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View Case Details
 
Michael E. Weathers, Plaintiff
vs.
D.W. Davies & Co. Inc. and Aetna Casualty & Surety Co., Defendants WEATHERS
 
Case:
Docket No. 1994 ACO #591
 
Location:
Workers' Compensation Appellate Commission
 
Date:
November 10, 1994
 

20.065 Course of Employment Travel To and From Work

20.080 Course of Employment Work-Related Travel

40.020 Employee Improper Conduct Drug or Alcohol Use

SUMMARY

Plaintiff a traveling salesman for defendant was injured in a one-car accident on his way home from a bar. He testified that he was at the bar that evening drinking with several customers of defendant. In awarding benefits the Magistrate found that plaintiff was furthering customer goodwill at the bar and that there was insufficient proof of intoxication to break the employment nexus. A Commission majority reversed holding that plaintiff's choice to drink alcohol to the point of intoxication coupled with his choice to drive illegally broke the employment nexus. The majority further held that the Magistrate erred as a matter of law in disregarding the evidence of plaintiff's intoxication because the admission of a hospital record containing the blood alcohol test results had been stipulated to by the parties. The dissent argued that the Commission violated its standard of review. The dissent further argued that the Magistrate properly assigned little weight to the blood test noting that the mere presence of a chemical test in a hospital file did not make such test valid or dispositive.

HISTORY: APPEAL FROM

Magistrate Spray.

PANEL: Before Witte Skoppek and Miller.

Attorney:

APPEARANCES

Daniel J. Wisti, for Plaintiff

Paul J. Tomasi, for Defendants.

Opinion on Review

WITTE COMMISSIONER

This matter is before the Appellate Commission on appeal by defendants from the order of Magistrate Judd R. Spray mailed January 17, 1991, granting benefits for the specific loss of vision from plaintiff's left eye. We reverse.

Facts

Plaintiff was a traveling salesman for defendant employer in a five county area. Defendant manufactures and distributes commercial cleaning supplies. Plaintiff testified he was "employed" by defendant on December 1, 1987, and was given a company car a week later in order to call on customers.

On the day in question March 4, 1988, plaintiff began work at 10:30 a.m. and made various sales calls. Around 3:30 in the afternoon he stopped at the Pub Monte Carlo to meet with its owner. The owner was not present but was expected later. Plaintiff testified that he left to make sales calls at the Copper Country Mall and at a print shop. Plaintiff estimated he returned sometime between 5:30 and 6:45 p.m. and dealt with the owner. Plaintiff drank a beer while he and Mr. McKie filled out an order blank. McKie testified he was at the bar for one half hour and left again.

Plaintiff stayed at the bar. He said he knew some of the men there as customers some as friends. He purchased alcoholic beverages for himself and for some of the other patrons. Defendant did not provide an expense account or any reimbursement for this activity. Later that evening plaintiff left to drive through McDonald's for dinner. He ate by the waterfront and by 9:15 or 9:30 p.m. made a call at Maki's Oil Company to see if the purchaser was in. He was not. Plaintiff then left for home.

At approximately 10:15 p.m. plaintiff was involved in a one car accident. He struck a parked vehicle went over a snow bank and struck a house 75 feet from the road. Plaintiff does not remember the accident. He remembered a new sign erected about a mile before the accident scene and remembers waking up in the hospital.

He was ticketed for careless driving and failure to wear a seat belt. Reference was made to a breathalyzer but its result was never put into evidence. A blood alcohol test was performed one half hour after the accident in the Portage View Emergency Room and revealed a blood alcohol level of .284 milligrams percent. This record was admitted as part of the hospital records.

The unrebutted evidence is that plaintiff has lost 80 percent or more of the vision in the left eye. It was badly injured by the windshield. The condition is permanent and will probably deteriorate.

The magistrate awarded plaintiff specific loss benefits pursuant to MCL 418.361(2)(1) of 162 weeks. The magistrate found that plaintiff was in the course of his employment since he had been furthering customer goodwill at the Pub Monte Carlo had just finished making his last sales call of the day and was heading to his home office in a car "emblazoned" with the defendant's logo. The magistrate found that there was not sufficient proof of intoxication to break the employment nexus. The alcohol that was consumed was "within the continuum" of plaintiff's employment.

