May 5 2009
DA 08-0285
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 149
MARTIN HETH, JR.,
Petitioner and Appellee,
v.
MONTANA STATE FUND,
Respondent and Appellant.
APPEAL FROM: Montana Workers’ Compensation Court, WCC No. 2006-1758
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Kelly M. Wills, Elizabeth D. Lowrance, Garlington, Lohn & Robinson,
PLLP, Missoula, Montana
For Appellee:
Patrick R. Sheehy, Halverson, Sheehy & Plath, P.C., Billings, Montana
Submitted on Briefs: March 25, 2009
Decided: May 5, 2009
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Martin Heth, Jr., known by the initials “JR,” worked for his father, Martin Robert
“Bob” Heth (Heth). In September 2005, JR was seriously injured in a one-vehicle
automobile accident. His stepmother, who also worked for the family company, was
killed in the accident. At the time of the accident, JR was driving the septic tank
pumping truck owned by his father’s plumbing company and was leaving a completed
pumping job. He was also intoxicated. JR filed a claim for workers’ compensation
benefits. The Montana State Fund (State Fund or the Fund) denied the claim on the
ground that JR’s intoxication precluded payment of benefits. JR filed a petition with the
Workers’ Compensation Court (WCC). The WCC, interpreting the “employer
knowledge” exception of § 39-71-407(4), MCA (2005)1, in the Workers’ Compensation
Act (WCA), ruled that the Fund was liable for JR’s claim. State Fund appeals. We
affirm.
ISSUES
¶2 A restatement of the issues on appeal is:
¶3 Did the WCC incorrectly interpret and apply § 39-71-407(4), MCA, to the case
before us?
1
A workers’ compensation benefits claim is governed by the provisions of the WCA in effect at
the time of the accident; in this case, 2005. Buckman v. Montana Deaconess Hosp., 224 Mont.
318, 321, 730 P.2d 380, 382 (1986). All references to the WCA in this Opinion will be to the
2005 version.
2
¶4 Were the WCC’s findings of fact pertaining to Heth’s knowledge that his son
consumed alcohol while performing his employment duties supported by substantial
credible evidence?
¶5 Were the WCC’s findings of fact regarding Heth’s credibility inconsistent?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Heth began working in the plumbing industry in 1959 when he was eighteen years
old. In 1983, JR, then thirteen, moved in with Heth and Heth’s wife, Emily,2 and in
1986, at age sixteen, JR joined his father in the plumbing business. In 1994, Heth moved
with Emily and JR to Hardin, Montana, and started Bob’s Plumbing and Heating. As a
sole proprietor, Heth obtained workers’ compensation insurance from the Montana State
Fund. JR immediately began working for Bob’s Plumbing, installing and pumping septic
tanks. Subsequently, Heth started a related business, A-1 Septic. A-1 Septic leased out
portable toilets. JR worked for A-1 Septic as well.
¶7 At some time during their lengthy working relationship, JR began drinking beer in
the company truck while working. After Heth noticed the empty beer cans in the truck,
he confronted his son. He did not forbid his son from drinking during work; rather, he
instructed him to “modulate” and “control” the amount he drank while working. He also
told JR to keep the empty cans out of view by putting them in a bag to be kept behind the
truck seat, and to bring them home for recycling. Heth testified that he did not want his
2
JR lived with Heth and Emily continuously from 1983 until the accident in 2005. When not
hospitalized, JR continues to live with his father.
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son to be drunk, to drive while intoxicated, or to smell of alcohol when meeting with
customers.
¶8 The day before JR’s accident, JR and Heth traveled in separate trucks to the
Missouri Breaks area to retrieve multiple portable toilets A-1 Septic had leased to the
Bureau of Land Management and the U.S. Forest Service for use by firefighters. It took
Heth and JR approximately sixteen hours to travel from Hardin to the worksite, pick up
the toilets and proceed to Malta where they intended to spend the night, before returning
to Hardin the following day. Upon arrival in Malta around 10 p.m., however, JR
announced that he was returning to Hardin that night. His father attempted to dissuade
him but JR was adamant. After taking a six-pack of beer he had put in his father’s truck,
JR left for Hardin in the truck pulling the trailer carrying the portable toilets. Heth said
he did not try to stop JR from taking the beer because “it wouldn’t do any good.”
Because JR was pulling a loaded trailer, Heth speculated that it took him approximately
five hours to travel the 250 miles from Malta to Hardin, and that he probably arrived
home between 2 and 3 a.m.
¶9 The following morning, September 17, 2005, Heth left for Hardin, making a few
stops along the way. He arrived home at approximately 3 p.m. His cell phone had not
been working so he did not speak to his son or his wife that day. When he arrived, he
found a note that Emily had written at approximately 10:30 a.m. indicating that she and
JR had gone to pump a septic tank.
¶10 Meanwhile, at approximately 1:50 p.m., JR, while driving the loaded septic tank
pump trunk, ran off the road, over-corrected, and lost control of the truck. The truck
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went over an embankment and rolled. Emily was ejected from the truck and died at the
scene of the accident. JR was seriously injured and was transported by ambulance to Big
Horn County Memorial Hospital where, at approximately 3:22 p.m., medical personnel
took a routine hospital admission blood sample. This test revealed, among other things,
that JR had a blood alcohol level (BAC) of .0874. The Montana Highway Patrol officer
who was dispatched to the accident scene and followed JR’s ambulance to the hospital
requested that Big Horn medical personnel take a second blood sample to be analyzed by
the State Forensic Lab. The officer had seen evidence of alcohol consumption at the
scene and had smelled alcohol on JR. This sample was drawn at approximately 3:35 p.m.
and later indicated a BAC of .06.
¶11 JR was subsequently flown by helicopter to St. Vincent Hospital in Billings. An
admission blood sample taken at 5:05 p.m. revealed a BAC of .041. JR was evaluated by
various doctors upon admission, one of whom ordered the initiation of alcohol
withdrawal protocol within twenty-four hours of JR’s arrival.
¶12 JR remained in a coma at St. Vincent’s Hospital for several weeks. After
regaining consciousness and undergoing rehabilitation therapy, JR was released to his
father’s care. JR is permanently and totally disabled and has no recall of the accident or
the events leading to it.
¶13 Heth, on behalf of his son, filed a claim for workers’ compensation benefits.
Relying on § 39-71-407(4), MCA, the State Fund denied his claim on the ground that JR
was intoxicated at the time of the accident. In November 2006, JR, through counsel, filed
a petition for a hearing before the WCC. JR argued that § 39-71-407(4), MCA, allows an
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intoxicated employee who is injured while working to receive benefits if his employer
“had knowledge of and failed to attempt to stop the employee’s use of alcohol.”
¶14 After mediation failed, the WCC scheduled a hearing which was conducted on
February 7 and February 11, 2008. The court issued its Findings of Fact, Conclusions of
Law and Judgment on April 25, 2008, holding State Fund liable for JR’s claim. State
Fund filed a timely appeal.
STANDARD OF REVIEW
¶15 We review the WCC’s findings of fact to determine whether they are supported by
substantial credible evidence. “Substantial credible evidence” is that which a reasonable
mind could accept as adequate to support a conclusion. Harrison v. Liberty Northwest
Ins. Corp., 2008 MT 102, ¶ 11, 342 Mont. 326, 181 P.3d 590. We review the WCC’s
conclusions of law for correctness. Harrison, ¶ 11.
DISCUSSION
¶16 Did the WCC incorrectly interpret and apply § 39-71-407(4), MCA, to the case
before us?
¶17 As indicated above, JR argued before the WCC that while § 39-71-407(4), MCA,
generally precluded paying benefits to a claimant who was intoxicated at the time of his
or her accident, it provided an exception to that preclusion—the “employer knowledge”
exception. Section 39-71-407(4), MCA, provides “[a]n employee is not eligible for
benefits otherwise payable under this chapter if the employee’s use of alcohol or drugs
not prescribed by a physician is the major contributing cause of the accident. However, if
the employer had knowledge of and failed to attempt to stop the employee's use of alcohol
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or drugs, this subsection does not apply.” (Emphasis added.) JR maintained that his
father knew he drank while working and never tried to stop his alcohol use. Rather, his
father asked only that he “modulate” his drinking. Heth explained at the hearing that
“modulation” meant consuming a six-pack over a period of time, instead of doing so all
at once. JR argued that such a caution did not satisfy the statute’s requirement that his
employer “attempt to stop” his use of alcohol while working.
