Working Hard For Working People

Can “Staying Fit” Result in a Compensable Work Injury?

The Wisconsin Court of Appeals recently addressed this question.  There are some jobs that require employees to be in good physical condition.  For example, being a police officer or fire fighter requires being physically fit.  The Court of Appeals recently took up the issue in the City of Appleton v. LIRC and Nofzinger.   Normally, an employer is not liable for an employee exercising to remain in shape for his or her job.  An employer will win a case where someone claims a work related injury while exercising to stay in shape if the employer can show that the employee was:

            1.         Engaged in an activity designed to improve physical well being;

            2.         The employee’s participation is voluntary, and

            3.         The employee received no compensation for participation. 

            In the past, for example, pickup basketball games over a lunch hour might result in a compensable work injury.  The statute was changed several years ago to make it more difficult to claim such injuries under those circumstances. 

            In the Nofzinger case, this police detective was required to take a physical test every six months on which he was scored.  The score translated into either receiving or not receiving lump sum cash premiums and also retirement bonus incentives.  Those who scored well received these items, and those who didn’t did not, and also were potentially subject to disciplinary action.

            One of the tests involved doing pushups.  The detective was doing these pushups in his home in anticipation an “imminent” test by his employer.  He injured his shoulder.  The Labor Industry Review Commission (LIRC) found that “while the employer exerted no direct control over his off premises, employment-required exercise program, there was a direct link between the type of exercise he was performing when injured and the type of exercise required by the employer to pass a physical fitness test.  The test was also ‘imminent’ because it was only eleven days away.  The exercise program was initiated by the employer through the collective bargaining agreement, the employer required him to engage on it on a recurring basis, and the employer benefited from the applicant being physically fit.  Finally, the cash and retirement incentives offered by the employer for better scores on the physical fitness test support the inference that not only the test itself, but the concomitant and mandatory exercise program, were work-related.”

            LIRC stated that the finding in this particular case applied to the particular facts and circumstances of the case.  The Commissioner did point out that the facts in an off-premises exercise case involving only “tangentially” related activities to preparation for an employer- mandated physical test might not be compensable.

 

The Importance of Properly Reporting Work Injuries

On August 27th, Attorney Lisa Bangert discussed how to report a work injury during the Previant Legal Show on the radio.  Lisa discussed the importance of reporting injuries at work correctly, and which injuries are covered by a workers' compensation claim.  She also discussed the rights of injured workers to receive medical treatment (in non-emergency situations) from their own doctors:

Reporting Work Injuries

 Right to Your Own Doctor

 

 

Wisconsin Supreme Court Issues Decision Concerning "Unreasonable Refusal to Rehire"

In a recent 5 to 2 decision, the Wisconsin Supreme Court in DeBoer Transportation v. Charles Swenson, stated that the employer established “reasonable cause” under the workers comp law for refusing to rehire an injured worker.  Generally speaking, unreasonable refusal to rehire cases revolve around whether an employer without reasonable cause refuses to take an injured employee back to work after the person has been released from treatment by his or her doctor for a work injury.  The situation arises where an employer usually unilaterally terminates an employee before he or she returns to work after being injured or once back to work comes up with a suspect reason to terminate the person at that point.  If an employee is released back to work with restrictions, and if there is a job available within those restrictions, the employer should take the person back to work.  The employer does not have to create a job for the employee however.

In the DeBoer case, the injured worker was a truck driver and was released back to unrestricted duty by his doctor.  The employer had a return to work policy with certain requirements for anyone who was off greater than two months.  This policy was strictly adhered to by the employer and evidently the employer allowed no exceptions to the return to work rules.  One of the return to work requirements was that the driver had to be re-evaluated on a road trip which could have taken several days or longer.  This trip would have taken him away from his duties of carrying for his ailing father, a task that he had been allowed to work his schedule around prior to the work injury.  He requested that the employer accommodate the reorientation driving requirement so as to allow him to remain at home with his father during the day.  The employer refused.  The Supreme Court stated that the employer had stated “reasonable cause” for not taking the employee back, and did not have to accommodate.  The key to this case was probably the employer’s strict enforcement and follow though of its reorientation policy in return to work situations.