No. 91-030
IN THE SUPREME COURT OF THE STATE OF MONTANA
Z
1991
BRUCE PARKER,
Petitioner and Appellant,
GLACIER PARK, INCORPORATED and NATIONAL UNION FIRE INSURANCE
COMPANY,
Employer/Insurer, Respondent and Cross-Appellant.
APPEAL FROM: The Workers' Compensation Court,
The Honorable Timothy W. Reardon, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Thomas J. Murphy; Conklin, Nybo, LeVeque & Murphy,
Great Falls, Montana.
For Respondent:
Patrick G. Frank; Worden, Thane & Haines, Missoula,
Montana.
Submitted on Briefs: June
Decided: July
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Justice R. C. McDonough delivered the Opinion of the Court.
Bruce Parker appeals from a judgment rendered by the Workers'
compensation Court finding him permanently partially disabled. The
employer, Glacier Park, Inc., and its insurer National Union Fire
Insurance Company cross-appeal from the Workers' Compensation
Courtf finding that Mr. Parker's injuries were sustained in the
s
course and scope of his employment. We affirm in part and reverse
in part.
The only issues we find necessary for review are:
1. Whether Mr. Parker's automobile accident occurred within
the course and scope of his employment with Glacier Park;
2, Whether the evidence supports the Workers1 Compensation
Court's conclusion that Mr. Parker is permanently partially
disabled as opposed to permanently totally disabled.
Bruce Parker was first hired by Glacier Park, Inc. as a roving
relief night auditor in 1981. Eventually he became the hotel
manager at the Rising Sun Motor Inn. On September 1, 1986, the day
preceding his accident, Mr. Parker was preparing to close the
Rising Sun for the season. As he worked he noticed Troy Miller,
Executive Chef of Lake McDonald Lodge and Bob Krohne, Executive
Chef at the Rising Sun. Apparently, these two individuals were
discussing the transfer of food products from Rising Sun to Lake
McDonald Lodge and other locations remaining open longer than
~ising Sun. Usually Mr. Parker would be involved in such
discussions; however on this particular evening he was too busy
fulfilling other tasks.
Later that evening Mr. Parker began loading his car with
lettuce and potatoes which he intended to take to St. Maryls Lodge.
Apparently Rising Sun had borrowed lettuce and potatoes from St.
Mary's earlier that week, It was Mr. Parker's intention to return
the borrowed food that evening.
Strictly speaking, these types of food transfers were
prohibited by Glacier Park, Inc. These regulations were generally
not followed however. Informal food exchanges took place
throughout the season when the need arose. When such exchanges
occurred it was Mr. Parker's responsibility to see that all loans
were repaid.
As he was loading his car to return the borrowed food, Mr.
Parker once again encountered Mr. Krohne and Mr. Miller who
informed him that they were going to St. Mary's that evening to
have a beer. They invited Bruce Parker to join them and he decided
to meet them to discuss the food transfers that had taken place
earlier that day. In addition to returning the borrowed food to
St. Mary's, Mr. Parker also intended to pick up some change that
would be needed for the next day's business.
Mr. Parker left the Rising Sun Inn for St. Maryls where he
returned the food. After returning the food, he went to the front
desk and obtained the change, He met Krohne and Miller, and had
a couple of beers. According to all who were present, the
conversation centered around business activities and the nearly
completed season. Parker described the conversation as a general
business discussion as to what went well and what did not go well
during the season. Although general in nature, such discussions
were important to Parker because he was responsible for making
suggestions to management as to possible improvements based on the
past year's performance.
At approximately 12:OO a.m. Mr. Parker left St. Mary's to
return to the Rising Sun. Although he had consumed several beers
and at least one shot of liquor, Parker maintains that he intended
to go back to work so that he could count out the next morning's
banks. He also wanted to speak to the night auditor regarding the
final night's audit.
