James Naughton v. St. Charles County Government

The administrative law judge heard this matter to consider: 1) whether the April 13, 2004, injury arose out of and in the course of employee's employment; 2) employee's appropriate compensation rate; 3) the nature and extent of any permanent partial disability; and 4) whether costs should be assessed against employee for filing a frivolous claim.

The administrative law judge found that when the injury occurred on April 13, 2004, employee was applying for a different job with the St. Charles County Sheriff's Department that had a different pay grade. The administrative law judge determined that, at the time of the injury, employee was not completing or carrying out the furtherance of his duties of his employment as a bailiff for St. Charles County. For the foregoing reasons, the administrative law judge found that the substantial weight of the evidence did not establish that the employee's April 13, 2004, left ankle injury arose out of or was in the course of his employment. Compensation was therefore denied.

Although the administrative law judge denied employee compensation, she did find that the case presented a sufficient factual scenario to warrant a controversy over compensability and that the facts of the case supported both the filing for workers’ compensation benefits and a defense against that filing. Therefore, employer's request for costs to be assessed against employee for filing a frivolous claim was denied.

In light of the aforementioned findings, the administrative law judge deemed all other issues moot and did not address them in her award.

Employee appealed to the Commission alleging the administrative law judge erred in denying compensation and recovery to employee because employee presented competent and substantial evidence to establish that the injury that occurred on April 13, 2004, arose out of and in the course of employee's employment. Employee also alleged that the administrative law judge erred in failing to determine his nature and extent of permanent disability and his appropriate rate of compensation for his permanent disability. Lastly, employee alleged that the administrative law judge erred in failing to award compensation to him subject to a lien in the

The parties each stipulated in their briefs that due to employee's approximate average weekly wage of $\ 665.00, employee's applicable rate of compensation for permanent partial disability should be the maximum rate at the time of the injury, or $\ 347.05.

Therefore, the primary issues currently before the Commission include whether the injury that occurred on April 13, 2004, arose out of and in the course of employee's employment, and if so, what is employee's nature and extent of permanent disability.

The findings of fact and stipulations of the parties were recounted in the award of the administrative law judge; therefore, the pertinent facts will merely be summarized below.

Employee began working as a bailiff assigned to the courthouse for the St. Charles County Sheriff's Department on October 15, 2001. In March 2004, a prison transporter position opened up within the St. Charles County Sheriff's Department. Employee applied for the position, which would have been a promotion because prison transporters are compensated at a higher pay grade.

The application process for the prison transporter position consisted of a written test, a physical agility test, and an oral interview. All applicants for the position had the opportunity to complete the physical agility test on one of the two possible days the testing was being administered. Employee testified that he was scheduled by his immediate supervisor, Sergeant Dave Hatcher, to take the physical agility test at 1:00 p.m. on April 13, 2004. Employee reported for the physical agility test on April 13, 2004, and during the first module of the testing he injured his left ankle while jumping over a barricade on the obstacle course. The obstacle course was administered by heads of the St. Charles County Sheriff's Department. April 13, 2004, was a regularly scheduled workday for employee at his job as bailiff for the St. Charles County Sheriff's Department. Employee testified that he worked his normal work shift hours on that date and was on the clock and paid his usual wages, based on his annual salary for that day.

After participating in the physical testing and returning to his regular workday shift at the courthouse, employee requested medical attention and was sent to SSM Corporate Healthcare where he was examined, x-rayed and had his ankle wrapped. Employee was advised not to work for several days. Employee's personal physician, Dr. Peter Montgomery, saw employee for his continuing complaints. Dr. Montgomery diagnosed a severe sprain and advised him to stay off the ankle, avoid work for several days, and take pain medication as needed.

Employee returned to work on April 19, 2004, with crutches. He was assigned desk duties in the courthouse lobby at that time. On October 24, 2004, employee saw Dr. Raymond Cohen with regard to his injured left ankle. Dr. Cohen observed tenderness in employee's injured ankle with increased discomfort with inversion. Dr. Cohen later testified that employee sustained a 17.5\% permanent partial disability of the left ankle, of which 2.5 % was preexisting and the remaining 15 % is a direct result of the primary injury which occurred on April 13, 2004. On March 30, 2005, at the request of employer, employee saw Dr. Craig Aubuchon. Dr. Aubuchon noted swelling and decreased sensation of the ankle with tenderness on palpation, atrophy of the ankle, and pain behind the fibula. Dr. Aubuchon opined that employee sustained a 3 % permanent partial disability at the level of the left ankle due to ongoing slight swelling and because employee has some discomfort when he tries to run, which is part of his job.

Employee testified that he continues to have problems with his ankle since the accident.

As the administrative law judge correctly stated in the award, there is no dispute that employee's April 13, 2004, left ankle injury occurred during a physical agility test for the position of prison transporter for the St. Charles County Sheriff's Department. However, the administrative law judge, in denying employee benefits, incorrectly focusing on two things: 1) whether this injury arose out of and in the course of his employment as a prison transporter for the St. Charles County Sheriff's Department; and 2) whether completing the physical agility test was one of his normal duties as bailiff for the St. Charles County Sheriff's Department. Instead, the only issue that is of any primary significance concerns whether this injury arose out of and in the course of his employment as a bailiff for the St. Charles County Sheriff's Department.

Under Missouri Workers' Compensation Law, in order for an injury to be compensable, it must "arise out of" and "in the course of" the employment. Section 287.120.1 RSMo (2004) states, in pertinent part:

"Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment...."

Section 287.020 RSMo (2004) provides further guidance as to what constitutes "arising out of" and "in the course of" employment. Section 287.020.2 RSMo states, in pertinent part:

"An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability...."

Section 287.020.3(2) RSMo. states:

"An injury shall be deemed to arise out of and in the course of the employment only if:

- It is reasonably apparent, upon consideration of all the circumstance, that the employment is a substantial factor in causing the injury; and

- It can be seen to have followed as a natural incident of the work; and

- It can be fairly traced to the employment as a proximate cause; and

- It does not come from a hazard or risk unrelated to the employment which workers would have been equally exposed outside of and unrelated to the employment in normal unemployment life...."

While the above-cited statutory provisions provide a basic framework for determining whether an injury arises out of and in the course of one's employment, case law provides more specific tests.

In Miles v. Lear Corporation, 259 S.W.3d 64 (Mo. App. 2008), the court stated that "[a]n employee has sustained a compensable injury arising out of and in the course of employment 'where an employee's acts were reasonably incidental to commencement of employee's work and were also for the benefit of the employer.'" Id. at 67 (citations omitted). The court went on to state that "[a]n injury arises out of employment if it is a 'natural and reasonable incident thereof,' or, in other words, 'when there is a causal connection between the nature of the employee's duties or conditions under which he is required to perform them and

the resulting injury." Id. (citations omitted).

In Parrish v. Kansas City Security Service, 682 S.W.2d 20 (Mo. App. 1984), the court stated that "an injury (or death) arises 'in the course of' the employment when it occurs within the period of employment, at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto." Id. at 26.

In the present case, employee testified that, on April 13, 2004, he was scheduled and actually worked his regular shift as bailiff for the St. Charles County Sheriff's Department. Employee testified that he reported for and participated in the physical agility test for the position of prison transporter at a time and place scheduled and chosen by his immediate supervisor, Sergeant Dave Hatcher. Employee indicated that at the time of the injury he was on the clock and paid his usual wages, based on his annual salary. All of his supervisors were made aware of his participation in the physical agility test on that date and time and they did not object. In fact, the obstacle course employee was injured on was actually being administered by heads of employee's department, the St. Charles County Sheriff's Department.

Before analyzing whether employee's injury satisfies the tests of "arising out of" and "in the course of" his employment, it is important to note the circumstances under which prior courts have determined injuries have "arisen out of" and "in the course of" one's employment.

Contrary to the administrative law judge's apparent opinion, the actual injury causing incident does not have to be one of the injured employee's specific and/or normal job duties. In Graham v. La-Z Boy Chair Co., 117 S.W.3d 182 (Mo. App. 2003), a supervisor of La-Z Boy Chair Company's ("La-Z Boy") interplant shipping department was injured during a golf tournament hosted by one of La-Z Boy's trucking companies. Id. at 183. The court found that the "injury arose out of and in the course of [claimant's] employment..." despite the fact that his participation in the tournament was not mandatory and golfing was not one of his required duties as interplant shipping department supervisor. Id. at 187.

In another Missouri case, Rogers v. Pacesetter Corp., 972 S.W.2d 540 (Mo. App. 1998), a manager of Pacesetter Corporation was injured on his way home from a bar meeting with one of his supervisors which took place after normal business hours. Id. at 541. The claimant testified that he consumed four beers and three shots of tequila while at the bar. Id. at 542. Employee also testified that he stayed at the bar approximately 20 minutes after the meeting concluded before heading home. The court awarded claimant benefits despite the fact that he was not paid overtime for this meeting, the injury did not occur on the employer's premises, or during normal business hours, claimant voluntarily attended and stayed at the bar after the meeting concluded, and traveling, especially after consuming alcoholic beverages, was not one of his required duties as a manager of Pacesetter Corporation.

In the previously cited case, Miles v. Lear Corporation, 259 S.W.3d 64 (Mo. App. 2008), the claimant injured his knee while playing basketball during a 15-minute paid break. The claimant was a union employee and playing basketball was not one of his normal duties. The court affirmed the Commission's decision to award him benefits and reasoned that the injury "arose out of and in the course of his employment in that the basketball games were a regular incident of employment, and although [claimant] was engaged in a voluntary recreational activity for which benefits are generally forfeited, his injury fell within an exception to that rule because he was paid while participating." Id. at 66. In sum, the employer's acquiescence to its employees playing basketball during their 15-minute breaks, coupled with the fact that the employees were paid during said breaks, was all the court needed to conclude that this was a compensable injury.

Lastly, in Standring v. Town of Skowhegan, 870 A.2d 128 (Me. 2005), the Supreme Judicial Court of Maine vacated a decision made by a hearing officer denying benefits to a claimant that was injured under circumstances nearly identical to the circumstances in the present case. In Standring, a reserve officer for the Town of Skowhegan applied for a full-time patrol officer position. Id. at 129. The application process

included a physical agility test. Id. Claimant suffered a heart attack while he was completing the obstacle course. As in the present case, the hearing officer failed to fully consider the significance of the ongoing employment relationship that she found to exist between the claimant and the Town of Skowhegan. The court, in vacating the hearing officer's decision to deny the claimant benefits, stated that "[i]n participating in a physical agility test for which [he was] not paid, the employee[] arguably engaged in an insubstantial deviation from [his] regular employment as [a] reserve officer[]." Id. at 131. The court went on to state that the "actions of the employee were not prohibited and in fact were encouraged by the employer, and the injury occurred at a place selected by the employer for the purpose of the employment-related physical agility test." The case was remanded for further consideration of the petitions for award of benefits in accordance with the court's suggestion that greater weight be given to claimant's ongoing employment relationship. Id. at 132 .

In addition to the cases listed above, several Missouri cases have even found that "horseplay" on the job which results in injuries is compensable if the facts support that the "horseplay" had been allowed by the employer in the past. Wisely v. Sysco Foods, 972 S.W.2d 315 (Mo. App. 1998), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), Peet v. Garner Oil Co., 492 S.W.2d 103 (Mo. App. 1973), Pullum v. Hudson Foods, Inc., 871 S.W.2d 94 (Mo. App. 1994), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), and Tabor v. Midland Flour Milling Co., 237 Mo. App. 392 (Mo. App. 1943).

Based on the foregoing facts and law, it is obvious that employee's injury both "arose out of" and "in the course of" his employment. Employee's injury "arose out of" his employment because completing the physical agility test was a natural and reasonable incident to his employment as bailiff for the St. Charles County Sheriff's Department. While the obstacle course he was completing when the injury occurred was not listed as one of his specific duties as bailiff, employee was scheduled to complete the physical agility test by employer during one of his normal shifts as bailiff, employee was paid his normal wages while he attempted to complete the test, and the test was administered by employee's normal supervisors. As the previously discussed cases illustrate, for an injury to "arise out of" one's employment, the actual injury causing incident does not have to be something employee normally completed as a bailiff. For the foregoing reasons, it is clear that employee's injury was a natural and reasonable incident to his employment and, therefore, it "arose out of" his employment as bailiff for the St. Charles County Sheriff's Department.

Employee's injury was "in the course of" his employment because it occurred within the period of his employment, at a place where he could reasonably be, and while he was reasonably engaged in doing something incidental thereto. It is undisputed that the injury occurred within his period of employment. Also, employee was at a place he could reasonably be because the time and place for him to complete the physical agility test was set up and scheduled by employer. Nobody objected to him completing the physical agility test during his normal shift, because it was scheduled by his supervisors. Lastly, for some of the reasons already mentioned, employee was engaged in doing something incidental to his employment in that he was attempting to complete a physical agility test during his normal shift as bailiff, as he was being paid his normal wages as bailiff, and while he was being supervised by his normal supervisors. The injury occurred during the employee's performing the physical agility test in the manner in which it was intended to be performed and not from the employee's engaging in unreasonably reckless actions or creating excessive risks. For the foregoing reasons, it is also clear that employee's injury occurred "in the course of" his employment as bailiff for the St. Charles County Sheriff's Department.

Even if it is argued that employee forfeits his benefits for this injury because it occurred while he was engaging in a "voluntary recreational activity," as defined by § 287.120.7 RSMo, employee should still prevail in his claim for benefits, because his injury falls within two of the three exceptions to the forfeiture of benefits under § 287.120.7. Specifically, employee falls within both § 287.120.7(a) and (b), which provide that "[t]he forfeiture of benefits shall not apply when: (a) The employee was directly ordered by the employer to

participate in such recreational activity or program; (b) The employee was paid wages or travel expenses while participating in such recreational activity or program...." Employee was both ordered to participate in the physical agility test by Sergeant Hatcher and was paid his normal wages by the St. Charles County Sheriff's Department during the time he was participating in said activity.

Also, although employer heavily relies on Leslie v. School Services and Leasing, Inc., 947 S.W.2d 97 (Mo. App. 1997), in arguing that employee should be denied benefits because he was not yet employed as a prison transporter, Leslie is categorically distinguishable from the present case. In Leslie, the claimant was injured during pre-employment testing for a job with School Services and Leasing, Inc ("School Services"). This injury occurred before she had any form of employment relationship with School Services. In the present case, employee was already employed by the St. Charles County Sheriff's Department and was merely participating in the application process for a promotion to prison transporter within the same department (or, for the same employer). Employee is not arguing that his injury is compensable due to his employment as a prison transporter. Employee argues that his injury is compensable due to his employment as a bailiff.

As previously stated, on the date of the injury, employee was scheduled and actually worked his regular shift as bailiff for the St. Charles County Sheriff's Department. Employee's supervisors were aware of and approved his participation in the physical agility test and were actually responsible for scheduling employee to take the test on April 13, 2004, at 1:00 p.m. Lastly, at the time of the injury, employee was on the clock and paid his usual wages, based on his annual salary.

In light of past court decisions awarding employees benefits for injuries that occurred while the employees were engaging in various other activities, some of which took place off of employers' premises, after normal business hours and involving acts which were not part of the claimant's normal job duties, it seems only logical that the employee in this instance should be awarded benefits for an injury he sustained during his normal business hours, at the permission of his supervisors, on an obstacle course that was being administered by his department heads, at a time scheduled by his immediate supervisor, and while he was being paid his usual wages, based on his annual salary.

The Commission, based on the totality of the evidence, disagrees with the administrative law judge and finds employee's left ankle injury "arose out of" and "in the course of" his employment as a bailiff for the St. Charles County Sheriff's Department.

Dr. Cohen opined that employee's left ankle is 15 % permanently partially disabled as a direct result of the primary injury which occurred on April 13, 2004. On the other hand, Dr. Aubuchon opined that employee's left ankle is 3 % permanently partially disabled.

The Commission, based on the totality of the medical evidence and testimony of both lay and expert witnesses, finds that employee has sustained 12.5 % permanent partial disability to his left ankle as a direct result of the primary injury which occurred on April 13, 2004.

The award and decision of Chief Administrative Law Judge Leslie E. H. Brown, issued July 29, 2008, is attached hereto for reference. Its findings of fact are incorporated to the extent they are not inconsistent with our findings.

The Commission further finds that the benefits awarded to employee herein be subject to a lien in the

amount of 25 % of the compensation for permanent disability for necessary legal services rendered to him by his attorney.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 24th day of June 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

When employee injured his ankle on April 13, 2004, he was voluntarily applying for a different job at a park that was not owned or maintained by his employer. The physical agility test he was completing when he injured his ankle was not one of his job duties or obligations as bailiff for the St. Charles County Sheriff's Department, nor was it an activity that was in furtherance of his job duties or obligations. There is no testimony or other evidence that jumping barricades was part of the duties of a bailiff.

