Charles Leipzig started working as a firefighter for the City of Kenosha, Wisconsin in 1990, and was promoted to the rank of captain. While Leipzig was on active duty on a 24-hour shift, he would from time to time play basketball with fellow firefighters and members of the public in a city park next to the fire station. It was common for on-duty firefighters to play basketball during their shifts; the Fire Chief explained that firefighters playing basketball would be regarded as “in their quarters” for the purpose of the collective bargaining agreement between the City and its firefighters. The Chief did not consider playing basketball while on active duty to be an abandonment of the job duties of a firefighter, and considered it important for firefighters to be physically fit, due to the stress and demands of firefighting.
While playing basketball while on duty on March 18, 2007, Leipzig reached for the basketball, felt a “pop” in his right arm and experienced pain. He suffered a complete “distal biceps rupture” and returned to work without any restrictions on July 9, 2007.
Leipzig filed an application for workers’ compensation benefits for his injury. The City responded that Leipzig’s injury did not arise out of his employment. Citing a Wisconsin statute, the City contended that there were three “special conditions” in which the employee is deemed not in the course of employment at the time of the injury: (1) The employee is engaged in an activity designed to improve his physical well-being, (2) his participation is voluntary, and (3) he receives no compensation for participation.
The Wisconsin Court of Appeals rejected the City’s contention: “We note that for the City to win the day, it must convince us that all three of the statute’s criteria are met. We need not discuss the first two because we are satisfied that the City fails with regard to the third prong. In our view, the well-being activity 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 general proposition is that an employee has suffered a compensable injury when he or she is injured while engaged in some activity that is related to his or her employer’s business. Here, Leipzig was employed by the City as a firefighter and was on duty at Fire Station Number 5 when he suffered his injury. It could not be any clearer that he was engaged in the City’s business – providing fire fighting capabilities – at the time of the injury. It is conceded by the City that Leipzig was being compensated as a firefighter at the time of his injury, which is all that is needed to come under the workers’ compensation law. We reject the City’s position that to get out from under the well-being activity exclusion, Leipzig would have to be receiving additional compensation for playing basketball.”
City of Kenosha v. Labor & Industry Review Commission, 797 N.W.2d 885 (Wis. App. 2011).
This article appears in the September 2011 issue