P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




Claim No. 2007-010735

The applicant filed an application for hearing in July 2007. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on June 30, 2008, with a close of record on October 3, 2008. Prior to the hearing, the self-insured employer conceded jurisdictional facts and an average weekly wage at the statutory maximum for disability compensation purposes.

At issue before the ALJ was whether the applicant sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment. If such an injury is established, ancillary issues include the nature and extent of the applicant's injury, and the employer's liability for medical expenses.

The ALJ issued his decision on December 28, 2008. Both parties filed timely petitions for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:


The applicant was born in April 1966. He has worked for the City since 1990, and is a captain in the City's fire department. He is a supervisor, but also has direct firefighting duties. He held the position of fire captain, assigned to Fire Station Number 5, on the alleged date of injury, March 18, 2007.

The applicant was injured while playing basketball with some other firefighters and two members of the public on March 18, 2007, at a City park next to Fire Station Number 5. At the time, the applicant was on active duty in his job as a fire captain on a 24-hour shift, being paid by the City.

John Thomsen, the City's fire chief, testified at the hearing. Chief Thomsen is charge of maintaining discipline and order in the fire department, strategic and operational planning, and personnel budgeting. When necessary, he recommends employee discipline to the police and fire commission.

Chief Thomsen testified that he was aware that on-duty firefighters played basketball during their shifts. He added that at one time, every fire station but the fire administration building had a basketball hoop. He himself played basketball "countless" times while on duty, with other fire fighters and occasionally civilians, including games at the park next to Fire Station Number 5. The games might last 45 minutes to an hour and a half, and he considered himself to be on duty all the while. He testified that firefighters playing basketball at the park would be regarded as "in their quarters" for the purpose of the collective bargaining agreement between the City and its firefighters.

Neither the City nor the fire department administration ever told Chief Thomsen not to play basketball during a shift. He never disciplined anyone for it. He did not consider the activity to be an abandonment of the job duties of a firefighter. The accident report completed by the applicant's supervisor, battalion captain David Riley, indicated the applicant was "performing [his] job duties as trained" and "engaged in regular job duties at the time the injury." Transcript, page 15-16; exhibit F. Chief Thomsen testified that if he had filled out the accident report--knowing what he knew about the applicant's injury--he would have completed the report the same way.

Chief Thomsen added 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 has no formal fitness policy, but rather an informal fitness program under which company officers allow their personnel the flexibility to engage in physical fitness while on duty. Indeed, engaging in physical fitness while on duty is encouraged.

While playing basketball on March 18, 2007, the applicant injured his arm. He felt a "pop" and experienced pain. He was diagnosed with, and treated for, a right "distal biceps rupture, complete." He underwent a surgery, specifically, a right bicipital tendon repair with a tendonesis screw, on March 21, 2007.

The applicant's treating surgeon, Michael Didinsky, D.O., opined the applicant could return to limited duty on April 9, 2007, and reached an end of healing with no work limitations on July 9, 2007. Dr. Didinsky rated permanent partial disability at 10 percent compared to amputation of the arm at the right elbow (exhibits A and B), for decreased range of motion and decreased strength. The doctor listed the applicant's prognosis as excellent.

One prerequisite to a compensable injury is that the worker must be performing services growing out of and incidental to his or her employment. Wis. Stat. § 102.03(1)(c)1. The City questions whether the applicant in fact was performing services growing out of and incidental to his employment--that is whether he was in the course of employment--while he was playing basketball on March 18, 2007. On this point, the City cites Wis. Stat. § 102.03(1)(c)3, which 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.

One of the department's interpretative footnotes to that provision states:

8This excludes injuries to employees engaged in well-being programs if the participation is voluntary and uncompensated. This subdivision was amended by 2005 Wis. Act 172, effective April 1, 2006, to include well-being activities and events in addition to programs.

DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2007 (WKC-1-P (R.03/2008).

When an employee--like the applicant here--enters the employer's premises and starts work, he or she is presumed to be in the course of employment. In Tewes v. Industrial Commission, 194 Wis. 489, 494 (1927), the court stated:

It is considered that when it is established that employees have entered upon the performance of their duties and are found at a place where they might properly be in the discharge of those duties, nothing appearing to the contrary, the presumption of continuity obtains, and the evidentiary facts support the inference that at the time of the accident the employees were performing a service for the employer growing out of and incidental to their employment. [Citations omitted.]

However, evidence which overpowers the inference of continuation in the course of employment will defeat the presumption. Hansen v. Industrial Comm., 258 Wis. 623, 625, 46 N.W.2d 754 (1951). Once an employee has entered into the course of employment:

The test to be applied in determining whether he has removed himself therefrom is one of deviation. In other words, has the employee engaged in some activity of his own which has no relation to his employer's business?

In re the Estate of Fry v. LIRC, 2000 WI App. 239, 10, 239 Wis. 2d 574. However, an act is not a deviation, even if in violation of the employer's directives, if it furthers the employer's interests and not merely the employee's own personal ends. Grant County Serv. Bureau v. Industrial Commission, 25 Wis. 2d 579, 584 (1964).

The applicant did not deviate under the facts here. Chief Thomsen's testimony establishes fitness activities were undertaken with the approval of the management of the City's fire department, and even encouraged for stress relief and to maintain the fitness necessary to be a firefighter. Beyond that, if the City regarded the basketball playing as removing the applicant from employment or "engaging in some activity of his own which has no relation to his employer's business," the City could have refused to pay the firefighters while they engaged in the activity(1) or prohibited the activity upon learning of it.

The City, of course, relies on Wis. Stat. § 102.03(1)(c)3, and argues that the applicant is being paid as a firefighter, not to play basketball, so he was not in the course of employment when injured. The City's argument is based on the assertion that Wis. Stat. § 102.03(1)(c)3 takes a worker out of the course of employment while engaged in a program, event, or activity designed to improve the physical well-being of the employee if "the employee receives no compensation for participation."

The commission is not certain that Wis. Stat. § 102.03(1)(c)3 in fact applies to disqualify workers who are already in course of employment by "enter[ing] upon the performance of their duties . . . at a place where they might properly be in the discharge of those duties." Rather, Wis. Stat. § 102.03(1)(c)3 may be reasonably read to provide that workers engaging in a voluntary, unpaid well-being activities do not enter the course of employment by that activity alone, even if the activity occurs on the employer's premises. Setting aside that concern, however, the City's argument that the applicant was not receiving compensation for participating in an activity designed to improve his physical well-being is not convincing.

First, of course, as the parties recognize, the commission previously rejected exactly that argument in Weisbrot v United Health Care, WC claim no. 2003-020037 (LIRC, April 8, 2005), a case where a worker injured her back while attending a health fair on the employer's premises during regular working hours and while receiving her regular salary. Addressing the argument that she was not paid for participation, the commission stated:

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.

While Weisbrot was decided before the recent amendment to Wis. Stat. § 102.03(1)(c)3 by 2005 Wis. Act 172, that amendment really does not affect the "receives no compensation for participation" language dealt with in Weisbrot. Consistent with Weisbrot, then the fact the City did not pay the applicant to play basketball specifically is not a defense.

The City argues the holding Weisbrot is wrong, but the commission cannot agree, particularly under the facts of this case. Chief Thomsen's testimony indicates the City encourages firefighters to engage in fitness or recreational activities during their shifts to maintain fitness and relieve stress. Again, he testified that the City had an informal fitness program under which "company officers allow their personnel the flexibility to engage in physical fitness while on duty." Transcript, page 28. The most reasonable conclusion is that the applicant was paid to participate in the fitness activities while on duty.

The commission therefore concludes that the accident causing the applicant's injury arose out of his employment with the employer, while performing services growing out of and incidental to that employment.

The ALJ's findings regarding the amount of compensation due were not in dispute on appeal, and are restated in substance. The applicant has sustained permanent partial disability at 10 percent compared to loss of the arm at the elbow, or 45 weeks of permanent partial disability at the rate of $262 per week totaling $11,790, all of which has accrued. The applicant agreed to the direct payment of an attorney fee, set at 20 percent of the additional disability compensation awarded or $2,358. That amount, plus costs of $108.38, shall be deducted from the applicant's award and paid to his attorney within 30 days. The remainder, $9,323.62, shall be paid to the applicant within 30 days.

