STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


LARRY WUNSCH, Applicant

CITY OF FOND DU LAC FIRE DEPARTMENT, Employer

EMPLOYERS INSURANCE OF WAUSAU

WORKER'S COMPENSATION DECISION
Claim No. 93040966


Pursuant to the timely petition for review filed by the employer in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the findings and order of the administrative law judge are hereby affirmed.

Dated and mailed at Madison, WI  December 21, 1994
175 : 000110 ND 2.17  3.20

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The employer contends in its petition for commission review that the administrative law judge erred in determining that the applicant's injury on June 20, 1993 while participating in a donkey baseball game as part of a funding raising event for youth baseball arose out of his employment while performing services growing out of and incidental to his employment. The employer states that the applicant's participation in the donkey baseball game was strictly voluntary, and that he did it on his own time and without compensation from the employer. The employer states that the applicant's participation was an act of nothing more than the discharge of a person's duties as a good citizen or member of the community, and not within the course of his employment. However, the applicant testified that he believed that his participation in the donkey baseball game was as a representative of the fire department.

In addition, the Fire Chief, Mr. Flagstad, testified that the department endorsed participation in the donkey baseball game because it helped promote the department and generated goodwill. Chief Flagstad testified that the applicant's participation in the game was part of his job duties which includes participation in promotional activities. Chief Flagstad also testified that the applicant's annual performance evaluation would take into account his participation in such outside activities, and also that the outside activities would be considered in granting promotions. Further, Chief Flagstad testified that he encouraged his management staff to solicit fire department employes to participate in such events, and that while the applicant was participating he was covered by the department's rules of conduct. Chief Flagstad indicated that he endorsed the fund raising event because it would enhance the department's stature in the community and provide a public relations benefit.

The employer did not present any witnesses or testimony to contradict Chief Flagstad or the applicant's testimony that participation in the donkey baseball game was part of the applicant's job duties. Given the fact that the applicant was subject to the employer's rules of conduct while participating in the fund raising event and that his participation was part of his job description and was considered in his performance evaluations and promotional opportunities, and also that his participation benefited the department, and given the fact that the employer actively solicited its members to participate in the event and publicized the event, it was established that the applicant's injury on June 20, 1993 arose out of his employment.

cc: ATTORNEY THOMAS P STILP
STILP & WELLS


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