the conclusions and the speculations is set forth in part of the arbitrator's decision and especially in the commission's decision of the fence are that on june nineteenth two thousand and one of the claimant was i'm employed as an installer for heating and air conditioning company his job was based out of a shop in sugar grove which is a suburb just west of aurora a little southwest of aurora in he would report to the shop in the morning he would work an eight hour day any would finish his work at the shop on the date of this accident he came to work he drove a truck he drove his truck to the job when i see his truck he's employers truck to the job site and eleven fifteen am approximately he was asked to go to a supply store to pick up supplies at the supply store is an encounter it's located in aurora  in terms of location it was about four miles south and west of the job four miles southwest of the job he went to pick up the part we know we picked up the part he did not come back to the jobsite and approximately twelve thirty nine pm so was about an hour and twenty minutes our twenty five minutes after he left he was involved in a motor  pictures sometimes says more than i do respond as exhibit one and you'll find it in two pages because it's the way if it's in the record the jobless rate is right here that's one it's sort of in the center of the mat fortunately the place that he went to pick out the parts is to southwest southwest the only place that he was permitted to go  the shop and get on in the testimony is clear and he didn't really disputed the accident occurs and three the accident is north east of the jobsite so it is not you talking about you're arguing that he deviated yes on his deviation it was a personal deviation that removed him from this global climate that's what i'm getting from here yes or is it in the wrong area yes if there's some indication that there was some restaurants in the area where he was heading you could have been going to lunch it was the lunch time actually there is no indication of that but that is my opponent's argument there's actually no testimony that that's what he was doing and if you reach that conclusion it would have to be based on speculation first because there is no evidence of it and secondly because the evidence he's contrary for several reasons first the only person who testified about munch was the employer lunch to use the truck he doesn't need permission he has to go to lunch she needs permission to use the truck to go to lunch using the truck to go on to his personal personal was not allowed to leave it was their testimony that on a daily basis he had to ask permission to use t truck to stop me at lunch to go to get lunch yes that's the right way to get he he even though he was driving the company truck a company of business over the lunch hour he's got to call him to get permission to go to lunch with a try yes and in fact and in an hour and let me tell you why we buy allegation that he was going someplace for lunch is that he made the pick up from is right here the petitioner's argument is that maybe he was going to launch on route fifty nine out here because that's where fast food restaurants are the reason i say that specious is he was on route thirty one route thirty one is more fast food restaurants the route fifty nine why would he not go to mcdonald's on route thirty one where there's a ton of restaurants all the way all the way back to the jobsite as opposed to one fifty nine which is five miles past where laws are you saying that the mere fact that he's in a different area that you wouldn't dissipate would would be the disciplined for improper use of the vehicle it was a good worker all of his records indicate that he never had ever done anything outside the scope of what it is that in the record i mean and that's a little bit more than what she said but she did not report any prior deviations she did report this is the only day that his fee inside fiancee's father died so what does that mean in terms of where he was going i could i can i can tell you why but i'd be forced to speculate because it's not in the record you don't want to because you're saying he's speculating and that's improper and i don't want to do that you don't want to and if you're forced in reviewing this case to speculate a minor deviations and you just came out with a case cox you said you know it's a minor deviation to someone's you know the runaway home thing taken deviation of a few hundred feet they're on the way coming back that's compensable that's a minor deviation this is not a minor deviation because i will tell you in this is undisputed because the police report not only was he five miles structure four and a half miles out of the way but he was going in the opposite direction and you have to combine the deviation with the speed and if i was to sit here and tell you the man was going fast and therefore the case is incompatible i would moves but there is a can if there is a back to that you want to consider it's a  set forth in the case decisions just going past isn't doesn't take you out of your employment we know that but here is going really fast he's going it's a twenty five mile an hour zone he's going somewhere between fifty five to seventy passing a truck slams into believe the russians i believe the employee has the burden of proving his case and if the employer he is in a position where it is clear absolutely clear that he has deviated then he has the robinson case the day the employer appeared testified said you know what personal personal use of the truck was allowed so even if the claim was doing something personal you know that's ok so if the climate has the burden of proving his case then