Viacom Outdoor v. Ill. Workers' Comp. Comm'n

VIACOM OUTDOOR, Appellant,

v.ILLINOIS WORKERS' COMPENSATION COMMISSION, et al., (Donna Cramer, Appellee).

No. 1-12-1418WC

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT WORKERS' COMPENSATION COMMISSION DIVISION

Filed: June 3, 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Cook County

No. 09 L 51521

Honorable

Sanjay Taylor,

Judge Presiding.

JUSTICE HOFFMAN delivered the judgment of the court.

Presiding Justice Holdridge and Justices Hudson, Harris, and Stewart concurred in the judgment.

ORDER

¶ 1 Held: The findings of the Illinois Workers' Compensation Commission in its original decision that the claimant was injured as the result of a voluntary recreational activity and is, as a consequence, not entitled to benefits pursuant to the Workers' Compensation Act are not against the manifest weight of the evidence.

¶ 2 Viacom Outdoor (Viacom) appeals from an order of the Circuit Court of Cook County which confirmed a decision of the Illinois Workers' Compensation Commission (Commission), awarding the claimant, Donna Cramer, benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2004)), for injuries she sustained while participating in a Viacom sponsored charity event on September 30, 2004. For the reasons which follow, wereverse the judgment of the circuit court and reinstate the Commission's original decision denying the claimant benefits pursuant to the Act.

¶ 3 The following factual scenario is taken from the evidence adduced at the arbitration hearing held on May 8 and May 18, 2008.

¶ 4 The claimant was a 60 year-old sales assistant at Viacom's Chicago office at the time her injury occurred. On August 17, 2004, Viacom's president, Wally Kelly, sent an email informing Viacom's employees of its charitable bowling event. The memorandum stated:

"This year Viacom Outdoor will be participating in Viacommunity Day, which will be held on September 30, 2004! Like last year, we are encouraging all employees to join in and support the company's efforts to fight HIV/AIDS by participating in our Bowl-A-Thon. Your Human Resource Representative is in the process of setting up this event for your market. Come out, have fun, support, and give back to your surrounding communities."

¶ 5 The next day, on August 18, 2004, Elizabeth Martinez, a Human Resources Assistant for Viacom in Phoenix, AZ, wrote an email to a select few Viacom employees, including the Chicago Office Manager, Sharon Anderson. This email explained how to organize Viacommunity Day and "encourage[d]" the recipients to "take pictures and/or recordings of the event" and later submit them to Martinez.

¶ 6 Shortly after, Sharon Anderson and Kathryn Graham (another Viacom employee) sent an email memorandum to the Chicago employees regarding Viacommunity Day. It stated that the office would "close" at 2:00pm on Thursday, September 30, 2004; the Bowl-A-Thon would take place at a bowling alley from 3:00-5:00pm; Viacom would cover costs for bowling and shoe rentals; participants would be required to make a $15 donation "to a designated AIDS organization" and sign a Volunteer Waiver of Liability Form; "employees not wishing to participate [would] be required to work their normal day"; "everyone [was] strongly encouragedto participate"; and that "a prize [would] be awarded to the market with the highest percentage of participation." The employees were asked to give their R.S.V.P by August 19, 2004.

¶ 7 On September 10, 2004, Wally Kelly sent Viacom employees another email memorandum regarding the Bowl-A-Thon for Viacommunity Day. It stated:

"Viacommunity Day is a great tradition at Viacom, a dedicated day of service that brings Viacom employees together to give back to the communities in which we live and work. This year, we are focusing our efforts on projects that help youth at risk as well as those who have been afflicted with HIV/AIDS. As you know, many of the ongoing philanthropic programs throughout the company focus on these areas

***

Employees throughout the United States and United Kingdom will be participating in Viacommunity Day this year and I encourage each and every one of you to join them. The event speaks volumes about our culture-highlighting the enthusiasm, creativity and teamwork that Viacom employees bring to making a difference every day

***

Let's make this our biggest year ever."

¶ 8 The Viacom employees who wished to participate in the Bowl-A-Thon were not required to take a personal or sick day; their time at the event counted toward their normal work hours. However, prior to the Bowl-A-Thon, employees who wished to attend the event had to sign a Volunteer Waiver of Liability Form, which stated:

"I further irrevocably grant to Viacom Outdoor, its assigns and successors, my consent and full right to use my name, photograph, likeness, image, voice, and biography in any and all media, publications, advertising, and publicity, in connection with my participation hereunder."

