No. 04-206
IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 367
MINDY VAN VLEET, Individually and
as natural guardian of Vanesa Van Vleet,
Petitioner and Appellant,
v.
MONTANA ASSOCIATION OF COUNTIES
WORKERS’ COMPENSATION TRUST,
Respondent/Insurer and Respondent.
APPEAL FROM: Workers’ Compensation Court, State of Montana
The Honorable Mike McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anna M. Bidegaray, Daniel B. Bidegaray, Bidegaray Law Firm, Bozeman,
Montana
For Respondent:
Norman H. Grosfield, Utick & Grosfield, Helena, Montana
Submitted on Briefs: November 23, 2004
Decided: December 21, 2004
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Mindy Van Vleet (Van Vleet), individually and as natural guardian of Vanesa Van
Vleet, appeals from the judgment entered by the Montana Workers’ Compensation Court
(WCC) on its order dismissing her petition requesting death benefits pursuant to the Montana
Workers’ Compensation Act for the death of Shawn Van Vleet (Shawn). We reverse.
¶2 The issue on appeal is whether the WCC erred in determining that Shawn was not
within the course and scope of his employment at the time of the fall which resulted in his
death.
BACKGROUND
¶3 At the time of his death, Shawn was employed as a deputy for the Phillips County
Sheriff’s Department (PCSD). He fell from a hotel balcony while in Great Falls, Montana,
for a Montana Narcotics Officers Association (MNOA) conference, sustaining injuries from
which he eventually died. Van Vleet is Shawn’s widow and the mother of their child,
Vanesa. Van Vleet timely filed a workers’ compensation claim with the PCSD’s workers’
compensation insurer, the Montana Association of Counties Workers’ Compensation Trust
(the Trust), requesting benefits as a result of Shawn’s death. The Trust denied Van Vleet’s
claim.
¶4 Van Vleet then petitioned the WCC for the death benefits and a determination that
the Trust had unreasonably denied benefits for Shawn’s death. She also requested an award
of costs, attorney’s fees and a penalty against the Trust for its unreasonable actions. The
WCC held a hearing on Van Vleet’s petition. Based on the evidence presented at the
hearing, the WCC subsequently entered findings of fact which set forth the following
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circumstances surrounding Shawn’s accident.
¶5 Shawn was employed as a deputy sheriff for the PCSD and assigned to work with the
Tri-Agency Drug Task Force (Task Force). Shawn’s direct supervisor in the Task Force was
Mark Stolen (Stolen). On January 30, 2001, Shawn and Stolen traveled together to the
Holiday Inn hotel in Great Falls, Montana, to attend a conference sponsored by the MNOA.
Participants in the conference included law enforcement agents from around Montana,
prosecutors and law enforcement equipment vendors. The conference afforded the
participants an opportunity to attend courses relating to drug law enforcement and view
products offered by the vendors. Shawn and Stolen arrived at the hotel and registered for
the conference at approximately 5:00 p.m. on January 30, 2001.
¶6 After registering, Shawn and Stolen went to a hospitality room sponsored by the
MNOA where the conference participants could network with each other and meet vendors
of equipment they might purchase. Because the Task Force was contemplating the purchase
of new equipment, Shawn’s presence in the hospitality room to network and meet vendors
was of benefit to the Task Force. Food and alcoholic beverages were available free of
charge in the room. Stolen knew alcohol was available in the hospitality room and did not
disapprove of Shawn and other agents drinking there, but did instruct them not to drink and
drive. Sheriff Tom Miller, Shawn’s supervisor at the PCSD, also was aware that conferences
of this type often provided alcohol in hospitality rooms, but he did not prohibit drinking at
the conferences.
¶7 The hospitality room closed sometime after midnight. At approximately 1:30 a.m.,
Shawn met up with four other individuals from the conference and they obtained a key to
3
the hospitality room. They went back into the room, where they consumed more alcohol and
played “drinking games.” The group left the hospitality room at approximately 2:00 a.m.
Three of the individuals proceeded to a room on the fifth floor. Shawn and the fifth member
of the group followed the first three to the room but were not allowed inside. Shawn’s
companion then entered his own room on the fifth floor, leaving Shawn alone in the hallway.
One wall of the hallway was open, forming a balcony which overlooked an indoor courtyard.
Shortly after Shawn was left alone in the hallway, he fell over a balcony railing on either the
fourth or fifth floor to the main floor of the hotel, sustaining injuries from which he
eventually died. Shawn had a blood alcohol level of .203 at the time of his death.
¶8 Based on the above findings of fact, the WCC concluded that Shawn’s intoxication
did not bar Van Vleet’s claim, but Shawn was acting outside the course and scope of his
employment at the time of his accident and, as a result, Van Vleet and her daughter were not
entitled to workers’ compensation death benefits. Consequently, the WCC dismissed Van
Vleet’s petition. Van Vleet appeals.
STANDARD OF REVIEW
¶9 Our review of a WCC decision is twofold. We review the court’s findings of fact to
determine whether they are supported by substantial credible evidence and its conclusions
of law to determine whether they are correct. Hiett v. Missoula County Public Schools, 2003
MT 213, ¶ 15, 317 Mont. 95, ¶ 15, 75 P.3d 341, ¶ 15. Here, Van Vleet does not dispute any
of the WCC’s findings of fact. Consequently, we review only whether the court’s
interpretation of, and application of the facts to, the law is correct.
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DISCUSSION
¶10 Whether the WCC erred in determining that Shawn was not within the course and
scope of his employment at the time of the fall which resulted in his death.
¶11 At the outset, we note the WCC correctly concluded that under § 39-71-407(4), MCA
(1999), Shawn’s intoxication at the time of his fall did not bar Van Vleet’s claim. Although
this conclusion is not challenged in this appeal, we will first analyze the issue of Shawn’s
intoxication during his conference participation as it is relevant to the argument later.
Section 39-71-407, MCA, states in pertinent part:
(1) Each insurer is liable for the payment of compensation, in the manner and
to the extent provided in this section, to an employee of an employer that it
insures who receives an injury arising out of and in the course of employment
or, in the case of death from the injury, to the employee’s beneficiaries, if
any.
....
(4) An employee is not eligible for benefits otherwise payable under this
chapter if the employee’s use of alcohol or drugs is 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 or drugs, this subsection does not apply. [Emphasis added.]
¶12 Here, Shawn’s employers knew he was going to socialize and drink alcohol in the
MNOA sponsored hospitality room and did not prohibit him from doing so. Shawn’s
presence and socializing activities in the hospitality room was to network and meet vendors,
which was of benefit to PCSD. The only limitation his supervisor or employer placed on
Shawn was not to drink and drive. Shawn did not leave the conference site, but drank
alcohol in the hospitality room for approximately six hours with colleagues before it initially
closed, then continued drinking with colleagues in the same MNOA sponsored hospitality
5
room between 1:30 a.m. and 2:00 a.m. Thus, the WCC correctly concluded that pursuant
to § 39-71-407(4), MCA, Shawn’s intoxication while at the conference cannot serve as a
defense to exclude coverage for Van Vleet. In fact, the WCC held:
The evidence of deputy Van Vleet’s direct supervisor shows his awareness of
the claimant’s drinking at the conference. Indeed, drinking was condoned and
widespread among conference attendees. The situation in this case is no
different than in Thoreson v. Uninsured Employer’s Fund, 2000 MTWCC 40,
wherein I held that the employer’s knowledge of the claimant’s marijuana use
immediately preceding his injury precluded the drug and alcohol defense
otherwise available under section 39-71-407(4), MCA. I therefore conclude
that the claim in this case is not barred under section 39-71-407(4), MCA,
(1999).
¶13 We also note the WCC correctly concluded Shawn’s attendance at the conference and
his participation in the hospitality room was plainly within the course and scope of his
employment pursuant to the four-factor test set forth in Courser v. Darby School Dist. No.
1 (1984), 214 Mont. 13, 16, 692 P.2d 417, 419. This conclusion is also not challenged on
appeal and should be the point where this matter ended. However, despite the legal and
factual background which led the WCC to conclude Shawn was “attending to employment-
related matters” for the first six hours of attendance in the hospitality room, the WCC then
engaged in an unnecessary deviation analysis to seemingly create a defense where none
existed. This analysis resulted in the conclusion that Shawn’s “drinking and late night
activities took him outside the course and scope of his convention attendance” and at the
time of his fall, Shawn had substantially deviated from his employment.
¶14 Despite its conclusion that Shawn’s attendance, drinking and intoxication while at the
conference sponsored hospitality room did not bar Van Vleet’s claim, the WCC, analyzing
under Dale v. Trade Street, Inc. (1993), 258 Mont. 349, 854 P.2d 828, concluded that death
6
benefits were precluded pursuant to § 39-71-407(1), MCA (1999). In Dale, we held an
employee’s injuries are compensable when the employee is “attending to employment-
related matters” when injured. Dale, 258 Mont. at 355, 854 P.2d at 832. We also
commented “[i]t is well established in Montana that traveling employees are not covered 24
hours a day, without limitation, regardless of the conduct or activity in which they are
involved. . . . The employee must remain in the course and scope of employment while
traveling for the injury to be compensable.” Dale, 258 Mont. at 352-53, 854 P.2d at 830.
¶15 Here, the WCC first noted that Dale reaffirmed this Court’s refusal to overrule
precedents holding an employee under the influence of alcohol who is nonetheless in the
course and scope of his employment is entitled to compensation and that the ultimate test is
not whether the claimant is under the influence of alcohol, but whether he was “attending
to employment related matters.” Dale, 258 Mont. at 355, 854 P.2d at 831. Then, conflicting
with its earlier conclusion that Shawn’s hospitality room activities were within the course
and scope of his employment, and while there he was attending to employment related
matters, the WCC drew a distinction between the earlier six hours of socializing and drinking
and the later half-hour of drinking. The WCC noted:
[Shawn] was not in the course and scope of his employment when he fell to
his death, therefore his widow and other potential beneficiaries are not entitled
to death benefits. After the initial closure of the hospitality room, [Shawn]
was no longer ‘attending to employment related matters.’ At that point, it was
clearly bedtime for all but [Shawn] and four others who chose to continue
drinking. They reopened the hospitality room not for business related to their
employment but to drink some more and play drinking games. The tragedy
followed on the heels of more drinking.
The WCC’s magic termination point of “employment related matters” was the initial closing
of the hospitality room doors. We cannot draw such a distinction.
7
¶16 On appeal, the Trust mirrors the WCC’s conclusion and maintains Shawn
substantially deviated from the course and scope of his employment when he reentered the
hospitality room and continued to drink alcoholic beverages, and at that point, Shawn
abandoned any business purpose as the after hours drinking provided no benefit to the
employer. The Trust asserts “[i]t is not reasonable to find compensability based upon the
assumption an employer might directly or indirectly approve of excessive drinking and
subsequent drinking games (at a closed hospitality room) which resulted in a blood alcohol
level of .203.” Van Vleet challenges this conclusion, arguing that because Shawn was at the
conference for the benefit of his employer, his attendance at the conference and the
hospitality room were within the course and scope of his employment and he remained
within the course and scope of his employment through the time he fell. We agree with Van
Vleet.
¶17 At this point, it is important to note what is not in dispute in this case, both factually
and legally. There is no dispute that Shawn’s attendance at the MNOA conference was work
related and within the course and scope of his employment. There is further no dispute that
Shawn’s attendance in the hospitality room and his consumption of alcohol up until the time
it initially closed was approved by his employer and within the course and scope of
employment related matters. During this period of work related activity, Shawn consumed
alcoholic beverages over a period of approximately six hours. Not surprisingly, evidence
disclosed Shawn had a blood alcohol level of .203 at the time of his death. The first six
hours of drinking surely contributed to his extreme intoxication. Obviously, the WCC was
influenced by the fact that additional drinking took place after the hospitality room closed.
8
Implicit in the WCC’s finding is a determination that somehow the additional half-hour of
drinking was the real cause of Shawn’s death. There is absolutely no evidence to support
a conclusion that Shawn was not legally intoxicated when he initially left the hospitality
room; nor is there any evidence in the record that Shawn was initially sober when he initially
left the hospitality room and the additional half-hour of drinking was the cause of the
intoxication. To the contrary, the evidence is compelling that Shawn was already intoxicated
when the hospitality room initially closed its doors. Had Shawn fallen off the balcony at that
point, under the WCC’s analysis, Van Vleet would be compensated.
¶18 It must be remembered that the issue is not Shawn’s drinking and intoxication. The
WCC concluded, and the parties agree, Shawn’s intoxication during the conference did not
bar Van Vleet’s claim. The pivotal question under these facts, according to the WCC, is
whether Shawn’s later half-hour of drinking, up until the time of his fall, constituted a
substantial deviation from his earlier six hours of drinking, which was established as
“employment related matters.”
¶19 Gordon v. H.C. Smith Construction (1980), 188 Mont. 166, 612 P.2d 668, is a similar
case where a Butte electrician, while on a job site in Denton, met up with some fellow
electricians at the local bar where they drank alcohol and played pool for approximately four
hours. Gordon was killed when he and his colleagues left the bar and his colleague, who
was driving, went off the road. This Court commented that “it cannot come as a great shock
to the employer or be unforeseeable by the insurer that working men away from their homes
and families may visit a saloon for a beer after work.” Gordon, 188 Mont. at 174, 612 P.2d
at 672. Similarly, here, it is not shocking, nor is it unforeseeable that Shawn and his
9
colleagues, while away from their homes and families, would attend and participate in a
conference sponsored hospitality room where alcohol was provided in order to socialize and
network.
¶20 The insurer in Gordon argued that Gordon had deviated from his employment when
stopping at the Denton bar. This Court noted that “Workers’ compensation legislation is the
original no fault insurance. If an employee performs his job negligently and is killed as a
result, his death is compensable.” Gordon, 188 Mont. at 174, 612 P.2d at 672. The insurer,
by arguing Gordon had deviated from his employment, attempted to interject fault into a no
fault system. Gordon, 188 Mont. at 174, 612 P.2d at 672. Additionally, this Court held
Gordon’s death occurred during the course of his employment as our case law demonstrates
that a claimant’s intoxication, does not by itself, establish a deviation from the course of
employment. Gordon, 188 Mont. at 174, 612 P.2d at 672.
¶21 Here, the WCC, through its deviation analysis, has interjected fault into a no fault
system. This was not a situation where Shawn left the premises or participated in some
peculiar after hours activity at the Holiday Inn not anticipated by his employer.
Additionally, Shawn’s employer was well aware that drinking alcohol would be a part of the
conference and conceded that Shawn’s presence at the hospitality room and his attendance
at the conference was of benefit to the PCSD. Shawn’s intoxication, does not by itself,
establish a deviation from the course of employment. Under the WCC’s analysis, after the
hospitality room closed, the only choice for attendees of the conference was to go to bed
because any compensable claims ended when the doors closed.
¶22 The burden of proving an employee deviated from the course and scope of his
10
employment is on the employer or workers’ compensation insurer. See Gordon, 188 Mont.
at 173, 612 P.2d at 672 (citations omitted). There is no evidence in the record that supports
a legal holding that it was bed time for attendees or that drinking alcohol after a set time was
prohibited. Thus, under these facts, any drinking that occurred in the hospitality room with
colleagues that night is not a deviation from the course and scope of Shawn’s employment.
¶23 Here, Shawn and his companions simply continued on with the same sponsored
activity, including when they returned to the hospitality room and up until the time of
Shawn’s fall. The drinking that occurred was the continuation of the same activity, in the
same way, in the same place, for the same purposes and with the same sanctions of the
employer that mandates the conclusion Shawn began the night in the course and scope of his
employment and remained there until his fall. It was certainly foreseeable to Shawn’s
employer that drinking would not only occur in the hospitality room, but at other times
during this conference.
¶24 As we stated earlier, because Shawn did not deviate from the course and scope of
employment, there is no need to analyze the case under Dale as the WCC did. Van Vleet
correctly argues that if Shawn’s intoxication cannot be used as a defense to compensability,
then it is inconsistent and legally incorrect for the WCC to have based its later conclusion
regarding course and scope of employment on that same intoxication. As such, we hold the
WCC erred when interpreting and applying the four factors from Dale to determine whether
Shawn deviated from his traveling employee status.
¶25 We hold that the WCC incorrectly determined Shawn was not within the course and
scope of his employment at the time of the fall which resulted in his death and erred in
11
dismissing Van Vleet’s petition on that basis. Reversed and remanded to the WCC to enter
judgment and an award of benefits to Van Vleet on her behalf and on behalf of Vanesa, their
daughter.
/S/ JIM REGNIER
We Concur:
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
12
Chief Justice Karla M. Gray, dissenting.
¶26 I respectfully dissent from the Court’s conclusion that Shawn Van Vleet was within
the course and scope of his employment at the time of the fall which resulted in his death.
It is my opinion that Shawn’s early morning activities constituted a deviation from work-
related matters, putting him outside the course and scope of his employment at the time he
fell from the balcony. I would affirm the WCC’s dismissal of Van Vleet’s petition for
workers’ compensation benefits on that basis.
¶27 At the outset, I agree the WCC correctly determined that Shawn’s extreme
intoxication at the time he fell does not bar Van Vleet’s petition under § 39-71-407(4),
MCA. I further agree that, pursuant to the four-part test set forth in Courser v. Darby School
Dist. No. 1 (1984), 214 Mont. 13, 692 P.2d 417, the WCC correctly determined that Shawn’s
presence at the MNOA conference and participation in the hospitality room prior to its
closing at midnight were within the course and scope of his employment.
