January 26, 2001

No. 3-00-0153WC

IN THE
APPELLATE COURT OF ILLINOIS
THIRD JUDICIAL DISTRICT
INDUSTRIAL COMMISSION DIVISION

The claimant, Mark Pearson, filed an application for adjustment of claim under the Workers' Compensation Act (Act) (820ILCS 305/1 et seq. (West 1994)), seeking benefits for injuries he received on October 7, 1994, while assisting fire fightersfrom the Clover Township Fire Protection District (District) in putting out a farm field fire. Following a hearing, anarbitrator issued a decision denying the claimant benefits under the Act, finding that no employer/employee relationshipexisted between the claimant and the District at the time of his injury. On review, the Industrial Commission (Commission)issued a unanimous decision affirming and adopting the arbitrator's decision. Thereafter, the claimant sought judicialreview of the Commission's decision in the circuit court of Henry County. The circuit court confirmed the Commission'sdecision, and this appeal followed.

The following facts were established from the evidence presented at the arbitration hearing.

The claimant was one of the District's volunteer firemen from March 1993 through March 8, 1994. On March 8, 1994, hewas terminated from that position for non-attendance at meetings.

On October 7, 1994, there was a farm field fire in rural Clover Township. The claimant and his father saw the fire andreported it to the District. After reporting the fire, the claimant and his father went to the site of the fire and waited for theDistrict's firemen to arrive. When the firemen arrived, the claimant directed them to a gate where they could get into thefield to fight the fire. The claimant admitted that, after he directed the firemen to the gate, no one asked him to remain atthe scene. Nevertheless, the claimant began stomping the fire in the area of the gate.

Terry Nelson, one of the firemen at the scene, testified that the claimant offered to get his farm tractor and disk and assist inputting out the fire by disking the field. According to the claimant, Nelson asked him if he would help fight the fire withhis tractor and disk. Nelson testified that he called the District's assistant fire chief, Donald McDowell, and informed himof the claimant's offer. McDowell testified that he told Nelson that the claimant's assistance "would be appreciated," and hetold Nelson to have the claimant go around the fire with his tractor and disk. McDowell also testified that the fire couldhave been extinguished without the claimant's assistance.

According to the claimant, he went to his farm, got his tractor and disk, and returned to the scene of the fire. When hereturned, several firemen directed him to the south end of the field. The claimant began disking the ground in an effort toextinguish the fire. None of the District's firemen directed the manner in which the claimant undertook to disk the field.

While the claimant was disking the field, he drove his tractor into a deep washout. His left foot was pinned between theclutch and the floorboard, resulting in a chronic Lisfranc injury. Nevertheless, the claimant continued to assist inextinguishing the fire.

The claimant admitted that he was not paid for his services and had no expectation of being paid. He testified that, afterNelson requested that he help fight the fire, he provided his services out of concern for his neighbors and the community. The claimant never received any payment from the District after his termination on March 8, 1994.

After the hearing, the arbitrator issued a decision denying the claimant benefits under the Act, finding that he failed toprove that an employer/employee relationship existed between himself and the District at the time of his injury. On review,the Commission issued a unanimous decision affirming and adopting the arbitrator's decision. The circuit court confirmedthat decision.

On appeal, the claimant argues that the Commission's finding that no employer/employee relationship existed is against themanifest weight of the evidence and erroneous as a matter of law. He further contends that the emergency doctrine dictatesa finding that he had an employer/employee relationship with the District.

In a workers' compensation case, the claimant has the burden of proving, by a preponderance of the evidence, all of theelements of his claim (O'Dette v. Industrial Comm'n, 79 Ill. 2d 249, 253, 403 N.E.2d 221 (1980)), including the existenceof an employer/employee relationship between himself and the entity from which benefits are sought (Rangler Motor Salesv. Industrial Comm'n, 93 Ill. 2d 66, 71-72, 442 N.E.2d 903 (1982)). When the evidence is conflicting and the facts subjectto diverse interpretation, the question of whether such a relationship existed is one of fact to be resolved by theCommission. Rangler Motor Sales, 93 Ill. 2d at 71-72. When, however, there is no conflict in the evidence and but oneconclusion can reasonably be drawn therefrom, the existence of an employer/employee relationship can be decided as aquestion of law. Tooley v. Industrial Comm'n, 236 Ill. App. 3d 1054, 1056, 603 N.E.2d 145 (1992).

Section 1(b)(2) of the Act defines an employee as "[e]very person in the service of another under any contract of hire,express or implied, oral or written ***." 820 ILCS 305/1(b)(2) (West 1994). Although this definition is to be broadly construed, there can be no employer/employee relationship and, therefore, no liability under the Act absent a contract for hire,either express or implied. Goodrick v. Industrial Comm'n, 237 Ill. App. 3d 885, 888, 605 N.E.2d 120 (1992).

In the instant case, the Commission determined that no employer/employee relationship existed between the claimant andthe District. The claimant argues both that the Commission's decision is against the manifest weight of the evidence andthat the Commission erred in its finding as a matter of law. We disagree.

In Board of Education v. Industrial Comm'n, 53 Ill. 2d 167, 171, 290 N.E.2d 247 (1972), our supreme court held:

"The underlying purpose of workmen's compensation legislation in this and other States is to provide financial protection invarious forms, including the restoration of lost wages, for workers whose earning power is interrupted or terminated as aconsequence of injuries arising out of and in the course of their employment. [Citations.] Consistent with the philosophy ofthe legislation which assumes that a worker is gainfully employed at the time of his injury, it is generally recognized that atrue employer-employee relationship does not exist in the absence of the payment or expected payment of consideration insome form by employer to employee. As a consequence, the workmen's compensation statutes throughout this countryhave uniformly been construed to exclude from coverage purely gratuitous workers who neither receive, nor expect toreceive, pay or other remuneration for their services. [Citations.]"

