WisBar News: On-duty firefighter injured shooting hoops entitled to worker’s compensation :

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  • WisBar News
    March
    22
    2011

    On-duty firefighter injured shooting hoops entitled to worker’s compensation 

    Joe Forward
    Legal Writer

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    March 22, 2011 – An on-duty firefighter injured while playing basketball near the firehouse is entitled to worker’s compensation benefits, the District II Wisconsin Court of Appeals recently held.

    On-duty firefighter injured shooting hoops entitled to worker’s compensation 

    In March 2007, an on-duty firefighter injured a bicep while playing basketball near the fire station. Recently, a Wisconsin appeals court upheld a LIRC decision that he was entitled to worker's compensation because the job demands firefighters stay physically fit.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    On-duty firefighter injured shooting hoops 
entitled to worker's 
compensation March 22, 2011 – An on-duty firefighter injured while playing basketball near the firehouse is entitled to worker’s compensation benefits, the District II Wisconsin Court of Appeals recently held.

    In March 2007, Charles Leipzig was on active 24-hour duty with a City of Kenosha (City) fire station when he injured a bicep while playing basketball with fellow firefighters. The injury kept him out of work for nearly four months.

    When he applied for worker’s compensation benefits, the City denied his claim, arguing the injury did not arise out of his employment or while performing services incidental to employment. The Labor and Industry Review Commission (LIRC) determined that Leipzig was entitled to benefits because the job demanded fitness activity while on active duty.

    In City of Kenosha v. LIRC, 2010AP883 (March 16, 2011), the appeals court affirmed, ruling that a “well-being activity exclusion” found in Wis. Stat. section 102.03(1)(c)(3) does not bar Leipzig’s worker’s compensation claim.

    Section 102.03(1)(c)(3) states, in pertinent part, that “[a]n employee is not performing service growing out of and incidental to employment while engaging in a program, event, or activity designed to improve the physical well-being of the employee, whether or not the program, event, or activity is located on the employer's premises, if participation in the program, event, or activity is voluntary and the employee receives no compensation for participation.”

    The City argued this well-being activity exclusion barred Leipzig’s worker’s compensation claim. However, the appeals court – in an opinion written by Judge Daniel Anderson – ruled the exclusion is not applicable “because Leipzig was being compensated by the City to stand ready at the fire station at the time of his injury.”

    The court noted the fire department encouraged firefighters to engage in physical fitness activities while on duty, even though no formal fitness policy exists, and the City’s fire chief did not consider playing basketball while standing ready to be an abandonment of the job.

    The appeals court rejected the City’s argument that Leipzig could not escape the exclusion unless he received additional compensation for playing basketball, noting that the exception does not apply if the employer was compensating the employee when the injury occurred.

    “We fail to understand how the City can expect to pay a firefighter who is injured fighting a fire, but not pay for the firefighter who, while standing ready, works to stay in shape so as to hopefully avoid being injured while fighting a fire,” Judge Anderson wrote. “It makes no sense.”