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




Claim No. 2009-009564

The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on May 21, 2010. Respondent City of Appleton submitted an answer to the petition and briefs were submitted by the parties. At issue are: (1) whether or not the applicant's claim for a work-related right shoulder injury is preempted by federal law; (2) assuming there is no federal preemption, did the applicant sustain a right shoulder injury on October 12, 2008, that arose out of and in the course of his employment with the employer; and (3) assuming a compensable injury, what are the nature and extent of disability and liability for medical expense?

The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:


The applicant, whose birth date is July 18, 1958, is employed as a detective for the employer, City of Appleton Police Department. His employment is covered by a collective bargaining agreement that includes provision for a physical fitness test that each employee is required to undergo twice each year. Five physical categories are tested: upper body strength, abdominal strength, flexibility, cardiovascular endurance, and percentage of body fat. The testing is designed and administered by the employer. Points are given for the test results from each of the five physical criteria, and a cumulative score is thereby obtained. The cumulative score places the employee in one of four categories: poor, adequate, good or excellent. Employees who score in the good or excellent category receive a lump sum cash premium based on a percentage of their base pay (1 or 2 percent), and they also become eligible for a retirement bonus incentive. Employees who score in the adequate or poor categories are not eligible for the cash premium or retirement bonus incentive. Employees hired as of January 1, 1980, who do not participate in the testing or who fail to maintain a rating of adequate or better, may be subject to disciplinary action.

The employer's standard test for upper body strength measures how many push-ups an individual is able to perform. The push-ups must be performed in accordance with the employer's standards, and the employer has prepared a training DVD that employees can view on duty, which demonstrates acceptable standards for push-ups performed in the fitness test.

On October 12, 2008, the applicant was performing push-ups on a carpeted floor in his basement in preparation for one of the employer's fitness tests scheduled to take place on October 23, 2008. While attempting to perform his 12th or 13th push-up in succession, his right shoulder gave out and he collapsed face first onto the carpet. He reported the incident as a work injury and was treated by Dr. Errol Springer, who performed rotator cuff repair surgery on December 8, 2008. Dr. Springer attributed the rotator cuff tear to the incident of October 12, 2008.

The primary basis for the administrative law judge's dismissal of the applicant's claim was his finding that the claim was preempted by federal law, citing Lingle
v. Norge
, 486 U.S. 399 (1988). Lingle holds that any claim "substantially dependent on analysis of a collective bargain agreement" is governed by Section 301 of the Labor Management Relations Act (29 U.S.C. 186). The parties have submitted substantial argument concerning whether or not the applicant's claim is dependent upon an analysis of the language in the collective bargaining agreement, but all these arguments are irrelevant. The preemption doctrine does not apply in this case because the employer, City of Appleton, is a public employer and the Labor Management Relations Act (National Labor Relations Act) excludes public employers from its coverage.(1) Accordingly, the issue to be resolved by the commission is whether or not at the time of his injury the applicant was performing services arising out of and in the course of his employment with the employer.

As reflected in Volume 2 of Lex K. Larson, Larson's Workers' Compensation Law § 22.04[2], jurisdictions are split with regard to the compensability of an injury sustained under circumstances similar to those of the applicant's case. In Tomlin v. Worker's Comp. Appeals Board, 162 Cal. App. 4th 1423 (2008), the employee was injured when he slipped and fell during a three-mile training run for his employer-mandated physical fitness test. The court found that this aerobic training was consistent with the physical fitness required by the employer to pass an "imminent" physical fitness test. A similar result was reached in Kidwell
v. Worker's Compensation App. Board,
33 Cal. App. 4th 1130 (1995). There the applicant was a state traffic officer injured at home while performing the long jump, and the long jump was part of the employer's annual physical fitness test. The court noted the evidence showed "...that practicing long jump was the only way to perfect the technique of jumping."

