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 

FilediUi, 2 I. > '~ggq I 

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Clerk 
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 s finding that Mr. Parker's injuries were sustained in the 

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 is 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 2f( 1991 

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: