*1 permit that the court erred in not Plaintiff contends finally into de accompany jury of the ditch to ting plaintiff’s photograph into and was was introduced evidence photograph liberations. While during closing arguments. of the jury the members viewed in fact photograph depicted testified that ditch Czubak occurred, length she testified where the accident ditch of the accident. night it looked on the was not the same as grass subject portray photograph Defendant testified that to indi of the witnesses testimony by any no other ditch. There was night as it appeared that it was the ditch specific cate not commit error such, that the trial court did As we find accident. during their delib jury photograph refusing permit erations. court reasons, the circuit foregoing
For is affirmed. County Cook affirmed.
Judgment RAKOWSKI,J., concur. EGAN, P.J., and AUTHORITY, THE INDUSTRIAL Appellant, v. TRANSIT CHICAGO Chism, Appellee). (Joshua et al. COMMISSION Division) 1 — 91—4085WC No. (Industrial Commission First District 29,1992. 30, 1992. Rehearing denied December Opinion filed October *2 STOUDER, J., dissenting. Talaga, Chicago appellant.
Bruce J. Authority, Chicago, Transit for Gaines, Gaines, of Chicago (Lewis counsel), Gaines & P. appellee. for JUSTICE RAKOWSKI opinion delivered the the court: The employer, Chicago Authority, Transit the circuit appeals court’s confirmation of the Industrial Commission’s de- (Commission’s) cision which held that claimant Joshua Chism was course of his af- awarded benefits to claimant. We firm. Claimant,
The pertinent facts follow. age testified that he was as a driver for employed bus in 1984. Prior employer working employer, claimant, who Illi- had basketball at Southern nois University for four years, played King Boys basketball at Club. occasion, On one Jones, told approached by Arliss who talented were hired players employer as bus drivers. Subsequently, claimant was hired as a driver bus at the employer Chicago. Kedzie Bus Station in
Claimant further testified that he number hours worked each week depended games number the team had. He played basketball on the team when the season started in employer’s October of 1985. He had the team for awhile in 1984 apparently quit and rejoined it. he According claimant, all “practiced year-round with the team.” Sometimes games practices were scheduled dur- hours, work supposed driving when claimant was be bus. Carter, Clark boss, superintendent told claimant arrange would for claimant off time. during game be work Accom- modation for the only team was the time claimant’s sched- ule adjusted. claimant for the paid days that the employer
Claimant stated When playing and was instead basketball. he did not drive bus it was more than occurred, though claimant indicated asked when this testify He did once, times this occurred. say many he could not how and that there assignment” his “work basketball was and got less than he required when he drove a bus were times supplied The uniforms the team wore were he practiced. because paid players to the at work. given and were travelled to the uniforms, and the bus players for the admission, charged pro- with games at the Spectators sites. Fund, which basket- supported going ceeds Welfare and other recreational activities. ball drivers all of the team were bus testified that
Claimant co-employees. the coaches were for the employer, he working employer, for the that before He further testified the team and Carter, (who coached Ronald Coleman with Clark spoke Coleman, “Ronald” be appearing is Curtis actual name whose him claimant, Carter told According to and Arliss Jones. nickname) talented, hired to basketball. being he was that because with hiring routine However, through procedures mentioned. was not Basketball employer’s personnel department. *3 of 1985 in the summer morning practiced every Claimant basketball Claimant was employees. rented for its in a which the gym 19,1985. a on November injured during Kedzie Bus Sta- Carter, superintendent the Clark who was conducted a basketball tion in testified to employees for the make time available role was to league. Carter’s ac- schedules permitted adjust and league manpower in the as play on played 15 of whom employees, Carter had 700 cordingly. at they practiced bus drivers All of the the team. un- Claimant was Club. King Boys District and Chicago Park the team. in 1985 and supervision der Carter’s hours route or specific giving any recall Carter could not did re- Carter although could basketball so that claimant basketball, claimant’s was injured call that after claimant inwas league Kedzie sick book. Garage placed name was and it was the employer, of the union and by agreement existence role as su- Carter’s practices. to schedule responsibility Arliss Jones’ and he attended games, attending occasional included perintendent league. for the basketball banquets dinners and award team, for the meeting organizational at the present was Carter during an was employee When were established. bylaws go “sick activity, employee employer’s would book.” Carter, hospital an injured employee’s when asked how medical insurance, compen- will paid, replied: bills were “Whatever which insur- injuries.” sate him accordance with his He was asked “I vari- don’t know. We have paid expenses ance these and stated: *** I ous carriers do not which one he with.” When know would be to “the de- injured, give an was bills medical employee regular to the insurance. on a CTA partment He would make claim bills give company.” claim form and those CTA insurance regarding Carter’s was consistent with claimant’s testimony vending proceeds machine to the Fund and going Welfare Welfare