Calumet Sch. Dist. # 132 v. Ill. Workers' Comp. Comm'n

2016 IL App (1st) 153034 WC

67 N.E.3d 966

CALUMET SCHOOL DISTRICT # 132, Appellee,

v.The ILLINOIS WORKERS' COMPENSATION COMMISSION, et al. (Jonathan Jordan, Appellant).

No. 1–15–3034WC.

Appellate Court of Illinois, First District, Workers' Compensation Commission Division.

Nov. 10, 2016.

Evan Hughes, of Law Offices of Evan A. Hughes, of Chicago, for appellant.

Douglas J. Sullivan, of Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., of Chicago, for appellee.

OPINION

Justice STEWART delivered the judgment of the court, with 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 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.

¶ 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 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 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.

¶ 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.

¶ 20 Corley testified that the...