Summary: The petition in this matter arises out of the death of Shawn Van Vleet (referred to hereinafter as "decedent" or "deputy Van Vleet"). His death occurred on January 31, 2001, as a result of his fall from the fourth or fifth floor balcony of the Holiday Inn in Great Falls, Montana. At the time of is death, decedent was a Deputy Sheriff for Phillips County and attending a Montana Narcotics Officers Association conference. He was intoxicated when he fell.

Held: While the claimant's employer was aware of drinking at the conference, the claimant's fall and death did not occur in the scope and course of his employment since the drinking and other late night activities went beyond those sanctioned by the employer and the conference.

Topics:

Benefits: Death Benefits. Death benefits are payable to statutory beneficiaries and not to the estate of the deceased worker. Accordingly, the personal representative of the estate of the deceased worker has no standing to maintain a claim for workers' compensation benefits.

Constitutions, Statutes, Rules, and Regulations: Montana Code Annotated: § 39-71-721, MCA (1999). Death benefits are payable to statutory beneficiaries and not to the estate of the deceased worker. Accordingly, the personal representative of the estate of the deceased worker has no standing to maintain a claim for workers' compensation benefits.

Employment: Course and Scope: Intoxication. Where a substantial cause of the claimant's injury or death is alcohol intoxication, a claim for benefits is barred by section 39-71-407(4), MCA (1999), unless the employer was aware that the claimant was using alcohol or drugs and failed to attempt to stop the use.

Constitutions, Statutes, Rules and Regulations: Montana Code Annotated: § 39-71-407(4), MCA (1999). Where a substantial cause of the claimant's injury or death is alcohol intoxication, a claim for benefits is barred by section 39-71-407(4), MCA (1999), unless the employer was aware that the claimant was using alcohol or drugs and failed to attempt to stop the use.

Defenses: Intoxication. Where a substantial cause of the claimant's injury or death is alcohol intoxication, a claim for benefits is barred by section 39-71-407(4), MCA (1999), unless the employer was aware that the claimant was using alcohol or drugs and failed to attempt to stop the use.

Employment: Course and Scope: Intoxication. Where an employer was aware of and did not attempt to stop alcohol use by an employee, intoxication does not bar a claim for compensation so long as the employee was otherwise in the course and scope of employment.

Defenses: Intoxication. Where an employer was aware of and did not attempt to stop alcohol use by an employee, intoxication does not bar a claim for compensation so long as the employee was otherwise in the course and scope of employment.

Employment: Course and Scope: Intoxication. Where an employee engages in after-hours and unsanctioned drinking at a conference related to his employment, and is injured or dies as a result of the unsanctioned drinking, the injury or death was not within the scope and course of employment and is not compensable.

Cases Discussed: Dale v. Trade Street. Dale v. Trade Street, Inc. 258 Mont. 349, 854 P.2d 828 (1993), holds that intoxication is not a defense to a workers' compensation claim but also holds that to be compensable the injury must have occurred while the claimant was "attending to employment-related matters."

¶1 The trial of this matter was held in Great Falls, Montana, on June 2, 2003. The petitioner was represented by Mr. Daniel B. Bidegaray and Ms. Anna M. Bidegaray. Respondent was represented by Mr. Norman H. Grosfield. Post-trial briefing was requested by the Court and completed on June 16, 2003, at which time the case was deemed submitted for decision.

¶2 Exhibits: Exhibits 1 through 13 were admitted without objection.

¶3 Witnesses and Depositions: Petitioner, Mark Stolen, Wendy Sesselman, and Tom Miller testified at trial. No depositions were submitted.

¶4 Issues Presented: The issues as set forth in the Pretrial Order are:

¶4a Whether Shawn Van Vleet was within the course and scope of his employment at the time of his death.

¶4b Whether Ms. Van Vleet [petitioner] is precluded from receiving benefits under the provisions of Section 39-71-407(4), MCA.

¶4c Whether beneficiaries are excluded from receiving benefits based on the employees's use of alcohol.

¶4d Whether Ms. Van Vleet is entitled to an award of the twenty percent (20%) penalty pursuant to Section 39-71-2907, MCA, and to attorney's fees.

(Pretrial Order at 3.) Respondent objected to the inclusion of issue 3, however, that issue is encompassed in issue 2. The objection is overruled.

¶5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following:

FINDINGS OF FACT

¶6 The petitioner is the widow⁽¹⁾ of Shawn Van Vleet, who died January 31, 2001, as a result of a fall from the fourth or fifth floor balcony of the Holiday Inn in Great Falls, Montana, while attending a Montana Narcotics Officers Association (MNOA) meeting.

¶7 At the time of his death, the decedent was a Deputy Sheriff for Phillips County but was assigned to the Tri-Agency Drug Task Force (Task Force). The Task Force was an inter-governmental agency organized by the City of Havre and several counties. It was staffed by three law enforcement agents assigned from the various governmental entities participating in the Task Force. Mark Stolen (Stolen) was the project director for the Task Force and deputy Van Vleet's direct supervisor while he was assigned to the Task Force. Deputy Van Vleet was the Team Leader and supervised other agents.

¶8 The MNOA is a statewide association of law enforcement officers. On January 30 and 31, 2001, MNOA sponsored a conference of its members at the Holiday Inn in Great Falls. The conference included law enforcement agents from around the state, prosecutors, and law enforcement equipment vendors. Law enforcement vendors displayed their products during the conference. Courses relevant to drug law enforcement were scheduled for January 31^st.

¶9 Registration for the meeting was held on the afternoon and evening of January 30, 2001. Deputy Van Vleet and Stolen arrived at approximately 5:00 p.m.

¶10 A hospitality room was opened to conference participants. The hospitality room was a place which allowed agents to network with one another and with prosecutors, and to meet vendors of equipment they might purchase and use in their work. Networking and meeting vendors was considered a benefit to the Task Force. Stolen testified that at the time of the conference, the Task Force was contemplating equipment purchases. Stolen's testimony showed that the Task Force benefitted from deputy Van Vleet's socializing in the hospitality room on the evening of January 30th.⁽²⁾

¶11 Food and alcoholic beverages were available in the hospitality room. Stolen was aware of the availability of alcoholic beverages and in fact had a drink himself while socializing in the room. He testified that most of the conference participants were drinking in the hospitality room on the evening of January 30^th. He did not disapprove deputy Van Vleet or other agents drinking; he had simply instructed them not to drive if drinking.

¶12 Sheriff Tom Miller testified that he had attended similar conferences where alcoholic beverages were available in a hospitality room. He did not prohibit drinking at the conferences.

¶13 Neither Stolen nor Sheriff Miller were aware that claimant had any drinking problem and there is no evidence that in fact he did.

¶14 Stolen left the hospitality room sometime before midnight. He testified that during the evening in the hospitality room he could have instructed Van Vleet not to drink, however, he saw no need to do so.

¶15 Deputy Van Vleet fell from a fourth or fifth story balcony of the hotel at approximately 2:00 a.m., January 31, 2001. (See Ex. 9 at 26.) His fall was fatal. (Ex. 7.)

¶16 There was no direct testimony concerning deputy Van Vleet's activities and drinking the night of January 30^th and early morning of January 31^st. However, the parties have provided the Court with the Cascade County Sheriff's investigation file, including statements taken during the investigation.

¶17 The statements taken from other law enforcement officers attending the conference show that approximately thirty people used the hospitality room on the evening of January 30^th, and that most of them were drinking. Both beer and hard liquor were available and the bar was "open," meaning drinks were free.

¶18 The hospitality room closed sometime after midnight. However, a group of five individuals including deputy Van Vleet got a key to the room at about 1:30 a.m., January 31^st, and went back into the room. Once there, they continued drinking and three of them, including deputy Van Vleet, played a "drinking game" involving quarters.

¶19 The group left the hospitality room about 2:00 a.m., January 31^st. According to one of the group, they all went up to Room 512 where one of them was staying. The other two individuals - deputy Van Vleet and officer Paul Nordlund (Nordlund) of the Red Lodge police -- followed them up to the 5^th floor and knocked on the door of Room 512. They were refused admittance and Nordlund then went to his Room 503 leaving deputy Van Vleet in the hallway. The hallway was a balcony overlooking an inside courtyard at the motel.

¶20 Very shortly thereafter deputy Van Vleet fell to his death, probably from the fifth floor balcony although investigators were unable to determine whether he fell from the fourth or fifth floor.

¶21 At the time of his fall and death, deputy Van Fleet was intoxicated. His blood alcohol level was .203. (Id. at 14.) Based on the statements taken by investigators, it is likely that others at the conference, at least among the group of five that re-opened the hospitality room at 1:30 a.m., were also intoxicated.

¶22 Deputy Van Vleet's widow filed a workers' compensation claim on January 22, 2002. (Ex. 4.)

¶23 The claim was received and considered by Wendy Sesselman (Sesselman) a claims adjuster for the respondent. Sesselman sought legal advice from Mr. Norman H. Grosfield, an attorney who represents the respondent. Mr. Grosfield advised Sesselman that the police and autopsy reports showed that deputy Van Vleet's intoxication was a major contributing factor to his death. (Ex. 10.) He advised her that pursuant to section 39-71-407(4), MCA, the death was not compensable unless a Court were to hold that the subsection did not apply to beneficiaries in a death case, which he believed unlikely. (Id.) He further indicated his belief that the accident did not occur in the course and scope of deputy Van Vleet's employment. (Id.)

¶24 On the same day as Mr. Grosfield's advice, Sesselman denied the claim. Her denial letter incorporated Mr. Grosfield's reasoning, saying in relevant part:

It is our position that the claim is not compensable pursuant to the Montana Worker's [sic] Act. Section 39-71-407(4) states that benefits are not due if use of alcohol is a major contributing cause to an accident. The death certificate and coroner's report indicates that acute alcohol intoxication was a significant factor. Secondly, Section 39-71-407(1) states that an accident must arise out of the course and scope of employment. Although Mr. Van Vleet was attending a conference in relation to his employment, the injuries sustained did not arise out of his employment with Phillips County. Therefore, based on this information, we must respectfully deny your claim for benefits.

(Ex. 11.)

¶25 At trial, Sesselman conceded that she did not contact Stolen or Sheriff Miller to determine if they had prohibited drinking; she assumed that at least they had not authorized it. She also did not know about the hospitality room. When presented with those facts at or near trial, she conceded the hospitality room was a benefit to deputy Van Vleet's employer. However, even with the additional information concerning the employer's drinking policies and the hospitality room, she defended the denial based on her belief that when deputy Van Vleet became intoxicated he was no longer acting in the course and scope of his employment.

¶26 This case is governed by the 1999 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).

¶27 Petitioner bears the burden of proving by a preponderance of the evidence that she is entitled to death benefits. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).

¶28 As an initial matter, the petitioner lacks standing to pursue the present claim in her capacity as the personal representative of the decedent's estate. Death benefits are not payable to the estate; by statute they are directly payable to the decedent's beneficiaries. Section 39-71-721(1)(a) and (6), MCA (1999), provide:

39-71-721. Compensation for injury causing death -- limitation. (1) (a) If an injured employee dies and the injury was the proximate cause of the death, the beneficiary of the deceased is entitled to the same compensation as though the death occurred immediately following the injury. A beneficiary's eligibility for benefits commences after the date of death, and the benefit level is established as set forth in subsection (2).

. . .

(6) In all cases, benefits must be paid to beneficiaries. [Emphasis added.]

¶29 However, the widow of a deceased claimant is a primary beneficiary under the statute. Section 39-71-116(5), MCA provides in relevant part:

(5) "Beneficiary" means:

(a) a surviving spouse living with or legally entitled to be supported by the deceased at the time of injury;

And, section 39-71-721(5), MCA (1999), provides in relevant part,

. . . Death benefits must be paid to a surviving spouse for 500 weeks subsequent to the date of the deceased employee's death or until the spouse's remarriage, whichever occurs first. . . .

Petitioner, in her own right, is therefore a proper party to this action and I shall consider the claim as made on her own personal behalf rather than on behalf of the decedent's estate.

¶30 I take further note, however, that there may be other beneficiaries in this case. One of the newspaper articles in evidence indicates that the decedent has a minor child. (Ex. 1 at 2.) Minor children are also beneficiaries under death benefits provisions of the Workers' Compensation Act. § 39-71-116(5)(b), MCA (1999). Since the Court has not been asked to determine beneficiaries, only to determine compensability, I address only the compensability issue and nothing said herein should be construed as determining the rights of any beneficiaries as among themselves.

¶31 Deputy Van Vleet's attendance at the MNOA conference was plainly in the course and scope of his employment. The factors for determining whether the activity during which the claimant was injured was work related are:

(1) whether the activity was undertaken at the employer's request; (2) whether employer, either directly or indirectly, compelled employee's attendance at the activity; (3) whether the employer controlled or participated in the activity; and (4) whether both employer and employee mutually benefitted from the activity. The presence or absence of each factor, may or may not be determinative and the significance of each factor must be considered in the totality of all attendant circumstances.

Courser v. Darby School Dist. No. 1, 214 Mont. 13, 16-17, 692 P.2d 417, 419 (1984). In this case, as in Courser, it is clear that deputy Van Vleet's attendance at the conference was at least encouraged if not required by his employer (factors 1 and 2). Morever, deputy Van Vleet's immediate supervisor attended the conference with him (factor 3). Finally, the conference clearly benefitted both the employer and employee through the offering of training courses and the opportunity to meet with vendors of law enforcement equipment. With regard to the latter, Stolen testified that the Task Force was contemplating equipment purchases in the immediate future and the conference gave deputy Van Vleet the opportunity to evaluate some of the available equipment. If anything, the facts in this case present a stronger case for finding deputy Van Vleet's attendance at the conference within the course and scope of his employment than did the facts in Courser. In Courser the Supreme Court held that the claimant, a teacher, was in the course and scope of employment when injured while traveling to and from summer college classes his employer encouraged him to take to improve his qualifications for an administrative position.

