Today's post comes from guest author Tom Domer of the Wisconsin Bar. Wellness programs have been described as the potential catalyst for the next iteration of Workers' Compensation systems in the US. Wellness programs challenge: obesity, pre-existing medical conditions, exercise, tobacco smoking and genetic factors, in an effort to make the workplace healthier and safe. The Affordable Care Act (ACT), Obama Care, has been a cutting edge issue, and has received serious attention at the recent American Bar Association meeting in Coral Gables FL last month. Tom Domer provides additional insight into this unfolding change in the delivery of workers' compensation benefits. Wellness are a critical element in the future of workers' compensation. On Wisconsin!, lead the way....
- Harley Davidson,
- Northwestern Mutual Life Insurance Company,
- Schneider National,
- Kohler Company,
- Kimberly Clark, and
- Trek Bicycle
Such “wellness” programs pose some interesting issues for worker’s compensation in Wisconsin. And as a lawyer representing injured workers, I look at almost everything I read through this prism. Injuries incurred in an employee wellness or health fitness program, event or activity designed to improve the physical well-being of the employee are not considered in the course of employment. That means they aren't covered under workers’ compensation unless the program, event or activity is mandatory or compensated. That mandatory or compensated requirement applies whether the program is on or off premises.
Our Court of Appeals, however, found compensable injury when an on-duty firefighter was injured while playing basketball at a nearby park not on the employee premises. Courts have interpreted ‘mandatory’ to include
an employer expectation of attendance. Even though the employer argued attendance was voluntary, for example, the Commission found it was not voluntary because the worker understood the employer expected her to attend.
A recent controversial case, City of Appleton Police Department v. LIRC, 212 WIAPP 50 (March 22, 2012) concerned a police officer who injured his shoulder while performing push ups at home and brought a worker‘s compensation claim. As part of his employment, the officer had to undergo a city administered physical fitness test including push-ups. He could be disciplined or awarded with a cash payout based on performance.
Though the city denied the claim based on the “wellness” exception, the Court concluded that at home pushups were not voluntary and were compensated, thereby allowing benefits. Whether this case exposes employers to compensable at home injuries (especially those with “fitness for duty” examinations) remains to be seen.