¶18 State Fund argued to the WCC that under § 39-71-407(4), MCA, it was not liable
for benefits to JR because alcohol consumption was the “major contributing cause” of his
accident. It relied on the multiple blood tests taken between approximately 3:20 p.m. and
5:05 p.m. on the day of the accident to support its claim. It further maintained that the
septic tank pump truck JR was driving was a commercial vehicle, and the legal blood
alcohol content limit for drivers of commercial vehicles in 2005 was less than .04. State
Fund pointed out that JR’s BAC was above .04 in all three blood tests.
¶19 The Fund also argued that JR’s reliance on the “employer knowledge” exception
was misplaced. State Fund asserted that for this exception to be available, an employer
must have had “specific knowledge” of the employee’s use of alcohol at the time of the
accident and fail to attempt to stop the employee’s use of alcohol. The Fund maintained
that Heth had not seen nor spoken to his son on the day of the accident, and therefore he
had no specific knowledge that JR was drinking that day. This being so, Heth could not
take action to prevent his alcohol use just prior to the accident.
¶20 The WCC heard extensive testimony from two accident reconstruction experts.
One expert, Dr. Lee, excluded environmental factors, such as rain, fog, poor road
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conditions, and vehicle failure, among others, from being the cause of the accident. He
ultimately concluded that “driver error” was the cause.
¶21 The other expert, Dr. Gill, reconstructed the accident by looking at human factors,
specifically driver fatigue and intoxication. Despite the long work day JR had
experienced the day before the accident, Dr. Gill concluded that driver fatigue was not a
logical explanation. He based this on various factors: (1) time of day of the accident—
midday being a person’s peak level of alertness; (2) the presumed length of time JR had
slept the night before—arriving home at 2 a.m. and leaving for work at 10:30 a.m.; and
(3) the length of time JR had been driving before the accident—approximately one hour.
Concluding that the evidence did not support fatigue as a cause for the accident, Dr. Gill
stated it was even less likely that JR fell asleep at the wheel. He explained that JR’s
response time to running off the road did not support a conclusion that he had fallen
asleep. Dr. Gill concluded that JR’s BAC at the time of the accident, based on his BAC
hours after the accident, was between .10 and .11, and was the cause of JR’s accident.
¶22 Heth also testified at the hearing, explaining that he wanted JR to take over the
physically-demanding part of the business by the end of 2005 so that Heth could
concentrate on the less strenuous paperwork side of the business. Heth said he was
concerned that his relationship with JR would be damaged if he forbade JR from drinking
while working, and therefore he counseled control and modulation instead. He stated that
he saw JR both at home and at work almost every day and had never seen him drink to
excess while working, drive while impaired, or drink more than one or two beers while
on the job.
8
¶23 On cross-examination, Heth admitted that he understood the “employer
knowledge” exception to the WCA, and that if he testified that he knew JR was drinking
while working that JR may qualify for benefits. He also acknowledged that if State Fund
paid JR benefits, JR’s care, both before and after Heth was no longer able to care for him,
would be better.
¶24 The WCC expressly found Heth, Dr. Lee and Dr. Gill to be credible witnesses. As
a result of witness testimony and the report prepared by the officers who were dispatched
to the accident scene, the WCC concluded that JR’s use of alcohol was the major
contributing cause of the accident. The court declined to rule on whether the septic tank
pump truck was a commercial vehicle. It noted that a BAC level of .0874 was beyond
the legal limit for both commercial and non-commercial vehicles, and therefore the
classification of the vehicle was irrelevant. The WCC concluded that the plain language
of the “employer knowledge” exception did not require the employer to have “specific
knowledge” of alcohol or drug use just prior to the accident. The court explained:
The facts of this case are not such that the employer discovered his
employee drinking on the job on one isolated incident prior to the injury.
This is a situation where [JR’s] employer knew that he drank alcohol on the
job on a regular, recurrent basis. I do not believe the statutory language
means that an employer can be aware of and condone regular drinking on
the job, yet can escape liability under the statute provided the employer did
not witness the employee’s drinking immediately before the accident. . . .
Although Heth may have attempted to get [JR] to moderate his on-the-job
consumption of alcohol and to spread his drinks out throughout the day,
Heth made no attempt to actually stop [JR’s] use of alcohol on the job.
Therefore, I conclude that since Heth knew of his employee’s use of
alcohol and failed to attempt to stop it, the bar of eligibility for benefits
found in § 39-71-407(4), MCA, does not apply in the present case.
