                                           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



                                             2
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.




                                               4
                                       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.




                                              18
¶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
