parent/teacher
conferences, dances, and performances, without additional compensation. He stated that
he considered attendance at, and participation in, such activities to be a part of his job.
¶7 The claimant testified that he became aware of the afterschool basketball program
at the school a couple of weeks before he was injured. He stated that the school
principal, Corey Levy, and another colleague told him that the afterschool basketball
program was designed to reward students who were performing well in school and
staying out of trouble. He testified that the students were allowed to play basketball with
some teachers, which they enjoyed. He stated that he liked the idea of building rapport
with the students and rewarding the students for doing the right thing, but he was leery of
playing basketball because of the risk of being injured. He testified that he was not a
basketball player. He did not play basketball in high school or college, and he had not
participated in the afterschool basketball program before the date of his injury.
¶8 The claimant testified that Levy had first asked him to participate in the
afterschool basketball program a couple of weeks before his injury. He stated that he had
hemmed, hawed, and stalled and that he had not played that week. He testified that Levy
had asked him to participate in the game the following week and that he had said, "maybe
another time." He stated that he was hoping that Levy would stop asking him to 3 No. 1-15-3034WC
participate. He explained that he wanted to attend the games but that he did not want to
play. He testified that on the day before he was injured Levy had asked him for the third
time to participate in a basketball game the next day, and he agreed to play.
¶9 The claimant testified that, at the time of these conversations with Levy, he had
not yet received a contract to teach for the next school year; nor had he received his
performance review, which he expected to receive by the end of March. He stated that he
was concerned that, if he refused to participate, he would get on Levy's "bad side," that
he would not be viewed as a team player, that it would negatively affect his performance
review, or that his contract would not be renewed. He testified that, although he was not
ordered to participate in the basketball game, he felt pressured the third time Levy
cornered him. He stated that he felt strongly that if he refused to participate it would
impact his ability to get a good review and to obtain a contract for the next school year.
¶ 10 On March 23, 2011, the claimant played in the student/teacher basketball game,
which was held immediately after school in the gymnasium. He testified that there were
five students playing against five teachers, including Levy.
¶ 11 The claimant testified that, during the game, the teachers who were present were
responsible for overseeing the welfare of the students. He stated that students were not
required to have parents or guardians present; nor did the school hire any outside
personnel to supervise the students. He testified that, if an incident or emergency
occurred during the game, it was the teachers' responsibility to take appropriate action in
accordance with their duties as staff members. He stated that he believed the game was a
4 No. 1-15-3034WC
school-sanctioned event and that his responsibilities as a teacher at the school did not end
just because the bell had rung and he was on the basketball court with the students.
¶ 12 The claimant testified that, as he was going up for a jump shot during the game, a
student ran through his legs, spinning him in the air and causing him to fall to the ground
onto his left arm. He was taken to the emergency room at MetroSouth Medical Center.
X-rays showed a left forearm fracture of the proximal shaft. He was given pain
medication, taken off work, and instructed to follow up with an orthopedic surgeon.
¶ 13 The following day, the claimant saw Dr. Samuel Park, an orthopedic surgeon. Dr.
Park diagnosed a displaced left radial shaft fracture and performed an open reduction and
internal fixation of the left radial shaft fracture at Good Samaritan Hospital the same day.
¶ 14 After the surgery, the claimant underwent physical and occupational therapy. He
was released to return to work with no use of his left arm effective April 12, 2011. He
continued following up with Dr. Park, who subsequently noted elbow flexion limitations
and stiffness on examination. By July 25, 2011, Dr. Park noted that X-rays showed
delayed healing of the fracture and a possible non-union. Dr. Park ordered a bone
stimulator and additional therapy.
¶ 15 The claimant last saw Dr. Park on January 16, 2012. Dr. Park noted that he had no
bony tenderness, full elbow flexion and extension, limited elbow pronation to 60 degrees,
and no radial shaft tenderness. X-rays showed that the fracture had healed. Dr. Park
released him to full duty work and placed him at maximum medical improvement.