The City of Appleton cites Price v. Industrial Claim Appeals Office of State of Colorado, 919 P.2d 207 (Colo. 1996). In that case two separate claims were consolidated, one involving a prison guard who had been advised by his supervisor to lose weight in order to retain his job and to be eligible for promotion opportunities. He was injured when he fell on his neck after hanging upside down on a chin-up bar at his home. The other applicant had failed the running portion of the employer-mandated physical fitness test given every three months, and had been advised by her supervisor that she had better pass the next test. She was injured when riding her bicycle near her home as a form of aerobic exercise. The court set forth five factors in deciding compensability: "(1) whether the injury occurred during working hours; (2) whether the injury occurred on the employer's premises; (3) whether the employer initiated the employee's exercise program;
(4) whether the employer exerted any control or direction over the employee's exercise program; and (5) whether the employer stood to benefit from the employee's exercise program." The court denied both claims, emphasizing its perceived importance of the first two tests, and noting that with regard to the fourth test, the employer exerted no control over either individual's exercise program.

In the applicant's case, the upper-body-strength portion of the required 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, 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 test was also "imminent," because it was only 11 days away. The exercise program was initiated by the employer through the collective bargaining agreement, the employer required him to engage in it on a recurring basis, and the employer benefitted from the applicant being physically fit. Finally, the cash and retirement incentives offered by the employer for better scores on the physical fitness test support the inference that not only the test itself, but also the concomitant and mandatory exercise program, were work-related.

Wis. Stat. 102.03(1)(c)3., provides that an employee is not covered "...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." As the department footnote to this statute explains, it is intended to address voluntary and uncompensated well-being programs, activities and events. It is not directed towards an individual's mandatory off-duty exercise program performed in preparation for a mandatory physical fitness test.(2) The physical fitness test and the physical fitness program in preparation for the test are mandatory under the applicable collective bargaining agreement. Additionally, the collective bargaining agreement provides monetary incentives for successful completion of the test, and by inference, for the required exercise program inextricably linked to the test.

In his decision, the administrative law judge questioned whether or not the applicant's physical workout was mandatory under the collective bargaining agreement. Article 31, Section E of the collective bargaining agreement provides:

"E. Any employee hired on or after January 1, 1980, must maintain a rating of 'adequate' or better. Failure to do so may subject the employee to disciplinary action and shall be considered relevant evidence of the employee's inability to fully perform the expected duties of their position."

The applicant was hired by the employer on May 28, 1981, and therefore pursuant to Section E, he was required to maintain the minimal physical fitness rating. The only way he could do that would be to participate in the semi-annual physical fitness test, as well as the mandatory physical exercise program.

Pursuant to Article 31, Section H of the collective bargaining agreement, the employee was required to provide a statement indicating that he had been involved in a physical fitness program for the six-month period preceding the physical fitness test.(3) The administrative law judge interpreted this mandate to provide such statement as somehow being divorced from a requirement to actually do what the statement certified to the employer the employee had done. The commission rejects this interpretation as inconsistent with the plain language of Section H. That section in fact requires all employees covered by the collective bargaining agreement to be involved in a physical fitness program for the six months preceding the physical fitness test.

The administrative law judge added as additional rationale for dismissal of the applicant's claim that he would have had to speculate to find the applicant was compensated for his workout performed on October 12, 2008. First, work-related activities directed to be performed by an employer for the employer's benefit need not be directly compensated in order to arise out of and in the course of the employment.(4) Second, in the applicant's case there were direct financial incentives provided by the employer for successfully participating in the physical fitness test, and successful participation was directly linked to engaging in a mandatory physical fitness program. The fact that the record does not show whether or not the applicant would have performed to the level required to actually receive an incentive, does not change the fact that the incentives existed as a part of the collective bargaining agreement.

Given the particular circumstances of this case, in which 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, the commission finds the applicant's right shoulder injury arose out of and in the course of his employment with the employer. It should be noted that this finding is limited to the particular facts and circumstances of this case. Under different facts in which an off-premises exercise may be only tangentially related to preparation for an employer-mandated physical fitness test, an injury sustained while performing such exercise might not be compensable.

There is no medical evidence contravening Dr. Errol Springer's credible opinion of a healing period from December 8, 2008 through February 20, 2009, a period of ten weeks and five days of temporary total disability at the applicable rate of $781.33 per week.(5) Pursuant to his right under Wis. Stat. § 102.30(3), the applicant has requested restoration of the sick leave benefits he took during this period of temporary total disability, in an amount equal in value to the amount of temporary total disability otherwise payable for each such week. The applicant also took several vacation days during the above period of temporary total disability, but as the parties acknowledge, it is well-settled that vacation pay is considered an earned fringe benefit and does not relieve the employer from the obligation to pay temporary disability for those vacation days.

In accordance with the summary provided in Applicant's Exhibit H, the applicant took nine vacation days between December 8, 2008 and February 20, 2009 (paid holidays are considered vacation days), resulting in one week and two days of temporary total disability that amounts to compensation totaling $1,041.77. The remaining nine weeks and three days of temporary total disability results in compensation totaling $7,422.64, which amount shall be applied towards restoration of the applicant's sick leave benefits taken during this period.

Dr. Springer credibly assessed three percent permanent partial disability at the right shoulder, which equates to 15 weeks of compensation at the applicable rate of $272 per week, for total permanent partial disability of $4,080. The applicant's attorney is entitled to a 20 percent fee against the amount of permanent partial disability. No fee is awarded against the temporary total disability amounts because the applicant had already received his full wage for the days in question.

Dr. Springer's opinions are inconsistent with respect to the possibility of additional medical treatment being required, and the commission will exercise its discretion to leave the order interlocutory with respect to that issue.

Reasonably required medical expenses, as documented in Applicant's Exhibit G, are ordered paid as indicated below.



The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondent City of Appleton shall pay to the applicant compensation in the total amount of Four thousand three hundred five dollars and seventy-seven cents ($4,305.77); to applicant's Attorney, Robert W. Dean, fees in the amount of Eight hundred sixteen dollars ($816.00); to United Health Care reimbursement in the amount of Six thousand four hundred thirty-six dollars and twenty-seven cents ($6,436.27); to WEA reimbursement in the amount of One thousand one hundred forty-nine dollars and eighteen cents ($1,149.18); to Orthopedic & Sports Institute of Fox Valley the sum of One hundred seventeen dollars ($117.00); and to Advanced Physical Therapy & Sports Medicine the sum of Seven dollars and fifty cents ($7.50).

Jurisdiction is reserved as noted in the above findings.

Dated and mailed January 27, 2011
nofzimi : 185 : 5 ND6 3.20;  3.31;  8.27

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The administrative law judge's decision was reversed based on the commission's analysis of the applicable law. Credibility of the witnesses was not at issue.

cc: Attorney Robert Dean
Attorney Christopher R. Behrens

Appealed to Circuit Court.  Affirmed August 3, 2011Appealed to Court of Appeals.  Affirmed March 22, 2012, sub nom. City of Appleton Police Department v. LIRC, 2011 AP 2008, 340 Wis. 2d 720, 813 N.W.2d 237.  Petition for review denied August 2, 2012.

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(1)( Back ) 29 U.S.C. 152 provides:

"(2) The term 'employer' includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization." (emphasis added).

(2)( Back ) The footnote to Wis. Stat. 102.03(1)(c)3., provides: "This 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."

(3)( Back ) Article 31, Section H of the collective bargaining agreement provides:

"H. All employees are responsible for determining their fitness to participate in the testing process. Employees must provide a statement indicating that they have been involved in a physical fitness program for the six month period preceding the assessment."

(4)( Back ) See, Town of Russell Volunteer Fire Department v. LIRC, 223 Wis. 2d 723, 736-37, 589 N.W.2d 445 (Ct. App. 1998); Horvath v. Industrial Commission, 26 Wis. 2d 253, 260-61, 131 N.W.2d 876 (1965); Continental Casualty Co. v. Industrial Commission, 26 Wis. 2d. 470, 474, 132 N.W.2d 584 (1965); Hetchler v. E.C. Styberg Engineering Co., WC Claim No. 2000-027319 (LIRC August 28, 2003).

(5)( Back ) The conceded average weekly wage was $1,172.


uploaded 2011/03/17