Several recent decisions by the courts and Labor Industry Review Commission have awarded worker’s compensation benefits to employees who were injured while engaging in exercise activities.

On March 16, 2011, the Wisconsin Court of Appeals issued a decision in City of Kenosha v. LIRC, 2010 AP 883. In this case, a firefighter was injured while playing basketball with fellow firefighters and members of the public in a city park next to the fire station. He was on active duty at the time, assigned to a 24 hour shift. He reached for a basketball and felt a pop in his right arm and experienced pain. He suffered a complete “distal bicep rupture” and was not able to return to work without restrictions until 4 months later. He was found to have suffered a 10% permanent disability to his arm and was awarded benefits by a Worker’s Compensation Division Administrative Law Judge. The Wisconsin Court of Appeals sustained this decision in spite of a worker’s compensation statute that excludes injuries arising out of wellness programs from coverage under worker’s compensation.

Wisconsin Statute § 102.03(1)(c)3 provides in relevant part:

3. . . . An 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.

In awarding compensation, the Wisconsin Court of Appeals stated that “the well-being activity exclusion is not applicable because [the employee] was being compensated by the City to stand ready at the fire station at the time of his injury.” In the Court of Appeal’s view, an employee who is being compensated at the time of injury is still covered by the Worker’s Compensation Act even if engaged in sports, recreation or exercise.

In Noszinger v. City of Appleton, Claim No. 2009-009564, the Labor and Industry Review Commission also awarded compensation to a firefighter injured during physical fitness activities. In that case, the employee was injured while performing push ups on a carpeted floor in his basement in preparation for one of the employer’s fitness tests. While attempting to perform his 12^th or 13^th push up in succession, his right shoulder gave out and he collapsed face-first onto the carpet. His physician performed a rotator cuff repair surgery and attributed the rotator cuff tear to the incident while he was performing push ups in his basement.

The Labor and Industry Review Commission awarded compensation in this case, because the upper body strength portion of the required employment fitness test consisted of performing push ups, which was the same exercise the applicant was performing when injured. While the employer exerted no direct control over his off-premises, employment-required exercise program, the Labor and Industry Review Commission determined that 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 the physical fitness test. In addition, the Labor and Industry Review Commission considered that the employer, through its collective bargaining agreement, created cash and retirement incentives for better scores on the physical fitness test. The Commission did not state whether these incentives alone would have been a sufficient basis to award compensation.

Finally, in Weisbrot v. United Health Care, Case No. 2003-020037 the Labor and Industry Review Commission awarded benefits to a nurse who, while on duty, voluntarily attended a health fair at her place of employment and suffered an injury. While her attendance was voluntary, the Labor and Industry Review Commission considered the fact that she was being paid, as the only factor necessary to award worker’s compensation benefits.

Lesson learned

In spite of the worker’s compensation statute exclusion of well-being activities from coverage under worker’s compensation, some injuries that occur during well-being activities, health fairs, exercise and recreational activities may still be compensable under worker’s compensation if one of the following factors exist:  

1. The employee is on the clock being compensated during the activity causing injury;
2. The participation in the activity is not voluntary;
3. The employer requires a certain level of physical fitness and the employee is engaging in exercise (even off the company premises and uncompensated) toward those fitness goals when injured; or
4. The employee is rewarded (or has the potential to be rewarded) for physical fitness through cash or other benefit plan enhancements.

With regard to this last point, none of these cases have addressed a situation where a reduction in health insurance costs as part of a well-being program would, standing alone, result in compensation to an employee who is injured during physical fitness activities, aimed at securing a reduction in health insurance costs. If the well-being activity is clearly voluntary, and the benefit is merely a health insurance premium reduction, an employer may argue that incentive is a matter between the employee and the health insurance provider and to the extent such incentive would be considered compensation, such compensation is not received directly from the employer, but is merely part of an insurance program. In the Appleton case, the incentives for being physically fit were cash and retirement incentives offered by the employer and paid by the employer. Those should be distinguished from reductions in the cost of health insurance. Future cases may continue to test whether employer provided rewards for fitness or exercise result in coverage under the Worker’s Compensation Act, where an employee is injured during such exercise or recreational activities.