Two depositions were taken. Dr. Paul A. Leep, an ophthalmologist testified as to the causation severity and permanency of plaintiff's eye injury. Attached to Leep's deposition was the Emergency Services/Outpatient Registration form dated March 4,1988, 11:10 a.m.[sic] which includes in its diagnoses "alcohol intoxication." This exhibit was offered by plaintiff and accepted by defendants without objection. It was also attached to the second deposition.

Dr. Mark R. Shebuski, a family practitioner was questioned regarding the blood alcohol testing. He stated the test itself was a hospital record although he did not order or conduct the test. When defendant offered it as an exhibit at the deposition plaintiff specifically did not object to it as a hospital record. Plaintiff's Counsel did question whether the decimal point was correctly placed. However Shebuski testified that the decimal point is placed according to each hospital's practice.

Q. [Plaintiff's Counsel:] . . .If it didn't have the point in front of the 2 assuming it just had 284 milligrams would that change at all? Do you have to have the point there? Does the point make any difference whether it's there or not? Assuming the point is not .284 but it just--if the original record shows 284 milligram percent is that--

A. If it did not say percent it wouldn't matter but if there's a percent there then you have to have a decimal point. In other words if it was 284 milligrams?

Q. That's right.

A. That could be. But it couldn't be 284 milligram percent.

Q. Okay. If it read 284 milligrams?

A. Right.

Q. What would that relate to in terms of blood alcohol content?

A. Essentially the same thing. I've seen them reported that way. Each hospital has its own reporting methods. Some hospitals will report it just as a three digit number in milligrams and that would be milligrams or cc probably but I can't tell you since each hospital has a different way of reporting it what would be the most correct way.

Q. I see. And would it--could it--If the decimal was 2.28.4 [sic] milligrams that would make a difference in that is that correct?

A. If it was 2.84 milligrams that would definitely make a difference yes. (Shebuski deposition pages 14-15.)

Dr. Shebuski further testified that he examined the plaintiff in the emergency room and found him very sleepy with the smell of alcohol on his breath. He also stated that a person with a blood alcohol level of .284 who was not a chronic alcoholic would definitely be affected in his coordination alertness reaction time and ability to drive. He testified that several drinks in one half hour could cause this level of alcohol in the bloodstream or "as much as a case of beer consumed over four hours. So that's--or maybe longer. It's hard to say."

Plaintiff did not testify as to what or how much he drank. Plaintiff denied being a chronic alcoholic but stated he was "lucky" to get more than two drinks in an evening. Plaintiff did not testify regarding road conditions that evening. He could not remember what they were like. He did agree he had written "sunny pleasant day" on his March 4, 1988, daily office record. He could not recall any trouble driving.

Defendants raise two arguments on appeal. First plaintiff did not carry his burden of proof establishing jurisdiction in the worker's compensation bureau. The employer is not subject to the worker's disability compensation act. Second plaintiff's injuries did not arise out of and in the course of his employment. Plaintiff's employment did not include drinking himself into an intoxicated state and driving illegally. Driving while intoxicated was the cause of the injury and broke the employment nexus. Plaintiff's willful misconduct is reason to deny the award. MCL 418.305. Either issue is dispositive.

Standard of Review

In reviewing the magistrate's ruling below the magistrate's findings of fact "shall be considered conclusive by the Commission if supported by competent material and substantial evidence on the whole record." MCL 418.861a(3). The statute also sets forth the definition for the term "substantial evidence" and "whole record." In essence the magistrate's factual determinations must be based upon a reasonable weighing of the entire record.

In the case at bar the Commission has reviewed the parties' briefs the magistrate's opinion and the trial testimony including the depositions and records of Drs. Leep and Shebuski.

The standard set forth in section 861a does not govern our review of the magistrate's conclusions of law. As Court of appeals stated in Abbey v Campbell Wyant & Cannon Foundry, 194 Mich. App 341, 351 (1992) [Where] the issue before the WCAC [is] a question of law the standards expressed in MCL 418.861a(13); MSA 17.237(861a)(13) are inapplicable. . . . We note in particular that MCL 418.861a(10); MSA 17.237(861a)(10) allows the WCAC to adopt the magistrate's opinion. The WCAC need not revisit issues involving questions of law already thoroughly and correctly decided by the magistrate but need correct or clarify the magistrate's decision only as may be necessary. It follows that this Commission may reverse any conclusion of law made by the magistrate which we determine to be in error and that our power of review as to conclusions of law is independent of the factual review conducted pursuant to section 861a(3) and Holden v. Ford Motor Co., 439 Mich. 257 (1992).