¶28 I strenuously disagree, however, with the Court’s statements that the WCC’s
determination regarding the course and scope of Shawn’s employment resolved the issue
before it and that the WCC’s further analysis of whether Shawn deviated from the course and
scope of his employment was unnecessary. The Trust argued in the WCC that workers’
compensation benefits were not payable because Shawn had deviated from the course and
scope of his employment at the time he fell and it was necessary for the WCC to address this
argument. Moreover, in my opinion, the WCC correctly determined that Shawn had deviated
from the course and scope of his employment at the time he fell from the balcony.
13
¶29 Section 39-71-407(1), MCA, provides that an insurer is liable for the payment of
workers’ compensation benefits to an employee or the employee’s beneficiary if the
employee “receives an injury arising out of and in the course of employment . . . .”
Generally, when an employee is traveling for the purpose of performing an assignment
incidental to the employee’s regular employment and of some immediate benefit to the
employer, an injury sustained by the employee during that travel may be deemed to have
occurred in the course and scope of employment. See Courser, 214 Mont. at 16, 692 P.2d
at 418-19 (citation omitted). In Courser, we set forth four factors applicable in determining
whether travel activity during which an injury occurs is work-related and, thus, within the
course and scope of the employment: (1) whether the activity was undertaken at the
employer’s request; (2) whether the employer directly or indirectly compelled the
employee’s attendance at the activity; (3) whether the employer controlled or participated
in the activity; and (4) whether both the employer and employee mutually benefitted from
the activity. Courser, 214 Mont. at 16, 692 P.2d at 419.
¶30 The parties do not dispute that the WCC correctly applied the four Courser factors to
its initial determination that Shawn’s attendance at the conference and participation in the
hospitality room until its closure by the sponsor at midnight was within the course and scope
of his employment. However, as the Court correctly observes, traveling employees are not
covered 24 hours a day without limitation. The employee must remain within the course and
scope of employment during travel in order for an injury to be compensable. Dale v. Trade
Street, Inc. (1993), 258 Mont. 349, 352-53, 854 P.2d 828, 830.
14
¶31 Based on these principles, we have developed what is termed the “deviation” rule
which provides that, if the employee departs from the mutually beneficial purpose of the
travel--that is, temporarily leaves the employment and does not attend to employment-related
matters--the employment connection is severed and an injury sustained during the period of
the deviation is outside the course and scope of employment. Dale, 258 Mont. at 355-56,
854 P.2d at 832. Furthermore, the question of whether an employee deviated by no longer
attending to employment-related matters also is resolved by applying the four-part Courser
test. Dale, 258 Mont. at 355-56, 854 P.2d at 831-32. In other words, the Courser factors are
used to determine both whether overall travel is within the course and scope of employment
and whether a deviation from compensable travel renders an employee outside the course and
scope of the employment.
¶32 Here, the WCC applied the four Courser factors and determined that Shawn’s
attendance at the conference and participation in the hospitality room prior to its closing at
midnight were within the course and scope of his employment. In that regard, the WCC
found that Shawn’s attendance at the conference was at least encouraged, if not required, by
his employer and that his immediate supervisor attended the conference and participated in
the hospitality room with him. The WCC further found that Shawn’s attendance at the
conference and hospitality room were of benefit both to himself and his employer because
Shawn was to attend training courses, could network with other law enforcement officers and
prosecutors, and could meet with equipment vendors to evaluate available products which
the Task Force was contemplating purchasing. Thus, Shawn’s participation in the MNOA-
15
sponsored hospitality room until its closure was within the course and scope of his
employment under the Courser test.
¶33 The problem with the Court’s analysis of this case is that, having observed that we
apply the four-part Courser test to determine whether an employee’s activities are within the
course and scope of employment and that a traveling employee is not covered 24 hours a day
without limitation, the Court never returns to or applies these legal concepts. The Court
merely concludes that
Shawn and his companions simply continued on with the same sponsored
activity, including when they returned to the hospitality room and up until the
time of Shawn’s fall. The drinking that occurred was the continuation of the
same activity, in the same way, in the same place, for the same purposes and
with the same sanctions of the employer that mandates the conclusion Shawn
began the night in the course and scope of his employment and remained there
until his fall.