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¶25 On appeal, State Fund asserts that the WCC incorrectly interpreted
§ 39-71-407(4), MCA, and maintains that the “employer knowledge” exception is not
available to JR. It submits the following interpretive errors: (1) the employer must have
specific knowledge of an employee’s alcohol or drug use contemporaneous with the
accident; (2) the employer must have the opportunity to stop the employee’s alcohol or
drug use at the time of the accident; and (3) the employer’s knowledge of the employee’s
“isolated and responsible use of alcohol (or drugs) does not invoke the exception.” The
Fund opines that the legislative revisions to this statute between 1987 and 1995, adding
reference to alcohol and drug use and creating the “employer knowledge” exception,
support its conclusion that the employer must have contemporaneous knowledge of
alcohol consumption. It submits that the WCC’s interpretation renders an employer
absolutely liable if it “has general knowledge that an employee has consumed alcohol
while working and fails to take steps to stop the employee from ever again consuming
alcohol on the job.” (Emphasis in original.) The Fund further asserts that
contemporaneous knowledge by employers of their employee’s alcohol and drug use just
prior to their respective accidents was “significant” to this Court in Van Vleet v. Ass’n of
Counties Work. Comp., 2004 MT 367, 324 Mont. 517, 103 P.3d 544, and Thoreson v.
Uninsured Employer’s Fund, 2 0 0 0 M T W C C 4 0 , aff’d, Thoreson v. Uninsured
Employers’ Fund, 2002 MT 6N, 309 Mont. 529, 43 P.3d 983.
¶26 J R c o u n t e r s t h a t a p l a i n r e a d i n g o f § 3 9-71-407(4), MCA, reveals no
“contemporaneous employer knowledge” requirement. He states that the WCC
interpreted the statute based upon its plain language and correctly declined to insert what
10
had been omitted. Section 1-2-101, MCA. JR further submits that examining the
legislative intent of a statute need be done only when the statute is ambiguous and this
statute is not ambiguous. Furthermore, he claims that the State Fund’s argument vis-à-vis
the legislative intent is weak in that it quotes a letter from a proponent to the 1987
legislative change, rather than the Legislature itself. JR also challenges the significance
attributed to the employers’ contemporaneous knowledge in Van Vleet and Thoreson. He
notes that while such knowledge was a fact in those cases, our rulings did not turn on this
fact.
¶27 The plain language of § 39-71-407(4), MCA, does not require that an employer
have knowledge of alcohol and/or drug use immediately prior to his or her employee’s
accident. We have repeatedly acknowledged that it is not our prerogative to alter a
statute that the Legislature has enacted. Section 1-2-101, MCA (“In the construction of a
statute, the office of the judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
inserted.”); Citizens Right to Recall v. McGrath, 2006 MT 192, ¶ 18, 333 Mont. 153, 142
P.3d 764. If the Legislature intended the statute to be interpreted as propounded by State
Fund, it could have expressly and unequivocally included a “contemporaneous”
requirement. It did not do so, nor will we.
¶28 We note, as shown in Van Vleet and Thoreson, that an employer may have
contemporaneous knowledge of an employee’s alcohol or drug use just prior to the
employee’s accident and that such knowledge triggers a determination of whether the
“employer knowledge” exception applies. However, these cases did not grant the
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employee benefits based on his employer’s contemporaneous knowledge; rather, Van
Vleet turned on whether the employee’s intoxication took him outside the scope of his
employment, and Thoreson was decided based on what the employer did with the
knowledge of his employee’s drug use just before his accident. Therefore, our rulings in
Van Vleet and Thoreson, where contemporaneous knowledge existed, do not preclude a
different ruling under different facts.
¶29 As the evidence indicates in the case before us, Heth had ongoing knowledge that
JR drank beer while working and driving the company trucks. He had discussed it with
JR on more than one occasion and had observed both full and empty beer cans in the
trucks. As noted by the WCC, this was not a case where an employer caught an
employee on an isolated occasion drinking on the job just prior to an accident. Not only
did Heth have knowledge that JR drank on the job, he did not attempt to stop him, as
required by the plain language of the statute; rather, he acquiesced, merely counseling
moderation and control.