Discussion

Jurisdiction at the bureau is established under MCL 418.115 which provides:

This act shall apply to:

(a) All private employers other than agricultural employers who regularly employ 3 or more employees at 1 time.

(b) All private employers other than agricultural employers who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.

Defendants contested jurisdiction at the time of hearing. Despite plaintiff's arguments that it would be easier for defendants to carry this burden since the information required is more within defendants' control it is plaintiff's burden to prove each element of his case. MCL 418.851; Aquilina v. General Motors Corp., 403 Mich. 206 (1978).

Is there proof of three regularly employed employees on this record? We know of plaintiff obviously. Plaintiff testified the president of the company came from Wisconsin and taught him how to drive his stick shift company car and correspondence with handwritten notes on it from the company secretary appears in the trial exhibits. It appears by a preponderance of the evidence that this private company had three employees. Because defendant is covered under section 115(a) we do not reach the 115(b) issues of whether plaintiff worked 35 or more hours per week and the effect of the parties' stipulation that he only worked 12 weeks.

Second we must decide whether the "magistrate erred in concluding that the claimant's injury arose out of and in the course of employment."

MCL 418.301(1) states:

An employee who receives a personal injury arising out of the and in the course of employment by an employer who is subject to this act at the time of the injury shall be paid compensation as provided in this act. In the case of death resulting from the personal injury to the employee compensation shall be paid to the employee's dependents as provided in this act. Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single even shall be the last day of work in the employment in which the employee was last subjected to the conditions that resulted in the employee's disability or death.

We agree with defendants' argument that plaintiff's proofs do not meet the presumption of MCL 418.301(3) which states that an employee "going to or from his or her work while on the premises where the employee's work is to be performed and within a reasonable time before and after his or her working hours is presumed to be in the course of his or her employment." Here plaintiff testified he was usually home by 6:30 or 7:00 p.m. and his injury occurred when he struck the front porch of a home.

More to the point is the second sentence of section 301(3) which states "Notwithstanding this presumption an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act." The magistrate emphasized the fact that it is part of a traveling salesman's job to build customer goodwill and that although plaintiff's time in the Pub was spent in large part socializing with friends and existing customers it was for the employer's benefit. He wrote:

The issue is whether Plaintiff broke any causal nexus between his employment and his injury from the auto accident by participating in social activities at the Monte Carlo after concluding his business with Mr. McKie on March 4. This misses the point. It was not the socializing that broke the employment nexus. Rather it was plaintiff's choice to drink alcohol to the point of intoxication coupled with his choice to drive illegally. Plaintiff could have had non-alcoholic beverages; plaintiff could have called a taxi for a lift home. We observe that it is almost always true that it is not in the course of anyone's employment to become intoxicated. An exception might be persons hired to intoxicate themselves for the purpose of a controlled study of the affects of alcohol on driving. We do note however that even if plaintiff were intoxicated and another car struck him through no fault of his own we would not withhold benefits on that basis. To deny compensation benefits a driver's injuries must be due to his or her intoxication.

MCL 418.305 states that "If the employee is injured by reason of his intentional and willful misconduct he shall not receive compensation under the provisions of this act." Plaintiff's action of driving while intoxicated is misconduct independently barring his receipt of benefits in this case.

We must recognize case law in accordance with this holding. In Jones v. TRW Inc., 139 Mich. App 751 (1984) an employee attended a company-sponsored banquet. After the banquet concluded at 10:00 p.m. a cash bar was opened from which plaintiff bought seven drinks. At 12:45 the following morning plaintiff fell asleep at the wheel and struck a tree. Benefits were denied when it was decided plaintiff's work duties had ended and a deviation began at 10:00 p.m. At page 757 we read Most significantly plaintiff's activities after the banquet substantially increased the risk of injury on the way home. Plaintiff was much more likely to be involved in an accident when driving home at 12:45 a.m. after nine drinks than if he had driven home at 10:00 p.m. after two.

