Employment – workers’ compensation

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Wisconsin Court of Appeals

Civil

Employment – workers’ compensation

A police officer injured while doing push-ups in preparation for a mandatory physical fitness test is entitled to workers compensation benefits.

“First, the most salient fact relating to voluntariness is that Nofzinger was injured while engaging in precisely the type of activity he was required to be tested and scored on—successive push-ups—for the purpose of preparing for the test. Indeed, it is difficult to imagine how an employee would reasonably prepare for the upper body strength component of the required physical fitness test without practicing or performing successive push-ups at times before each required test. It is true that the City did not direct Nofzinger to perform any push-ups at the moment of his injury, and therefore it might be said that he ‘voluntarily’ chose the particular time and place to perform the push-ups. However, failing to prepare in precisely this manner would have subjected him to the risk of discipline, and in this sense it was reasonable for the Commission to conclude that his activity at the time of injury was not voluntary within the meaning of the statute.”

Affirmed.

Recommended for publication in the official reports.

2011AP2008 City of Appleton Police Department, et al. v. Labor and Industry Review Commission, et al.

Dist. III, Outagamie County, Huber, J., Blanchard, J.

Attorneys: For Appellant: Danas, Joseph P., Jr., Milwaukee; Flinchbaugh, Staci M., Milwaukee; For Respondent: Harlow, R. Duane, Madison; Dean, Robert W., Green Bay