On his returning to the Rising Sun, Mr. Parker was involved
in a single car accident which rendered him severely and
permanently injured. He suffered a spinal cord injury resulting
in complete paralysis from the waist down. In addition, Mr. Parker
suffered a serious closed head injury. As a result of this injury
he is plagued by severe mental deficits and he is noted to have
suffered loss of memory as well as diminishment in abilities of
reasoning, attention, problem solving, comprehension and stress
management.
Mr. Parker's injuries have caused further problems as well.
At times he suffers from severe depression and at one time he
attempted suicide. He has attempted to live on his own. However
at time of trial he had failed in such an endeavor on at least two
occasions and was, at that time, living with his parents in
Washburn, Maine.
Following trial, the Workers' Compensation Court determined
that Mr. Parker had suffered an injury in the course and scope of
his employment as required by 5 39-71-407, MCA. The court further
determined that Mr. Parker was permanently partially disabled as
a result of these injuries. From this determination both parties
appeal.
The first issue is whether Mr. Parker's injuries "arose out
of and in the course of his employment." Section 39-71-407, MCA.
In order for this Court to hold that Parker was properly awarded
workers' compensation benefits, it must be shown that he sustained
(1) an injury that (2) arose out of and (3) in the course of his
employment. Wiggins v. Industrial Accident Board (1918), 54 Mont.
335, 170 P. 9. It is obvious that the injuries sustained by Parker
satisfy the definition of injury as set forth in 5 39-71-119, MCA.
Therefore, we need only determine whether Parker has satisfied the
"arising out of" and "in the course of" requirements.
Analysis of the "arising out of" requirement presupposes the
existence of causal connection between the injury and employment.
Landeen v. Toole County Refining Co. (1929), 85 Mont. 41, 277 P.
615. In general, if the claimant's employment is one of the
contributing causes which placed him in the path of harm and
without which the injury would not have followed, the claimant is
entitled to compensation. Rathburn v. Taber Tank Lines Inc.
(1955), 129 Mont. 121, 183 P.2d 966.
In the case now before us, Bruce Parker had three reasons for
driving to St. Mary's on the night of September 1, 1986. First,
he intended to return food that had been borrowed from St. Mary's.
Second, he needed to obtain small bills for the operating tills of
Rising Sun; and third he wanted to meet with his employees to
discuss the evening's food transfers. Each of these reasons is job
related. On his return from performing these tasks Bruce Parker
was injured.
Glacier Park, Inc. has attempted to cast doubt on both the
necessity of and the actual completion of these tasks. Its
arguments in this regard have no merit. There i s no evidence that
Bruce Parker has testified untruthfully about his purpose in
traveling to St. Mary's. Furthermore, whether these tasks were
absolutely necessary to the operations of the Rising Sun is
irrelevant. Bruce Parker was the operating manager and had the
discretion to complete these tasks. He deemed their completion to
be necessary before the next business day and they were therefore
part of his job requirements. Accordingly, the "arising out ofH
requirement has been met.
Glacier Park, Inc. argues, however, that Parkerts accident
occurred when he was acting outside of the course and scope of his
employment. It therefore maintains that he cannot establish the
third prong of 5 39-71-407, MCA, and his injury is therefore not
cornpensable.
In asserting this position Glacier Park, Inc., maintains that
Bruce Parker acted outside of the course of his employment when he
stopped in the St. Mary's bar and consumed alcoholic beverages.
Glacier Park, Inc., sets forth several public policy arguments,
which it maintains should persuade this Court to hold in its favor.
We need not delve deeply into these arguments. We refuse to
overrule thirteen years of precedent to hold that an employee who
may be under the influence of alcohol, without having abandoned the
course of his employment, is precluded from recovering under the
workers' compensation system. See Steffes v. 93 Leasing Co. Inc.
(1978), 177 Mont. 83, 580 P.2d 450. Here the evidence relative to
the influence of alcohol is conflicting at best and we will not
disturb the findings of the Workers' Compensation Court that the
defendant failed to meet its burden of showing an abandonment from
the course and scope of employment.