The evidence reveals that the activity was an application process that anyone, including members of the public, could and would be involved in as an applicant for a position as a prison transporter for the St. Charles County Sheriff's Department.

Based on the above, I believe that employee has failed to carry his burden of proof that the April 13, 2004, ankle injury resulted from a hazard connected to the conditions of his employment. Further, I find that the April 13, 2004, injury did not arise out of the employee's employment as a bailiff for the St. Charles County Sheriff's Department.

I would affirm the award of the administrative law judge denying compensation.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Alice Bartlett, Member

Employee: James Naughton

Injury No. 04-033086

Dependents: ---

Employer: St. Charles County Government

Additional Party: ---

Insurer: County of St. Charles c/o Corporate Claims Management, Inc.

Hearing Date: 04/30/08

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LEHB/cmh

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of alleged accident or onset of occupational disease: April 13, 2004
5. State location where accident occurred or occupational disease was contracted: St. Charles County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: During application process, Employee was jumping over a barricade.
12. Did accident or occupational disease cause death? No Date of death? ---
13. Part(s) of body injured by alleged accident or occupational disease: Left ankle

1. Nature and extent of any permanent disability: $\quad----
2. Compensation paid to-date for temporary disability: \ 0.00
3. Value necessary medical aid paid to date by employer/insurer? $\ 1,800.33
4. Value necessary medical aid not furnished by employer/insurer? ---
5. Employee's average weekly wages: ---
6. Weekly compensation rate: ---
7. Method wages computation: -----

1. Amount of compensation payable:

Unpaid medical expenses:

--- weeks of temporary total disability (or temporary partial disability)

--- permanent partial disability from Employer, or

--- weeks of disfigurement from Employer

--- Permanent total disability benefits from Employer beginning --- for ---

Claimant's lifetime

1. Second Injury Fund liability: N/A

Total: $\qquad DENIED CASE

1. Future requirements awarded: \qquad$

Said payments to begin as of date of this Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 0 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Radford Raines, Attorney for Claimant

This is a hearing in Injury Number 04-033086. The Claimant, James Naughton, appeared in person and by counsel, Attorney Radford Raines. The Employer/Insurer, St. Charles County Government/County of St. Charles c/o Corporate Claims Management Incorporated, appeared by and through Assistant County Counsel, Beverly Temple.

The parties entered into certain stipulations, and agreements as to the issues and evidence to be presented in this hearing.

- The event date in issue is April 13, 2004.

- If it is found that the Claimant was an Employee of the Employer at issue; that Employer and the Employee were operating under and subject to the provisions of the Missouri Workers’ Compensation Law, including on the date in question, April 13, 2004.

- The alleged Employer’s liability was insured by County of St. Charles, adjusted by Corporate Claims Management Incorporated.

- The alleged Employer had notice of the injury.

- A Claim for Compensation was filed within the time prescribed by law.

- No temporary total disability benefits were paid.

- Medical aid was provided in the amount of $\ 1,800.33.

1. Whether or not the April 13, 2004 event arose out of and in the course of the Claimant's employment
2. Rate
3. Nature and extent of permanent partial disability
4. Whether or not there was an Employee/Employer relationship begun on the date in issue, April 13, 2004
5. Costs for frivolous claim

The following exhibits were admitted into evidence:

No. A: Compilation of the medical records with regard to this claim No. B: Deposition transcript of Dr. Raymond Cohen taken on October 11, 2005 (Admitted subject to the objections therein)

No. C: Grouping of four photographs taken of Mr. Naughton's ankle, subsequent to his injury on 4/13/04

No. 1: Position description of a Prisoner Transporter

No. 2: Position description of Bailiff

No. 3: Claimant's Request for Promotional/Lateral Consideration for the Prisoner Transport position with St. Charles County Government

No. 4: The St. Charles County Pre-Employment Physical Agility Test, Applicant Disclaimer and Medical Clearance For Participation, which was signed by the Claimant on March 20, 2004 [NOTE: Employer/Insurer: Exhibit No. 4 is not offered to disclaim any kind of workers' compensation benefits. The purpose is to show one of the issues that it was a pre-employment physical agility test which Mr. Naughton signed and which his doctor cleared him for.] No. 5: Updated position description of the prisoner transporter

No. 6: Position description updated March 2007 for Bailiff

ISSUE: Whether or not the April 13, 2004 event arose out of and in the course of the Claimant's employment; (Whether or not there was an Employee/Employer relationship begun on the date in issue, April 13, 2004)

It is found in this case, there is no dispute that on the date in issue, April 13, 2004, which the evidence reveals is the date of Naughton's (the claimant's) left ankle injury, Naughton was an employee of St. Charles County Sheriff's Department working in the position of a bailiff. Naughton testified at the hearing I started the St. Charles County Sheriff's Department on October 15, 2001 and have been continuously employed with this employer since October of 2001. Therefore, Naughton agreed, it is fair to say that I was actually employed with St. Charles County Sheriff's Department on April 13, 2004. My position with the department as of April 13, 2004 was a bailiff assigned to the Courts, Naughton stated. Thomas W. Towers, who testified on behalf of the employer/insurer, stated that he works in the St. Charles County Human Resources Department and his title is a Senior Human Resources Generalist. I have you been an employee of St. Charles County and in the Human Resources Department for 15 years, Towers said. He agreed that his office is the custodian of employment records for St. Charles County. Towers testified that the County employs James Naughton, and that Naughton works for the Sheriff's Department in St. Charles County. Towers explained that the Sheriff's Department is broken down into four different kinds of bureaus. One is they have a Field Operations Bureau which is mainly the deputy, patrol and the dispatchers. They have an Administrative Bureau that handles the administrative for personnel and things. It also has a Criminal Investigation Bureau which is the detectives, the crime lab, things like that, Towers testified, and then they have a Special Enforcement Bureau and that usually has the DARE people that are under that. EMA right now has been moved under that, and the Courts and the prisoner transport is all under that division; that's under Captain Todd, Towers stated. Explaining what part of the Sheriff's Department Naughton worked for, Towers stated that Naughton is a bailiff in the court system. Towers stated that it was accurate that Naughton has been employed with the St. Charles County Sheriff's Department continuously from October of 2001 through the present, and this would have included the injury date that's been testified to of April 13, 2004. Towers was queried, with regard to the April 13th and 14 physical agility testing that was performed, Naughton's salary was continued, wasn't cut off or any benefits denied him or other entitlements of an employee of the St. Charles County Sheriff's Department, denied him on the date he took this test. Not that I know of, no, Towers answered. An "employee" is defined in Section 287.020.1 RSMo 2004, and states - "employee as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under contract of hire, express or implied, oral or written....." An "employer" is defined in Section 287.030 RSMo 2004, and states in pertinent part: "Every person, partnership, association, corporation, (the state, county, municipal corporation), using the service of another for pay.". It is found that there is no dispute among the evidence that the claimant, Naughton, was an employee of St. Charles County Sheriff's Department in the position of a bailiff at the time of the event in question occurring on April 13, 2004.

It is found that there is competent evidence establishing that Naughton suffered injury to his left ankle on or about April 13, 2004. Among the compilation of the medical records entered into evidence in this case, (See Claimant's Exhibit No. A), was a 04/15/04 treatment note by a Dr. Richard Leahy, D.O. in which the doctor wrote that this was an initial visit by Naughton who presented "with a complaint of left ankle pain. He states he was jumping over a stationary barricade as part of a training exercise when he twisted his left ankle." Dr. Leahy discussed his examination findings which included: significant swelling of the left ankle over the area of the lateral malleolus; some discoloration already appearing; tenderness to palpation; somewhat limited in both dorsiflexion and plantar flexion secondary to pain; and soft tissue swelling. It was noted that x-rays taken on that date "of the left ankle revealed a free-floating body in the area of the medial malleolus"; the doctor wrote that he had questioned Naughton about possible injuries and Naughton had admitted that he was fairly active in sports when he was younger. Dr. Leahy's diagnosis on 04/15/04 was: Sprain of the left ankle. Dr. Raymond Cohen, D.O. evaluated Naughton on October 22, 2004 and testified by deposition on behalf of the claimant (Claimants Exhibit No. B). Dr. Cohen testified that as a result of his evaluation of Naughton and the history of the April 13, 2004 event of running an obstacle course and jumping a barricade whereupon Naughton twisted his left ankle and immediately had pain in that joint as well as his review of medical records, it was opinion within a reasonable degree of medical and neurological certainty that the injury Naughton sustained on 04/13/04 was: "Left ankle strain/sprain with loose body". (Cohen Dp. pg. 8)

It is further found that there is no dispute in the evidence that this April 13, 2004 left ankle injury occurred when Naughton was running an obstacle course as part of the physical agility testing portion of an application process the claimant was undergoing. Naughton gave undisputed testimony, stating I was running the obstacle course which was set up in the gymnasium and I jumped over a stationary wooden horse barricade and came down on my left ankle, twisting it. At issue in this case is whether or not the claimant's, Naughton's, left ankle injury suffered on April 13, 2004 while he was in the process of running an obstacle course as part of the physical agility testing portion of an application process for the position of Prisoner Transport arose out of and in the course of his employment.

Under Missouri Workers' Compensation law, for an injury to be compensable it must "arise out of' and "in the course" of the employment. See, Section 287.120.1 RSMo 2004 which states in pertinent part:

"Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person."

The definition of a compensable accident and injury in 2004 were set forth in Sections 287.020.2 and 3 RSMo which stated:

1. The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.
2. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

(3) The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes,

eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the worker is at work.

The terms "arising out of" and "in the course of" were discussed in Jordan v. Farmers State Bank of Texas County, 791 S.W.2d 1, 2-3 (Mo.App. S.D. 1990):

"The terms 'out of' and 'in the course of' are separate tests which must be met for an injury to be compensable. Davison v. Florsheim Shoe Co., 750 S.W.2d 481, 483 (Mo.App.1988); Page, 686 S.W.2d at 532. Case law has defined the phrase 'arising out of' to mean the injury is a natural and reasonable incident of the employment; there must be a causal connection between the nature of the duties or conditions the employee is required to perform and the resulting injury. '[I]n the course of' is occurring within the period of employment at a place where the employee may reasonably be, while the person is reasonably fulfilling the duties of employment or engaged in doing something incidental thereto. Parrish v. Kansas City Security Service, 682 S.W.2d 20, 26 (Mo.App.1984); Davison, supra 750 S.W.2d at 483.

Other cases have worded their analyses of these concepts slightly differently. 'An injury 'arises out of' the employment if (1) the injury results from a natural and reasonable incident of the employment, a rational consequence of some hazard connected therewith or a risk reasonably inherent in the particular conditions of the employment and (2) if the injury is the result of a risk peculiar to the employment or enhanced thereby.' Dillard, 685 S.W.2d at 921. 'An injury 'arises in the course of' employment if it occurs within the period of employment at a place where the employee may reasonably be, while engaged in the furtherance of the employer's business or if he is injured in doing an act reasonably incidental to the performance of his duties, of which his employer might reasonably have knowledge or reasonably anticipate.' Id".

The question for "in the course" of employment, the second prong of what has been held by the Courts to be a twoprong test, is whether the employee was at a place where he could reasonably be expected to be and within the time period of his employment engaged in the furtherance of the employer's business. It is found that the evidence indicates that at the time of his left ankle injury, Naughton was within the time period of his employment. Naughton gave undisputed testimony that his normal work hours were 8 A.M. to 5 P.M., and the physical agility was 1 p.m. in the afternoon. Again, there is no dispute that the claimant's April 13, 2004 left ankle injury occurred when he was in the process of running an obstacle course for the physical agility portion of the application process he was undertaking at that time. The issue is whether or not this activity Naughton was engaged in on April 13, 2004 at about 1 p.m. was in the furtherance of the employer's business.

It is the claimant's allegation that the April 13, 2004 injury was part of his work duties in that he was seeking a position in the same department in which he already worked and his activities in which he was engaged on April 13, 2004 at about 1 p.m. was a formality to receive a higher pay grade in the same department; the claimant alleges that he was in the process of performing duties of his job required to get a higher pay grade. Naughton testified that he actually reported to work on April 13, 2004 with the St. Charles County Sheriff's Department, and agreed that it was a regularly scheduled workday for him. My regular hours that day, Naughton noted, were 8 a.m. to 5 p.m.. At the time of the April 13, 2004 incident I was salaried, not hourly, the claimant said. Naughton agreed that it was his understanding that in January of 2004 he received a raise. He stated that he was potentially eligible for a promotion to a Patrol Deputy position, and that would be an increase in his pay level from Pay Grade 10 which was a Court Bailiff to Pay Grade 11 which is Patrol. Naughton stated that he was actually at a Pay Grade 10 at that point in time, explaining that they had upped them from a 9 to a 10. He agreed that it was with the same basic duties he had had previously. He agreed that as a part of his eligibility for this potential promotion in pay grade and position, there were certain tasks that he had to complete, an evaluation of sorts. I did not have to complete any sort of a written test or evaluation, Naughton said, that was done when I initially applied as a bailiff; it's the same written test. Agreeing that what he had to undertake was a physical agility testing, Naughton said that that was the only difference. I was not responsible for scheduling the physical agility testing, he said. Explaining who scheduled this, Naughton testified the department came out with two dates, and we were able to attend one of the two dates. He was asked if he had made the determination as to his having gone out on April 13, 2004 to do the physical

agility testing. No, Naughton answered. Someone instructed me to do this on that date, he said. I was on duty when I was instructed to go take that physical agility test, Naughton stated. The physical test was at 1 p.m. in the afternoon, the claimant said. He was asked - about what time during your workday were you told to go do this? Probably it was that week, Monday, Naughton responded, that being the 12th; that I was going to take it the next day which was the 13th. He was queried if they had told him he was going to do it at 1:30 on the following day. They set it for 1:00 at Blanchette, Naughton responded. He agreed that this is where this testing regularly took place. He agreed that it's on a County Sheriff's Department obstacle course. Agreeing that the obstacle is maintained by the department, Naughton further stated that they set it up and supervise it. He agreed that this testing is supervised by department heads. It was my immediate supervisor, Sergeant Dave Hatcher, who told me on April 12th that I was to report to the Blanchette obstacle course the following day, Naughton stated. Naughton agreed that he followed Hatcher's instructions on April 13th. I headed out there at approximately 12:30, Naughton stated. Agreeing that he had stated his regularly scheduled work hours that day were from 8 a.m. to 5 p.m., Naughton further agreed that he had worked his regular duties from 8 a.m.. until 1:00. Naughton agreed that he was paid by the County during that time, and agreed that he continued to be paid by the Sheriff's Department for the remainder of the day, including the time he was at the obstacle course.

Naughton testified there were other people being tested when I was out there. He was asked if there were other people testing for the agility test who were presently employees of the department as he was. I was the only one from St. Charles County, Naughton answered. There was other participants from other departments who were in the course of applying for position 11, Naughton stated.

Naughton testified I was performing this test and I was running the obstacle course which was set up in the gymnasium and I jumped over a stationary wooden horse barricade and came down on my left ankle, twisting it. There were witnesses to this event, Naughton said. I know I remember Captain Dave Kaiser from the Department, Naughton testified, and there were several patrol officers which I didn't know who they were but they were in training uniforms.

After the injury my ankle was painful, sharp pains, Naughton stated, and I proceeded to continue with the course until the completion of the time. He agreed that he completed the physical agility test. He was asked if he had requested medical attention at that time. I showed my ankle to some of the people standing around and continued with the final phase of the testing, which was a 2-minute run outside, Naughton responded. And then we were released and I came back to the courthouse, he said. Naughton stated that his ankle was throbbing, hurting while he completed the rest of that testing. By the time I completed the running course it was quite swollen, he said. Agreeing that he did return to the courthouse, Naughton further stated that he showed his supervisor, Sergeant Hatcher, his ankle. He was asked if it had been his understanding that he was on the clock from 8:00 to 5:00 and that he was in fact supposed to return to the courthouse after the testing. That was the understanding, Naughton responded, I was to return, yes, sir.

Naughton stated that when he returned to the courthouse and had this swelling in the ankle he requested medical attention at that time. I showed Sarge, Sergeant Dave Hatcher my supervisor, and he agreed that I should get immediate attention by some medical people, Naughton said. The claimant was asked what had Hatcher told him in response to his request for medical attention. Hatcher sent me immediately to our emergency care open 24 hours that our Department used at the time, Naughton stated. He agreed that this was the SSM Corporate Healthcare. Naughton was queried if this was medical treatment that he had requested, had he chosen the facility. No, Naughton answered, it's the one the department had; that's who they use. Naughton agreed that it was his understanding that's where they sent folks that were hurt on the job.