¶32 The real question in this case is whether the claimant's drinking and late night activities took him outside the course and scope of his convention attendance, or represented a substantial deviation from his employment.

¶33 The respondent relies on section 39-71-407(4), MCA (1999), as excluding the present claim for benefits. The section provides:

(4) An 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 or drugs, this subsection does not apply.

A "major contributing cause of the accident" is specifically defined in 39-71-407(7), MCA (1999), as follows:

(7) As used in this section, "major contributing cause" means a cause that is the leading cause contributing to the result when compared to all other contributing causes.

The claimant was extremely intoxicated at the time of the accident and the best evidence is that in his intoxicated state he simply fell over the balcony to his death. His intoxication was clearly a major contributing cause to his accident and death.

¶34 Provisions governing death benefits contain no exemptions from course and scope requirements. The provisions regarding alcohol and drug use as boundaries of the course and scope of employment. They apply to death claims as well as to injury claims. Therefore, unless deputy Van Vleet's "employer had knowledge of and failed to stop" his use of alcohol, as set out in the second sentence of section 39-71-407(4), MCA (1999), the claim for benefits in this case is barred by the alcohol and drug use provision of the section.

¶35 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 Employers' 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).

¶36 I must therefore determine whether deputy Van Vleet's fall and death occurred within the course and scope of his employment.

¶37 I start with the analysis laid out in Dale v. Trade Street, Inc. 258 Mont. 349, 854 P.2d 828 (1993). Dale concerned an accident involving a trucker who was traveling and who was injured in an auto accident after stopping for the day and visiting his brother. In Dale the Supreme Court said:

Axiomatic to a determination of workers' compensation coverage is that the injured worker be injured in the course and scope of his employment. Section 39-71-407(1), MCA. It 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. See, e.g., Correa v. Rexroat Tile (1985), 217 Mont. 126, 703 P.2d 160. The employee must remain in the course and scope of employment while traveling in order for the injury to be compensable. Correa, at 129-31, 703 P.2d at 163. [Emphasis Added.]

258 Mont. at 252-53, 854 P.2d at 830. In this case, deputy Van Vleet was away from his regular employment duties and traveled to Great Falls to attend the conference. While Dale involved an employee whose job was to travel, I see no reason or logic why the analysis applied in that case should not apply in this case.

¶38 In Dale the Supreme Court analyzed prior cases concerning travel and alcohol use. The analysis is instructive.

¶39 First, the Dale Court discussed the difference between "minor" and "major" deviations from employment during travel which is associated with employment. It reaffirmed its prior analysis that "major" deviations "so substantial that the employee must be deemed to have abandoned any business purpose" are not within the scope and course of employment. Id. at 354, 854 P.2d at 831. With respect to drinking, it reaffirmed its refusal to overrule precedents holding that an employee under the influence of alcohol who is nonetheless in the course and scope of his employment is entitled to compensation. (Id. at 355, 854 P.2d at 831.) Under Dale the ultimate test is not whether the claimant is under the influence of alcohol but whether he was "attending to employment-related matters" when injured. (Id. at 355, 854 P.2d at 831.)

¶40 Applying the Dale analysis, I find and conclude that deputy Van Vleet 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, the claimant was no longer "attending to employment related matters." At that point, it was clearly bedtime for all but deputy Van Vleet 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.

¶41 Following trial, I asked counsel to identify similar cases which supported both compensability and non-compensability in the present case. After reviewing the cases, in light of Dale, I find no reason to deviate from my application of Dale.

¶42 The petitioner has no standing to pursue the petition in her capacity as personal representative of the estate of Shawn Van Vleet. However, she does have standing to pursue her petition on her own behalf as the widow and surviving spouse of Shawn Van Vleet.

¶43 Shawn Van Vleet did not die in the course and scope of his employment. Therefore, his statutory beneficiaries are not entitled to death benefits. Accordingly, the petition is dismissed with prejudice.

¶44 Since the respondent has prevailed in this matter, the petitioner is not entitled to costs, attorney fees, or a penalty.

¶45 This JUDGMENT is certified as final for purposes of appeal.

¶46 Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.

DATED in Helena, Montana, this 19^th day of February, 2004.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Daniel B. Bidegaray
Ms. Anna Bidegaray
Mr. Norman H. Grosfield
Submitted: June 16, 2003

1. Ms. Van Vleet brought the present petition as the personal representative of the decedent's estate. As discussed in the conclusions of law, she has no standing to pursue the claim as personal representative but does have standing as a surviving spouse potentially entitled to death benefits in her own right. See ¶ 28-29.

2. Wendy Sesselman, the claims adjuster for the respondent, conceded in her trial testimony that the hospitality room benefitted deputy Van Vleet’s employer.