Friday, November 2, 2012

How Much Cost is Tied to Reasons Other Than Injury?

A Wisconsin case highlights the tension between an employer's desire to maintain an healthy, fit workforce, and the unwillingness to pay for consequences that result from employees injured in the pursuit of fitness.

As one might expect, the case involves public service - specifically in this instance a police department and one of its officers.

Appleton Police Sgt. Michael Nofzinger injured his shoulder doing pushups at home that he said were for the purpose of maintaining fitness for duty on the police force.

Nofzinger’s employment with the City of Appleton was covered by a collective bargaining agreement, which included a provision that required a twice-yearly physical fitness test. Nofzinger was tested for upper body strength, abdominal strength, flexibility, cardiovascular endurance, and percentage of body fat, according to court documents.

Employees who pass benchmarks in the physical fitness test receive a lump-sum cash bonus and also become eligible for a retirement bonus incentive.

The Wisconsin Court of Appeals in March affirmed a circuit court ruling that upheld the Wisconsin Labor and Industry Review Commission decision in the case. The appellate court ruled that the pushups were not “voluntary” and were directly related to the officer’s employment. The state Supreme Court denied review to the decision in August.

In ruling the shoulder injury was a result of employment, the commission wrote that “there was an exact match between the type of exercise required by the employer-mandated physical fitness test and the exercise the applicant was performing when injured.”

“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 the physical fitness test,” the commission ruled.

The decision was the right one. As a citizen I want my police force physically fit and mentally aware. Whether an officer (or firefighter for that matter) sustains some injury in the process of either getting fit or maintaining fitness at home, or at the station, is irrelevant. If it furthers the job then it is part of the job.

In the WorkCompCentral story that covered the case some folks commented that this was a slippery slope and that it may be applied to other types of occupations.

The ruling is “going to affect all employers that have a similar policy that you have to be physically fit,” said workers’ compensation defense attorney Bill Sachse of the law firm Peterson, Johnson, and Murray in Milwaukee. “I don’t know if there are any limits.”

I'm not sure there should be, or that it really matters. In the Nofzinger case, his pursuit of fitness was a benefit to the employer, encouraged by the employer through its policies and pay incentives, and is something that could happen "on the job" just as easily as at home.

The key test is whether there was a benefit imparted to the employer and whether the employee was incentivized to engage in that physical activity.

“I carry my files in and out of my car to prepare for a trial and I throw my back out,” Sachse said. “A claims adjustor takes an online insurance course at home, has books all over the floor, and trips. All of these scenarios are potentially compensable under this ruling.”

The two scenarios painted by Sache are fundamentally different, though they could produce compensable injuries under other liability theories (and again, I'm not sure that's a bad thing).

I guess what struck me about this case is that the City of Appleton disputed this case in the first place. In my mind this case really is a "no-brainer" in terms of compensability due to the aforementioned qualities.

There must be some other, underlying, reason why the City decided to challenge the claim.

I think a lot of decisions by employers to challenge a claim has some underlying reason or purpose that doesn't get into the record. Was it because Nofzinger wasn't all that welcome as an employee? Was it because the City didn't want to add to its disability retirement liabilities? Was there some personality conflict between Nofzinger and the claims adjuster, or his supervisor?

We don't know. Likely we never will.

But we see poor employer decisions all of the time.

Just as workers' compensation is the poor man's dispute resolution venue for dispensing with employer actions that leave a bad taste with the employee, workers' compensation can also be the employer's alternative dispute resolution system when dealing with employment issues it otherwise finds offensive.

I wonder how much of the "costs" incurred by employers in workers' compensation is tied to denying claims for reasons other than the claimed injury.

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