chief for the city of these peoria he was injured in the course of participating in a fitness activity that was sponsored by the city of these peoria up to this context of the assignment that he was given by his immediate superior commissioner dense burger to set an example of fitness weekly pricked up down one of the time is the chief subject to as the other have to maintain a certain fist fitness requirements is he tested or anything like that like the fire fighters he's given an annual physical i don't he's not or is not the only part is not under the same requirements as a regular firefighter you know because he's not a contractual run ploy it's not a union employee so that's a matter of contract life learning parker exhorts him is encouraged him to be fit and lead by example correct yes ok so if he decided to go cliff diving with that qualify would he be covered if he has an accident i think the proper analysis is the relationship of the activity to his job in this particular case the relationship of the activity being on city hours at a city facility in a program that was created and supervised by the city where attendance was taken by a city employee in the presence of firefighters of the city the first analysis in the state the arbitrator made was starting out with the idea that it was a recreational activity i don't think it's a recreational activity when you are participating in the city program to stay fit we part voluntary was voluntary for secretaries does it relate to the secretary's job not very much it was a fall in terry for firefighters since it relate to the firefighters job sure right because safety and fitness go hand and hand i believe that it makes a difference as to what his purpose in doing so saw a subject not subject you've not yet if he thought he was doing something that distinguish that there's a disconnect between the use of the word voluntary in this case as regards the activity on one hand you have the force from the statute that talks about assigned or  voluntary in that context and then found kerry in the context of choosing the type of exercise that would lead if it is i'm suggesting and in answer to judge hofmann's question i was trying to say that i context of this particular person his job and what he was doing at the time and i was suggesting that it is not recreational under these circumstances for this person with his job i don't believe that that makes him entirely subjective i think there are objective factors such as the fact that he was doing it on city time at a city facility supervised by city employees who took attendance consistent with what you had in mind when you told him to lead by example he said yes well here's here's one of the things i want to ask you because this case also turns on the facts as most is to you balloon to the argument that if he felt that this was sort of part and like when it says in the statute that your order to do something in real life do you think that anybody sends an order to the police chief or the fire chief signed ordering him to do something for an assignment that's  mean when he went there they said what are your goals for fit so he told me i want to suppose for fitness work he didn't say and i don't have any other purpose in being here and if you've got a personal benefit as well  as fulfilling a job requirement by being fed how does that eliminate the other possibility you said this is not a recreational area of both ways activity because there is a program basically scien said that ample of fitness and then i with this program that he was participating in when he was injured was consistent with what i had in mind when i told him that and it would have negative negatively impacted my evaluation of his job performance if he hadn't done that so i don't see how i can understand how you can take pieces of  the circumstances like losing weight and taking inches off of my waist and exercising and put back together as a recreational activity i breathe in and under certain circumstances w employees it would be a recreational activity but when you have a unrefuted evidence from a firefighter that says and examples i might add of when he was at fires and had to do physical labor as part of firefighting not just standing back and supervising hauling hose and stuff but when he says a minor part of my job is to be physically capable of being a firefighter i think it puts him in the same category as the firefighters themselves that do work out on city time whether can they are contractually required to do so but even if they work the city wants them to be physically  fit and expects them to be physically fit so they can do their job remove it from firefighters policemen without any company the chairman of the ports as i want our employees to be physically fit because it helps you know there's less time off work there's less rule you're expecting a twenty also a balancing act between the connection between the job and the activity you should look at the circumstances how related is the activity or the need for fitness to the particular individuals job and what are the circumstances under which he or she was participating would you shouldn't ironworker recover if he hurts lifting weights is required to be strong my job he's not required to be strong young worker isn't required to be sure oh if you get to his job then he doesn't have the job well not prepared to be screwed for police couldn't do his job he wouldn't have it either well this is a situation this is a situation where this individual has to be able to go in and do the same work as a as a firefighter and under those circumstances it is expected to be physically fit enough to well that's not true and it's a matter of regular season party he didn't say no or whether he said that or not that day in the in his job description he is required to exert one hundred pounds of force occasionally fifty pounds frequently and twenty pounds consistently or something like that there are physical requirements in his job description now the job description of the job contractor different things but he has a written job description that has always been there but  leading by example he specifically went to the east bank club either the side club after the firefighters did their normal morning routines between a group when as a group when and night he went afterwards he didn't participate in the morning stretching or any exercise that fire station went out of its peers to mean i submit that he did not want to exercise and lead by example he doesn't have to participate the same time activity and getting hung up on where is the evidence that supports the argument he was ordered or assigned to participate in the program i was actually have to be he was not but was not ordered but signed  city he's peoria and that agreement had no physical requirements none whatsoever i think that is the key factor because he can argue it was a part of the job that if something goes to the scene of a fires and that has some there's nothing there to back it up one would think it would have been in the contract that he did have to maintain certain physical as requirements and that's not in that for now right and further commissioner dancers testimony is that he just encouraged out the cougar plaque which is a different complex somewhere out i'm not sure where so he testified that he were twenty four he's on call twenty pro seven and he can leave at any time he wants to work out know i want you to lead by example and you pick the program and here's five you can choose from you can work out of the station you can go to eastside to settle in what well in that case did he have to give in a specific because i would like to suggest that part of the analysis here should take into consideration the focus on fitness that the city through commissioner den's berger made clear to not just the union by putting physical fitness in their contract but to my client by suggesting that he lead by example which is another part of his job description and suggest that if you analyze that focus on fitness in the context of how he was injured there is a substantial ten action between what he was doing and  such that this is not a recreational activity for him i appreciate that there's an argument that he could have led by example in other ways or that he could have led by example by exercising just generally but i think that the employer has to take responsibility for the risk that its employees undertake when they emphasize fitness and suggest to them that they need to lead by example in participating in that fitness and then the employee in what is unrefuted evidence and testimony in this case under fitness and if he had been at a completely unrelated facility where there was no reason to believe firefighters would be there if he was doing something cliff diving that wasn't necessarily he won't be around the block but if if he was working out on his own then it would be a recreational activity he wasn't working out on his own he was participating in the city sponsored program are you  recommending martin ordered to do he didn't have to do it we did it we get back to the idea that if you are told by your immediate superior that you're supposed to display leadership in my pre the last word in that exchange is she he says i think it's important for and i'm paraphrasing here all employees to be fit for or to lead by example or something like that so yes so instead of saying to my question would it negatively impact is job performance still saying yes he says i think it's important to leave them in your who didn't read the entire some extent subjective in terms of what the employees doing and why they're doing it and again i think as a policy matter and as a president if the employer takes responsibility for having their employees physically fit and exposes them to the risk which to some extent is what happened here then they should take responsibility for the injuries that are undoubtedly going t