In this case there is no dispute, the claimant neither received nor expected payment for his services in assisting the District'sfiremen. As the claimant testified, he provided his services purely out of concern for his neighbors and the community. The record in this case reveals that the Commission did not apply an improper standard to determine whether the claimantwas an employee of the District at the time of his injury, and its determination that he was not the District's employee is notagainst the manifest weight of the evidence. Further, the claimant's reliance upon the Illinois Supreme Court's decision inVillage of Creve Coeur v. Industrial Comm'n, 32 Ill. 2d 430, 206 N.E.2d 706 (1965), in support of his contention that anemployer/employee relationship existed between himself and the District is misplaced. Unlike the circumstances present inthis case, the injured volunteer fireman who was the claimant in Village of Creve Coeur was compensated for his services,a fact which the supreme court specifically noted in its decision. Village of Creve Coeur, 32 Ill. 2d at 433.

The claimant also argues that the facts of this case support the application of the emergency doctrine to find an employer/employee relationship between himself and the District. It is true, as the claimant contends, that the emergency doctrinewas acknowledged in Wolverine Insurance Co. v. Jockish, 83 Ill. App. 3d 411, 403 N.E.2d 1290 (1980). However, as theDistrict points out, the doctrine has never been adopted or applied in Illinois.

In this case, we need not decide the question of whether Illinois will embrace the emergency doctrine and apply the theoryof a quasi-contract of employment to bring an individual under the protection of the Act when he is injured while riskinghis life in order to protect the lives and health of others. See Conveyors Corp. of America v. Industrial Comm'n, 200 Wis.512, 228 N.W. 118 (1930); Tipper v. Great Lakes Chemical Co. 281 So.2d 10 (Fla. 1973). As was the case in WolverineInsurance Co., "the life-threatening urgency which characterizes the emergency doctrine cases is absent from the factsbefore us." Wolverine Insurance Co., 83 Ill. App. 3d at 414. Although the facts in this case reflect that the farm field firewhich the claimant assisted in extinguishing spread rapidly and presented a risk to the crops on adjacent farms, there is noevidence that it presented a life-threatening situation. Further, the claimant was not called to the scene of the fire to assistthe firemen and, as McDowell testified, the fire could have been extinguished without the claimant's assistance. Theselatter facts distinguish this case from Conveyors Corp. of America and Tipper.

For the foregoing reasons, we affirm the circuit court's order confirming the Commission's decision.

Affirmed.

McCULLOUGH, P.J., and COLWELL and RARICK, JJ., concur.

I would find that the Commission erred in holding that no employer/employee relationship existed. I therefore respectfullydissent.

As the majority correctly notes, the key issue in this matter is whether an oral contract for hire can be implied fromundisputed facts in the record. I would find that the record supports the finding of a contractual relationship and theCommission's determination to the contrary is clearly erroneous.

Whether an employer/employee relationship exists in any matter is a difficult question. There can be no hard and fast rulefor making such a determination and the facts of each case are the only guides. Bauer v. Industrial Comm'n, 51 Ill. 2d 169,171 (1972). As the court noted in Bauer:

"No single facet of the relationship between the parties is determinative, but many factors, such as the right to control themanner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done,and the furnishing of tools, materials or equipment have evidentiary value and must be considered.[Citation]. Of thesefactors, the right to control the work is perhaps the most important single factor in determining the relation [citation],inasmuch as an employee is at all times subject to the control and supervision of his employer, whereas an independentcontractor represents the will of the owner only as to the result and not as to the means by which it was accomplished.[Citations]." Bauer, 51 Ill. 2d at 171-72.

In applying these principles to the facts in the instant matter, it is abundantly clear that the claimant's actions in fighting thefire were under the control of the Fire Protection District. The record shows that, although claimant arrived at the firebefore any Fire District personnel, he made no attempts to put the fire out himself. He waited for the firefighters to do thejob of controlling the fire. Even after the firefighters arrived and began to make efforts to control the fire, claimant madeno efforts on his own to control the fire. At some point after the firefighters arrived and began the task of controlling thefire, claimant offered his tractor and disk to assist in putting out the fire. He was then asked by Terry Nelson, who was incharge of the firefighting operation at the scene, to provide assistance by disking a fire break to stop the further spread ofthe fire.

It is noteworthy that prior to authorizing claimant to disk the firebreak, Nelson sought authorization from Assistant FireChief Donald McDowell. McDowell specifically authorized claimant's assistance in fighting the fire, instructing Nelson tohave claimant go around the fire with his tractor and disk. Claimant received further instruction on exactly where in thefield he was supposed to begin his disking. It is also noteworthy that McDowell believed he could have ordered claimant tostop disking the firebreak at any time.

From this evidence, it is clearly apparent that claimant's actions in fighting the fire were controlled by the District. To findotherwise, i.e., that claimant was fighting the fire independent of the firefighting actions of the District, would be againstthe manifest weight of the evidence. It is also clearly apparent that the District retained the authority to discharge claimantfrom the duties he had undertaken at Nelson's request.

In finding that claimant was not an employee, the majority relied heavily on the fact that claimant received no pay or otherremuneration for his services. However, in light of the fact that the other firefighters received a total compensation of eightdollars each, I believe that the majority gives far too much weight to this single factor.

As I would find that the Commission's finding that claimant was not an employee of the District is against the manifestweight of the evidence, I would not reach the issue of whether the emergency doctrine applies.