dissenting:
I believe that the Commission’s decision was not against the manifest weight of the evidence and accordingly I dissent. The majority, in my opinion, misses the point when it focuses on the first sentence of the second paragraph from section 11 of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.11), which provides in pertinent part that “[accidental injuries incurred while participating in voluntary recreational programs *** do not arise out of and in the course of employment even though the employer pays some or all of the cost thereof.” Citing Law Offices of William W. Schooley v. Industrial Comm’n (1987), 151 Ill. App. 3d 1069, 503 N.E.2d 1186, the majority states: “Simply put, accidental injuries incurred by an employee while participating in a voluntary recreational program are excluded from coverage by section 11 of the Act.” (252 Ill. App. 3d at 358.) I have no quarrel with this statement. The issue in this case, however, is not whether claimant’s participation was voluntary, but whether his participation could reasonably be considered an assignment.
The second sentence of the second paragraph of section 11 of the Act provides that the voluntary recreational activity exclusion does not apply if the “injured employee was ordered or assigned by his employer to participate in the program.” (Ill. Rev. Stat. 1991, ch. 48, par. 138.11.) The arbitrator and the Commission found that the claimant was assigned to play basketball. It is well established that a reviewing court cannot disregard or reject reasonable inferences drawn by the Commission from the established evidence merely because different or conflicting inferences might be drawn. (Holthaus v. Industrial Comm’n (1984), 127 Ill. App. 3d 732, 736, 469 N.E.2d 237, 239.) If the undisputed facts give rise to reasonable conflicting inferences, it is the function of the Commission to resolve the conflict and draw permissible inferences, and its decision as to the weight of the evidence will not be disturbed on review. (Greene v. Industrial Comm’n (1981), 87 Ill. 2d 1, 5, 428 N.E.2d 476, 477; Old Ben Coal Co. v. Industrial Comm’n (1991), 217 Ill. App. 3d 70, 83-84, 576 N.E.2d 890, 899.) I believe the Commission’s finding that claimant was assigned to play basketball was not against the manifest weight of the evidence. The undisputed facts are that the employer sponsored a team and supplied uniforms. The employer also provided a gymnasium for the team to practice, supplied a coach, and provided transportation to and from the games. In addition, if claimant worked a schedule which conflicted with a basketball game or had to travel with the team when he was scheduled to work, he was not only allowed time off from his duties as a correctional officer, but also paid for that time. I find it incongruous for the employer to acknowledge that it paid claimant to play basketball yet argue that basketball was not part of claimant’s assignment. Both the arbitrator and the Commission concluded that claimant’s assignment during certain hours was to play basketball. Certainly, there are facts in the record which support that finding.
In both Kozak v. Industrial Comm’n (1991), 219 Ill. App. 3d 629, 579 N.E.2d 921, and Cary Fire Protection District v. Industrial Comm’n (1991), 211 Ill. App. 3d 20, 569 N.E.2d 1338, which were relied upon by the majority, this court held that the Commission’s determination of whether the claimant was excluded under section 11 was not against the manifest weight of the evidence. Schooley, cited by the majority, not only fails to support the majority’s position, but in fact supports the claimant’s position in the instant case. In Schooley, an attorney was allowed to recover for injuries incurred during voluntary participation on a softball team sponsored by his father’s law firm. It should also be noted that the appellate court reached this decision despite a contrary finding by the Commission. In Chicago Transit Authority, we affirmed the finding of the Commission that claimant was assigned to play basketball. Neither Kozak nor Cary Fire Protection District contains facts that even approach the strength of claimant’s facts in this case. While Schooley and Chicago Transit Authority contain facts tending to show that those claimants were assigned to voluntary recreational programs, neither case is as strong as the facts in the case at bar.
I would reverse the judgment of the circuit court, which determined that the Commission’s decision was against the manifest weight of the evidence, and reinstate the decision of the Commission.
WOODWARD, J., joins in this dissent.