2011 WI App 51
court of appeals of
published opinion
Case No.: |
2010AP883 |
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Complete Title of Case: |
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City of Petitioner-Appellant, v. Labor & Industry Review Commission and Charles Jr., Respondents-Respondents. |
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Opinion Filed: |
March 16, 2011 |
Submitted on Briefs: |
November 11, 2010 |
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JUDGES: |
Brown, C.J., Neubauer, P.J., and |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the petitioner-appellant, the cause was
submitted on the briefs of Michael McFarlane and Robert H. Zilske of Zilske Law Firm, S.C., |
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Respondent |
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ATTORNEYS: |
On behalf of the respondents-respondents, the cause was
submitted on the brief of Israel Ramon and Michele A. Peters of Hawks Quindel, S.C., |
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2011 WI App 51
COURT OF APPEALS DECISION DATED AND FILED March 16, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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City of Petitioner-Appellant, v. Labor & Industry Review Commission and Charles Jr., Respondents-Respondents. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 ANDERSON, J. The City
of
Wis. Stat. § 102.03(1)(c)3.
(2009-10)[1]
prevents him from receiving worker’s compensation benefits. We reject the City’s interpretation of the
statute because it produces byzantine inquiries and bizarre results. We affirm because at the time of the injury
¶2 The basic facts are not in dispute and we summarize them from
LIRC’s decision.
¶3 The City’s Fire Chief, John Thomsen, testified that it was common for on-duty firefighters to play basketball during their shifts. He 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. He did not consider playing basketball while on active duty to be an abandonment of the job duties of a firefighter. Thomsen made clear that it is important for firefighters to be physically fit, due to the stress and demands of firefighting. He testified the City’s fire department had no formal fitness policy, but rather an informal fitness program under which the fire department encourages personnel to engage in physical fitness activities while on duty.[2] At Fire Station Number 5, the City provided a weight room, treadmills and elliptical trainers for the use of the firefighters.
¶4 While playing basketball on March 18, 2007,
¶5
¶6 The City and
¶7 On appeal, we review LIRC’s decision and not the circuit
court’s. Pick ’n Save Roundy’s v. LIRC,
2010 WI App 130 ¶8, 329
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.
¶8 We generally review LIRC’s construction of a statute and its
application to undisputed facts independently.
¶9 The parties differ over the appropriate level of deference we
should accord LIRC’s interpretation.
LIRC contends that it is entitled to great weight deference, while the
City claims it is entitled to no deference.
We need not decide, however, which level of deference is appropriate
because we are satisfied that LIRC’s interpretation is the only correct reading
of the statute. See Jarrett v. LIRC, 2000 WI App 46, ¶10, 233
¶10 The City asserts that Wis.
Stat. § 102.03(1)(c)3. prescribes special conditions in which the
employee is deemed not in the course of employment at the time of the injury. It labels the statute the “well-being
activity exclusion” and contends that it applies if, at the time of 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 City
proposes that these conditions are satisfied in this case and
¶11 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
¶12 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. See
Fry
v. LIRC, 2000 WI App 239, ¶9, 239
¶13 The City argues that Wis.
Stat. § 102.03(1)(c)3. was changed by the legislature in response
to E.
C. Styberg Engineering Co., Inc. v. LIRC, 2005 WI App 20, 278
¶14 In fact, the amendment to Wis. Stat. § 102.03(1)(c)3. only added “event, or activity” after each instance of “program.” This amendment did nothing more than expand “program” with synonyms. It made no substantive change to the well-being activity exclusion. The Wisconsin Legislative Council summary of the changes to the worker’s compensation law contained in 2005 Wis. Act 172 captured the limited nature of the amendment to § 102.03(1)(c)3.
An employee who is injured while engaged in a voluntary and uncompensated event or activity designed to improve the employee’s physical well-being is not eligible for worker’s compensation.
http://legis.wisconsin.gov/lc/publications/act/2005/act172-sb474.pdf (last visited Feb. 24, 2011) (emphasis added). LIRC’s interpretation and application of § 102.03(1)(c)3. comports with this summary.
¶15 The key to the application of the well-being activity exclusion is whether the employee was being compensated for engaging in his or her employer’s business at the time of the injury. If the employer was compensating the employee when the injury occurred, it is the employer’s acknowledgement that the employee was engaged in the employer’s business and the well-being exception does not apply.
¶16 In Weisbrot v. United Healthcare, No. 2003-020037 (LIRC worker’s
compensation decision Apr. 8, 2005), http://dwd.wisconsin.gov/lirc/
wcdecsns/883.htm (last visited Feb. 24, 2011), LIRC awarded worker’s
compensation to a nurse who, while on duty, voluntarily attended a health fair
at her place of employment and suffered an injury. In rejecting an argument similar to that made
in this case by the City—that
However, it is undisputed that the applicant was allowed to attend the fair during her regular working hours and that she received her regular salary for this period of attendance. Respondents argue that the applicant’s salary was not specifically allocated to the fair attendance, and that the applicant received no additional salary or other payment for her attendance. The commission finds these arguments to border on the frivolous, as it is clear that the applicant was compensated with her regular salary for the period she attended the fair.
¶17 The circuit court decision here echoes LIRC’s conclusions in Weisbrot and this case. We join with the circuit court because we cannot improve upon its reasoning:
I observe that the plaintiff’s position demands a very unnatural reading of the statute, and would produce byzantine inquiries 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.
And, if
indeed, the originally-designed purpose of the activity makes any difference,
as the [City] argues, then the captain would not be covered while doing
calisthenics in the exercise room, something clearly designed to improve
physical well-being, and which would be critically important to the performance
of his duties; but would be covered if he were fencing, because fencing was not
originally designed as a fitness activity, but instead, as practice for a skill
essential to remaining alive.
Under the plaintiff’s analysis, he would not be covered while playing basketball next to the firehouse, but would be covered while slumped in a chair playing a basketball video game. He would be covered for the fitness-worthless activity of miniature golf, which is designed not for “physical well-being,” but merely for fun; but not covered for his time on a stair-climber.
None of this
would make any sense at all, and courts are obliged to refrain from reading
statutes in a manner which creates absurd results.
¶18 Our thoughts exactly. We
fail to understand how the City can expect to pay a firefighter who is injured
fighting a fire, but not pay for the firefighter who, while standing ready,
works to stay in shape so as to hopefully avoid being injured while fighting a
fire. It makes no sense.
By the Court.—Order affirmed.
[1] All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
[2]
[3]
[4] The legislative history adds no support to the City’s argument that the purpose of the well-being activity exclusion is to encourage employers to sponsor physical fitness activities by offering employers freedom from responsibility for worker’s compensation that might be incurred by employees injured while undertaking physical fitness activities.