He was asked what time did he report at SSM Corporate Healthcare. I would guess around about 2:00, 2:30, Naughton answered. My complaints when I reported to SSM Corporate Health Services was just the pain in the ankle, swelling, and there was a small area that was a bluish where the blood was settleilng, Naughton said. I know they took some x-rays, he stated, and they gave me some kind of a splint to put on and gave me some crutches.

I continued to have problems with the ankle after I saw the doctor on April 14, 2004, Naughton said. The swelling

eventually went down but I was on crutches at work, Naughton testified. I took the crutches in to work and they assigned me at the lobby area, a desk job basically, so I didn't have to stand on the ankle and maneuver, Naughton said.

Naughton was queried - other than having been instructed by your supervisor to participate in this physical agility testing on April 13, 2004 would you have had reason in your normal everyday non-employment life to have been on this obstacle course? No, Naughton answered. He was asked - other than your position with St. Charles County and your desire to move up in position and pay grade was there any other reason you would participate in this physical agility test? No, Naughton answered.

On cross-examination by the employer/insurer, Naughton agreed that he came to work for the County on October 15, 2001 as a bailiff. He was asked if he had applied to be a bailiff or a patrol deputy. I applied for both of them, Naughton answered, there's three positions under the same testing. He was asked - which did you apply for, did you apply for both? On the application it didn't distinguish, Naughton responded. It was one of the three which would open up and be available, the claimant said. Naughton agreed that he was hired as a bailiff. He agreed that at the time he was hired it was a Pay Grade 9.

Naughton agreed, during cross examination, that after April 2004 he was not reassigned from his position as a bailiff.

During cross examination, Naughton was queried - When you injured your ankle you were completing a new different job test; you were applying for a different job with St. Charles County, isn't that correct? Not job, a pay grade, Naughton responded. There was no particular job opening, he said. The claimant was asked if it was his testimony that he was applying for a job opening that didn't exist. No, Naughton answered. What they do, for the job I was looking for, which was not open at the time, was a Pay Grade 11, he said. Naughton was asked - And that position was? Would be patrol or transport, he answered. What they do, they compile a list of eligible participants, Naughton explained. He agreed that you have to apply to be on that list. The claimant agreed that he competes with folks who work for the County, like park rangers, corrections. Naughton agreed that he also competes with folks who don't work for the County. He was queried - You also compete for this job as prisoner transporter with folks who never have had on an officer's uniform ever; for example, your attorney could go and apply for this, isn't that correct? If there is an opening and they put it out, yes, Naughton responded. It was noted that Naughton had said they were compiling a list; he was asked if it was correct, then, that his attorney, the judge and even the employer/insurer's attorney could go and apply for the opening, for the Pay Grade 11 of prisoner transport. If there was an opening they could, Naughton answered, if they just want to apply for a Pay Grade 11 they could. Naughton agreed that he was competing for a job against the public. Naughton was queried - When you were applying, taking this agility test, were you performing any duties whatsoever as a bailiff? No, Naughton answered, because the bailiff is a Pay Grade 10.

It was noted that Employer/Insurer's Exhibit No. 2 (and an update version marked as Employer/Insurer's Exhibit No. 6) was a St. Charles County Position Description for a Bailiff which listed the essential duties and responsibilities of a bailiff. Naughton was questioned about the duties of a bailiff that were listed in the position Description for a Bailiff sheet. It was noted that listed was - announce the opening and closing of court sessions. That is a duty of a bailiff, Naughton indicated. He was asked - When you were down there at Blanchette park did you announce the opening and closing of a court session? No, there was no court, Naughton responded. It was noted that another of the duties of a bailiff was to maintain order in the courtroom; Naughton was asked if he was maintaining order in Blanchette park? Well, if there was a disturbance I would, Naughton responded. He admitted that when he was there on April 13, 2004 he was not maintaining order in the courtroom at Blanchette park when he was taking that test. It was noted that Naughton in his bailiff duties searchs articles brought into the court suspected of containing contraband; he was asked if he was doing that job duty when he was testing in Blanchette park. No, Naughton answered. It was noted that Naughton as a bailiff summons witnesses to testify; he was queried wasn't it true that he didn't call anybody out there at Blanchette park to come in and testify. No, Naughton admitted. It was noted that another of Naughton's bailiff duties is to locate and summon attorneys; he was queried isn't it true that he didn't locate any attorney out there at Blanchette park at 1:00 that afternoon. No, Naughton answered. Naughton agreed that he didn't request any incarcerated persons needed for court while he was in

Blanchette park at 1:00 on April 13, 2004. He stated that he didn't schedule any incarcerated persons for court and hearings while he was at Blanchette park. Naughton stated that he did not conduct a visual search of the courtroom prior to the morning session, afternoon session, recess and adjournment while he was in Blanchette park. He stated that he did not set up equipment while he was in Blanchette park that was needed for court presentations. I did not request additional personnel for high security trials while he was in Blanchette park on April 13, 2004 at 1:00, Naughton said. I did not restrict access to secured hallways and office areas while I was in Blanchette park, Naughton stated. The claimant agreed that these were the essential duties or responsibilities as laid out in Employer/Insurer's Exhibit Number 2 that he is supposed to do as a bailiff for St. Charles County. Naughton agreed that these are the essential duties or responsibilities he is supposed to carry out for St. Charles County Government in order to receive his paycheck. He was asked if he had taken custody of any persons at Blanchette park to arrest them on April 13, 2004 at 1 P.M.. No, Naughton answered. He stated that he did not assist any attorneys with appropriate forms needed for the court proceedings in Blanchette park. Naughton agreed that these too are all essential duties and responsibilities that he has as a bailiff. It was noted that Naughton also announces the names of those cases to be heard next and he advises the Judge of those persons who are not present; Naughton admitted that he did not do this at Blanchette park. I did not seat the plaintiff and respondent at counsel table before the hearing while I was at Blanchette park, Naughton stated. I did not keep track of case dispositions while I was out there at Blanchette park running the obstacle course, he said. Naughton admitted that he did not post the docket for the day's trials at 1:00 while he was out there at Blanchette park. He stated that he did not provide additional seating for jurors out there at Blanchette park. Naughton was asked if there were any jurors out there at Blanchette park. I didn't see any, Naughton answered. I did not return all Court Exhibits to the attorneys out there at Blanchette park when I was supposedly working, Naughton said. I was not assigned to protect the public at natural disasters and public emergency sites such as tornadoes, riots, floods or earthquakes on April 13, 2004 at 1:00. I did not transport and escort any prisoners out there at Blanchette park, Naughton stated. He admitted that he did not maintain order in the courthouse and the immediate area while he was out there at Blanchette park. I did not assist the general public with information and directions, he said. Naughton was asked if he had requested any maintenance while he was out there at Blanchette park. Naughton was queried What job duty were you actually doing while you were out there at Blanchette park on April 13, 2004 at 1:00 then? (There was no response). Naughton was again queried - I can show you the list if that would help you figure out which job duties you were performing; were you performing any job duties while you were out there? No, Naughton answered. Naughton was queried - When you injured your ankle you were competing for a new, a different job; isn't that correct? Yes, Naughton answered. He agreed that he was competing for a promotion. He was asked - Isn't it correct that you were not engaged in training for your position as a bailiff? As a bailiff, no, Naughton responded.

The claimant was queried, during cross examination, the Blanchette park where you performed this obstacle course, isn't it correct that St. Charles County does not own Blanchette park, that it is a city park? I don't know, Naughton answered. He was queried that he had testified previously that that was a County park. No, Naughton answered, I said that's where they do their testing for the department. I don't know who owns it, Naughton said. Naughton admitted that he was not aware that St. Charles County does not own that property. He said he was not aware that the City of St. Charles owns that property.

During cross examination, Naughton was queried - No one in your chain of command ordered you to participate in this agility testing, did they? Well, yes, Naughton answered. Sergeant Hatcher ordered me to go and participate in this agility testing, Naughton stated. Naughton was queried - You had requested to go and participate; isn't that correct? Yes, he answered. Naughton agreed that Sergeant Hatcher didn't just pick him out of all the deputy bailiffs in the courthouse and tell him to go down there and train for this. Naughton was queried - Isn't it correct that he had applied, so Sergeant Hatcher was allowing Naughton to go down there and test? When time permitted, which was that particular date, yes that's correct, Naughton responded. The claimant was queried - You were not necessarily ordered to go at that time to fulfill your duties as a bailiff; were you? Wasn't ordered as a bailiff, Naughton responded. He agreed further that no one told him that in order for him to maintain his position with St. Charles County, to stay employed with the St. Charles County, that he needed to engage in this obstacle course.

Naughton was asked, during cross examination, prior to engaging in the pre-employment physical agility testing, he was required to provide St. Charles County with a medical clearance. Probably so, yes, Naughton

answered. The claimant was shown a document described as marked as Employer/Insurer's Exhibit 3; Naughton was asked if he could explain what the document was. Request For Promotional/Lateral Consideration Application, Naughton answered. He agreed that it was his writing on that form. He was asked if he had submitted this form in order to take the agility testing on April 13, 2004. This form, no, Naughton answered. Explaining why he had submitted this form, Naughton testified for request to be considered for lateral considerations; being the supervisor from St. Louis County, to see if they would accept lateral, which some departments do, for the position of Pay Grade 11. He agreed that it also said - Request for Promotion, and further stated because it's a 10 going to 11, correct. Therefore, Naughton further agreed, the bailiff is a 10 going to 11, which is the prisoner transporter. Naughton was shown a document described as being marked as Employer/Insurer's Exhibit Number 4; he was asked to identify the document. I'd say Pre-Employment Physical Agility Test Disclaimer, Naughton responded. He agreed that his signature was on this document. Naughton was asked if he had asked Dr. Montgomery, his primary care physician, to sign this document identified as Pre-Employment Physical Agility Test Disclaimer. He had; he had to authorize whether I was physically healthy to take this particular test and, yes, he signed it, Naughton responded. He was asked if Dr. Montgomery had signed this document at Naughton's request. If he thought I could, yes, Naughton answered. The claimant was further queried if he had requested Dr. Montgomery to do it. To look at the form and see if he would sign if I was physically fit to take the test, yes, Naughton responded. It was noted that the document marked as Employer/Insurer's Exhibit Number 4 was the Medical Clearance, and that it stated that Naughton knows his own physical abilities and limitations and that he is capable of involvement in that portion of the hiring process; Naughton was asked if this was correct. Yes, Naughton answered. Naughton was queried - This agility test where you were injured was a part of the employment process; isn't that correct? I'm not clear what you mean by employment, Naughton responded, I was employed already. He was queried - You were employed; you were going for another job, isn't that correct? Another pay grade, Naughton answered, there was no particular job, but, see, we're getting confused with pay grades and jobs. I was going for a Pay Grade 11, Naughton further stated. He was queried - Which was a different job this job of a prisoner transporter; Naughton was shown a document described as marked as Employer/Insurer's Exhibit Number 1 and asked - isn't this what you were applying to be at the time that you were injured? Yes, Naughton answered. Naughton was queried - And this is what is on your Request for Promotional/Lateral Consideration form; the title for position which you wished to be considered; Prisoner Transport? Which is one of the three Pay Grade 11s, yes; that's correct, Naughton answered. He was asked - So you were applying for another job; the job duties of a prisoner transporter are not the same as a bailiff, isn't that correct; for example, as a bailiff do you handle the complaints made by the public during the processing of a prisoner? But we do both jobs, so yes, I do even though I'm a 10, Naughton answered, we do some of the transport jobs.

Naughton stated, during cross examination, that there are times he identifies, collects and processes, packages physical evidence (an essential duty listed on the Position Description for a Prisoner Transport, Exhibit Nos. 1 and 5). He was asked if he had done this as a part of his job duties or as the essential functions of his job duties and responsibilities as a bailiff. As a bailiff, no, Naughton answered. He agreed that he arrests offenders, including subduing resistive arrestees (essential duties listed on the Position Description for a Prisoner Transport, Exhibit Nos. 1 and 5), as part of his duties as a bailiff. Naughton stated that he performs other essential duties of a Prisoner Transport that were listed on the Position Description for a Prisoner Transport (Exhibit Nos. 1 and 5) such as - seeks and serves arrest warrants - as a bailiff if they come to us in court. Naughton agreed that Employer/Insurer's Exhibit Number 2 (the Position Description for a Bailiff) is all inclusive of his essential job functions and duties as a bailiff. The claimant noted that in Employer/Insurer's Exhibit Number 2 it talked about transporting people. So, there is additional duties on Page 2, Naughton stated. He stated that what it said on Page 2 was - Transport and escort prisoners. He was asked if he was doing this at 1:00 in Blanchette Park. No, Naughton answered.

Naughton agreed, during examination, that the agility test was a portion of the employment procedure he had to do to qualify to be on the list to be a Prisoner Transporter, Pay Grade 11. The next step would be an oral, Naughton answered. Written was done by my original employment, he further stated, it's the same test. He was asked if he would've had to do a written or an oral this time. I would have had to do an oral, Naughton answered. He stated that he did not do an oral. I was asked to put in the oral board; to take the oral board was for a patrol position, Naughton stated. I did not do this, Naughton stated. Agreeing that this is also a Pay Grade 11, Naughton further stated it's three Pay Grade 11s. That's what I tried to explain earlier, he testified, it's just not transport. He

agreed that he was specifically applying to be a Prisoner Transporter, according to Employer/Insurer's Exhibit Number 3. When an opening was for Prisoner Transport I would have been asked to do the oral board, Naughton stated. He was asked if it is true that as a bailiff he does not have to certify or recertify to keep his position. No, that's not correct, Naughton stated, we certify. We are post trained, he said, we have to keep our certification up same as patrol. Naughton stated that he does not have to do any agility testing in order to maintain his certification.

During cross examination, Naughton was queried - Did anyone at the County request that you to pursue the position of Prisoner Transporter? Yes, Naughton answered, Sergeant Hatcher and Lieutenant Hollingsworth who were my supervisors at the time, and Lieutenant DeWitt. He was queried, wasn't it correct that Hatcher and Hollingsworth are no longer in the employ of the County. They're not, but DeWitt is, Naughton answered. Naughton was queried - The job duties and responsibilities of a Bailiff are unrelated to, and separate from, a Prisoner Transporter as set out in Employer/Insurer's Exhibits 1 and 2; isn't that correct? No, Naughton answered. Naughton agreed that he is assigned to Judge Cunningham. He was asked if there were any conditions of this assignment which placed him at Blanchette park at the time that he was injured. I'm taking that you're asking if the Judge sent me there, Naughton responded, no, he didn't send me there. Naughton was asked if at any time during the application process was he promised employment as a Prisoner Transporter. You could say so, Naughton responded. He was queried - You didn't get it though; did you? There was no openings, Naughton stated. He was queried - Since 2004 there's not been any openings for Prisoner Transporter? No, Naughton answered, plus my year is up, off that list; it only lasts a year. Naughton stated that he did not re-apply. He agreed the fact that he is a bailiff didn't automatically keep him on that list.

During cross examination, it was noted that Naughton had testified that it was the Sheriff County's obstacle course; he was queried, wasn't it true that St. Charles County doesn't own Blanchette park, wasn't there an obstacle course out there at the park already? In the gym the Sheriff's Department sets up their obstacle course in the gym and outside on the sidewalk is where they do their 2 and 3 -mile runs, Naughton answered.

On redirect examination, Naughton agreed that there are some carryover of job duties between the Bailiff position and the Deputy Prisoner Transport positions. In referring to Employer/Insurer's Exhibit Number 2, it was noted that the position description of a Deputy Bailiff indicated the following under Essential Duties and Responsibilities - "The following duties are normal for this position. These are not to be construed as exclusive or all inclusive. Other duties may be required and assigned." Naughton agreed that this was his understanding that this list is not all inclusive of duties that he may have, or assignments he may be provided with. He agreed that there were some of the things on this list that he has never done as a bailiff. Naughton agreed that there have been assignments he has been given or orders he has been given or instructions he has been given to do things that are not included on this list; for example, he agreed, he did not ordinarily report to tornadoes or floods or earthquakes in the course of his time as a bailiff over the last seven years.

Naughton stated that Employer/Insurer's Exhibit Number 3 - the Request For Promotional/Lateral Consideration - I filled it out. He was asked if anyone had disputed his indication on this document that he was a Sheriff's Department Bailiff as of the date it was filled out. I don't believe so, Naughton answered. He indicated it was the same that he was employed with the Department of Court Services Sheriff's Department at that time. Naughton stated that he has never ignored or refused to comply with any instructions that he had been given by his supervisors during his time there with the Sheriff's Department. He was queried - And when you were told to report to the Blanchette Park obstacle course by Sergeant Hatcher was it your understanding that was something you needed to do as part of your employment? Yes, Naughton answered.