¶ 16 The claimant testified that he was not offered a contract to return to the school for
the next school year. He accepted a position at another school, where he is still teaching. 5 No. 1-15-3034WC
¶ 17 The claimant testified that his arm and elbow still hurt every day. He stated that
cold weather and changes in the weather cause pain inside the arm. He testified that he
cannot fully pronate his left wrist. He stated that when he began therapy he was unable to
bend/pronate/turn his elbow but that he now has almost full range of motion and some
ability to pronate and turn his elbow. He testified that he has pain when doing any lifting
with his left arm and that he has difficulty doing certain things, such as working on his
house, typing, tying his shoes, turning door knobs, and lifting heavy objects.
¶ 18 Steven Corley testified on the employer's behalf. He stated that he was a special
education assistant at the school on the date of the claimant's injury and that he is
currently the school's coordinator of safety.
¶ 19 Corley testified that the claimant broke his arm during an afterschool basketball
game, which he stated was "just an impromptu basketball game between students and
teachers" to challenge one another. He stated that he played in the game and recruited
other teachers to play but that his participation was a "one time thing." He testified that
participation was strictly voluntary. He stated that there were between 30 and 40 staff
members at the school and that teachers were not required to participate. He testified
that, to his knowledge, no teachers were ever punished for not participating or given
incentives to participate. He stated that he did not believe his refusal to participate would
affect his review and that, to his knowledge, no bad reviews were given for not
participating. However, he acknowledged that he would not know if anyone had gotten a
bad review for not participating.
6 No. 1-15-3034WC
¶ 20 Corley testified that the basketball program was started to allow sixth, seventh,
and eighth grade students to play basketball in the gymnasium after school as a reward
for good behavior and good grades. He stated that he and another teacher, Anthony
Marinello, had first discussed the idea of the basketball program and proposed it to Levy,
who had granted permission for them to allow students to come in after school to play
basketball. He testified that there were never more than 15 to 20 students participating in
a game and that not all of them were playing at the same time. He stated that he and
Marinello had supervised the students after school for approximately three weeks before
the claimant's injury. They were not compensated for doing so. He testified that, at some
point in time, they decided that they would get a couple of teachers, whoever wanted to
participate, to play against the students as part of the afterschool basketball program.
¶ 21 Corley testified that the students' parents were not required to be present while
they were participating in the afterschool basketball program; nor did the school hire any
outside personnel to provide oversight to the students during the program. He stated that,
although he and Marinello were volunteering their time to supervise the program, if
anything had happened while the students were participating in the program, he and
Marinello would have been responsible for addressing the issues. For example, if a fire
alarm had gone off, they would have been responsible for ensuring that proper evacuation
procedures were followed; if there had been a lock-down situation, they would have been
responsible for following proper lock-down procedures; if there had been a fight between
students, they would have been responsible for breaking up the fight and submitting the
7 No. 1-15-3034WC
necessary reports to the administration; and if a student had been injured, they would
have been responsible for taking necessary measures to address the injury.
¶ 22 Corley later acknowledged that, during the student/teacher game in which the
claimant was injured, all of the teachers present would have been equally responsible for
overseeing the welfare of the students. He also acknowledged that just because the
teachers were there after school and were not getting paid for it did not mean that they
were absolved of their responsibilities as teachers during that period of time.
¶ 23 Corley testified that they did not allow student spectators during the games
because they did not want to be responsible. He stated that the only students who would
have been watching the game were the ones who were not playing at that particular time.
¶ 24 On January 3, 2014, the arbitrator filed her decision, awarding the claimant
benefits under the Act. The arbitrator found that the claimant was not engaged in a
"voluntary recreational program" under section 11 of the Act at the time of his injury and
that his injury arose out of and in the course of his employment. The arbitrator stated:
"[The claimant] testified that during his first year contracted as a teacher
with [the employer] he was asked on three separate occasions by the principal, Mr.