funding recruiting Fund There have league. may basketball been leagues, committee to enlist and cir- present employees sports advertising leagues culars hiring were sent out. Carter denied specifically for the purpose participating Beutoe, manager William also treasury employer, He testified. was also the treasurer the Welfare Fund and charge of vending monies the control of the ma- chines. He also testified that machine vending proceeds go Fund, Welfare funds Further, which the employer’s sports leagues. the Welfare Fund funded award dinners and for the em- banquets ployer. Welfare Fund funded 75% of costs the employer’s sports programs paid 75% of Fifty percent coordinators’ fees. of. the Welfare Fund’s disbursements went the employer’s sports pro- grams. The Welfare Fund also paid uniforms and some equipment. The most the $40,000. Welfare Fund has in one spent year Jones,
Arliss the employer’s transportation program analyst, the employer’s sports coordinator For his duties coordinat- sports he was additional employer. $200 He acknowledged that an on a team super- would intendent have bus hours Jones rescheduled. testified that he used the employer’s office machines for sports league business. Jones denied having to do anything hiring with claimant and testified employees joined the team on a basis. purely *4 Coleman,
Curtis the coach the of team for which claimant played, testified that claimant in According team to Cole- man, gave per schedules and collected $25 $50 player, league. which went towards the costs of the at Coleman was where injured. According Coleman, claim- ant knew his medical bills paid given would be that claimant was duty at the time he was Coleman was aware that injured. individ-
uals that manner were when off of work. Coleman de- injured having nied to do with drivers in 1984 and 1985. anything hiring bus ineligible
The arbitrator ruled that claimant was benefits. Commission, however, aside finding, ruling set that claimant was of employment (the the course his and awarded benefits extent of review, is not at the circuit issue). Upon which court confirmed decision of Commission. presented
The issue review is whether the Commission’s find- the course of ing injured employment weight the manifest of evidence. against is 11 of the governing statutory section Illinois provision (the (Ill. Act Rev. Stat. ch. Compensation Act) par. Workers’ 138.11), provides: which
“Accidental incurred while injuries participating not limited athletic programs including but events, arise of and in the parties picnics do not out course some or all though pays of even employer the cost This exclusion shall not apply thereof. event ordered or his em- by ployer program.” Cary As we Fire Protection District Industrial observed 20, 25, a case Comm’n presented subjudice: which addressed the same issue as that of fact are set aside findings “The Commission’s not be weight contrary court unless manifest reviewing if Its will not be set aside evidence. determinations [Citation.] in the record. are credible evidence supported [Cita- such undisputed, where facts though Even facts are tion.] inference, question then a more than one reasonable permit of the Commission on presented, fact is conclusion unless it court reviewing fact will not be disturbed A re- weight the manifest evidence. against [Citation.] findings sim- viewing court will overturn drawn, could be or otherwise because different inferences ply for that of the Commission. substitute its [Citation.]” case, funded many In the it is clear that present benefitted league, employer may have the costs actively and the league, claimant’s from however, such fund- Under section organized ran themselves, to sufficient, bring in and organization employment. of his injury the course within
229 629, In both v. 219 Ill. 3d (1991), App. Kozak Industrial Comm’n 921, 579 N.E.2d determina- Cary, we held the Commission’s tion 11 of whether the claimants were excluded under section was against weight manifest the evidence. In Law Wil- Offices of liam 151 Ill. 3d Schooley (1987), W. Industrial Comm’n App. finding 503 N.E.2d we reversed the claimant was not in the course of his when while playing his softball team. We observed: injuries
“Accidental employee participat- incurred an while voluntary in a program recreational excluded section However, 11 if ***. the exclusion does apply ” was ordered or in the 151 assigned participate ‘program.’ Ill. 3d at
We the meaning believe of section 11 is clear that while vol untary activity in a not lend generally does itself to the protections, Act’s benefits and where an or employee is dered or assigned to participate activity, excep there exists tion to the section 11 exclusion. case sub claim judice, while may ant’s participation voluntary have been in the sense that he wished league, ample there exists evi dence in the record to support Commission’s determination to participate on the team. witnesses, Carter,
The employer’s and Coleman, Jones testified to the effect that claimant’s participation and that he was not hired purpose of Claim- ant, hand, on the other related that the did hire employer’s agents due, him at least in to his part, em- basketball abilities and that the went ployer significant lengths to accommodate his basketball acti- vities. He also said that at times basketball was work assignment. Importantly, the employer dispute if, indeed, does not its agents recruit and expressly hire claimant to play basketball and accom- modate his testified, schedule the lengths that claimant would fall ordering Rather, within section assigning ll’s or exception. the employer’s argument is that claimant’s testimony unworthy belief.
