Dodaro v. Ill. Workers' Comp. Comm'n

• Decision Date: 09 September 2010
• Docket Number: No. 1–09–0447WC.,1–09–0447WC.
• Citation: 950 N.E.2d 256,351 Ill.Dec. 100,403 Ill.App.3d 538
• Parties: Theresa DODARO, Defendant–Appellant,v.ILLINOIS WORKERS' COMPENSATION COMMISSION and the City of Chicago, a Municipal Corporation, Plaintiffs–Appellees.
• Court: United States Appellate Court of Illinois

403 Ill.App.3d 538

950 N.E.2d 256

351 Ill.Dec. 100

Theresa DODARO, Defendant–Appellant,

v.ILLINOIS WORKERS' COMPENSATION COMMISSION and the City of Chicago, a Municipal Corporation, Plaintiffs–Appellees.

No. 1–09–0447WC.

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

Aug. 3, 2010.Rehearing Denied Sept. 9, 2010.

James L. Kaplan, Kaplan & Sorosky, Ltd., Chicago, IL, for Appellant.Joseph A. Zwick, Hennessy & Roach, P.C., Chicago, IL, for Appellee.Justice HUDSON delivered the opinion of the court:

[351 Ill.Dec. 101 , 403 Ill.App.3d 539] As defined in the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)), the term “employee” excludes “any duly appointed member of a police department in any city whose population exceeds 200,000 according to the last Federal or State census.” See 820 ILCS 305/1(b)1 (West 2000). At issue in this case is whether claimant, Theresa Dodaro, who was injured while training to become a police officer for respondent, the City of Chicago, is a “duly appointed member” of respondent's police department and therefore precluded from receiving benefits under the Act. We hold that claimant is not a “duly appointed member” of the Chicago police department. As such, we find that claimant's injuries are compensable under the Act.

I. BACKGROUND

In October 2000, claimant began training at the Chicago Police Academy. Prior to being admitted to the academy, claimant took a written examination and underwent physical, medical, and psychological screenings. On October 20, 2000, while participating in a training exercise, claimant injured her right leg and lower back. Claimant testified that after she was injured, she went to the Fraternal Order of Police and was told that she does not qualify for benefits under Article 5 of the Illinois Pension Code (Pension Code), the legislation which governs the Policemen's Annuity and Benefit Fund for cities over 500,000 inhabitants (Police Pension Fund) (see 40 ILCS 5/5–101 et seq. (West 2000)). Claimant eventually resigned from the police

[351 Ill.Dec. 102 , 950 N.E.2d 258]

department and sought benefits under the Act.

At the hearing on her application for adjustment of claim, claimant testified that individuals attending the police academy are referred to as “recruits” or “probationary police officers.” Recruits attend the police academy between 7 a.m. and 4 p.m., Monday through Friday, and participate in both classroom and physical activities. Claimant explained that while attending the academy, each recruit wears a “standardized outfit.” Claimant testified that the outfit does not include any insignia indicating that recruits are affiliated with the Chicago police department. She also related that while recruits have name tags, they do not wear a badge or carry any identification issued by the Chicago police department. Claimant testified that while attending the police academy, she was paid by respondent and that she considered herself a “city employee.” Claimant also testified that funds were withheld from her wages as contributions to the Police Pension Fund.

Claimant testified that recruits are instructed that they have “no authority,” that they are not police officers, and that they are “not to act like police officers.” Recruits are required to keep their weapons locked up at the academy, and they are not authorized to make arrests. In addition, recruits are told that while police officers are on duty 24 hours a day, recruits are “just civilians” outside of the academy. According to claimant, while police officers are “sworn in,” she did not sign or swear any oath. Nevertheless, she acknowledged signing various documents after beginning training at the police academy, including a “Law Enforcement Code of Ethics” statement.

Over respondent's objection, claimant presented the testimony of Ivan Rittenberg. Rittenberg, an attorney, testified that he worked for respondent for 32 years in various capacities, including a stint in law enforcement. Rittenberg related that he became a Chicago police officer in 1966. He was later promoted to detective, then sergeant, and eventually to lieutenant. In 1978, Rittenberg became the administrative assistant to the superintendent of police. Rittenberg subsequently became a police captain before serving as assistant deputy superintendent of police. Rittenberg testified that as a result of his work for respondent, he has become familiar with the Pension Code and “with all the general orders and definitions and who is and who is not a police officer within the City of Chicago.”

