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Recent Appellate Court Decisions
In Darin v. IWCC, 140536WC-U (3rd Dist. 2015), a fire chief suffered knee injuries while participating in a physical fitness program offered by the employer. In a Rule 23 decision the Worker’s Compensation Commission Division of the Illinois Appellate Court determined the petitioner’s injuries were not compensable as the petitioner’s participation in the fitness program was voluntary.
In Darin, the petitioner was the fire chief for the City of East Peoria. The employer offered a physical fitness program to its employees free of charge. The petitioner testified that his supervisor told him to set an example for the firemen under his command by participating in the fitness program. The job description for fire chief listed physical demands of exerting in excess of 100 pounds of force occasionally or 50 pounds frequently to move objects. The petitioner might also be required to descend ladders and scaffolding. The petitioner was not required to pass an annual physical. He was not required to participate in any physical fitness program or maintain and specific physical fitness requirements. Regular firefighters have a physical fitness requirement, but the petitioner does not.
There is an exercise room in the fire houses that the petitioner and other firefighters can use when they are not on call. The petitioner and other firefighters were given a free pass to exercise at a local gym in East Peoria. The petitioner testified there was no requirement that he work out at the gym.
The petitioner enrolled in the employer’s physical fitness program. The petitioner testified that he enrolled in the program because he thought it would be a way to show his supervisor that he was following his supervisor’s direction to stay fit. On the registration form, the petitioner indicated his participation in the fitness program was voluntary. In two separate incidents, the petitioner injured his left knee and then his right knee while exercising.
The petitioner eventually came under the care of an orthopedic surgeon and underwent arthroscopic surgery to both knees. The petitioner suffered a tear of the posterior horn of the medial meniscus in the left knee and a torn lateral meniscus in the right knee. Eventually the petitioner was discharged from treatment. He had no restrictions other than to refrain from kneeling for the next few months.
The Commissioner of Health and Safety for the City of East Peoria testified on behalf of the petitioner. The Commissioner testified that he was the claimant’s supervisor. He confirmed that there were no physical fitness requirements for the petitioner’s employment. The Commissioner testified that he spoke to the petitioner and recommended that the petitioner and other command officers participate in the physical fitness activity. The supervisor testified that he did not order the petitioner to participate in the fitness program. The supervisor testified the petitioner could have worked out on his own at the gym.
The arbitrator found the petitioner failed to prove he sustained accidental injuries which arose out of and in the course of his employment. The arbitrator found the petitioner was injured while taking part in a recreational activity that did not arise out of and in the course of his employment. The arbitrator determined the petitioner was not ordered or assigned by the employer to participate in the fitness program. The arbitrator noted that the supervisor testified that he did not order the petitioner to participate and that the supervisor testified that if the petitioner chose not to participate it would not negatively affect his performance evaluation. The petitioner had other options available to stay physically fit. The arbitrator found the petitioner failed to prove that his participation in the exercise program was ordered by the employer. Participation was voluntary and there were no consequences if the petitioner chose not to participate.
The arbitrator’s denial of benefits was affirmed by the IWCC. The circuit court confirmed the IWCC’s denial of benefits. The petitioner appealed.
The appellate court confirmed the circuit court’s affirmation of the IWCC’s decision which found the petitioner’s participation in the recreational activity voluntary and the injuries not compensable.
Whether a particular activity is a recreational program under Section 11 of the Act is a question of law. Whether the petitioner’s participation in the recreational activity was voluntary is a question of fact. The appellate court agreed that the fitness program was a recreational program which bars compensation under Section 11.
Because the petitioner was injured while participating in a recreational program, the next question is whether his participation in the program was voluntary or whether he was ordered or assigned by his employer to participate. The appellate court found that the IWCC’s determination that the petitioner’s participation was voluntary was supported by the record. The Commission’s decision was not against the manifest weight of the evidence.
The fire chief was not required to pass an annual physical. His essential job functions were supervisory and administrative responsibilities. He was not required to engage in any physical fitness program or maintain any specific level of fitness. The record failed to show that the petitioner was ordered or assigned by the employer to participate in the exercise program. The manner and method in which the petitioner maintained his physical fitness was at his discretion. There were many options available to the petitioner to stay fit. The record failed to show that the petitioner would have suffered any repercussions by not participating in the exercise program. The decision of the circuit court was affirmed.
The dissent of Justice Holdridge and Justice Stewart argued that the fitness program was not a recreational activity and the petitioner’s participation was not voluntary. Justice Holdridge asserted that the petitioner’s exercises were not games or activities for diversion. The petitioner’s exercises were performed in order to improve his physical fitness. According to Justice Holdridge, the legislature intended the phrase “athletic event” to mean sporting contests or games not physical exercises performed for weight loss purposes.
According to Justice Holdridge, the petitioner’s participation in the exercise program was not voluntary. The supervisor told the petitioner to set a proper example for the fire department by participating in the physical fitness program. The supervisor testified he encouraged the petitioner to participate. The supervisor testified he considered it part of the petitioner’s job duties to participate in the fitness program. If the petitioner had refused to participate, it would have negatively affected his view of the petitioner’s job performance.
Editor’s Note: This case follows existing law regarding whether or not participation in a recreational program is voluntary. These cases are typically fact driven. It is interesting to note that whether or not the exercise program is a recreational activity is decided as a matter of law. Whether or not the employee’s participation is voluntary is a fact issue. The majority opinion noted that the petitioner was not ordered to attend. He was not required to maintain any specific level of physical fitness for his job. The petitioner produced his supervisor who stated that he encouraged petitioner to participate. The IWCC found that this did not rise to the level of being ordered to participate. This is a Rule 23 decision and should not be cited as precedent. This decision does indicate how the appellate court will treat similar cases in the future.
Robert E. Luedke
Attorney at Law
POWER & CRONIN, LTD.
900 Commerce Drive
Oak Brook, IL. 60523
Direct dial: 630-368-2513
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