Levy, to play in student-teacher basketball games. [The claimant] explained that
all teachers were expected to attend events, open houses, performances, and other
after-school functions without pay and that he considered these expectations to be
a part of his job duties. Indeed, both [the claimant] and Mr. Corley testified that
they were responsible for students' well-being during basketball games and that
they were not relieved of their responsibilities as teachers during these games 8 No. 1-15-3034WC
where other student spectators were not allowed and no parents or guardians of the
6th, 7th and 8th grade students participating were required to attend. Moreover,
both [the claimant] and Mr. Corley testified that the basketball games were
designed to reward students [who] were performing well in school. Mr. Levy did
not testify at [the hearing,] and [the claimant's] testimony about his job duties and
conversations with Mr. Levy remain uncontroverted. Moreover, after careful
observation of [the claimant] at [the hearing] and considering [the claimant's]
testimony in light of the documentary evidence and the testimony of Mr. Corley,
the Arbitrator finds [the claimant's] testimony to be credible and corroborated by
the record.
Thus, *** the evidence in this case establishes that [the claimant]
participated in the basketball game on March 23, 2011[,] upon Mr. Levy's third
request to do so because he reasonably believed that his job duties required him to
do so and because he wanted to avoid unfavorable action by Mr. Levy given that
he expected to receive his first performance review and a contract for the
upcoming school year by the end of that month. Based on all of the foregoing, the
Arbitrator finds that [the claimant] has established through credible evidence that
his injury on March 23, 2011[,] arose out of and in the course of his employment
for [the employer] and that he was not engaged in a voluntary recreational activity
as defined in Section 11 of the Act at the time of his injury."
¶ 25 The arbitrator further found that, in the year preceding the injury, the claimant
earned $27,194.20 and that his average weekly wage was $881.29. The arbitrator 9 No. 1-15-3034WC
awarded him temporary total disability benefits of $587.53 per week for 2 5/7 weeks, for
the period from March 24 through April 11, 2011, noting that, on April 11, he had been
released to light duty work, which the employer had accommodated. The arbitrator
awarded him permanent partial disability benefits of $528.77 per week for 50.6 weeks
based on the arbitrator's finding that he had established permanent partial disability to the
extent of 20% loss of use of the left arm.
¶ 26 The employer sought review of the arbitrator's decision before the Commission.
On March 23, 2015, the Commission entered its decision, affirming and adopting the
arbitrator's decision.
¶ 27 The employer filed a timely petition for judicial review in the circuit court. On
September 25, 2015, the court entered its order, reversing the Commission's decision.
The court found that the claimant was participating in a "voluntary recreational program"
under section 11 of the Act at the time of his injury and that his injury, therefore, did not
arise out of and in the course of his employment. The claimant appeals.
¶ 28 ANALYSIS
¶ 29 To recover benefits under the Act, the claimant bears the burden of proving, by a
preponderance of the evidence, that he has suffered a disabling injury that arose out of
and in the course of his employment. 820 ILCS 305/2 (West 2010). "In the course of
employment" refers to the time, place, and circumstances surrounding the injury, and the
"arising out of" component is primarily concerned with causal connection. Sisbro, Inc. v.
Industrial Comm'n, 207 Ill. 2d 193, 203, 797 N.E.2d 665, 671-72 (2003). To satisfy the
"arising out of" component, the claimant must show "that the injury had its origin in some 10 No. 1-15-3034WC
risk connected with, or incidental to, the employment so as to create a causal connection
between the employment and the accidental injury." Id. at 203, 797 N.E.2d at 672.
Typically, an injury arises out of one's employment if, at the time of the occurrence, the
employee was performing acts that he was instructed to perform by his employer, acts
that he had a common law or statutory duty to perform, or acts that he might reasonably
be expected to perform incident to his assigned duties. Id. at 204, 797 N.E.2d at 672. A
risk is incidental to the employment if it belongs to, or is connected with, what an
employee has to do in performing his duties. Id.
¶ 30 Under section 11 of the Act, "[a]ccidental 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." 820 ILCS 305/11 (West 2010). However, "[t]his
exclusion shall not apply in the event that the injured employee was ordered or assigned
by his employer to participate in the program." Id.
¶ 31 Here, the Commission found that the claimant was not engaged in a "voluntary
recreational program" under section 11 of the Act at the time of his injury and that his
injury arose out of and in the course of his employment. The claimant argues that the
circuit court erred in reversing the Commission's decision because his participation in the
student/teacher basketball game was neither "recreational" nor "voluntary."
¶ 32 The interpretation of a statute is a question of law subject to de novo review.
