Welcome to the website of the Wisconsin Labor and Industry Review Commission. LIRC is an independent administrative agency which decides appeals in cases involving Unemployment  Insurance (UI),  Worker's Compensation (WC), and  Equal Rights (ER). Information available at this website includes:			In Brief -  WC decisions added 5/8 2012 Edition of ER DIgest Ct App issues decision in WC re home injury fitness training Ct App issues decision in WC re adverse party on appeal ER decisions added 03/13 UI decisions added 04/27
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April 10, 2012 -- The 2012 Edition of the Equal Rights Decision Digest is now available on-line. This edition is updated with summaries of relevant LIRC and court decisions through calendar year 2011.

March 22, 2012---In City of Appleton Police Dept. v. LIRC & Michael Nofzinger, 2012 WI App 50, __ Wis. 2d __ (petition for review pending), the court of appeals affirmed LIRC's decision finding that a policeman injured while performing push-ups at home as part of his fitness training for the employer's mandatory, twice-a-year physical fitness test, was injured while performing services arising out of and in the course of his employment.

The employer requires its officers to perform push-ups in each of the physical fitness tests, and the push-ups must be performed in accordance with the employer's specific standards.  The collective bargaining agreement requires each officer to provide a signed statement indicating that he/she has participated in a personal physical fitness training program during the 6 months preceding each test.  As a result of receiving a "good" or "excellent" score on the test, officers become eligible for a retirement bonus incentive.  Lower-scoring officers are not eligible for the bonus, and can be subject to discipline.  While training at home for one of these upcoming fitness tests, Nofzinger was performing push-ups on a carpeted basement floor.  As he performed his twelfth succesive push-up he sustained a rotator cuff injury to his shoulder.

The employer argued that Nofzinger's injury was excluded from coverage under Wis. Stat. 102.03(1)(c)3. (the "physical well-being program" exclusion), because performing the push-ups was allegedly voluntary and without compensation.  The court agreed with LIRC that the applicant was required to perform push-ups in order to prepare for a test that itself required the performance of push-ups.  Additionally, there was no evidence that the employer provided on-duty time or on-premises facilities for officers to train for the mandatory tests, and therefore fact that the employer did not directly control the performance of the push-ups was not significant.  The employer argued that LIRC's decision saddled it with risks it could not minimize, but the court rejected this argument, citing the employer's deliberate choice to include push-ups in the fitness test regimen, its provision of a training DVD to demonstrate acceptable standards for push-ups, its failure to circumscribe the time or place for training, and the employer's inherent acceptance of risk in requiring the training and tests.

 The court declined to address whether or not LIRC correctly found that Nofzinger was compensated for his training activity, because without the element of voluntariness the exclusionary provision of Wis. Stat. 102.03(1)(c)3, does not apply (the circuit court found the retirement bonus constituted compensation).  The court applied the great weight deference standard, citing Honthaners v. LIRC, 240 Wis. 2d 234; and Styberg Engineering v. LIRC, 278 Wis. 2d 540.

January 22, 2012 -- In Xcel Energy Services, Inc., v. LIRC and John Smoczyk, 2012 WI App 19, 339 Wis. 2d 413 (petition for review pending), the Court of Appeals affirmed a dismissal of Xcel Energy Services, Inc.’s complaint must be dismissed on the ground that Xcel failed to name its worker’s compensation insurance carrier.  The court held the insurer was an “adverse party” under Wis. Stat. § 102.23(1)(a), citing Miller Brewing Co. v. Labor & Industry Review Commission, 166 Wis. 2d 830, 480 N.W.2d 532 (Ct. App. 1992), aff’d 173 Wis. 2d 700, 495 N.W.2d 660 (1993) holding that an adverse party” for worker’s compensation actions in circuit court “includes any party bound by the Commission’s order or award granting or denying compensation to the claimant.”

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This page was last updated May 08, 2012.