While employer does indicate some areas where claimant’s testimony was inconsistent or it is well settled that it is impeached, the function of the Commission to judge credibility witnesses. (See O’Dette v. Industrial Comm’n 221.) Given Commission’s resolution of the credibility is-
sue, coupled with the obvious the regular benefits and systematic organization the engaged, we hold assigned
Commission’s determination that claimant was evidence, against weight was not the manifest therefore, from the section 11 exclusion. excepted, of the circuit court is affirmed. Accordingly, Affirmed. LEWIS,
McCULLOUGH, P.J., JJ., H. con- WOODWARD cur. *6 STOUDER, dissenting:
JUSTICE I must dissent.
Respectfully,
in this
I am
has taken
case
majority
troubled
course
me
appears
with its affirmation of the Commission’s decision. It
given
has
its
to the Commission’s decision
majority
blessing
The
of
wording
statute.
the dis-
ignore
plain language
statute in this case
not be more clear.
incurred
puted
Injuries
could
are not
unless the
compensable
the course
recreational activities
assigned by
participate
was ordered or
in an irrele-
engages
The
activity.
majority initially
funding
league by
vant discussion on the
CTA.
a
The
makes
nonissue.
funding by
statute itself
assigned
The
then
on to
that the claimant was
goes
say
majority
to imply
decision seems
majority’s
CTA.
play basketball
difference
I do
“ordering”
“assigning.”
there is
a
between
two
there is
difference between these
important
not believe that
words;
implication
voluntary
behav-
they both have
same
—lack
an absence of
interchangeable
describing
to be
ior.
words seem
is
in our pre-
found
participation. Support
position
this
voluntary
v.
Fire
District
Industrial Comm’n
Cary
vious decision
Protection
1338, 1342,
we
20, 25,
3d
wherein
(1991),
to partici-
that the claimant was
ordered
undisputed
stated “[i]t
tournament;
voluntary.”
pate
accordingly,
participation
not ordered to
case
Similarly,
this
Players had
undertaking.
was a
the basketball
This
teams;
one of the
they
out for
win
try
spot
accommo-
certainly
to do
The CTA
not ordered or
so.
so that
could
arranging
dated the
their schedules
show that
way
this
games,
any
but
does
required
anyone.
this
setting with
decision.
I am
we are
precedent
troubled
meaning
to the plain
does violence
opinion,
majority’s
view
my
of section 11. If
willing
ignore
express
we
so
lan
flagrantly
statute,
guage of the
I
meaning
am uncertain as to what
statute
will have after this decision. It
to me that we have rendered
appears
section 11
There is
meaningless.
authorizing
no rule of construction
court to
legislature
plain
declare that
did not mean what the
lan
Graham,
Ander
imports." (County Du Page
guage of the statute
son,
White,
Probst
&
Inc.
For the I dissent. CORPORATION, HERTZ Plaintiff-Appellant Cross-Appellee, v. ROD- al., al., NEY et (Joseph GARROTT Defendants et Defendants-Ap- Ferraro
pellees Cross-Appellants). (5th Division) First District No. 1 — 91—3068 *7 30, 1992. Opinion filed October