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JOB CITES: Be mindful of what your employees do for recreation: It could cost you

Warren Buliox

Ordinarily, when you think of a compensable injury for workers’ compensation purposes, you think of an injury that occurs on the worksite while performing services growing out of or incidental to employment. What about injuries that occur while engaging in recreational or fitness activities such as basketball or softball? Are these injuries covered by workers’ compensation laws?

An interesting series of cases on this question has some employers raising eyebrows and rethinking the way they approach what employees do both offsite and onsite during working hours or while on the clock. In one of the more recent cases, the Wisconsin Court of Appeals upheld an award of workers’ compensation benefits for an employee who injured himself while playing basketball during working hours. See City of Kenosha v. Labor & Industry Review Commission, 797 N.W.2d 885 (Wis. Ct. App. 2011).

The facts in this case were relatively straightforward and undisputed. Captain Charles Leipzig, a firefighter for the city of Kenosha, was playing basketball with fellow firefighters and members of the public in a public park next to the fire station. While playing, Leipzig reached for the ball and heard a pop in his right arm. The pop was a distal biceps rupture, which resulted in months of medical expenses and treatment and missed work. At the time of the injury, Leipzig was on active duty working a 24-hour shift.

Following the injury, Leipzig filed an application for workers’ compensation benefits seeking, among other items, payment for medical expenses. At the hearing that followed, the city’s fire chief testified that it was common for on-duty firefighters to play basketball during their shifts. Testifying further, he explained that playing basketball during working hours was not considered an abandonment of job responsibilities and that it is important for firefighters to be physically fit to handle the stress and demands of firefighting. Given this, Leipzig argued that the injury was related to and arose out of his employment as a firefighter.

The city, in response, argued that the injury did not arise out of any service or duty connected or incidental to his employment and, as such, was not compensable. After all, the city argued, Leipzig was a firefighter, not a basketball player. In support of its position, the city cited an exception/exclusion to the workers’ compensation law in Wisconsin which provides that an employee who injures him/herself while engaged in voluntary and uncompensated activity designed to improve the physical well-being of the employee is not entitled to workers’ compensation benefits because the employee is not engaged in activity growing out of or incidental to his/her employment. (For purposes of our discussion here, this exception/exclusion will be referred to as the well-being activity exclusion.)

A key point for the city was that Leipzig was not being paid to play basketball, but rather was being paid to be a firefighter.

In rejecting the city’s arguments, the court adopted the reasoning of the lower court, which noted:

I observe that the [City’s] position demands a very unnatural reading of the statute, and would produce byzantine inquires and bizarre results. For example, under that analysis, Captain Leipzig would be covered by the Worker’s Compensation Law if, during his ‘idle time,’ he burned himself in the firehouse kitchen whipping up a batch of frosted brownies, but not if he pulled a muscle while lifting weights provided in the firehouse in order to maintain the strength necessary to carry a full-grown man out of a burning building. He would be covered for choking on a Doritos chip while watching ‘Desperate Housewives’ on the firehouse television, but not for a sprained ankle sustained while jogging outside the station house in order to maintain his endurance.

In the court’s view, “the well-being activity exclusion [was] not applicable because Leipzig was being compensated by the city to stand ready at the fire station at the time of his injury.” [emphasis added.] Indeed, Leipzig was encouraged and ultimately paid to engage in fitness activities while on active duty in order to be ready to handle the stresses and demands of firefighting. As such, the injury he sustained playing basketball while on duty grew out of or was incidental to his employment as a firefighter and was compensable under the workers’ compensation law.

So, what does this all mean to employers? If nothing else, this case and others like it should serve as notice that sometimes seemingly non-work related injuries can be construed as work-related for workers’ compensation purposes. Given this, employers should take a close look at what they encourage (or allow) employees to do recreationally during working hours and whether employees are or have been compensated while engaging in such activity.

If employees are encouraged or allowed to engage in recreational activities in furtherance of the interests of their employer, the activity should be closely monitored and regulated (to the extent possible) to reduce the chance of an injury occurring which could be interpreted as growing out of or incidental to employment and therefore compensable under workers’ compensation laws.

Warren Buliox is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. He can be reached at 414-277-8500 or via email at warren_buliox@gshllp.com.

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