¶30 In an effort to highlight the asserted absurdity of the WCC’s interpretation, the
State Fund presents numerous hypothetical situations involving an employer’s knowledge
of alcohol or drug use that is not contemporaneous with the employee’s accident or
injury. We will not address these hypothetical scenarios as they do not reflect the facts
before us. Moreover, we will not insert language into the statute that imposes a temporal
component upon an employer’s knowledge. In any event, we think it unlikely that the
Legislature intended to allow an employer to be aware of and condone drinking on the
job and then allow that employer to escape liability because he or she did not witness the
12
alcohol or drug consumption immediately prior to the employee’s accident. Under these
circumstances, we conclude the WCC did not incorrectly interpret and apply
§ 39-71-407(4), MCA, to the facts of this case.
¶31 Were the WCC’s findings of fact pertaining to Heth’s knowledge that his son
consumed alcohol while performing his employment duties supported by
substantial credible evidence?
¶32 State Fund asserts that the WCC’s factual findings pertaining to Heth’s knowledge
of his son’s alcohol consumption while working were not supported by substantial
credible evidence. The Fund maintains that the WCC selectively quoted from Heth’s
testimony but omitted statements that would, or should, have led the WCC to a different
conclusion. Specifically, the Fund claims that the “undisputed evidence proved that Heth
cautioned his son to drink responsibly, understood that JR would never have more than a
beer or two, never saw JR drunk at work, and never knew his son to drive when he was
impaired from alcohol.” State Fund also challenges the WCC’s conclusion that JR’s
consumption of alcohol on the job was a “regular” and “recurrent” event and that Heth
was “aware of and condone[d] regular drinking on the job.”
¶33 Our review of the trial transcripts and Heth’s deposition transcript indicate that
substantial credible evidence existed to support the WCC’s findings. Contrary to the
Fund’s claims, the WCC did not state nor imply in its findings that JR drank a six-pack of
beer during a single work shift. The court fairly summarized Heth’s testimony, including
that in which Heth stated that he had never seen JR drunk while working or driving.
Furthermore, State Fund’s argument notwithstanding, it was apparent from the evidence
that Heth was “aware of and condone[d]” JR’s drinking on the job.
13
¶34 State Fund’s dispute appears to arise from the WCC’s use of the word “regular”
when describing JR’s drinking on the job. The Fund claims that Heth acknowledged only
a single incident of finding beer cans in the truck followed by a conversation about
drinking responsibly. However, there are multiple references in the record where Heth
admitted knowing that JR drank while working. Moreover, Heth’s knowledge of JR’s
drinking was further established when Heth testified that he expected JR to drink the six-
pack of beer he took when leaving Malta the night before his accident, while driving
home. Heth also specifically discussed at least two conversations he had with JR about
drinking while working—one about drinking in front of the customers and disposing of
the empty beer cans in the truck, and a subsequent conversation after the “open
container” law was passed.
¶35 As explained above, “substantial credible evidence” is evidence which a
reasonable mind could accept as adequate to support a conclusion. Harrison, ¶ 11. The
evidence presented to the WCC supported the court’s factual findings, including its
finding that JR’s drinking while working was “regular” or “recurrent.”
¶36 Were the WCC’s findings of fact regarding Heth’s credibility inconsistent?
¶37 Finally, State Fund criticizes the WCC’s findings regarding Heth’s credibility as
“inconsistent.” The Fund claims that the WCC found Heth credible despite Heth’s
acknowledgment that he understood that if he testified that JR drank with his knowledge,
JR might receive benefits, yet found Heth incredible in his portrayal of the amount of
alcohol JR consumed. The WCC specifically stated, “I find Heth’s testimony about his
knowledge of [JR’s] drinking on the job to be credible. While he testified that he knew
14
[JR] drank beer while working, Heth also attempted to portray his son’s drinking as a few
beers spaced out throughout the day in response to Heth’s urging that [JR] ‘modulate’ his
drinking while working.” This statement does not present any error. It is the function of
the WCC as finder of fact to discount or grant greater weight to testimony based on the
credibility of the witness. We defer to the WCC’s findings of credibility, as it had the
opportunity to assess and observe a witness’s demeanor and presentation of evidence.
Harrison, ¶ 12.
CONCLUSION
¶38 For the foregoing reasons, we affirm the WCC’s Findings of Fact, Conclusions of
Law and Judgment.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JOHN WARNER
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