Simply put, this conclusion is both factually and legally incorrect. Moreover, and at best,
the Court’s conclusion leaves the “not covered 24 hours a day” principle on shaky ground
indeed.
¶34 The MNOA-sponsored hospitality room closed at midnight. There is no evidence that
the MNOA or Shawn’s employer authorized or condoned use of the room after midnight.
Consequently, the presence of Shawn and his companions in the room after obtaining a key
from a hotel employee was not a “sponsored activity.” Moreover, Shawn’s early-morning
activities were not a continuation of the same earlier activity and were not conducted for the
same purposes. Rather, viewing the facts of this case in light of the four Courser factors
reveals that Shawn’s early-morning activities were a deviation from, and not within, the
course and scope of his employment.
16
¶35 Shawn’s employer and supervisor did not encourage him, and did not accompany him,
in his early-morning activities including personal use of the hospitality room after its sponsor
closed it. Nor was there any benefit to his employer in the additional socializing in which
Shawn and others participated after obtaining a key to the room from a hotel employee.
Shawn was not attending training courses, there no longer were equipment vendors in the
hospitality room and, other than Shawn’s four drinking companions, there were no law
enforcement officers or prosecutors with which to network for employment purposes. No
evidence suggests--much less establishes--that Shawn and his companions were doing other
than personal, nonwork-related socializing. Once the MNOA closed the sponsored
hospitality room, the Courser factors no longer were met. I would conclude, therefore, that
Shawn’s early-morning activities after the hospitality room closed were not work-related and
constituted a deviation from the course and scope of his employment.
¶36 Furthermore, the Court’s reliance on Gordon v. H.C. Smith Const. Co. (1980), 188
Mont. 166, 612 P.2d 668, is misplaced as that case is readily distinguishable. In that case,
we concluded that Gordon was on his way to where he was staying for the night at the time
the accident occurred. Consequently, he was within the course and scope of his employment
as a traveling employee because he was en route from work. Gordon, 188 Mont. at 173-74,
612 P.2d at 672. Thus, the question of whether Gordon’s stop at a bar to drink and socialize
constituted a deviation from work-related matters was of no import because Gordon
subsequently proceeded on his way home from his job, which activity was work-related.
Gordon, 188 Mont. at 174-75, 612 P.2d at 672-73. In contrast, there is no evidence here that
Shawn had discontinued his early-morning activities and was proceeding to his room for the
17
night at the time he fell from the balcony. Indeed, Shawn’s last known activity was trying
unsuccessfully to continue with more drinking. There is no record basis for the Court’s
determination that the facts of this case are similar to those in Gordon.
¶37 More importantly, however, the Court hangs it hat on Gordon in the context of its
continued refusal to accept the reality that the sponsored hospitality room--conceded by all
to be within the course and scope of Shawn’s employment--had closed before the activities
at issue here began. The Court’s statement, vis-a-vis Gordon, that “[s]imilarly, here, it is not
shocking, nor is it unforeseeable that Shawn and his colleagues, while away from their
homes and families, would attend and participate in a conference sponsored hospitality room
where alcohol was provided in order to socialize and network,” simply and totally ignores
the actual facts of this case, which include not only additional drinking, but drinking games
after the hospitality room was closed.
¶38 Finally, I disagree that the WCC based its conclusion that Shawn was not within the
course and scope of his employment when he fell on the fact that Shawn was highly
intoxicated at the time. Rather, the WCC concluded that Shawn was not “attending to
employment-related matters.” While Shawn’s presence in the hospitality room and his
drinking while there prior to its closing was condoned by and beneficial to his employer, his
subsequent activities were not. It is not the fact of his intoxication which removed him from
the course and scope of his employment. Shawn’s early-morning activities after the sponsor
closed the hospitality room, which were devoid of any benefit to his employer, constituted
the deviation.
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¶39 In my view, the WCC correctly determined Shawn was not within the course and
scope of his employment at the time he fell from the balcony. Consequently, I would affirm
the WCC’s dismissal of Van Vleet’s petition for workers’ compensation benefits and I
dissent from the Court’s failure to do so.
/S/ KARLA M. GRAY
Justice James C. Nelson and Justice Jim Rice join in the foregoing dissenting opinion.
/S/ JAMES C. NELSON
/S/ JIM RICE
19
Vleet v. Montana Ass'n of Counties Workers' Compensation Trust
Court: Montana Supreme Court
Date filed: 2004-12-21
Citations: 2004 MT 367, 324 Mont. 517
Copy Citations