Elmhurst Park District v. Illinois Workers' Compensation Comm'n, 395 Ill. App. 3d 404,
408, 917 N.E.2d 1052, 1056 (2009). However, whether, under the facts of a particular 11 No. 1-15-3034WC
case, an activity is a "voluntary recreational program" under section 11 of the Act and
whether the claimant's injuries arose out of his employment are questions of fact for the
Commission. Pickett v. Industrial Comm'n, 252 Ill. App. 3d 355, 357, 625 N.E.2d 69, 71
(1993); Illinois Institute of Technology Research Institute v. Industrial Comm'n, 314 Ill.
App. 3d 149, 164, 731 N.E.2d 795, 808 (2000). The Commission's determinations on
these matters will not be disturbed on review unless they are against the manifest weight
of the evidence. Pickett, 252 Ill. App. 3d at 360, 625 N.E.2d at 73; Illinois Institute of
Technology Research Institute, 314 Ill. App. 3d at 164, 731 N.E.2d at 808.
¶ 33 Although section 11 of the Act provides several general examples of activities that
may be considered "recreational programs," including "athletic events, parties and
picnics," the Act does not define "recreational programs." 820 ILCS 305/11 (West
2010); Elmhurst Park District, 395 Ill. App. 3d at 408-09, 917 N.E.2d at 1056.
¶ 34 In Elmhurst Park District, we interpreted section 11's use of "recreational" using
the plain and ordinary meaning of the derivative "recreation." Id. at 409, 917 N.E.2d at
1056-57. We noted that "recreation" is defined as " 'the act of recreating or the state of
being recreated: refreshment of the strength and spirits after toil: DIVERSION, PLAY.' "
Id. at 409, 917 N.E.2d at 1057 (quoting Webster's Third New International Dictionary
1899 (2002)). We continued as follows:
"Given the foregoing definition, we can certainly envision circumstances
under which participation in a game of wallyball would constitute a 'recreational'
activity and therefore fall within the voluntary-recreational activity exclusion set
forth in section 11 of the Act. However, we do not believe that the facts of this 12 No. 1-15-3034WC
case present such a situation. Similar to a professional athlete, 'recreation' is
inherent in claimant's position as a fitness supervisor. [Citation.] As such, we find
it appropriate to consider why claimant agreed to play wallyball on the date he was
injured. The evidence adduced at the arbitration hearing established that claimant
initially declined [a coworker's] invitation to participate in the wallyball game
because he was not feeling well and he had other work to do. However, [the
coworker] persisted in her request and told claimant that absent his participation,
the game would be cancelled because there would not be enough participants.
Thereafter, claimant decided to 'help[] out' because he 'felt that [it] was part of
[his] job' which was 'to promote *** different classes and programs.' Based on
this evidence, we conclude that claimant did not participate in the wallyball game
for his own 'diversion' or to 'refresh' or 'strengthen' his spirits after toil. Rather,
claimant participated in the game to accommodate respondent's customers. As
such, we find that claimant was not engaged in a 'recreational' activity as
contemplated by section 11 of the Act at the time of his injury." Id.
¶ 35 Similarly, here, we can certainly envision circumstances under which participation
in a basketball game would constitute a "recreational" activity and, therefore, fall within
the voluntary-recreational activity exclusion set forth in section 11 of the Act. However,
we do not believe that the facts of this case present such a situation. The evidence
presented at the arbitration hearing established that the claimant was not a basketball
player and did not want to participate in the student/teacher basketball games. He
repeatedly tried to avoid having to participate in the games. Had his principal not 13 No. 1-15-3034WC
repeatedly pressured him to participate in the games, he would not have done so of his
own accord. He testified that his performance review was imminent; that he had not yet
been offered a position for the next school year; and that he was concerned that if he
again declined to participate, it might reflect badly in his performance review, and he
might not be offered a position for the next school year. Moreover, he testified that he
considered attendance and participation in after-school events involving the students to
be a part of his job as a teacher. This evidence is sufficient to support a finding that the
claimant did not participate in the basketball game for his own "diversion" or to "refresh"
or "strengthen" his spirits after toil and that he, therefore, was not engaged in a
"recreational" activity under section 11 of the Act at the time of his injury. Thus, the
Commission's finding that the claimant was not engaged in a "voluntary recreational
program" under section 11 of the Act at the time of his injury is not against the manifest
weight of the evidence.