The employer is also liable for the payment of the following reasonable and necessary medical expense: to Midwest Physicians Anesthesia Services, for services rendered, $900.00; to United Healthcare, as reimbursement for its non-industrial payment of medical expense, $11,213.88; and to the applicant, as reimbursement for his payment of medical, prescription and mileage expenses $540.50.

The last issue is whether an interlocutory or final order in appropriate. Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:

". . . Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards."

In general, an interlocutory order--as opposed to a final order--is appropriate to permit future disability and medical expense awards when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392-93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is not great. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). Indeed, Wis. Stat. § 102.18(1)(b) is intended to give full scope to agency expertise in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate. DWD, Worker's Compensation Act of Wisconsin, with amendments to December 2007, note 106 (WKC-1-P (R. 03/2008)).

The applicant in this case has had a surgery that, to commission's reading of the medical report, required drilling a hole in the applicant's bone and attaching a tendon with a screw. The commission appreciates that the applicant's surgeon is confident in the repair, and opines no further treatment will be needed. Still, given the nature of the applicant's surgery, his job, and his recreational habits, the commission is not cannot conclude for certain that he will not sustain additional disability with respect to the injury. This order shall therefore be left interlocutory to permit further findings and awards as are appropriate.

NOW, THEREFORE, the Labor and Industry Review Commission makes this:


The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.

Within 30 days, the self-insured employer shall pay all of the following:

1. To the applicant, Charles Leipzig, Jr. the sum of Nine thousand three hundred twenty-three dollars and sixty-two cents ($9,323.62) in disability compensation and Five hundred forty dollars and fifty cents ($540.50) in reimbursement of medical, prescription and mileage expense.
2. To the applicant's attorney, Israel Ramon, the sum of Two thousand three hundred fifty-eight dollars and no cents ($2,358.00) in fees, and One hundred eight dollars and thirty-eight cents ($108.38) as costs.
3. To Midwest Physicians Anesthesia Services, Nine hundred dollars and no cents ($900.00) in medical treatment expense.
4. To United Healthcare, Eleven thousand two hundred thirteen dollars and eighty-eight cents ($11,213.88) as reimbursement for its non-industrial payment of medical expense.

Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.

Dated and mailed September 8, 2009
leipzi . wrr : 101 : 1 ND 3.6, 3.30, 8.33

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The commission did not consult with the presiding ALJ concerning witness creditability and demeanor because the arguments on appeal raise no issue of witness credibility, and because the commission shared the ALJ's credibility impression in affirming his order in the main.

The commission did modify the ALJ's order based on the applicant's timely cross-appeal seeking an interlocutory order. While the presiding ALJ exercised his discretion in issuing a final order on these facts, the commission reached its own discretionary decision to issue an interlocutory order based on its de novo review authority.

cc: Attorney Israel Ramon
Attorney Michael McFarlane

Appealed to Circuit Court.  Affirmed March 1, 2010.  Appealed to Court of Appeals. Affirmed March 16, 2011 City of Kenosha, v. LIRC and Charles Leipzig, Jr.,  2011 WI App 51, 332 Wis. 2d 448, 797 N.W.2d 885

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(1)( Back ) In E. C. Styberg Engineering Co., Inc., v. LIRC, 2005 WI App 20, 278 Wis. 2d 540, 692 N.W.2d 322, a case involving a worker injured while playing softball during a paid break, the court of appeals held:

30 As we explained in our discussion above, LIRC's decision clearly comported with Nigbor [v. DILHR, 120 Wis.2d 375 (1984.)] 2. Like using the restroom, taking a breath of fresh air or a smoke break, or engaging in a bit of horseplay with other employees, playing softball is an inconsequential way to spend a twenty-minute, paid break. Moreover, the fact that the break was paid despite the fact that the employees were not at the moment engaged in productive work supports the inference that the deviation from employment was momentary and insubstantial enough in Styberg's opinion as not to warrant requiring them to punch out. This inference is particularly understandable in light of LIRC's findings that Styberg knew or should have known that its employees were playing basketball and softball on their breaks.


uploaded 2009/09/18