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 Joe Forward, Legal Writer,
State Bar of Wisconsin
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.”