On further cross examination, Naughton was asked much does St. Charles County pay you to go over and take this test? Whatever I was making salary wise, Naughton answered. He was asked how much did St. Charles County pay the other applicants. I don't know, Naughton answered, I don't know the other applicants, I didn't know anybody there. He was asked when he came to apply to the County in the first place, how much did the County pay him to apply? Nothing, Naughton answered. He was queried - So the County didn't pay you to apply for this promotion either; did it? I got my check the 15th of April, Naughton responded.

Thomas Towers testified on behalf of the employer/insurer, and stated as part of his duties as a Senior Human Resource Generalist in the St. Charles County Human Resources Department, he is responsible for about 75 or 80 percent of the hirings that the County does; from the time a department head sends in a requisition, to the posting, to finishing it up, getting the names to the department heads for the finalization. I have been an employee of St. Charles County and in the Human Resources Department for 15 years, Towers said.

Reviewing the document marked as Employer/Insurer's Exhibit Number 2, Towers explained that each job in the County has a position description, the duties and everything that the person does, and this document was for the Deputy Bailiff in the Court Services. Towers stated that the essential duties or responsibilities listed in the document were supposed to be all inclusive. In fact we even updated these, he said, and they updated them in August of last year and they put all the duties, because some peoples' positions do change. But you know some perform other duties, maybe one or two, Towers said. He agreed that that would be under the additional tasks and responsibilities.

Towers agreed that in March 2004 a position in Prisoner Transport opened. Explaining the process for opening such a position, Towers testified, let's say somebody leaves or let's say they need more of them; the department head, in this position it would be the Sheriff, sends up a requisition to the County Exec's office who, in turn, okays it or doesn't okay it, Towers testified. Sends it back to me and then I'll get a posting; we'll post it for a certain amount of time, he stated. If it has to do with the Sheriff's Department, like this, we have some testing we have to do, he said. After the position closes we get all the applicants, then we do the proper testing that has to be done and then from either an eligibility list or the top five or six people will be sent over for the Sheriff for the final decision to fill that position, Towers explained. Agreeing that this process was followed in March of 2004, Towers further testified anything that has to do with a bailiff, prisoner transport or deputy patrol has to be done on an eligibility list. So there's certain tests you have to do, Towers stated, you get a certain score and you're on the eligibility list.

The document marked as Employer/Insurer's Exhibit Number 1 was shown to Towers who testified once again this is the position description in the Sheriff's Department for prisoner transport. Explaining what were the qualifications needed to be considered for that position, Towers first said this is a Pay Grade 11, and the bailiff is a Pay Grade 10. We test everybody the same, up to a point, Towers stated. They all have to take a written examination; they all have to go through the oral board; they all had a little addendum they turn in for extra credit and then that's where it stops for the bailiff for the 10, he stated. The 11s also have to do a physical agility, Towers testified, that's deputy patrol and prisoner transport.

Towers was asked if in Naughton's case was this a promotional or a lateral move. That would have been a promotion because of the extra pay grade, Towers answered. Towers was asked if this position was a hire-fromwithin, or was it open to the general public to come in and apply. It's open to the general public, Towers answered. He agreed that the general public could come and apply and compete against Naughton for this position.

Towers was shown the document marked as Employer/Insurer's Exhibit Number 3, and Towers identified it as a promotional application that Naughton put in for the Prisoner Transport position. We don't make them fill out, if you're an employee already, a full blown app., Towers stated. You can just put a promotional app in, he said. Towers was asked, to be considered for employment as a prisoner transporter, what was required of all the applicants. All the applicants, Towers answered, they have to be certified by the State of Missouri since we're a Class A County, so that means they had to go through the Police Academy. And other than that they just have to go through our testing to be put on the eligibility list, he said. Towers was asked, if a candidate successfully completes all the tests is he or she guaranteed employment in that position. No, Towers answered. He was asked if the applicants for employment were considered employees of the County. No, ma'am, Towers answered. Towers stated that applicants are not entitled to any of the benefits of employment from the County. He was asked if there was any connection between Naughton's employment with the County as a bailiff and the injury that Naughton has alleged to have sustained on April 13, 2004. Not to my knowledge, no, Towers answered. Towers stated that there were no conditions or obligations of Naughton's employment as a bailiff that placed him in the position where he was injured.

Towers testified that the agility test takes place out at Blanchette Park. St. Charles County does not own Blanchette Park, Towers stated, that's one of the parks that the City of St. Charles owns, including Frontier and McNair and some of the others. Towers was asked if anything within Naughton's job duties as a bailiff required him to be at the park at the time that he was injured. No, Towers answered.

Towers agreed that they require all the participants to participate in the physical agility test for Prisoner Transporter. Towers was asked - Did you or anyone else in the Personnel Department request or encourage Naughton to pursue employment as a prisoner transporter? No, ma'am, Naughton answered. He was asked if anyone made Naughton apply to be a prisoner transporter to the best of his knowledge. Not to my knowledge, Naughton answered. Towers was asked if Naughton was obligated to take the physical agility test to keep his job with the St. Charles County Sheriff's Department. No, Towers answered. He was asked - Had Naughton successfully completed the physical agility test, were there any other conditions which he had to meet before he could qualify for the list that you were talking about before? No, Towers answered, because the physical agility was the last one that the scores came in. And he had already taken the written, Towers testified, he had gotten an 82 out of 100 on the written. He had already, with the addendum, the little bitty thing, Towers stated. He also got the oral board, which 60 is passing; he only got 66 out of 100, so all he had to do was pass the physical agility and he would have been on the eligibility list, Towers stated. Towers testified that after all the necessary tests had been conducted and completed that did not mean that Naughton would have been offered employment as a Prisoner Transporter. He was asked if the successful completion of the application process guarantees employment as a prisoner processor. No, ma'am, Towers answered. He was queried - At any time during the application process was Naughton promised employment in Prisoner Transport. Not to my knowledge, no, Towers answered. He was further queried - Even if he passed all the requisite tests? Naughton couldn't get it because even the Sheriff, or anybody else, who wants particular people to go over, it depends on where they fall on the eligibility list, Towers stated. The County, in 2004, our process was we agreed for each requisition they had they would get the top 5 candidates on that eligibility list, Towers testified, so if they did real well they would be on the eligibility list. If, let's say, there was two positions, we give 5 for the first one and 2 for the second one, so there's only 7 people, Towers explained. So you know if you're not in that top 7 you can't even be considered, regardless if the Sheriff wants it or not, he said. Towers was queried - Assume that the Sheriff didn't want it but a Sergeant Hatcher and a Sergeant Hollingsworth --. No, Towers responded, they have no say-so. Even Personnel has no say-so, Towers stated, it's just where you fall on the eligibility list.

Towers was asked how much did they pay the people who came and applied for that job. We don't pay them anything; nothing, Towers answered. He was asked if Naughton was fulfilling any of the duties and responsibilities as a bailiff when he was over at Blanchette Park. No, not to my knowledge, Towers answered.

It was noted that Naughton had testified that this was the Sheriffs County's obstacle course; Towers was asked if this was the Sheriffs County's obstacle course that Naughton had underwent. No, Towers answered. Initially, years ago, it decided that they wanted to have a physical agility test. The City of St. Charles had this physical agility test; this test at that time was out of lowa, and this company had it up there. So we would go and borrow the equipment from the City of St. Charles, Towers stated. Now the City of St. Charles doesn't even do it, so we kind of, by keeping of the equipment, have just kept the equipment for ourselves, and this test is now made up, or is now transferred to Charleston Police Department in South Carolina; they're the ones we send to to get our scoring done, Towers testified. He stated that he didn't really know the name of this testing company. I think PQ; I mean I dealt with them but I don't know what the thing stands for; American Physical Qualification, Towers stated.

Towers said that he did not know whether or not Naughton scored high enough on any of the tests to be on the eligibility list. He was asked to explain how the list is generated. I put everybody's name in the computer -- the first one is a written exam and that's worth 30 percent of the eligibility list, and then the next one, the addendum, and that's something that everybody kind of writes a paragraph, gives us his last two performance appraisals, things like that, Towers said. You get little points on that; that's worth 20 percent, he said. Then the physical agility score is the next one you put in and that's worth 15 percent; that's the minimal one, he said. And then the last one is the oral board that the Sheriff's Department handles, and that score is worth 35 percent, Towers said. Then once all those are in, we sort them, he stated. They're weighted depending on the percentages, and wherever you fall on the eligibility list that's where you're at, and we just go down, Towers stated. He was asked where was Naughton

on the eligibility list. Well, the eligibility list, since he didn't finish the physical agility -- I always get those scores last because if I have to send it down there and if they do it quick, sometimes it's quick, sometimes it's not; so I put all the scores in the eligibility list and I gave everybody a 150 on the physical agility just to see where they fell, Towers stated. And I do have a list somewhere that shows that there were 4 people; three of them didn't take it; I guess they didn't finish or something, because they still had 150 on my sheet, Towers said. He was ranked 38th, Towers stated. He was queried - And only the top 5 or 7 in this case --. Well, in this case there was one position, so it would have been 5, Towers explained. It might have got to 9 because you're on the eligibility list for a year, he said, so the people who took it prior to them was in October; they're still on the list. So the top 5 in October I might have sent over, and let's say they hired one, Towers stated, that means the next time those next 4 can go over, but it doesn't count on my 5. So I add 5 more, so it could have gotten down to Number 9. He agreed that this time Naughton wasn't in the top 10. Towers was asked if he knew whether or not Naughton reapplied. I do not know that, Towers answered. Agreeing that he had said the it was good for one year and then they would have to reapply, Towers noted that since then we have changed that, and I don't know how far it went back, but initially we only let the people try once a year. The Sheriff's Department has changed that and, let's say you flunk the written, the next time we can do it you can put in again. So it would have been possible he could put in again in September or October, whenever we did it again, Towers explained.

Towers was queried - Naughton was testifying earlier, and I kept asking him whether or not he was applying to be a Prisoner Transporter and he kept telling me no, it was a Pay Grade 11; what was the position that was up for bid? That one was Prisoner Transport, but he is right on one thing, Towers answered, it is an 11, same as a deputy. So you can get on this list and you could become a deputy or something. A deputy might may say, I want to go off the road and I want to be transferred in; that would be a lateral move then and then somebody would fill the deputy spot. So by rights it is a Pay Grade 11 but the position that was open was Prisoner Transport, Towers stated. He was asked - Were any of these applicants applying to be a Pay Grade 11 or were they applying for the position of prisoner transport? I can't speak for what other people -- what they put in, but the position that was open, there was no Deputy open; now some people will say I just want to get on the list because I'm on there for a year, so if a Deputy does open but, this one was for Prisoner Transport, Towers responded. Agreeing that this was a new and a different job that Naughton was applying for other than bailiff, Towers further stated - The duties are different.

Towers was asked if at the time that Naughton was taking this test when he got injured was he engaged in training to maintain his position as a Bailiff. No, ma'am, Towers answered. Towers was asked his understanding of the Sheriff's Department's practice, since he has been there, in allowing people to go and take this test. The departments, we know that we don't pay as much s other places and we want to keep as many good employees as we can, Towers stated. So if somebody like the Sheriff or our department or somebody else is a Pay Grade 7 and a Pay Grade 9 opens up in a different department, everybody is going to try to better themselves, so we let them go interview, come back, and probably 95 percent of them we don't charge them any time because we would like to have them, keep them in the County, Towers stated. And certainly in my department when we had a Pay Grade 7 try for a 9 in our own department, we didn't charge him comp time or anything; we want to try to keep him in the County, he said. If not, they'll leave us, Towers stated, so we don't want that. Towers was asked - Do you know whether or not anybody ordered Naughton to participate in this testing? To my knowledge, no, Towers answered, but I can't speak for -- you know, but no.

Agreeing that he personally puts this testing on every year, Towers testified we do it two or three times a year. And once we were shown how to do it by the City police, we set the cones up; it's not too hard, Towers stated. The maintenance people bring out like the horse and the dummies, and the Sheriff's Department really helps us run this because it just seemed a little bit better when all these people were trying to join our department to have the Sheriff and some Captains out there, and Sergeant Streck is the one who helps me run it, Towers said. Fortunately for my age, Towers said, I don't have to run the obstacle course and show them how to do it, so Sergeant Streck does that for me. Towers testified I'll be 64 years old in May (2008). He was queried - Has it been the practice since you've been in St. Charles County and in the Human Resources Department that anyone orders anybody to take any promotional tests? No, not to my knowledge, Towers answered. I mean I'm sure people will sit there and say, hey, there's a position over there; you might want to try it, Towers stated. But no, not to my knowledge, no, he stated. Towers said that Naughton was competing for a job against people both from within and

without the County employ.

Towers was asked if prior to engaging in the pre-employment physical agility test do they require that people get a medical clearance. There is a medical clearance that the doctor is supposed to sign, Towers responded, and on the back of it shows the four type events explaining to the doctor what type of events it is. He was asked if the heading on the medical clearance was pre-employment. (Reviewing the document, Towers said, that's it; PreEmployment Physical Agility Test. He was queried - So that is what any person applying has to undergo for Prisoner Transport for Pay Grade 11? And on the back it isn't here because we copied it but on the back is the four areas they have to do, so the doctor can read it, Towers responded. But everybody has to have a signed one of those or we won't let them go through the agility, he stated. Towers was asked if Naughton had one. It's been so long I'm sure he did, Towers answered.

On cross-examination by the claimant, Towers was queried if he had said that he didn't have any recollection of Naughton's injury. We have very few injuries, Towers responded. I don't remember him getting injured, Towers stated. Towers agreed that he was here to testify about the policies and procedures of the Personnel Department and the Human Resources Department at the St. Charles County Community.

Towers was asked if he knew in particular, with regard to the April 13th and 14 physical agility testing that was performed in connection with this opening, who scheduled those dates. We do in the Personnel Department along with the Sheriff's Department, Towers answered. If they need somebody quickly we'll probably do it quicker then, he stated. Towers agreed that he was familiar with the document marked as Employer/Insurer's Exhibit Number 3, the request for promotional/lateral consideration. It was noted the document had been filled out by Naughton, and that Naughton had testified it indicates his current position with the County would have been Sheriff Department Bailiff, Department of Court Services/Sheriff's Department; Towers was queried if this document would have been prepared in March or April of 2004. Probably; yeah, Towers answered. Towers stated that he would not dispute that Naughton was employed with the St. Charles County Sheriff's Department as a bailiff at that time. He stated that it was accurate that Naughton has been employed with the St. Charles County Sheriff's Department continuously from October of 2001 through the present, and this would have included the injury date that's been testified to of April 13, 2004. Towers was queried - And his salary was continued, wasn't cut off or any benefits denied him or other entitlements of an employee of the St. Charles County Sheriff's Department, denied him on the date he tested for this position. Not that I know of, no, Towers answered.

Towers was queried - The form marked Employer/Insurer's Exhibit 4, entitled St. Charles County PreEmployment Physical Agility Test, that test that Naughton took on April 13, 2004 he had indicated there were 12 testees, including himself and all but Naughton were non-employees of the County; is that your understanding or do you know? I do not know that, Towers answered. Towers agreed that anyone who came in off the street could apply for this position but they'd have to fill out this form. He agreed that Naughton, though, was actually an employee of St. Charles County Sheriff's Department on April 13, 2004.

He was directed to Employer/Insurer's Exhibits 1 and 2, the position descriptions; Towers was asked if he had testified those were revised and updated every year. Yeah, Towers answered, we just started that policy because sometimes it wasn't, you know. This has been going on for two three years the yearly updating, Towers stated, not very long. Towers was asked if he had those current position descriptions with him here that day. I don't know if I do or not, Towers answered, get my folder there. I printed some off; some of these may not have been changed since '96; that's our problem, Towers stated. I have them in March of 2007, Towers stated. Towers was queried - So they have been updated? Yes, he answered. At this point the document marked as Employer/Insurer's Exhibits Numbers 1 and 2 were substituted with the updated versions which were marked as Employer/Insurer's Exhibits 5 and 6. Towers agreed that he produced on this day of the hearing the updated position descriptions dated March of 2007. He stated, to his knowledge, those are the newest ones that have been prepared. But three of us broke up the four or five hundred jobs we had, Towers said, so I did not do the Sheriff's Department, but I would say that's the most updated one. Towers agreed that these position descriptions are prepared as sort of an overview to give an applicant for a position an idea of what would be required of them and to sort of give an overview for anyone within the departments.

Towers agreed, during cross examination, that Naughton did not, as of April 13, 2004, report to Towers directly. Naughton was not an employee of the Personnel Department, Towers said. He agreed that Naughton's main boss was the Sheriff of St. Charles County. He was queried - According to this position description for either the bailiff or the prisoner transport positions, Naughton reported to the sergeant who was Sergeant of the Court Services Department? That would be correct, Towers responded. And those underneath the Sheriff and the Sergeant Court Services would be Naughton's supervisors, Towers agreed. He agreed that Naughton and other employees, deputies of the Sheriff's Department, would be answering to Sheriff's Department employees, not the Personnel Department or Human Resources. Towers agreed that by definition, looking at either the old position descriptions, Employer/Insurer's Exhibits 1 and 2, or the new ones marked as Employer/Insurer's Exhibits 5 and 6, these are overviews of those positions and their duties and responsibilities. He agreed that in fact by definition, and within these documents, these listings of the essential duties and responsibilities are not to be construed as exclusive or all inclusive; he agreed that in effect they indicated that other duties may be required and assigned. Towers stated that he would assume that absent some violation of the law or the employee's rights, he would expect an employee of the Sheriff's Department such as Naughton to answer to and take orders and directions from his supervisors. Towers was asked, during cross examination, in addition to those essential duties and responsibilities listed in those exhibits, there are also set out additional tasks and responsibilities that are necessary for the work of the unit but are not an essential part of the position; is that correct? That's correct, Towers answered. He was asked if there is some overlapping of job duties or responsibilities that deputies such as Naughton might undertake that are not listed as a bailiff but he may undertake some of the duties that would fall under the prisoner transport. I don't have any knowledge of that; I don't see them doing their deeds everyday, so I couldn't say, Towers responded.

On redirect examination, Towers stated in his 15 years at St. Charles County he has never known of anybody being subject to discipline for not applying for a promotion. He was asked, in your tenure at the St. Charles County Human Resources Department and in your testing with the Sheriff's Department, have you ever heard of them ordering any of their employees to report to an obstacle course. No, I haven't, Towers answered. He was asked in your experience in the St. Charles County Human Resources Department, has any deputy been known to be assigned to take a test. Not to my knowledge, Towers responded. Such as the one that you were giving out on April the 13th, he was further queried. No, Towers answered. Towers agreed that he had testified earlier that there had been two other people who had been injured while they were undergoing the obstacle course testing. Towers were asked if those people received Workers' Compensation benefits from St. Charles County as a result of their injuries. No, neither one of them were employees of the County, Towers answered. Towers was queried Had they been employees of the County is there any provision that they were doing anything in the furtherance of their job duties? No, Towers answered. He was asked - When Naughton was undergoing the physical agility test was he completing or carrying out the furtherance of his duties as a bailiff for St. Charles County? No, Towers answered, none of those duties are required of any employee.

Additional documents in evidence were a form from the St. Charles County Personnel Department entitled Request for Promotional/Lateral Consideration (Employer/Insurer's Exhibit No. 3), and the form included the question - "1. Exact title of position for which you wish to be considered?". The form indicated that Naughton was making the request to be considered for the position of - Prisoner Transport. The form further indicated that Naughton's current position with the County was - Job Title: Sheriff Dept. Bailiff, and Department: Court Services/Sheriff Dept.. Additionally, in evidence was a form entitled St. Charles County Pre-Employment Physical Agility Test, Applicant Disclaimer and Medical Clearance For Participation, which was described as/reflected signed by the Claimant on March 20, 2004 (Employer/Insurer's Exhibit No. 4). This pre-employment physical agility test form further included the signature of a Dr. Montgomery, M.D (signed on March 21, 2004) indicating that Naughton was physically fit to take this test. Also in evidence were copies of Position Description for a Prisoner Transporter with the Sheriff's Department of the St. Charles County (Employer/Insurer's Exhibit No. 1 and 5), and Position Description for a Bailiff with the Sheriff's Department of the St. Charles County (Employer/Insurer's Exhibit Nos. 2 and 6). In reviewing these two Position Descriptions, it is found that they list separate duties for each position, with some overlapping of duties; neither Position Description lists as a job duty undertaking a physical agility test with jumping over a barricade in Blanchette Park.

It is found that the substantial weight of the evidence does not support the claimant's allegation that when he

injured his ankle on April 13, 2004 he was not applying for a different job with St. Charles County Sheriff's Department, but rather was applying for a different pay grade with St. Charles County Sheriff's Department as a directive or a normal course of his employment with the St. Charles County Sheriff's Department. The evidence reveals instead, it is found, that at the time of the April 13, 2004 event and injury, Naughton was in the process of performing application requirements for a different job with St. Charles County that had different job duties than his present job; that he was applying for a promotion from the position of Bailiff, pay grade 10, with St. Charles County Sheriff's Department to the position of Prisoner Transport, pay grade 11, with the St. Charles County Sheriff's Department. It is found that Naughton admits and Towers corroborates that when Naughton was undergoing the physical agility test on April 13, 2004 he was not completing or carrying out the furtherance of his duties of his employment as a bailiff for St. Charles County. There is no evidence, it is found, indicating that undertaking the physical agility test was a duty of any employment of any employee with the St. Charles County Sheriff's Department.

Again, it has been found that at the time of the April 13, 2004 event when the claimant injured his left ankle, the claimant was an employee of St Charles County as a Bailiff. It is further found that the substantial weight of the evidence establishes that the claimant was not employed with the St. Charles County as a Prisoner Transport at the time of the April 13, 2004 injury, but was in the process of applying for this position with St. Charles County, and in fact, was never offered the position of prisoner Transport. It is found that the substantial weight of the evidence does not support the claimant's allegations that the application process of jumping over barricades, the activity he was doing when he got injured on April 13, 2004, was a job duty of his in the St. Charles County Sheriff's Department as a bailiff. Rather, the substantial weight of the evidence establishes that the application activity the claimant was involved in when he got hurt on April 13, 2004 was a personal decision by the claimant to seek a promotion, a personal advancement, in the department in which he worked; a noble endeavor, but found not to be an endeavor or activity in furtherance of his job duties and obligations as a bailiff for the St. Charles County Sheriff's Department. There is no testimony or other evidence that jumping barricades was part of the duties of a bailiff, the claimant's position at the time of this event; the evidence reveals that the activity was an application process that any one, including members of the public, could and would be involved in in the application process for a position with St. Charles County, in this case the position of Prisoner Transport. Consequently, it is found that the event the claimant was involved in on April 13, 2004 when he injured his left ankle, that activity being undergoing a physical agility test in Blanchette Park during a job application process for a promotion, is found not to be an activity in the furtherance of the employer's business of bailiff for the Court services; it is found that this April 13, 2004 event was not in the course of the claimant employment as a bailiff.

It is found that as jumping over barricades in the application process was not a job duty for a bailiff, the claimant's April 13, 2004 injury did not result from a hazard connected to the conditions of the claimant's employment. Thus, it is further found that the April13, 2004 injury did not arise out of the claimant's employment as a bailiff for St. Charles County sheriff's Department.

Consequently, it is found that the substantial weight of the evidence does not establish that the claimant's April 13, 2004 left ankle injury arose out of or was in the course of his employment. Compensation is therefore denied.

Costs for a frivolous claim has been put into issue. Section 287.560 RSMo 2004 sets forth the parameters under which costs can be assessed: "....if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them." In the instance of the certain issues, such as were presented in this case, the Courts have consistently noted the following:

"Every case involving the phrase 'arising out of and in the course of employment' should be decided upon its own particular facts and circumstances and not by reference to some formula. Brenneisen, 806 S.W.2d at 445 (citing Wamhoff v.Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 917 (banc 1945))." Hilton v. Pizza Hut,

"Each case involving whether an accident arose out of and in the course of employment must be decided on its own facts and circumstances, by applying the relevant principles and not by reference to some formula, or by attempting to group compensation problems by fact categories. Page, 686 S.W.2d at 533." Jordan v. Farmers State Bank of Texas County, 791 S.W.2d 1, 3 (Mo.App. S.D. 1990)

It is found that the case herein presented a sufficient factual situation (with some disputed facts) to warrant a controversy over the compensability of the event in question. It is found that the facts of this case support both a filing for workers' compensation benefits and a defense against that filing. Consequently, costs are denied.

In light of the above findings in this Award, the remaining issues are moot.

James Naughton, the claimant, testified that he is 63 years old. My current address is in O'Fallon, Missouri, Naughton stated. I am currently employed with the St. Charles County Sheriff's Department, the claimant said. I started the St. Charles County Sheriff's Department on October 15, 2001, Naughton stated, so l've been with them for approximately 7 years. The claimant agreed that he has been continuously employed with this employer since October of 2001. Naughton agreed that it is fair to say that he was actually employed with St. Charles County Sheriff's Department on April 13, 2004. My position with the department as of April 13, 2004 was a bailiff assigned to the Courts, Naughton said.

Naughton agreed that he had seen the document entitled St. Charles County Position Description for Deputy Bailiff, which was noted to be marked as Employer's Exhibit 2; he agreed that it fairly and accurately describes his regular duties on April 13, 2004.

Naughton agreed that he actually reported to work on April 13, 2004 with the St. Charles County Sheriff's Department, and agreed that it was a regularly scheduled workday for him. My regular hours that day were 8 A.M. to 5 P.M., Naughton stated. At the time of the April 13, 2004 incident I was salaried, not hourly, the claimant said. My yearly salary as of April 13, 2004 was approximately $\ 34,000 a year, Naughton said. He was asked if he remembered how long he had been paid at that salary rate. I remember we probably got a raise in January, Naughton stated, so approximately, four months. I'm assuming we had a raise in January of that year, he said. Naughton agreed that it was his understanding that in January of 2004 he received a raise and were placed at a salary rate of $\ 34,000 per year. Naughton agreed that he was potentially eligible for a promotion to a Patrol Deputy position, and that would be an increase in his pay level. From Pay Grade 10 which was a Court Bailiff to Pay Grade 11 which is Patrol, he explained. It was noted that in Employer's Exhibit 2 the position description for Deputy Bailiff Court Services indicated Pay Grade 9; Naughton was queried if he was actually at a Pay Grade 10 at that point in time. Agreeing that he was, Naughton explained that they had upped them from a 9 to a 10. He agreed that it was with the same basic duties he had had previously. He agreed that as a part of his eligibility for this potential promotion in pay grade and position, there were certain tasks that he had to complete, an evaluation of sorts. I did not have to complete any sort of a written test or evaluation, Naughton said, that was done when I initially applied as a bailiff; it's the same written test. Agreeing that what he had to undertake was a physical agility testing, Naughton said that that was the only difference. I was not responsible for scheduling the physical agility testing, he said. Explaining who scheduled this, Naughton testified the department came out with two dates, and we were able to attend one of the two dates. He was asked if he had made the determination as to his having gone out on April 13, 2004 to do the physical agility testing. No, Naughton answered.

Someone instructed me to do this on that date, he said. I was on duty when I was instructed to go take that physical agility test, Naughton stated. The physical test was 1 P.M. in the afternoon. He was asked - about what

time during your workday were you told to go do this? Probably it was that week, Monday, Naughton responded. What would that be, the 12th; that I was going to take it the next day which was the 13th, he stated. He was queried if they had told him he was going to do it at 1:30 on the following day. They set it for 1:00 at Blanchette, Naughton answered. He agreed that this is where this testing regularly took place. He agreed that it's on a County Sheriff's Department obstacle course. Agreeing that the obstacle is maintained by the department, Naughton further stated that they set it up and supervise it. He agreed that this testing is supervised by department heads. It was my immediate supervisor, Sergeant Hatcher, Dave Hatcher, who told me on April 12th that I was to report to the Blanchette obstacle course the following day, Naughton stated.

Naughton agreed that he followed Hatcher's instructions on April 13th. I headed out there at approximately 12:30, Naughton stated. Naughton agreed that he had stated his regularly scheduled work hours that day were from 8 A.M. to 5 P.M.. He agreed that he had worked his regular duties from 8 A.M. until 1:00. Naughton agreed that he was paid by the County during that time, and agreed that he continued to be paid by the Sheriff's Department for the remainder of the day, including the time he was at the course.

There were other people being tested when I was out there, Naughton stated. He was asked if there were other people testing for the agility test who were presently employees of the department as he was. I was the only one from St. Charles County, Naughton answered. There was other participants from other departments who were in the course of applying for position 11, Naughton stated.

Naughton testified about what happened when he was performing this test. I was running the obstacle course which was set up in the gymnasium and I jumped over a stationary wooden horse barricade and came down on my left ankle, twisting it, Naughton stated. He was asked if it was his belief that he was injured at that time. Oh, yes, Naughton answered. There were witnesses to this event, Naughton said. I know I remember Captain Kaiser, Dave Kaiser, from the Department, Naughton testified, and there were several patrol officers which I didn't know who they were but they were in training uniforms.

I reported the injury at that time, Naughton said. At that time, after the injury my ankle was painful, sharp pains, Naughton stated, and I proceeded to continue with the course until the completion of the time. He agreed that he completed the physical agility test. He was asked if he had requested medical attention at that time. I showed my ankle to some of the people standing around and continued with the final phase of the testing, which was a 2minute run outside, Naughton responded. And then we were released and I came back to the courthouse, he said. He was asked if was having problems with the ankle while he completed the rest of that testing. It was throbbing hurting, Naughton answered, by the time I completed the running course it was quite swollen. Agreeing that he did return to the courthouse, Naughton further stated that he showed his supervisor, Sergeant Hatcher, his ankle. He was asked if it had been his understanding that he was on the clock from 8:00 to 5:00 and that he was in fact supposed to return to the courthouse after the testing. That was the understanding, Naughton responded, I was to return, yes, sir.

Naughton was queried - when you returned and had this swelling in the ankle did you request medical attention at that time? Yes, I did, Naughton answered. I showed Sarge, Sergeant Dave Hatcher my supervisor, and he agreed that I should get immediate attention by some medical people, Naughton said. The claimant was asked what had Hatcher told him in response to his request for medical attention. Hatcher sent me immediately to our emergency care open 24 hours that our Department used at the time, Naught stated. He agreed that this was the SSM Corporate Healthcare. Naughton was queried if this was medical treatment that he had requested, that he had chosen the facility. No, Naughton answered, it's the one the department had; that's who they use. Naughton agreed that it was his understanding that's where they sent folks that were hurt on the job.

He was asked what time did he report at SSM Corporate Healthcare. I would guess around about 2:00, 2:30, Naughton answered. I know they took some x-rays, he stated, and they gave me some kind of a splint to put on and gave me some crutches. My complaints when I reported to SSM Corporate Health Services was just the pain in the ankle, swelling, Naughton said. He was asked if there was any discoloration in his ankle at that point. In a small area it was a bluish, starting where the blood was settling, Naughton answered. This was on the bottom half of the left ankle underneath the bone, he stated. He was asked if they had placed any restrictions on him. Told me to take several days off, three days, and seek further help through my own physician if the pain continued, and

elevate the foot at home, ice it, and use crutches if I had to walk, Naughton answered. He agreed that some type of ace bandage was put on his ankle at that time. Naughton stated that he did not know what the x-rays that were taken at that time showed.

Naughton was asked if he had continued to have problems after April 13, 2004 with the ankle. It swelled overnight quite a bit even with the ice on it, he answered. I contacted my personal physician, Peter Montgomery, and he said come on out, and he looked at it; I went to see him, Naughton stated. My complaints when I saw Dr. Montgomery on April 14 were just basically the pain, the throbbing, the swelling, Naughton said, and at this time it was turning pretty black and

blue. Dr. Montgomery felt around and it was very tender, and he said you got a real bad sprain, Naughton stated. He was asked if Dr Montgomery had any recommendations or placed any restrictions on him. The doctor agreed with what I told him the urgent care did - medicine, aspirins, and use crutches if I had to get around, Naughton answered. Dr. Montgomery suggested that I stay off work for at least 3 days, like they had told me at the urgent care, Naughton said. Three to 4 days depending on swelling; the pain would then subside, he said. Naughton noted that the day of the week when the April 13, 2004 injury happened was a Tuesday, Tuesday afternoon. Naughton agreed that he was scheduled to work at that time on Wednesday, Thursday and Friday, and then to have off the weekend. I did not work on Wednesday, Thursday or Friday, Naughton said. He agreed that he had returned to work on Monday. The claimant was queried - Given that you were only out three days, you weren't paid any work comp benefits for temporary total disability during those three days? No, Naughton answered.

I continued to have problems with the ankle after I saw Dr. Montgomery on April 14, 2004, Naughton said. The swelling eventually went down but I was on crutches at work, Naughton testified. I took the crutches in to work and they assigned me at the lobby area, a desk job basically, so I didn't have to stand on the ankle and maneuver, Naughton said.

Naughton stated that he recognized the exhibit marked as Claimant's Group Exhibit C, and stated that the four photographs depicted his left ankle. These four photographs of my ankle were taken on the 15th of April, Naughton said, and agreed that the date was printed on the photographs. My wife took these photographs, Naughton said. They were taken just to show the discoloration and the pain, possible swelling, Naughton said. He agreed that in these photographs you can see some discoloration and purplish bruising. What else you can see in that photograph that is relevant for the Court's purposes is just the swelling at the time, which was two days after the actual injury occurred, Naughton stated.

It was noted that Naughton had said that eventually the swelling subsided; he was asked if he had continued to have, into the future, problems with swelling or pain in the ankle. Stating that he had, Naughton testified I used to run, and I tried running sometime later on within a month afterwards. It would swell after I tried to run, so I quit running, he stated. You get up after walking an 8 to 5 day, and walking around that evening it would be swollen, Naughton said. Agreeing that he had indicated that, previous to April 13, 2004, he had run for exercise purposes, Naughton further said, to stay in shape. I would do this three times a week if I could, weather permitting, he said. He agreed that he was able to do this with his ankle prior to April 13, 2004. I have not been able to do this since that date, Naughton said. He was asked if there were other activities that he took part in prior to April 13, 2004 that he is no longer able to because of this ankle injury. No, Naughton answered. I'm just more careful if I have to run or go up steps and stuff, he said, just more cautious with the ankle. It feels weak at times, you get a week feeling, he stated. With cold weather, winter time, you get more aches than you do in hot weather it seems like, Naughton stated.

The claimant was asked if he had ever had any injuries to his left ankle or problems with his left ankle prior to April 13, 2004. Well, a long time ago in high school I played basketball; I played sports, Naughton stated. I remember having a couple twisted ankles on the basketball floor, he said. Nothing disabling; I continued my varsity basketball and baseball, Naughton testified. But it's the only thing I remember years ago when I was in high school, he said. No ankle breaks or fractures, Naughton stated. No injuries to my foot that required any medical treatment of any significance, Naughton stated. I was always agile in sports, he said. He agreed that he was able to run and participate in sports in the years subsequent to high school and prior to April 13, 2004.

Naughton agreed that as indicated in Claimant's Exhibit A, he saw Dr. Raymond Cohen on October 22, 2004 at the request of his former attorney prior to his former attorney's passing. With regard to my ankle at that time, Dr. Cohen said it was tender, Naughton said. The doctor could tell it was still bruised; the swelling, if I remember right, had somewhat gone down, Naughton stated. Unless I walked a lot it wouldn't swell otherwise, Naughton said. But the doctor said there was no breaks or anything, just a real bad sprain from what the doctor could determine, Naughton said. It was noted that in Dr. Cohen's report of October 22, 2004 where the doctor discusses the history of Naughton's primary work-related injury the doctor indicates, quote - "He denies any prior similar complaints except a twisting injury in high school playing basketball". Dr. Cohen states that he recovered from that without any sequelae. Naughton was queried if there was a specific injury he had in high school playing basketball. No, Naughton answered. I just remember on the court twisting in high school, just having an ankle sprain, Naughton answered, but there was no hospitalization and I continued playing basketball the next day or two. I do recall having a twist underneath the basket, he said. It was noted that on October 22 of 2004 when Naughton visited Dr. Cohen, the doctor's examination notes indicated diffuse tenderness of the left ankle, moderately tender laterally, increased discomfort with inversion; Naughton was asked if this sounded like the complaints he remembered having as of October of 2004, some six months after this accident. Yes, Naughton answered. He stated that he somewhat remembered the visit with a Dr. Craig Aubuchon on March 30, 2005, almost a year after this injury, at the request of the Employer, the St. Charles County Sheriff's Department. He agreed that he did not seek Dr. Aubuchon for treatment. Naughton agreed that it was his understanding he was sent there to be evaluated by Dr. Aubuchon on behalf of the Employer. It was noted that Dr. Aubuchon indicated in his report of March 30, 2005, that Naughton continued to have ongoing pain after this injury, unable to run due to the pain in the ankle, problems walking, ankle still swells; Naughton was asked if this was his recollection of how he felt with regard to the ankle in March of 2005. Yes, Naughton answered. It was noted that Dr. Aubuchon's record talked about a recommendation of physical therapy; Naughton was queried if anyone ever provided physical therapy for the ankle. I don't recall any follow-up like that, no, Naughton responded. It was noted that Dr. Aubuchon's report of March 30, 2005, in the

physical examination notes, indicates slight swelling of the left ankle compared to the right, tender on palpation of the ankle, pain behind the fibula, and at times Naughton get some tingling with decreased sensation of the ankle. Naughton stated that this met with his recollection of the complaints he had to Dr. Aubuchon in March of 2005. Naughton stated that he remembered Dr Aubuchon talking about his impression that Naughton's post left ankle sprain was slight swelling and atrophy of the calf. Dr. Aubuchon did not indicate to me what this was indicative of, Naughton said, the doctor just brought it to my attention when he was doing a physical exam. Naughton stated that he recalled what Dr. Aubuchon had indicated, that Naughton had some discomfort when he tries to run.

Naughton testified about the present state of his left ankle. It still swells at times if I walk a lot, he said. And like I say I tried running and I just gave that up trying to exercise by walking, and the swelling comes up at times. Occasional pain, like I say, with the weather; seems like the worst is in the winter and cold weather, Naughton stated. And as far as my duties go, if I stand a lot in the courtroom I have to sit a little bit, he said. Just discomfort, Naughton stated. Take a pain pill, Anacins or something like that, it kind of subsides, Naughton stated. He agreed that he had indicated it's affected his physical activities. Naughton agreed that the complaints that he talked about, the problems he still has with his ankle today, those are a result of the injury at work on April 13, 2004.

Naughton agreed that, in regards to his employment on April 13, 2004, from October of 2001 when he was first hired by the department to the present date he has received regular wages from the Sheriff's Department. He agreed that it is his understanding that he was an employee of that department during that period of time, which would include April 13, 2004. Agreeing that there are certain benefits that employees of the St. Charles County Sheriff's Department are entitled to, Naughton noted that these included medical, vacation, sick time, overtime. He agreed that he has been eligible for receiving these benefits from October of 2001 to the present date. The claimant was asked if he had ever been issued a bill from SSM Healthcare Services or asked to pay them for any of the medical treatment he had received when he was sent there by the department. I did receive a bill and I gave it to my supervisor, Sergeant Hatcher; I assumed it was covered, Naughton said. I have not seen or heard anything of it since that time, he said. Naughton was asked if anyone within the St. Charles County Sheriff's Department indicated to him that they did not believe him to be an employee of the department on April 13, 2004. No, Naughton answered.

Mr. Naughton was queried - other than having been instructed by your supervisor to participate in this physical agility testing on April 13, 2004 would you have had reason in your normal everyday non-employment life to have been on this obstacle course? No, Naughton answered. He was asked - other than your position with St. Charles County and your desire to move up in position and pay grade was there any other reason you would participate in this physical agility test? No, Naughton answered.

On cross-examination by the employer/insurer, Naughton agreed that he came to work for the County on October 15, 2001 as a bailiff. He was asked if he had applied to be a bailiff or a patrol deputy. I applied for both of them, Naughton answered, there's three positions under the same testing. He was asked - which did you apply for, did you apply for both? On the application it didn't distinguish, Naughton responded. It was one of the three which would open up and be available, the claimant said. Naughton agreed that he was hired as a bailiff. He agreed that at the time he was hired it was a Pay Grade 9. Naughton was queried - On April 13, 2004 you made \31,550 a year as a bailiff, isn't that correct; you made \ 665 a week? I believe in that area, yes, Naughton answered.

Prior to being a bailiff for St. Charles County I worked for the St. Louis County Police Department, Naughton agreed, and I retired from there. He agreed that he received a pension from the St. Louis County Police Department. Naughton was asked if it was correct that prior to April 13, 2004 he had injured his left lower extremity. No, Naughton answered. He stated that he had not injured his right lower extremity prior to April 13, 2004. Naughton was queried - Are you aware that when you went to SSM Corporate Health they took an x-ray of your ankle and found a chip fracture? One doctor mentioned a chip, yes, Naughton responded. He was queried So you told Dr. Cohen that you didn't have any prior similar complaints, yet there is a chip fracture located on the xray? I had no complaints, Naughton responded, never did bother me. I don't know how the chip fracture got on my ankle, Naughton said. The only thing I could think of when he asked me about chips was the basketball injury in high school, 1963, Naughton further stated. Naughton testified that he also was not aware that when he was xrayed on April 13, 2004 it revealed an old healed fracture. He was asked which treatment did he receive for his left lower extremity prior to April 2004. None, Naughton responded. No treatment to my right lower extremity prior to 2004, he said. I have not received treatment for my left lower extremity since April 2004, Naughton stated.

Naughton agreed, during cross examination, that after April 2004 he was not reassigned from his position as a bailiff. Naughton agreed that after April 2004 he didn't miss work because of his ankle. He agreed that after he fell on April 13th he was sent to SSM Corporate Health. Naughton agreed that he was given a prescription for something; he agreed that he was diagnosed with a sprained left ankle.

During cross examination, Naughton was queried - When you injured your ankle you were completing a new different job test; you were applying for a different job with St. Charles County, isn't that correct? Not job, a pay grade, Naughton responded. There was no particular job opening, he said. The claimant was asked if it was his testimony that he was applying for a job opening that didn't exist. No, Naughton answered. What they do, for the job I was looking for, which was not open at the time, was a Pay Grade 11, he said. Naughton was asked - And that position was? Would be patrol or transport, he answered. What they do, they compile a list of eligible participants, Naughton explained. He agreed that you have to apply to be on that list. The claimant agreed that he competes with folks who work for the County, like park rangers, corrections. Lower paying, he noted. Naughton agreed that he also competes with folks who don't work for the County. He was queried - You also compete for this job as prisoner transporter with folks who never have had on an officer's uniform ever; for example, your attorney could go and apply for this, isn't that correct? If there is an opening and they put it out, yes, Naughton responded. It was noted that Naughton had said they were compiling a list; he was asked if it was correct, then, that his attorney, the judge and even the employer/insurer's attorney could go and apply for the opening, for the Pay Grade 11 of prisoner transport. If there was an opening they could, Naughton answered, if they just want to apply for a Pay Grade 11 they could. Naughton was queried - When you were applying, taking this agility test, were you performing any duties whatsoever as a bailiff? No, Naughton answered, because the bailiff is a Pay Grade 10.

Naughton was asked if the following was the duty of a bailiff - announce the opening and closing of court sessions. That is a duty of a bailiff, Naughton indicated. He was asked - When you were down there at Blanchette park did you announce the opening and closing of a court session? No, there was no court, Naughton responded. It was

noted that another of the duties of a bailiff was to maintain order in the courtroom; Naughton was asked if he was maintaining order in Blanchette park? Well, if there was a disturbance I would, Naughton responded. He admitted that when he was there on April 13, 2004 he was not maintaining order in the courtroom at Blanchette park when he was taking that test. It was noted that Naughton in his bailiff duties searchs articles brought into the court suspected of containing contraband; he was asked if he was doing that job duty when he was testing in Blanchette park. No, Naughton answered. It was noted that Naughton as a bailiff summons witnesses to testify; he was queried wasn't it true that he didn't call anybody out there at Blanchette park to come in and testify. No, Naughton admitted. It was noted that another of Naughton's bailiff duties is to locate and summon attorneys; he was queried isn't it true that he didn't locate any attorney out there at Blanchette park at 1:00 that afternoon. No, Naughton answered. Naughton agreed that he didn't request any incarcerated persons needed for court while he was in Blanchette park at 1:00 on April 13, 2004. He stated that he didn't schedule any incarcerated persons for court and hearings while he was at Blanchette park. Naughton stated that he did not conduct a visual search of the courtroom prior to the morning session, afternoon session, recess and adjournment while he was in Blanchette park. He stated that he did not set up equipment while he was in Blanchette park that was needed for court presentations. I did not request additional personnel for high security trials while he was in Blanchette park on April 13, 2004 at 1:00, Naughton said. I did not restrict access to secured hallways and office areas while I was in Blanchette park, Naughton stated. The claimant agreed that these were the essential duties or responsibilities as laid out in Employer/Insurer's Exhibit Number 2 that he is supposed to do as a bailiff for St. Charles County. Naughton agreed that these are the essential duties or responsibilities he is supposed to carry out for St. Charles County Government in order to receive his paycheck. He was asked if he had taken custody of any persons at Blanchette park to arrest them on April 13, 2004 at 1 P.M.. No, Naughton answered. He stated that he did not assist any attorneys with appropriate forms needed for the court proceedings in Blanchette park. Naughton agreed that these too are all essential duties and responsibilities that he has as a bailiff. It was noted that Naughton also announces the names of those cases to be heard next and he advises the Judge of those persons who are not present; Naughton admitted that he did not do this at Blanchette park. I did not seat the plaintiff and respondent at counsel table before the hearing while I was at Blanchette park, Naughton stated. I did not keep track of case dispositions while I was out there at Blanchette park running the obstacle course, he said. Naughton admitted that he did not post the docket for the day's trials at 1:00 while he was out there at Blanchette park. He stated that he did not provide additional seating for jurors out there at Blanchette park. Naughton was asked if there were any jurors out there at Blanchette park. I didn't see any, Naughton answered. I did not return all Court Exhibits to the attorneys out there at Blanchette park when I was supposedly working, Naughton said. I was not assigned to protect the public at natural disasters and public emergency sites such as tornadoes, riots, floods or earthquakes on April 13, 2004 at 1:00. I did not transport and escort any prisoners out there at Blanchette park, Naughton stated. He admitted that he did not maintain order in the courthouse and the immediate area while he was out there at Blanchette park. I did not assist the general public with information and directions, he said. Naughton was asked if he had requested any maintenance while he was out there at Blanchette park. Naughton was queried What job duty were you actually doing while you were out there at Blanchette park on April 13, 2004 at 1:00 then? (There was no response). Naughton was again queried - I can show you the list if that would help you figure out which job duties you were performing; were you performing any job duties while you were out there? No, Naughton answered. Naughton was queried - When you injured your ankle you were competing for a new, a different job; isn't that correct? Yes, Naughton answered. He agreed that he was competing for a promotion. He was asked - Isn't it correct that you were not engaged in training for your position as a bailiff? As a bailiff, no, Naughton responded. He was queried, the Blanchette park where you performed this obstacle course, isn't it correct that St. Charles County does not own Blanchette park, that it is a city park? I don't know, Naughton answered. He was queried that he had testified previously that that was a County park. No, Naughton answered, I said that's where they do their testing for the department. I don't know who owns it, Naughton said. Naughton admitted that he was not aware that St. Charles County does not own that property. He said he was not aware that the City of St. Charles owns that property.

During cross examination, Naughton was queried - No one in your chain of command ordered you to participate in this agility testing, did they? Well, yes, Naughton answered. Sergeant Hatcher ordered me to go and participate in this agility testing, Naughton stated. Naughton was queried - You had requested to go and participate; isn't that correct? Yes, he answered. Naughton agreed that Sergeant Hatcher didn't just pick him out of all the deputy bailiffs in the courthouse and tell him to go down there and train for this. Naughton was queried - Isn't it correct

that he had applied, so Sergeant Hatcher was allowing Naughton to go down there and test? When time permitted, which was that particular date, yes that's correct, Naughton responded. The claimant was queried - You were not necessarily ordered to go at that time to fulfill your duties as a bailiff; were you? Wasn't ordered as a bailiff, Naughton responded. He agreed further that no one told him that in order for him to maintain his position with St. Charles County, to stay employed with the St. Charles County, that he needed to engage in this obstacle course. Naughton agreed that he was competing for a job against the public.