Rittenberg stated that individuals being trained to become police officers are referred to as “trainees,” “recruits,” or “probationary police officers.” Whatever they are called, he opined, they are not police officers until they take an oath of office and swear to uphold the laws of the State of Illinois. Rittenberg further noted that recruits have no power to arrest on probable cause, they are not allowed to carry a gun, and they have not been issued a star (badge). Rittenberg stated that, to his knowledge, unlike a sworn officer, a recruit has always been considered an at-will employee. Rittenberg further opined that under the general orders of the Chicago police department, because a recruit is “not sworn” and does not have the power to arrest, he or she is not a police officer and would be subject to civilian injured-on-duty procedures. Thus, Rittenberg reasoned, the appropriate manner for a recruit to pursue a work-related injury would be under the Act.

John Gallagher, the executive director of the Police Pension Fund, testified on respondent's behalf. Gallagher stated that he has worked for the Police Pension Fund in various capacities since 1980 and that he

[351 Ill.Dec. 103 , 950 N.E.2d 259]

has been the executive director since November 2004. Gallagher testified that the Police Pension Fund provides disability benefits to police officers who are injured while on the job and ordinary disability benefits for non-duty related disabilities. Gallagher testified that recruits training at the police academy are required to contribute to the Police Pension Fund from the date of their initial employment with the Chicago police department. According to Gallagher, a recruit contributes nine percent of his or her salary on a semi-monthly basis. Gallagher testified that claimant contributed to the Police Pension Fund from the beginning of her employment through November 15, 2000. During that period, claimant's contributions totaled slightly more than $300.

Gallagher indicated that representatives from the Police Pension Fund conduct a training seminar for new recruits to provide information regarding the benefits of the Police Pension Fund. As part of this process, the recruits are asked to complete some documents, including an “information blank” and a “death benefits directive.” The recruits are also distributed a booklet containing a summary of benefits. Gallagher identified an “information blank” and a “death benefit directive,” both of which were signed by claimant on October 12, 2000. Gallagher testified that according to the “information blank,” claimant's “appointment date” to the police department was October 10, 2000. Gallagher testified that the Police Pension Fund interprets the Pension Code such that a recruit is considered a police officer from his or her date of appointment as far as administering duty disability benefits. Therefore, Gallagher stated, it is the practice of the Police Pension Fund that new recruits injured while training are eligible to receive duty disability benefits. In fact, Gallagher was aware of at least two recruits who were receiving duty disability benefits from the Police Pension Fund as a result of injuries sustained while training at the academy. Gallagher stated that claimant had the option of applying for duty disability benefits through the Police Pension Fund as of November 2005 (the time of Gallagher's testimony) even though her injury occurred in October 2000.

On cross-examination, Gallagher acknowledged that the Chicago police department distinguishes recruits from “sworn” police officers, and he acknowledged that a recruit does not receive his or her full police powers until he or she is sworn in. Nevertheless, he reiterated his opinion that, for purposes of the Police Pension Fund, recruits are considered “police officers that make semi-monthly contributions to the fund” and that recruits are therefore entitled to injury-on-duty benefits.

Respondent also called Rachel Johnston, the deputy director of the Research and Development Division of the Chicago police department. Johnston explained that, among other things, the Research and Development Division is responsible for maintaining department policies and procedures, including all written directives. According to Johnston, the Research and Development Division divides police department employees into three categories: “sworn” personnel, “civilians,” and “members.” Johnston testified that a directive that refers to “sworn” personnel would include recruits. In contrast, Johnston related, a directive referencing “civilians” would never include recruits. A directive that refers to “members” would include both “sworn” personnel and “civilians.” More specifically, Johnston testified that General Order 98–02, which sets forth the Chicago police department's medical policy, expressly states that a recruit who is injured on duty will be treated as a “sworn officer under the medical policy.” Thus,

[351 Ill.Dec. 104 , 950 N.E.2d 260]

Johnston related, a recruit who is injured at the police academy “would proceed exactly the same way as a full-duty status police officer would proceed in getting benefits under the Injury On Duty Status.”

The arbitrator concluded that the exclusion in section 1(b)1 of the Act (820 ILCS 305/1(b)1 (West 2000)) for “any duly appointed member of a police...