the climate has the burden of going forward if the claimant deviates from them location where he is supposed to be then he has the obligation to prove that it was either allowed it was permitted or the deviation was insubstantial because it's for fiance knows what he was doing at the time he was going to lodge not correct but i do know that the climate has the burden of proof on the claim and also has the opportunity to call whatever witnesses he h yes the the arbitrator's decision said it was possible that the claimant was lost that was pure speculation on her part and the commission majority corrected the arbitrators error because the arbitrator so made reference to the police report when that the police reported response exhibit two when it is very detailed because they were actually a number of witnesses to this occurrence and there's absolutely nothing in the police report to say that the claimant was lost case to some looking at bayreuth and looking at the record along without knowing what happened behind the scenes and what other witnesses were out there counsel tells you i believe he said that the fiance knows what he was doing at the time that he was going to be with i didn't see any evidence that that he and say had any involvement and in any kind of a lunch break with the petitioner in this case what we have is a complete lack of evidence as to any aspects of the deviation super speculating that there was a personal errand involved  area to pick up a particular piece of equipment we know that he got to the location of a piece of equipment we know that he had a piece of equipment in the vehicle at the time of the accident we have absolutely no evidence that he was heading out to route fifty nine to buy any food restaurant we have absolutely no evidence he was on a personal tour in of any sort and there's a recall i think miss may actually look to the truck after the accident there's nothing in the truck indicating that he was doing anything unto vehicle at all if you look at the map and i don't have a map and funny but as i recall looking at it he is having the opposite direction from the job site that the company was that he picked up a piece of equipment well if you look there's a bridge right south of the connally company he crosses over that comes up gets onto the road that would take him either to the job site or where he had the accident if he did know where he was he makes a right it goes the wrong way i mean that is a very logical conclusion or not i think the conclusion that the arbitrator do from the case the commission said well there's no evidence specifically of vats in the police report so what they did was they rest the case on the five simple facts that he was offering the company vehicle he wasn't told how to operate a company vehicle he wasn't given a specific route to take to or from the calmly company to pick up this piece of equipment he was sent specifically to pick up the piece of equipment he had at the time of the accident and the foreman didn't that was my understanding from the record i thought when i read the record that it was that if you have the vehicle as long as you get lunch in a local area local job facility you're in you're fine you just got to get back to work and finish the job that was my understanding it was my understanding that if you're out chasing equipment for the company you have an obligation to call in and can i take an additional trip here to get some lunch i don't think that's in the record in fact if i'm not mistaken and don't notice part of not i'm pretty sure they saw mr  manny whether or not they discussed whether you can go get some lunch during a phone conversation they had resigned come back to the job site and i thought the guy said i don't remember whether we discussed lunch something to that to that effect so if that's the case we really have have to get back to work it seems like it makes sense of the guys in a hurry to get back to his job he doesn't know where the hacky is and so you know he may be a little bit distracted by that fact and the accident occur so my thought on it that a i think that is like an affirmative defense i think it's really the respondent said it was based on a physical location although that is exactly what it said if somebody gets lost they lose the right because that's ability right it was foreseeable because you saw the mr may testify again i think it's a manifest way call i don't know that it's a legal call and assuming that's the case there is evidence to support industrial commission's decision in this case and it's not so far outside the realm of possibility or probab you are forced to make a conclusion to make a conclusion you have to make some inferences and pretty much what my opponent is argued is that you really have no evidence and one of the conclusions you can reach is he was lost you know the evidence is this is a man who grew up in the area he's worked for the company for a year and on a daily basis virtually he goes and makes a pick up at this location  and if you have a question i just want to say to the record because you know again you've got to go back to the record for the evidence in the evidence on launch and the evidence and use of the truck is contained in pages of fifty eight to sixty one the question was is still launching distance the question was asked do you have to get permission to go to launch and use the truck and the answer on page sixty two i was off by a jury right they would have to request or you know tell somebody they were going to launch and it would be within a you know like in that area when there were restaurants within a quarter mile that would have been or less and that's the only evidence in the record is direct