¶ 9 On Thursday, September 30, 2004, 31 of Viacom's employees attended the Bowl-A-Thonat the Diversey River Bowl; six employees chose not to participate and remained at work. Two Viacom employees attended the event but did not bowl. At the event, pictures were taken of the employees, and the employees raised $965 for Better Existence with HIV.

¶ 10 The claimant attended the event and participated in bowling. While bowling, she slipped into one of the lanes and fell onto her left arm. A co-employee drove the claimant to the Northwestern Hospital Emergency Room, where she was treated. At the emergency room, the claimant was informed that she had broken her left wrist and fractured her left humorous and shoulder. On October 12, 2004, Dr. Peter Hoepfner, an orthopedic surgeon at Northwestern Hospital, performed surgery on the claimant's wrist whereby he inserted a permanent titanium plate and metal screws and pins.

¶ 11 The parties have stipulated that the claimant was temporarily and totally disabled and did not attend work from October 1, 2004, through November 22, 2004, because of her injury. During this period, the claimant received temporary total disability (TTD) benefits from Viacom in the amount of $423.33 per week. The claimant participated in physical therapy from September 2004 through May 2005. Her medical bills totaled $47,910.00. In September 2005, Viacom had another Bowl-a-Thon for Viacommunity Day, and the claimant attended but did not bowl.

¶ 12 Sometime after September 2005, the claimant terminated her employment with Viacom. According to the claimant's testimony, because of her injury, she has a limited range of motion in her left wrist; cannot lift more than a gallon of milk with her left arm; cannot put her arm behind her back (which affects her ability to dress herself); and experiences pain in her fingers, arm, and shoulder when she wakes up in the morning. The claimant does not take medication for pain relief. Additionally, the claimant's doctors informed her that she will likely develop arthritis in her arm and fingers in the future.

¶ 13 At the arbitration hearing, the following exchange took place between the claimant andher attorney:

"BY MR. COGHLAN:

Q. Why did you go to the bowling alley on September 30, 2004?

A. I felt it was something I had to do.

Q. And why do you say that?

A. I felt that there was pressure to participate because if we didn't, no one would be participating and it was a corporate event."

¶ 14 On cross-examination, the claimant and Viacom's counsel had the following exchange: "Q. Were you present in September 2005, working for Viacom?

A. Yes, I was.

Q. At that time was there another bowling event?

A. There was.

Q. You did not attend?

A. I did, but I did not participate. I went there.

Q. Did you feel obligated to attend in 2005?

A. Yes.

Q. Did anyone tell you that you must attend?

A. I don't recall hearing 'must'."

¶ 15 On redirect examination, the claimant and her attorney had the following colloquy:

"Q. And when you went back, you testified you felt you had to attend this bowling event, even the subsequent year, 2005?

A. Yes.

Q. Why did you feel you had to attend it again in 2005?

A. Because they were again looking for participation, as much participation as possible."

¶ 16 In her testimony, Anderson, the Viacom Chicago office manager, stated that Viacom employees were not required to attend the Bowl-A-Thon event. On cross-examination, Anderson acknowledged that the memorandum sent to employees indicated Viacom's interest in having them attend.

¶ 17 Following the hearing, the arbitrator found that the claimant was not eligible for benefits because the event was voluntary and recreational, and thus her injury did not arise out of and in the course of her employment. The claimant sought review of the arbitrator's decision before the Commission. On October 26, 2009, the Commission affirmed and adopted the arbitrator's decision. The claimant then filed a petition for judicial review of the Commission's decision in the Circuit Court of Cook County. On May 27, 2010, the circuit court set aside the Commission's decision and held that the charity event was not voluntary and recreational and that the claimant's injury therefore did arise out of and in the course of her employment. The court remanded the case to the Commission to determine the appropriate compensation amount.

¶ 18 On remand, the Commission entered a decision on July 29, 2011, finding that the claimant was entitled to TTD benefits of $423.33 per week for 7-4/7 weeks; $381.00 per week for 94 weeks for 40% loss of use of her left arm; $381.00 per week for 57 weeks for 30% loss of use of her left hand; $47,910.00 for medical expenses; and all interest expenses (if any). Following the Commission decision on remand, Viacom filed a petition for review in the circuit court. On April 12, 2012, the circuit court confirmed the Commission's decision.

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