DA 10 - 0403 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 49 BROCK HOPKINS , Petitioner and Appellee, v. UNINSURED EMPLOYERS' FUND , Respondent/Third - Party Petitioner and Appellee, v. RUSSELL A. KILPATRICK , Third - Party Respondent and Appellant.
APP EAL FROM: Montana Workers’ Compensation Court, WCC No. 2008 - 2152

Honorable James Jeremiah Shea , Presiding Judge COUNSEL OF RECORD:

For Appellant: Russell A. Ki lpatrick ( self - represented litigant ) ; Coram, Montana For Appellee : Jeffrey D. Ellingson; Ellingson Law Firm, Kalispell, Montana (for Brock Hopkins) Joseph R. Nevin; Attorney at Law, Helena, Montana (for UEF) Submitted on Briefs: February 16, 2 011 Decided: March 22, 2011 Filed:

__________________________________________ Cler k March 22 20112

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Russell Kilpatrick appeals the decision of the Workers ’ Co mpensation Court (WCC) , concluding th at Brock Hopkins was employed by Kilpatrick , andHopkins wa s acting in the course and scope of empl oyment at the time of his injuries . We affirm. BACKGROUND ¶2 Great Bear Adventures (the Park), is located near West Glacier, Montana. Visitors to the Park enj oy a drive - thru e xperience of b earsin their

n atural habitat , surroundedb y multiple layers of electrified fence . Kilpatrick owns the Park and lives on adjacent property . Hopkins began working there in 2002, doing various tasks, includ ing maintenance and feeding the bears. In the past, some workers hav e been known to smoke marijuana on the premises . A lthough Kilpatrick professed to notc ondone marijuana use by workers , testimony established that he h ads moked marijuanaat the P ark in the past, and on oc casion had done so with Hopkins. ¶3 On November 2, 2007, Hopkins traveled to work atthe Park at Kilpatrick’s request . On the way, Hopkins smoked marijuana. Kilpatrick instructedHopkinsto raise the boards on the Park’sf

rontg ates so they would not freeze t o the ground. B efore proceeding, Hopkins asked Kilpatrick if he should feed the bears as well. T estimony reg arding Kilpatrick’s answer conflicted. However, the WCC ultimately found that Kilpatrick never told Hopkins not to feed the bears. ¶4 Aft er comple ting work on the gates, Hopkins returned to Kilpatrick’s house.3

Kilpatrick was asleep inside. Hopkins mixedfood for the bearsand used Kilpatrick’s truck to drive into the Park. He entered the bears’ pen and began to place food out. Once inside, nothin g separated him from the bears. At some point while Hopkins wasw orking, the largest bear, Red, attacked him. The bear knocked Hopkins to the ground, sat on him, and bit his leg, knee and rear - end. While this was occurring, another bear, Brodie, came up from behind, and bit Red. In response, Red moved off of Hopkins momentarily, and Hopkins escaped by

c rawl ing under one of the electrified wires surrounding the pen . Kilpatrick ev entually found Hopkins, and he was transported to the hospital by helicopte r. He suffered severe injuries. ¶5 Kilpatrick did not carry workers ’ compensation insurance. Hopkins petitioned the WCC for workers’ compensation benefits from the Uninsured Employers’ Fund . Both the Uninsured Employers’ Fund and Kilpatrick opposed Hopkin s’ petition. The WCC found for Hopkins, concluding that (1) Hopkins was employed by Kilpatrick at the time of Hopkins’ injuries , (2) Hopkins was in the course and scope of his em ployment at the time of his injuries , (3) marijuana use was not the major con tributing cause of Hopkins’ injuries , and (4) Hopkins was not performin g services in return for aid or sustenance only. Kilpatrick appealed to this Court. ISSUES ¶6 Kilpatrick raises four issues on appeal: 1. Whether Hopkins was employed by Kilpatric k at the time of Hopkins’ injuries . 2. Whether Hopkins was in the course and scope o f his employment at the time of his4

injuries . 3. Whether marijuana use was the major contr ibuting cause of Hopkins’ injuries . 4. Whether Hopkins was performing service for Ki lpatri ck in return for aid or sustenance only. STANDARD OF REVIEW ¶7 We rev