Naughton was asked, during cross examination, prior to engaging in the pre-employment physical agility testing, he was required to provide St. Charles County with a medical clearance. Probably so, yes, Naughton answered. The claimant was shown a document described as marked as Employer/Insurer's Exhibit 3; Naughton was asked if he could explain what the document was. Request For Promotional/Lateral Consideration Application, Naughton answered. He agreed that it was his writing on that form. He was asked if he had submitted this form in order to take the agility testing on April 13, 2004. This form, no, Naughton answered. Explaining why he had submitted this form, Naughton testified for request to be considered for lateral considerations; being the supervisor from St. Louis County, to see if they would accept lateral, which some departments do, for the position of Pay Grade 11. He agreed that it also said - Request for Promotion, and further stated because it's a 10 going to 11, correct. Therefore, Naughton further agreed, the bailiff is a 10 going to 11, which is the prisoner transporter. Naughton was shown a document described as being marked as Employer/Insurer's Exhibit Number 4; he was asked to identify the document. I'd say Pre-Employment Physical Agility Test Disclaimer, Naughton responded. He agreed that he his signature was on this document. Naughton was asked if he had asked Dr. Montgomery, his primary care physician, to sign the document identified as Pre-Employment Physical Agility Test Disclaimer. He had; he had to authorize whether I was physically healthy to take this particular test and, yes, he signed it, Naughton responded. He was asked if Dr. Montgomery had signed this document at Naughton's request. If he thought I could, yes, Naughton answered. The claimant was further queried if he had requested Dr. Montgomery to do it. To look at the form and see if he would sign if I was physically fit to take the test, yes, Naughton responded. It was noted that the document marked as Employer/Insurer's Exhibit Number 4 was the Medical Clearance, and that it stated that Naughton knows his own physical abilities and limitations and that he is capable of involvement in that portion of the hiring process; Naughton was asked if this was correct. Yes, Naughton answered. Naughton was queried - This agility test where you were injured was a part of the employment process; isn't that correct? I'm not clear what you mean by employment, Naughton responded, I was employed already. He was queried - You were employed; you were going for another job, isn't that correct? Another pay grade, Naughton answered, there was no particular job, but, see, we're getting confused with pay grades and jobs. I was going for a Pay Grade 11, Naughton further stated. He was queried - Which was a different job than the job of a prisoner transporter; showing you a document marked as Employer/Insurer's Exhibit Number 1, isn't this what you were applying to be at the time that you were injured? Yes, Naughton answered. Naughton was queried - And this is what is on your request for promotional/lateral consideration; each title for position which you wished to be considered; Prisoner Transport? Which is one of the three Pay Grade 11s, yes; that's correct, Naughton answered. He was asked - So you were applying for another job; the job duties of a prisoner transporter are not the same as a bailiff, isn't that correct; for example, as a bailiff do you handle the complaints made by the public during the processing of a prisoner? But we do both jobs, so yes, I do even though I'm a 10, Naughton answered, we do some of the transport jobs.

Naughton stated, during cross examination, that there are times he identifies, collects and processes, packages physical evidence. He was asked if he had done this as a part of his job duties or as the essential functions of his job duties and responsibilities as a bailiff. As a bailiff, no, Naughton answered. He agreed that he arrests offenders, including subduing resistive arrestees, as part of his duties as a bailiff. Naughton stated that he seeks and serves arrest warrants as a bailiff if they come to us in court. Naughton agreed that Employer/Insurer's Exhibit Number 2 is all inclusive of his essential job functions and duties as a bailiff. The claimant noted that in Employer/Insurer's Exhibit Number 2 it talked about transporting people. So, there is additional duties on Page 2, Naughton stated. He stated that what it said on Page 2 was - Transport and escort prisoners. He was asked if he was doing this at 1:00 in Blanchette Park. No, Naughton answered.

Naughton agree, during cross examination, that the agility test was a portion of the employment procedure he had to do to qualify to be on the list to be a Prisoner Transporter, Pay Grade 11. He was asked what other

tests did he have to do; did he have to do a written, an oral? The next step would be an oral, Naughton answered. Written was done by my original employment, he further sated, it's the same test. He was asked if he would had to do a written or an oral this time. I would have had to do an oral, Naughton answered. He stated that he did not do an oral. I was asked to put in the oral board; to take the oral board was for a patrol position, Naughton stated. I did not do this, Naughton stated. Agreeing that this is also a Pay Grade 11, Naughton further stated it's three Pay Grade 11s. That's what I tried to explain earlier, he testified, it's just not transport. He agreed that he was specifically applying to be a Prisoner Transporter according to Employer/Insurer's Exhibit Number 3. When an opening was for Prisoner Transport I would have been asked to do the oral board, Naughton stated. He was asked if it is true that as a bailiff he does not have to certify or recertify to keep his position. No, that's not correct, Naughton stated, we certify. We are post trained, he said, we have to keep our certification up same as patrol. Naughton stated that he does not have to do any agility testing in order to maintain his certification.

During cross examination, Naughton was queried - No one from the County told you to seek treatment from Dr. Montgomery, your primary care physician; isn't that correct? No one from the department, he responded. He was queried - No one from St. Charles County told you to go there; isn't that correct? Just the urgent care doctor that St. Charles County uses, told me, Naughton responded. Naughton stated that he did not know whether or not that doctor worked for St. Charles County Government. They're probably under contract for services, he stated, but I don't know.

I saw Dr. Montgomery one time for my ankle, Naughton said during cross examination. He agreed that Dr. Montgomery did not place any restrictions on his work. Naughton agreed that after the initial three days he didn't miss any additional work due to the ankle. He agreed that since April of 2004 his evaluations have exceeded satisfactory. The claimant was queried - You don't limp now; isn't that correct? Not all the time, Naughton answered. There are times when I detect a small limp, he further stated.

During cross examination, Naughton was queried - Did anyone at the County request that you to pursue the position of prisoner transporter? Yes, Naughton answered, Sergeant Hatcher and Lieutenant Hollingsworth who were my supervisors at the time, and Lieutenant DeWitt. He was queried, wasn't it correct that Hatcher and Hollingsworth are no longer in the employ of the County. They're not, but DeWitt is, Naughton answered. Naughton was queried - The job duties and responsibilities of a Bailiff are unrelated to, and separate from, a Prisoner Transporter as set out in Employer/Insurer's Exhibits 1 and 2; isn't that correct? No, Naughton answered. Naughton agreed that he is assigned to Judge Cunningham. He was asked if there were any conditions of this assignment which placed him at Blanchette park at the time that he was injured. I'm taking that you're asking if the Judge sent me there, Naughton responded, no, he didn't send me there. Naughton was asked if at any time during the application process was he promised employment as a Prisoner Transporter. You could say so, Naughton responded. He was queried - You didn't get it though; did you? There was no openings, Naughton stated. He was queried - Since 2004 there's not been any openings for Prisoner Transporter? No, Naughton answered, plus my year is up off that list, it only lasts a year. Naughton stated that he did not re-apply. He agreed that the fact that he is a bailiff didn't automatically keep him on that list.

During cross examination, it was noted that Naughton had testified that it was the Sheriff County's obstacle course; he was queried, wasn't it true that St. Charles County doesn't own Blanchette park, wasn't there an obstacle course out there at the park already? In the gym the Sheriff's Department sets up their obstacle course in the gym and outside on the sidewalk is where they do their 2 and 3 -mile runs, Naughton answered.

On redirect examination, Naughton agreed that there are some carryover of job duties between the Bailiff position and the Deputy Prisoner Transport positions. In referring to Employer/Insurer's Exhibit Number 2, it was noted that the position description of a Deputy Bailiff indicated the following under Essential Duties and Responsibilities -- The following duties are normal for this position. These are not to be construed as exclusive or all inclusive. Other duties may be required and assigned. Naughton agreed that this was his understanding that this list is not all inclusive of duties that he may have, or assignments he may be provided with. He agreed that there were some of the things on this list that he has never done as a bailiff. Naughton agreed that there have been assignments he has been given or orders he has been given or instructions he has been given to do things that are not included on this list. Naughton agreed that he did not ordinarily report to tornadoes or floods

or earthquakes in the course of his time there over the last seven years, as listed in this grouping.

Naughton stated that Employer/Insurer's Exhibit Number 3 - the Request For Promotional/Lateral Consideration - I filled it out. He was asked if anyone had disputed his indication on this document that he was a Sheriff's Department Bailiff as of the date it was filled out. I don't believe so, Naughton answered. He indicated it was the same that he was employed with the Department of Court Services Sheriff's Department at that time. Naughton stated that he has never ignored or refused to comply with any instructions that he had been given by his supervisors during his time there with the Sheriff's Department. He was queried - And when you were told to report to the Blanchette Park obstacle course by Sergeant Hatcher was it your understanding that was something you needed to do as part of your employment? Yes, Naughton answered.

On further cross examination, Naughton was asked much does St. Charles County pay you to go over and take this test? Whatever I was making salary wise, Naughton answered. He was asked how much did St. Charles County pay the other applicants. I don't know, Naughton answered, I don't know the other applicants, I didn't know anybody there. He was asked when he came to apply to the County in the first place, how much did the County pay him to apply? Nothing, Naughton answered. He was queried - So the County didn't pay you to apply for this promotion either; did it? I got my check the 15th of April, Naughton responded.

Thomas W. Towers testified on behalf of the employer/insurer. Towers stated that his occupation is working in the St. Charles County Human Resources Department. And my title is a Senior Human Resources Generalist, he said. My duties and responsibilities are that I am responsible for probably about 75 or 80 percent of the hirings that the County does; from the time a department head sends in a requisition, to the posting, to finishing it up, getting the names to the department heads for the finalization. I have been an employee of St. Charles County and in the Human Resources Department for 15 years, Towers said. He agreed that his office is the custodian of employment records for St. Charles County.

Towers stated that the County employs an individual by the name of James Naughton. Naughton works for the Sheriff's Department in St. Charles County, Towers stated. Explaining how that department set up, Towers testified the Sheriff's Department is broken down into four different kinds of bureaus. One is they have a Field Operations Bureau which is mainly the deputy, patrol and the dispatchers. They have an Administrative Bureau that handles the administrative for personnel and things. It also has a Criminal Investigation Bureau which is the detectives, the crime lab, things like that, Towers testified, and then they have a Special Enforcement Bureau and that usually has the DARE people that are under that. EMA right now has been moved under that, and the Courts and the prisoner transport is all under that division; that's under Captain Todd, Towers stated. Explaining what part of the Sheriff's Department Naughton worked for, Towers stated that Naughton is a bailiff in the court system.

Towers was shown the document marked as Employer/Insurer's Exhibit Number 2. He explained that each job in the County has a position description, the duties and everything that the person does; this is the one for the Deputy Bailiff in the Court Services and it's three pages long, Towers testified. He was asked if the essential duties or responsibilities were all inclusive. Well, they're supposed to be, yes, Towers answered. In fact we even updated these, he said, and they updated them in August of last year and they put all the duties, because some peoples' positions do change. So, yes, they're supposed to be all inclusive, Towers stated. But you know some perform other duties, maybe one or two, Towers said. He agreed that that would be under the additional tasks and responsibilities.

Towers agreed that in March 2004 a position in Prisoner Transport opened. He was asked what was the process for opening such a position. Let's say somebody leaves or let's say they need more of them; the department head, in this position it would be the Sheriff, sends up a requisition to the County Exec's office who, in turn, okays it or doesn't okay it, Towers testified. Sends it back to me and then I'll get a posting; we'll post it for a certain amount of time, he stated. If it has to do with the Sheriff's Department, like this, we have some testing we have to do, he said. After the position closes we get all the applicants, then we do the proper testing that has to be done and then from either an eligibility list or the top five or six people will be sent over for the Sheriff for the final decision to fill that position, Towers explained. Agreeing that this process was followed in March of 2004, Towers further testified anything that has to do with a bailiff, prisoner transport or deputy patrol has to be done on an eligibility list. So

there's certain tests you have to do, Towers stated, you get a certain score and you're thrown out on the eligibility list.

The document marked as Employer/Insurer's Exhibit Number 1 was shown to Towers who testified once again this is the position description in the Sheriff's Department for prisoner transport. Explaining what were the qualifications needed to be considered for that position, Towers first said this is a Pay Grade 11, and the bailiff is a Pay Grade 10. We test everybody the same, up to a point, Towers stated. They all have to take a written examination; they all have to go through the oral board; they all had a little addendum they turn in for extra credit and then that's where it stops for the bailiff for the 10, he stated. The 11s also have to do a physical agility, Towers testified, that's deputy patrol and prisoner transport.

Towers was asked if in Naughton's case was this a promotional or a lateral move. That would have been a promotion because of the extra pay grade, Towers answered. Towers was asked if this was a position, a hire-fromwithin, or was it open to the general public to come in and apply. It's open to the general public, Towers answered. He agreed that the general public could come and apply and compete against Naughton for this position.

Towers was shown the document marked as Employer/Insurer's Exhibit Number 3, and Towers identified it as a promotional application that Naughton put in for the prisoner transport position. We don't make them fill out, if you're an employee already, a full blown app., Towers stated. You can just put a promotional app in, he said. Towers was asked, to be considered for employment as a prisoner transporter, what was required of all the applicants. All the applicants, Towers answered, they have to be certified by the State of Missouri since we're a Class A County, so that means they had to go through the Police Academy. And other than that they just have to go through our testing to be put on the eligibility list, he said. Towers was asked, if a candidate successfully completes all the tests is he or she guaranteed employment in that position. No, Towers answered. He was asked if the applicants for employment were considered employees of the County. No, ma'am, Towers answered. Towers stated that applicants are not entitled to any of the benefits of employment from the County. He was asked if there was any connection between Naughton's employment with the County as a bailiff and the injury that Naughton has alleged to have sustained on April 13, 2004. Not to my knowledge, no, Towers answered. Towers stated that there were no conditions or obligations of Naughton's employment as a bailiff that placed him in the position where he was injured.

Towers testified that the agility test takes place out at Blanchette Park. He was asked - To the best of your knowledge does St. Charles County own Blanchette Park? No, Towers answered, that's one of the parks that the City of St. Charles owns, including Frontier and McNair and some of the others. Towers was asked if anything within Naughton's job duties as a bailiff required him to be at the park at the time that he was injured. No, Towers answered.

Towers agreed that they require all the participants to participate in the physical agility test for Prisoner Transporter. Towers was asked - Did you or anyone else in the Personnel Department request or encourage Naughton to pursue employment as a prisoner transporter? No, ma'am, Naughton answered. He was asked if anyone made Naughton apply to be a prisoner transporter to the best of his knowledge. Not to my knowledge, Naughton answered. Towers was asked if Naughton was obligated to take the physical agility test to keep his job with the St. Charles County Sheriff's Department. No, Towers answered. He was asked - Had Naughton successfully completed the physical agility test, were there any other conditions which he had to meet before he could qualify for the list that you were talking about before? No, Towers answered, because the physical agility was the last one that the scores came in. And he had already taken the written, Towers testified, he had gotten an 82 out of 100 on the written. He had already, with the addendum, the little bitty thing, Towers stated. He also got the oral board, which 60 is passing; he only got 66 out of 100, so all he had to do was pass the physical agility he would have been on the eligibility list, Towers stated. Towers testified that after all the necessary tests had been conducted and completed that did not mean that Naughton would have been offered employment as a Prisoner Transporter. He was asked if the successful completion of the application process guarantee employment as a prisoner processor. No, ma'am, Towers answered. He was queried - At any time during the application process was Naughton promised employment in Prisoner Transport. Not to my knowledge, no, towers answered. He was

further queried - Even if he passed all the requisite tests? Naughton couldn't get it because even the Sheriff, or anybody else, who wants particular people to go over, it depends on where they fall on the eligibility list, Towers stated. The County, in 2004, our process was we agreed for each requisition they had they would get the top 5 candidates on that eligibility list, Towers testified, so if they did real well they would be on the eligibility list. If, let's say, there was two positions, we give 5 for the first one and 2 for the second one, so there's only 7 people, Towers explained. So you know if you're not in that top 7 you can't even be considered, regardless if the Sheriff wants it or not, he said. Towers was queried - Assume that the Sheriff didn't want it but a Sergeant Hatcher and a Sergeant Hollingsworth --. No, Towers responded, they have no say-so. Even Personnel has no say-so, Towers stated, it's just where you fall on the eligibility list.

Towers was asked how much did they pay the people who came and applied for that job. We don't pay them anything; nothing, Towers answered. He was asked if Naughton was fulfilling any of the duties and responsibilities as a bailiff when he was over at Blanchette Park. No, not to my knowledge, Towers answered. Towers was questioned - as part of your duties and responsibilities in the Human Resources Department do you help in creating the essential functions and job descriptions and what-not? What we do is yearly we send the job descriptions over to the department heads because they may add some duties that we don't know about, Towers stated. So the next time I post them I want to make sure I have the duties that these people will do, so I think the last one, like I said, was in August and they updated the duties, Towers stated. Agreeing that he had reviewed that prior to the agility test they were given in April, 2004, Towers further stated because the job descriptions are the ones that we use to make the posting.

It was noted that Naughton has testified that this was the Sheriffs County's obstacle course; Towers was asked if this was the Sheriffs County's obstacle course that Naughton had underwent. No, Towers answered. Initially, years and years ago, we decided that they wanted to have a physical agility test. The City of St. Charles had this physical agility test; this test at that time was out of lowa, and this company had it up there. So we would go and borrow the equipment from the City of St. Charles, Towers stated. Now the City of St. Charles doesn't even do it, so we kind of, by keeping of the equipment, have just kept the equipment for ourselves, and this test is now made up, or is now transferred to Charleston Police Department in South Carolina; they're the ones we send to to get our scoring done, Towers testified. He stated that he didn't really know the name of this testing company. I think PQ; I mean I dealt with them but I don't know what the thing stands for; American Physical Qualification, Towers stated. Towers agreed that it was the test he had just been handed, that they require of all of the applicants. All of them, and we eliminated number 3, Towers added. Explaining why they had eliminated, Towers testified because Number 3 really kind of worked more for a fire department. It was climbing a ladder, and we didn't feel that it was worthy of that, so we just do the 1, 2, 4, 5, Towers stated. Explaining what 1, 2, 4 and 5 was, Towers testified Number 1 is an obstacle course where there's numerous cones set up and you run around the cones and then you get to this horse-type deal, and you could crawl over it, you could lay over it, just to get over it. Then you run and you jump, or kind of step over a six-foot imaginary creek, and then you go around some more cones, and then you slide under -- we had them set up with tubes; it's just something you could slide under, towers stated. It's six feet long; you crawl under it, then you go across the starting line, and do that three times; that's the first step; that's called the obstacle course, Towers stated. Towers was asked if Naughton had passed that portion. I don't know, Towers answered, I mean I don't remember him when he got hurt or anything, so I don't know if he passed that portion. The next portion is, it's a weight, Towers stated. You have two 50-pound weights and you go up the steps with them, 10 steps, he said, and then you back down, and then you go back up the steps and then you come back down forward. You have to hold them 45 seconds, he said. Then the next one, it's a dummy carry; you carry it 60 feet, Towers stated. You kind of put your arms underneath its arms and you just drag it for 60 feet; it's dead weight, it weighs 175 pounds dead weight, so it's pretty heavy, he said. And the last one is a 300-yard run, Towers stated. We put a cone out 150 yards; you run down, turn around and come back, he said. And those four scores are the ones we send down to South Carolina, Towers stated.

Towers said that he did not know whether or not Naughton scored high enough on any of these tests to be on the eligibility list. He was asked to explain how the list is generated. I put everybody's name in the computer -- the first one is a written exam and that's worth 30 percent of the eligibility list, and then the next one, the addendum, and that's something that everybody kind of writes a paragraph, gives us his last two performance appraisals, things like that, Towers said. You get little points on that; that's worth 20 percent, he said. Then the physical agility score

is the next one you put in and that's worth 15 percent; that's the minimal one, he said. And then the last one is the oral board that the Sheriff's Department handles, and that score is worth 35 percent, Towers said. Then once all those are in, we sort them, he stated. They're weighted depending on the percentages, and wherever you fall on the eligibility list that's where you're at, and we just go down, Towers stated. He was asked where was Naughton on the eligibility list. Well, the eligibility list, since he didn't finish the physical agility -- I always get those scores last because if I have to send it down there and if they do it quick, sometimes it's quick, sometimes it's not; so I put all the scores in the eligibility list and I gave everybody a 150 on the physical agility just to see where they fell, Towers stated. And I do have a list somewhere that shows that there were 4 people; three of them didn't take it; I guess they didn't finish or something, because they still had 150 on my sheet, Towers said. He was ranked 38th, Towers stated. He was queried - And only the top 5 or 7 in this case --. Well, in this case there was one position, so it would have been 5, Towers explained. It might have got to 9 because you're on the eligibility list for a year, he said, so the people who took it prior to then was in October; they're still on the list. So the top 5 in October I might have sent over, and let's say they hired one, Towers stated, that means the next time those next 4 can go over, but it doesn't count on my 5. So I add 5 more, so it could have gotten down to Number 9. He agreed that this time Naughton wasn't in the top 10. Towers was asked if he knew whether or not Naughton reapplied. I do not know that, Towers answered. Agreeing that he had said the it was good for one year and then they would have to reapply, Towers noted that since then we have changed that, and I don't know how far it went back, but initially we only let the people try once a year. The Sheriff's Department has changed that and, let's say you flunk the written, the next time we can do it you can put in again. So it would have been possibly he could put in again in September or October, whenever we did it again, Towers explained.

Towers was queried - Naughton was testifying earlier, and I kept asking him whether or not he was applying to be a Prisoner Transporter and he kept telling me no, it was a Pay Grade 11; what was the position that was up for bid? That one was Prisoner Transport, but he is right on one thing, Towers answered, it is an 11, same as a deputy. So you can get on this list and you could become a deputy or something. A deputy might may say, I want to go off the road and I want to be transferred in; that would be a lateral move then and then somebody would fill the deputy spot. So by rights it is a Pay Grade 11 but the position that was open was Prisoner Transport, Towers stated. He was asked - Were any of these applicants applying to be a Pay Grade 11 or were they applying for the position of prisoner transport? I can't speak for what other people -- what they put in, but the position that was open, there was no Deputy open; now some people will say I just want to get on the list because I'm on there for a year, so if a Deputy does open but, this one was for Prisoner Transport, Towers responded. Agreeing that this was a new and a different job that Naughton was applying for other than bailiff, Towers further stated - The duties are different.

Towers was asked if at the time that Naughton was taking this test when he got injured was he engaged in training to maintain his position as a Bailiff. No, ma'am, Towers answered. Towers was asked his understanding of the Sheriff's Department's practice, since he has been there, in allowing people to go and take this test. The departments, we know that we don't pay as much s other places and we want to keep as many good employees as we can, Towers stated. So if somebody like the Sheriff or our department or somebody else is a Pay Grade 7 and a Pay Grade 9 opens up in a different department, everybody is going to try to better themselves, so we let them go interview, come back, and probably 95 percent of them we don't charge them any time because we would like to have them, keep them in the County, Towers stated. And certainly in my department when we had a Pay Grade 7 try for a 9 in our own department, we didn't charge him comp time or anything; we want to try to keep him in the County, he said. If not, they'll leave us, Towers stated, so we don't want that. Towers was asked - Do you know whether or not anybody ordered Naughton to participate in this testing? To my knowledge, no, Towers answered, but I can't speak for -- you know, but no.

Agreeing that he personally puts this testing on every year, Towers testified we do it two or three times a year. And once we were shown how to do it by the City police, we set the cones up; it's not too hard, Towers stated. The maintenance people bring out like the horse and the dummies, and the Sheriff's Department really helps us run this because it just seemed a little bit better when all these people were trying to join our department to have the Sheriff and some Captains out there, and Sergeant Streck is the one who helps me run it, Towers said. Fortunately for my age, Towers said, I don't have to run the obstacle course and show them how to do it, so Sergeant Streck does that for me. Towers testified I'll be 64 years old in May (2008). He was queried - Has it been

the practice since you've been in St. Charles County and in the Human Resources Department that anyone orders anybody to take any promotional tests? No, not to my knowledge, Towers answered. I mean I'm sure people will sit there and say, hey, there's a position over there; you might want to try it, Towers stated. But no, not to my knowledge, no, he stated. Towers said that Naughton was competing for a job against people both from within and without the County employ.

Towers was asked if prior to engaging in the pre-employment physical agility test do they require that people get a medical clearance. There is a medical clearance that the doctor is supposed to sign, Towers responded, and on the back of it shows the four type events explaining to the doctor what type of events it is. He was asked if the heading on the medical clearance was pre-employment. (Reviewing the document, Towers said, that's it; PreEmployment Physical Agility Test. He was queried - So that is what any person applying has to undergo for Prisoner Transport for Pay Grade 11? And on the back it isn't here because we copied it but on the back is the four areas they have to do, so the doctor can read it, Towers responded. But everybody has to have a signed one of those or we won't let them go through the agility, he stated. Towers was asked if Naughton had one. It's been so long I'm sure he did, Towers answered.

On cross-examination by the claimant, Towers was queried if he had said that he didn't have any recollection of Naughton's injury. We have very few injuries, Towers responded. I don't remember him getting injured, Towers stated. Towers agreed that he was here to testify about the policies and procedures of the Personnel Department and the Human Resources Department at the St. Charles County Community.

Towers was asked if he knew in particular, with regard to the April 13th and 14 physical agility testing that was performed in connection with this opening, who scheduled those dates. We do in the Personnel Department along with the Sheriff's Department, Towers answered. If they need somebody quickly we'll probably do it quicker then, he stated. Towers agreed that he was familiar with the document marked as Employer/Insurer's Exhibit Number 3, the request for promotional/lateral consideration. It was noted the document had been filled out by Naughton, and that Naughton had testified it indicates his current position with the County would have been Sheriff Department Bailiff, Department of Court Services/Sheriff's Department; Towers was queried if this document would have been prepared in March or April of 2004. Probably; yeah, Towers answered. Towers stated that he would not dispute that Naughton was employed with the St. Charles County Sheriff's Department as a bailiff at that time. He stated that it was accurate that Naughton has been employed with the St. Charles County Sheriff's Department continuously from October of 2001 through the present, and this would have included the injury date that's been testified to of April 13, 2004. Towers was queried - And his salary was continued, wasn't cut off or any benefits denied him or other entitlements of an employee of the St. Charles County Sheriff's Department, denied him on the date he tested for this position. Not that I know of, no, Towers answered.

Towers was queried - The form marked Employer/Insurer's Exhibit 4, entitled St. Charles County PreEmployment Physical Agility Test, that test that Naughton took on April 13, 2004 he indicated there were 12 testees, including himself and all but Naughton were non-employees of the County; is that your understanding or do you know? I do not know that, Towers answered. Towers agreed that anyone who came in off the street could apply for this position but they'd have to fill out this form. He agreed that Naughton, though, was actually an employee of St. Charles County Sheriff's Department on April 13, 2004.

He was directed to Employer/Insurer's Exhibits 1 and 2, the position descriptions; Towers was asked if he had testified those were revised and updated every year. Yeah, Towers answered, we just started that policy because sometimes it wasn't, you know. So, yes, we have, he said. This has been going on for two three years the yearly updating, Towers stated, not very long. He was asked if he had indicated the last update was in August of 2007. That's when they were all supposed to be completed, yes, Towers answered. Towers agreed that Employer/Insurer's Exhibits 1 and 2, the date on those is September 1996. That's when the initial thing was done, Towers stated. He agreed that therefore, these particular Exhibits, these were the descriptions of these positions that were created in September of 1996. He was asked - So there's been several updates since that time? Could have been; if there's been changes, Towers responded. He was asked if there have been updates at least the last couple of years. I'm not saying that each job does change, Towers answered, but they have the ability to change them each year. He agreed that he had testified that that is done to correspond with or keep up with additional job

duties that the supervisors of the particular department might place on their employees. He was queried - For instance, if the Sheriff of St. Charles County would have decided last year that there were additional duties that weren't on here, that should be on here, you would update that and include those on that document? Right, Towers answered. He was asked if he had those current position descriptions with him here that day. I don't know if I do or not, Towers answered, get my folder there. I printed some off; some of these may not have been changed since '96; that's our problem, Towers stated. I stand corrected, he further testified, I have them in March of 2007. We started them in March and had to have them complete by August, Towers stated, that's why I said August. Towers was queried - So they have been updated? Yes, he answered. At this point the document marked as Employer/Insurer's Exhibits Numbers 1 and 2 were substituted with the updated versions which were marked as Employer/Insurer's Exhibits 5 and 6. Towers agreed that he produced on this day of the hearing the updated position descriptions dated March of 2007. He was asked if, to his knowledge, those are the newest ones that have been prepared. To my knowledge, Towers answered, but three of us broke up the four or five hundred jobs we had, so I did not do the Sheriff's Department, but I would say that's the most updated one. Towers agreed that these position descriptions are prepared as sort of an overview to give an applicant for a position an idea of what would be required of them and to sort of give an overview for anyone within the departments.

Towers agreed, during cross examination, that Naughton did not, as of April 13, 2004, report to Towers directly. Naughton was not an employee of the Personnel Department, Towers said. He agreed that Naughton's main boss was the Sheriff of St. Charles County. He was queried - According to this position description for either the bailiff or the prisoner transport positions, Naughton reported to the sergeant who was Sergeant of the Court Services Department? That would be correct, Towers responded. And those underneath the Sheriff and the Sergeant Court Services would be Naughton's supervisors, Towers agreed. He agreed that Naughton and other employees, deputies of the Sheriff's Department, would be answering to Sheriff's Department employees, not the Personnel Department or Human Resources. Towers agreed that by definition, looking at either the old position descriptions, Employer/Insurer's Exhibits 1 and 2, or the new ones marked as Employer/Insurer's Exhibits 5 and 6, these are overviews of those positions and their duties and responsibilities. He agreed that in fact by definition, and within these documents, these listings of the essential duties and responsibilities are not to be construed as exclusive or all inclusive; he agreed that in effect they indicated that other duties may be required and assigned. Towers stated that he would assume that absent some violation of the law or the employee's rights, he would expect an employee of the Sheriff's Department such as Naughton to answer to and take orders and directions from his supervisors.

Towers stated, during cross examination, that he has never worked as a deputy bailiff in St. Charles County or as a prisoner transport deputy. He agreed that he has never worked within the Sheriff's Department. He was queried Would it also be accurate then that you have never performed any of these job duties or responsibilities that are contained in these exhibits? Not per se, no, I have not, Towers responded. Towers was queried - In addition to those essential duties and responsibilities listed in those exhibits, there are also set out additional tasks and responsibilities that are necessary for the work of the unit but are not an essential part of the position; is that correct? That's correct, Towers answered. He was asked if there is some overlapping of job duties or responsibilities that deputies such as Naughton might undertake that are not listed as a bailiff but he may undertake some of the duties that would fall under the prisoner transport. I don't have any knowledge of that; I don't see them doing their deeds everyday, so I couldn't say, Towers responded.

During cross examination, Towers was asked isn't it correct that the obstacle course he had talked about, this is not an obstacle course set up for the general public, it's set up by the Sheriff's Department solely for the purpose of applicants for positions. The Personnel Department sets it up solely for getting them on the eligibility list, correct, Towers answered. He was queried - And you were asked whether you pay applicants for these positions to come and take the physical agility test; anyone who was not presently an employee of the Sheriff's Department of St. Charles County when they came to take this test you certainly would not pay them wages or benefits? No, Towers answered. Towers was further questioned - But Mr. Naughton was an employee of the County on April 13, 2004, was receiving a salary, was receiving benefits, and had none of that taken away from him on the date he was sent to take this test; is that correct? To my knowledge, Towers responded. He was asked - And as the head of Human Resources, if the Sheriff or one of Naughton's other supervisors were to order him to perform some task or duty or responsibility that is not on this list, assuming it doesn't violate some law or his rights

under the law, would you expect Naughton to undertake that task? Yeah, Towers answered. Towers was asked, if Naughton was ordered to report to whatever area or whatever task or responsibility or test or evaluation or job, and refused to do that, would he be subject to discipline within the department. Depending on what he didn't do, I guess, Towers responded. I mean, any time an employee doesn't follow the boss's words you could be, held accountable, Towers stated.

On redirect examination, Towers stated in his 15 years at St. Charles County he has never known of anybody being subject to discipline for not applying for a promotion. He was asked, in your tenure at the St. Charles County Human Resources Department and in your testing with the Sheriff's Department, have you ever heard of them ordering any of their employees to report to an obstacle course. No, I haven't, Towers answered. He was asked in your experience in the St. Charles County Human Resources Department, has any deputy been known to be assigned to take a test. Not to my knowledge, Towers responded. Such as the one that you were giving out on April the 13th, he was further queried. No, Towers answered. Towers agreed that he had testified earlier that there had been two other people who had been injured while they were undergoing the obstacle course testing. Towers were asked if those people received Workers' Compensation benefits from St. Charles County as a result of their injuries. No, neither one of them were employees of the County, towers answered. Towers was queried - Had they been employees of the County is there any provision that they were doing anything in the furtherance of their job duties? No, Towers answered. He was asked - When Naughton was undergoing the physical agility test was he completing or carrying out the furtherance of his duties as a bailiff for St. Charles County? No, Towers answered, none of those duties are required of any employee.

On further cross examination, Towers was asked, with regard to Naughton's wages do you know what his salary was at the time he was injured. No, it depends, Towers answered. I don't know his exact salary because it depends on what step he's on, Towers stated, and I know that he's in a Pay Grade 10, but he could be on Step 3, 4,5 depending on the number of increases we got. Towers agreed that Naughton was being paid a salary in 2004.

Date: July 29, 2008

Made by: /s/ LESLIE E.H. BROWN

LESLIE E.H. BROWN

Chief Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/ JEFFREY W. BUKER

JEFFREY W. BUKER

Director

Division of Workers' Compensation

ISSUE: Costs for frivolous claim begins on page 20.

SUMMARY OF THE EVIDENCE begins on page 20.