¶ 36 The claimant also argues that the Commission erred in calculating his average
weekly wage under section 10 of the Act (820 ILCS 305/10 (West 2010)). The employer
argues that the claimant has forfeited his argument regarding the calculation of his
average weekly wage because, inter alia, he did not raise the issue in his notice of appeal.
¶ 37 The filing of a notice of appeal is the jurisdictional step that initiates appellate
review. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176, 950 N.E.2d 1136, 1143
(2011). "Unless there is a properly filed notice of appeal, the appellate court lacks
jurisdiction over the matter and is obliged to dismiss the appeal." Id. at 176, 950 N.E.2d
at 1144. 14 No. 1-15-3034WC
¶ 38 Supreme Court Rule 303(b)(2) (eff. Jan. 1, 2015) requires that a notice of appeal
"specify the judgment or part thereof or other orders appealed from and the relief sought
from the reviewing court." "A notice of appeal confers jurisdiction on a court of review
to consider only the judgments or parts of judgments specified in the notice of appeal."
General Motors Corp., 242 Ill. 2d at 176, 950 N.E.2d at 1144.
¶ 39 The purpose of the notice of appeal is to notify the prevailing party that the other
party seeks review of the circuit court's decision. Id. The notice of appeal is to be
considered as a whole and will be found sufficient to confer jurisdiction on a reviewing
court when it fairly and adequately sets out the judgment complained of and the relief
sought, thus informing the prevailing party of the nature of the appeal. Id. Therefore, if
the deficiency in notice is one of form, and not substance, and the appellee is not
prejudiced, failure to strictly comply with the form of notice is not fatal. Id.
¶ 40 Here, the claimant's notice of appeal provides, in pertinent part, as follows:
"Please take notice that following the entry of final judgment by the Circuit
Court of [] Cook County, Illinois, the [claimant], Jonathan Jordan, hereby appeals
to the Illinois Appellate Court, First Appellate District, Workers' Compensation
Division, from the following order and judgment entered in this case by the Circuit
Court:
1) The September 25, 2015[,] order reversing the Award of the
Illinois Workers' Compensation Commission and finding that the [claimant]
was not within the scope of his employment when he was injured on March
23, 2011. 15 No. 1-15-3034WC
The [claimant], Jonathan Jordan, respectfully requests that the Appellate
Court reverse the September 25, 2015[,] order reversing the Award of the
Workers' Compensation Commission; remand this matter to the trial court for
further proceedings consistent with its opinion; and grant any other and further
relief that the Appellate Court deems just and proper under the circumstances."
¶ 41 In his notice of appeal, the claimant asked that we reverse the circuit court's order
reversing the Commission's decision and remand this matter to the circuit court for
further proceedings. The claimant did not ask that we review the propriety of the
Commission's calculation of his average weekly wage. In his reply brief, the claimant
asked for leave to amend his notice of appeal to add the average weekly wage issue.
¶ 42 Supreme Court Rule 303 (eff. Jan. 1, 2015) requires that the notice of appeal be
filed within 30 days of the entry of a final judgment of the circuit court. Supreme Court
Rule 303(b)(5) and (d) (eff. Jan. 1, 2015) provides an additional 30 days after expiration
of the original 30-day filing period to file an amended notice of appeal. After expiration
of the additional 30-day safety-valve period, however, we lack jurisdiction to permit
amendment of the notice of appeal. Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill.
App. 3d 681, 688, 637 N.E.2d 1085, 1090 (1994).
¶ 43 Here, the claimant did not raise the average weekly wage issue in his notice of
appeal; the time for filing an amended notice of appeal has long since expired; and we,
therefore, lack jurisdiction to permit amendment of the notice of appeal. In addition, the
deficiency in notice in this case is one of substance, and not form. We, therefore, lack
jurisdiction to address the average weekly wage issue. 16 No. 1-15-3034WC
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, we reverse the judgment of the circuit court and
reinstate the Commission's decision.
¶ 46 Circuit court's judgment reversed; Commission's decision reinstated.