iew a Worke rs’ Compensation Court decision to determine w hether t he findingso f factare supported by substantial credible evidence, and whether the conclusions of law are correct
. Tinker v . Montana State Fund , 2009 MT 218, ¶ 25 , 351 Mont. 305, 211 P.3d 194. DISCUSSION ¶8 Whether Hopkins was employed by Kilpatrick. ¶9 The WCC correctly concluded that Kilpatrick, “unquestionably controlled the details of Hopkins’ work at the bear park.” S ection s3 9 - 71 - 117(1)(a) , and - 118(1)(a) , MCA . Hopkins had worked at the P ark since 2002, received regular payments from Kilpatrick, and engaged in tasks at Kilpatrick’s command. Furthermore, Kilpatrick’s assertion that Hopkins was a volun teer is without support. Section 39 - 71 - 11 8(2) , MCA . As t he WCC succinctly stated, “[t]here is a term of art used to describe the regular exchange of money for favors

–it is called ‘employment.’” ¶10 Whether Hopkins was in the courseand scope of hisemployment. ¶11 Factors considered in a “course and scope” analysis include (1) whether the activity was undertaken at the employer ’ s request, (2) whether the employer, directly or indirectly,5

compelled the employ ee ’ s attendance at the activity, (3) whe ther the employer controlled or partic ipated in the activity, and (4) whether the employer and the employee mutually benefited from the activity. Michalak v. Liberty Northwest Ins. Corp ., 2008 MT 3, ¶ 13, 341 Mont. 63, 175 P.3d 893 . The presence or absence of any given factor is not disposit ive, as the determination is dependent on a totality of the circumstances. Michalak, ¶ 13. ¶12 On November 2, 2007, Kilpatrick compelled Hopkins to work at the P ark. Ev en though there was conflicting testimony as to whether Kilpatrick agreed that Hopkins sh ould feed the bears on that day, an employee’s injuries are compensable unless the employee is not “attending to employment - related matters” and has abandoned the course and scope of his employment. Dale v. Trade Street, Inc. , 258 Mont. 349, 355, 854 P.2 d 828, 832 (1993). Feeding the bears was one of Hopkins’ regular employment duties. Hopkins testified he was engaged in the “same routine” he had done for two or three years and would not have fed the bears had Kilpatrick expressly so instructed him. F e eding the bears was not a personal activity “severed” from the continuity of Hopkins’ employme nt - related duties at the Park. Additionally, t he WCC found that“Kilpatrick benefitted from the care and feeding of the bears that Hopkins provided since presuma bly customers are unwilling to pay cash to see dead and emaciated bears.” The WCC did not err when it concluded that Hopkins was acting in the course and scope of his employment at the time of his injuries. ¶13 Whether marijuana was the major contributing cau se of Hopkins ’ injurie s . ¶14 Non - prescription d rug consumption will preclude an in jured employee’s benefits if consumption was the leading cause contributing to the result, when compared to all other s.6

Section 39 - 71 -407(4), and -407(13), MCA. No evidence wasp resented regarding Hopkins ’ level of impairment. The WCC aptly noted, “Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill - adv ised to say the least and mind - bogglingly stupid to say the most.” H owever, the WCC further no ted that grizzlies are “equal opportunity maulers,” witho utregard to marijuana consumption. Without evidence of Hopkins’ level of impairment, the WCC correctly concluded that marijuana was not the major contributing cause of Hopkins’ injuries. ¶15 Whether Ho

pkins’ services were in exchange for aid orsustenance only
. ¶16 Subject to exceptions that are inapplicable here, employment of a person performing services in exchange for aid or sustenance only is not covered by the Workers’ Compensation Act. S ection 39 - 71 - 401(2)(h) , M CA . The Workers’ Compensation Act defines aid or sustenance as a “ subsidy made to provide a means of support, maintenance, or subsistence for the recipient. ” Section 39 - 71 - 116(3) , MCA . Kilpatrick testified that he gave money to Hopkins, n ota sw ag es, but rather “out of his heart.” The WCC found this testimony to be without credibility, and the trier of fact is in the best position to weigh the respective credibility of witnesses. State v. Clark, 2008 MT 419, ¶ 14, 347 Mont. 354, 1 98 P.3d 8 09 . The WCC did not err when it concluded that Hopkins’ services were not in exchange for aid or sustenance only. ¶17 For the reasons stated above, we hold that the WCC’s findings of fact are supported by substantial credible evidence, and the conclusions of law are correct. ¶18 Affirmed.7 /S/ MIKE McGRATH

We concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE