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 tourn