There is no evidence that Parker was acting outside the scope
of his employment when he wrecked his car. On the contrary, the
evidence establishes that he was traveling back to the Rising Sun
to talk with his night auditor about business-related matters and
to count out the next day's tills. This evidence supports the
Workers' Compensation Court's conclusion that Parker's injuries
arose out of and in the course of his employment.
Parker has appealed the Workers' Compensation Court's
conclusion that he is permanently partially disabled. Section 39-
71-705(2), MCA, states:
The loss of both hands, both arms, both feet, both legs,
both eyes, or any two thereof in one accident, in the
absence of conclusive proof to the contrary, shall
constitute total disability, permanent in character.
Parker maintains that as a paraplegic who has lost the use of
both of his legs, he should receive the benefit of this statute.
Since, in his view, Glacier Park, Inc., has failed to present
conclusive proof of his employability he must be awarded permanent
total benefits, or in the least temporary total benefits.
The term "conclusive proof" is defined as :
.. . either a presumption of law or evidence so strong
as to overbear everything to the contrary; proof that is
convincing in character after all evidence and support
and rebuttal has been weighed. It has been held
equivalent to "a moral certainty" or "beyond a reasonable
doubt." 15 A C.J.S. Conclusive
We agree that Glacier Park has failed to meet the burden set
out under 5 39-2-705(2), MCA. Three vocational rehabilitation
experts testified regarding Mr. Parker's injuries. Apparently, all
three agreed that due to his head injuries and his diminished
intellectual capacity, Bruce Parker would never again be able to
work in a management position. However, they did determine that
he could work in other occupations that were less intellectually
demanding. The evidence is far from conclusive that he was ready
or able to begin work in these areas at the time of trial, however.
Beverly Abbot, Glacier Park, Inc.'s, vocational
rehabilitationist, testified during her deposition that Mr. Parker
would need additional treatment before he could reenter the
workforce. She further stated that he would require increased
upper body strength, physical stamina and possibly a lower leg
bracing program before he could become employed. Additionally, as
a result of his paralysis, Mr. Parker has lost control of his
bladder and bowel functions. He did not have, at the time of
trial, a program that would effectively control these problems.
Bruce Parker, testifying on his own behalf, stated that
8
although he wished it were different, he did not feel confident
that he could live away from his parents' home. He had tried
living on his own on at least two occasions and had failed. As a
result of these failures Mr. Parker believed that he needed his
parents to help him with his daily living activities.
The testimony recited above refutes Glacier Park, Inc.'s,
argument that conclusive evidence proved Mr. Parker was not
permanently totally disabled. To the contrary, it is obvious that
at the time of trial, Mr. Parker was totally disabled. Perhaps
after further therapy, he can reenter the workforce and once again
become a full working member of society. However, at this point,
it is clear that he is reliant upon his parents for his daily needs
and due to problems associated with his disability he cannot engage
in fulltime employment. Nor is there any evidence that he can find
suitable full time employment in the vicinity of his parents' home.
We hold that the Workerst Compensation Court erred in finding
Mr. Parker was permanently partially disabled. Conclusive proof,
which is required under 5 39-71-705(2), MCA, to support this
conclusion, was not present in this case. We therefore reverse and
direct the court to enter a finding holding Mr. Parker to be
temporarily totally disabled. In all other respects this case is
affirmed. I
We Concur:
i\
*
July 2( 1991
f
CERTIFICATE OF SERVICE
I hereby certrfy that the following arder was sent by United States mail, prepaid, to the
following named:
Thomas J. Murphy
CONKLIN, NYBO & LEVEQLE, P.C.
P.O. Box 2049
Great Falls, MT 59403
Patrick G. Frank
WORDEN, TXfANE & HAINES, P.C.
f.0. Box 4747
Missoula, MT 59806
ED SMITH
CLERK 0Ijl.Tl-E SUPREME COURT
BY: