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Devers v. Montana State Fund

Court of Workers Compensation of Montana

September 11, 2017

KENNETH DEVERS Petitioner
v.
MONTANA STATE FUND Respondent/Insurer.

          Submitted: December 22, 2016

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

          DAVID M. SANDLER JUDGE

         Summary: Petitioner contends that he suffered a compensable injury because, although he drank before his accident, alcohol was not the major contributing cause of his accident, and his employers knew about his drinking and did not make a genuine attempt to stop it. Petitioner further claims his injury arose out of and in the course of his employment under the premises rule and the bunkhouse rule because he was a residential employee and on-call at all times. Respondent argues that given his lack of credibility and extent of intoxication, Petitioner's use of alcohol was the major contributing cause of his accident. Respondent further argues that although Petitioner's employers knew about his use of alcohol, their efforts to stop it were sufficient. Finally, Respondent contends that credible evidence shows that Petitioner's injury did not arise out of and in the course of his employment.

         Held: Respondent met its burden of proving that Petitioner's use of alcohol was the major contributing cause of his accident. Moreover, Petitioner's employer knew about and attempted to stop it. Therefore, Petitioner's claim for benefits is barred under § 39-71-407(5), MCA, and this Court declines to address whether Petitioner's injury arose out of and in the course of his employment.

         ¶ 1 The trial in this matter was held on October 14, 2016, in Hardin, Montana. Petitioner Kenneth Devers was present and represented by Paul W. Adam and Hayley Kemmick. Respondent Montana State Fund (State Fund) was represented by Stephanie A. Hollar. Amy Kirscher, claims adjuster, was present on behalf of State Fund.

         ¶ 2 Exhibits: This Court admitted Exhibits 1 through 16 without objection. This Court overruled State Fund's timeliness objection to Exhibit 17 and admitted that exhibit after Devers laid a foundation.

         ¶ 3 Witnesses and Depositions: This Court admitted the depositions of Devers and Crissy Seminole into evidence. Devers, Seminole, Josh Myers, and Holly Yuhasz were sworn and testified at trial.

         ¶ 4 Issues Presented: The following issues are before this Court:

Issue One: Is Devers' claim barred by his intoxication?
Issue Two: Did Devers' injury arise out of and in the course of his employment under the premises rule[1] or the bunkhouse rule?[2]

         FINDINGS OF FACT

         ¶ 5 The Court finds the following facts based on a preponderance of the evidence.

         ¶ 6 In January of 2013, Devers was living on Sanders Road just outside of Hardin. He had been doing maintenance work for Sunset Village Mobile Home Park (Sunset Village), for several years. Emery and Holly Yuhasz were members of the LLC that owned Sunset Village. Although they lived in California, Emery was in charge of maintenance and Holly was in charge of bookkeeping activities, such as paying bills and checking on rent deposits.

         ¶ 7 In mid-January, Emery hired Devers to be Park Manager at Sunset Village. Devers' job duties included maintaining all rental units - including putting together materials lists, conducting price comparisons, and making purchases - and keeping up the grounds in the park. He was on-call at all times for the purpose of being able to respond to tenant emergencies.

         ¶ 8 Emery requested that Devers live in one of the park's units, rent- and utility-free, so he could be more readily available should any emergencies arise. By signing his employment agreement and handbook, Devers agreed that his tenancy was conditioned upon his continued employment as Park Manager and that he would follow the rules of the park, which prohibited alcohol consumption before 5 p.m. Soon thereafter, Devers moved into unit #8, which was close to the office. At the time Devers moved in, there were holes in the floors throughout his unit, including just inside the front door. Devers used scrap pieces of wood to cover the holes, like bridges, and moved the pieces around as he moved through the unit.

         ¶ 9 On a typical day as Park Manager, Devers woke up at 6 or 6:30 a.m., put his dog on his line outside, went back inside to grab what he needed, and walked to the office. He usually worked until 4:30 or 5 p.m., although he worked late if he was on a deadline and responded to tenant emergencies at all hours with Seminole, the park's other maintenance person.

         ¶ 10 Devers occasionally had a few drinks at lunch and, on most days, drank a six-pack of beer starting at 4:30 or 5 p.m. Seminole did not know Devers drank at first. However, Seminole noticed Devers drinking more in the spring of 2015, when he started showing up to after-hours maintenance calls with signs of intoxication. When Devers showed up for an after-hours maintenance call with signs of intoxication, Seminole sent him home and handled the job herself.

         ¶ 11 In April of 2015, a resident complained that Devers was drinking during his regular workday and smelled of alcohol. Emery reprimanded him over the phone and told Devers that drinking during the workday was not allowed. Devers took this as "fatherly advice" and told Emery that he would curtail his lunch-time drinking.

         ¶ 12 Seminole communicated with Holly on a daily basis. However, she did not report Devers for drinking until she received a tenant complaint in the spring of 2015. According to the tenant, a window had been broken at Devers' unit, and he was outside drinking and yelling.

         ¶ 13 Seeking a way to verify Devers' drinking, Holly arranged for all Sunset Village employees to be tested for alcohol.

         ¶ 14 In early July 2015, however, another tenant complained about noise, partying, and drinking at Devers' home. Seminole passed the complaint on to the Yuhaszes, who in response decided to impose written discipline on Devers that would pave the way for his termination should it become necessary.

         ¶ 15 On July 9, 2015, Holly called Devers and told him to go to the fax machine. Devers then received a letter electronically signed by Emery, which states:

We had several telephone conversations with you in the past, including recently in the last month, regarding complaints by tenants that there are disruptions, confrontations, partying and drinking taking place at your residence in the park. In the past we have bailed you out of jail and assisted you to be released from probation. We have discussed that you have had guests, including women and their children, staying overnight in your home without our knowledge or permission. We warned you that this behavior must not continue because it was disrupting the operations and peaceful enjoyment of thee [sic] environment in the park.
Yesterday we received yet another resident complaint about partying and drinking at your home. This behavior must stop. No other people are to occupy your home without our express written permission and we may request they apply for and are approved to reside in the park. You as a Park employee and Manager are to set the example for behavior for tenants.[3]

         The letter requested Devers' acknowledgement, but he neither signed it nor heard anything further from the Yuhaszes. However, Devers understood that Emery was telling him that his partying and drinking "needed to cease."

         ¶ 16 The morning of July 23, 2015, Devers went to the office, informed Seminole that he was doing a private tree-cutting job that day, and left.

         ¶ 17 At around 4:30 or 5 p.m. that day, Devers bought two growlers of beer at a restaurant in Hardin. He then returned to Sunset Village and, at some point, started drinking.

         ¶ 18 That evening around dusk, several tenants notified Seminole that Devers was talking to a person requesting entry to Sunset Village with an RV. As entering RVs was Seminole's domain, she went to meet Devers. He told her he could handle things, but Seminole noted that he was drunk, and told him to go home.

         ¶ 19 Thereafter, Devers went to the office to check his e-mail, browse the Internet, and take care of a work-related matter. Seminole received another call from tenants, this time indicating that Devers was passed out in the office.

         ¶ 20 Seminole and her husband went to check on Devers. They found him passed out and slumped over on the office desk. Devers was wearing a lime-green shirt and blue jeans. They tried shaking him, picking his head up, and spraying him with water, but they could not wake him up. Around 9:30 p.m., Seminole called Holly, who directed Seminole to call 9-1-1.

         ¶ 21 Deputies from the Sheriff's Office responded to the scene within minutes and were able to rouse Devers by squeezing him between his neck and shoulder. However, Devers did not lift his head. The ambulance arrived a few minutes later. The EMTs checked Devers over and noted he was belligerent and uncooperative, had slurred speech and rambled, and smelled strongly of alcohol. Devers admitted that he had been drinking, but refused to say how much. The deputies gave him a breathalyzer test, which revealed a blood alcohol content (BAC) of 0.238. The EMTs tried to get Devers to sit up straight, but he could not, and they laid him back down. The EMTs assessed "acute alcohol intoxication." Devers refused treatment and refused to ride in the ambulance. The deputies and EMTs left him in the office because "EMS felt that insisting the patient get treatment would only make the situation dangerous for the providers." The ambulance left the premises at 9:53 p.m.

         ¶ 22 At that time, Devers was, in Seminole's words, still "really, really drunk, " and still could not sit up. After she reported to Holly that Devers refused to go with the ambulance and was still in the office, Holly called the Sheriff's Office and asked that a deputy escort Devers home. Seminole left the office around 11:30 p.m.

         ¶ 23 The Sheriff's Office called Seminole around midnight to advise her that Devers was home. She and her husband then drove by Devers' trailer and observed him standing on the third step of his porch, leaning against his trailer. In her written statement, Seminole wrote: "I was surprised he could stand, because he wasn't able to sit up straight in the office chair." During her recorded statement, Seminole explained: "And when I was on my way back-or, on my way over here I noticed he was standing on his porch, leaned over. I was like, that's crazy because he couldn't even sit up straight."

         ¶ 24 Seminole and her husband continued on to the office to lock up. Seminole, concerned that Devers was going to fall and get hurt, asked one of the deputies who remained at the office to check on Devers to make sure he got inside; the deputy said he ...


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