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Pay for pushups: City loses legal battle over workers'...

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Pay for pushups: City loses legal battle over workers' compensation

Police officer injured while preparing for fitness test at home:

APPLETON — Police Sgt. Mike Nofzinger had just finished a 12th pushup on his carpeted basement floor in October 2008 when his right rotator cuff gave way.

What followed was a four-year legal battle the city lost. Nofzinger won $12,500 in workers’ compensation and set a legal precedent that reverberated around the state.

Appleton appealed the decision to the state Supreme Court and hired outside legal counsel, which cost taxpayers an additional $17,477. In August, the Supreme Court decided against hearing the case.

Sandy Behnke, the city’s human resources director, said the city fought the claim not because of the size of the payout, but because it leaves the city liable if other employees injure themselves outside the workplace.

“We think it’s a bad decision and it sets a precedent that is very far-reaching,” Behnke said. “If an employee runs to stay in shape and blows out a knee, it’s an open question whether they could file for worker’s comp.”

The appeals court ruled the pushups were directly related to Nofzinger’s employment and thus “involuntary.” He was preparing for a fitness test that rewards employees in excellent health with a lump-sum cash premium and retirement bonus. Part of the test measures the number of pushups completed.

Now, because of the new legal exposure, Behnke hopes to change city policy without ending the fitness program in the next round of contract talks in 2013. Police officers and firefighters still have collective bargaining agreements.

“Appleton officers take fitness very seriously and take care of themselves, so we want to incentivize that,” Behnke said. “I’ve asked the chiefs to look at how we can change the contract to reduce the liability.”

Appleton Mayor Tim Hanna worries the decision could lead to more costly worker compensation claims and harm wellness initiatives.

“It could make it tougher for the city to offer a fitness incentive in our health plan — we may need a stricter definition for outside injuries,” Hanna said. “I’m worried it could be extrapolated to almost any physical exercise injury. Could you file a claim if you were injured skiing? Where does it stop?”

Nofzinger retired in 2011 after 29 years with the police department. He called the ruling a victory for organized labor and emergency officials, one that is currently being fought in other states.

“Chief Dave Gorski negotiated this fitness plan in the 1980s,” Nofzinger said. “He recognized the long-term impact with less health insurance cost and greater ability to perform the physical requirements of the job.”

Nofzinger said the fitness requirements are a crucial part of the profession, but when injuries happen on or off the job, employees need time to recover. He said a failed fitness test could lead to punishment that could include termination.

While employers may worry about the ramifications of the appeals court’s decision, some say the case law’s effects will be limited.

“I wouldn’t expect a whole rash of claims due to this,” said Dan Thompson, executive director of the League of Wisconsin Municipalities. “I think the facts are relatively narrow enough that there won’t be an uptick.”

Charles Domer, an attorney in Milwaukee who publishes guidebooks on Wisconsin workers’ compensation, said claims likely would be unsuccessful if they occur during recreational activities like softball versus other purely fitness-related injuries.

“If your job description requires you to repetitively lift 50 pounds and someone is hurt doing just that outside work, there is an argument that it’s in the course and scope of employment,” Domer said. “But that’s still probably a broad reading of the case and would be fought.”

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