Court set forth its reasoning for this finding as follows:

An injury is not compensable unless there is a sufficient nexus between the employment and the injury. See Nemeth v. Michigan Building Components, 390 Mich 734 738; 213 NW2d 144 (1973). It is possible for the employment nexus to be broken and the special mission ended prior to completion of a round trip. Bush v. Parmenter, Forsythe, Rude & Dethmers, 413 Mich 444, 457 320 NW2d 858 (1982). A deviation from a special mission will break the employment nexus if the deviation is so great that it dwarfs the business purpose of the mission. 413 Mich 455; Thomas v. Certified Refrigeration Inc 392 Mich 623, 634-635; 221 NW2d 378 (1974). Factors to be considered in determining whether a deviation has broken the employment nexus include the amount of time elapsed the amount of risk added by personal activities such as drinking the nature of the job and the extent to which there may be found an identifiable moment in time at which work duties ended and the deviation began. Bush supra p 457; 1 Larson Workmen's Compensation Law SEC. 19.29 pp 4-310--4-320. Jones 756. (Emphasis supplied.)

In Bush cited above the Michigan Supreme Court denied compensation to an Counsel who was killed in Muskegon at 3:10 a.m. after attending a work related seminar in Grand Rapids which ended nine hours earlier. Court found his personal detour dwarfed the business portion of the trip and "was of such nature and length that it extensively increased the likelihood of injury and was clearly unrelated to the purpose of the employment." Court listed numerous foreign jurisdictions which also denied compensation for employees whose actions broke the employment nexus most of whom were driving company vehicles and drank to excess:

Nor is this view unique to Michigan. See e.g. Alford v. Quality Chevrolet Co., 246 NC 214 217; 97 SE2d 869 (1957) (five-hour night on the town after work by employee furnished with company car "shows abandonment of employment rather than deviation"); Calloway v. State Workmen's Compensation Comm'r, 268 SE2d 132 (W Va 1980) (salesman's "tavern hopping " following several business-related calls held to be a substantial deviation ending course of employment); Johnson v. McGehee Brother Furniture Co., 256 So 2d 741 (La App 1972) (salesman who had no fixed work hours killed in company car at 1 a.m. while driving home after five hours at a cafe and bar held outside course of employment) writ refused 260 La 1132; 258 So 2d 380 (1972); Hebrank v Parsons, Brinckerhoff, Hall, & MacDonald 88 NJ Super 406 420; 212 A2d 579 (1965) (11-hour deviation with supervisor in employer's car 25 miles away from job site held to be total abandonment of employment; returning from deviation when injured held immaterial); Carter v. Burn Construction Co. Inc., 85 NM 27; 508 P2d 1324 (Ct App 193) ("grease monkey" killed while driving employer's truck after 4- 1/2 -hour deviation drinking beer and playing pool; held to be so major a deviation that subsequent return to homeward journey failed to return him to scope of employment), cert. den 85 NM 5; 508 P2d 1302 (1973); Owen v. Oneida, Ltd., 16 AD2d 1005; 229 NYS2d 325 (1962) (sociable drinking until 2:30 a.m. following a chance dinner meeting with a customer non compensable); and O'Connell v. State Accident Ins. Fund, 19 Or App 735; 528 P2d 1064 (1974) (14-hour "evening out on the town" following completion of business portion of a trip held outside course of employment). The majority view is summarized by Professor Larson:

. . .One thing seems reasonably certain. An employee who has the right to have his homeward journey covered cannot so to speak put that right in the bank indefinitely and cash it at whatever future time suits his convenience. The sheer amount of time elapsed is bound to influence courts in these cases. . . .Other factors . . .include the amount of risk added by the personal activities such as drinking the nature of the job and the extent to which there may be found an identifiable moment in time at which work duties end and the clock begins to run on the deviation. 1 Larson Workmen's Compensation Law SEC. 19.29 pp 4-310--4-320 (footnotes omitted and emphasis added). Therefore our conclusion that driving after drinking excessively can break the employment nexus is consistent with other jurisdictions.

We must also address the magistrate's conclusion that there was not sufficient proof of the degree of plaintiff's intoxication. The magistrate wrote:

Defendant's claim that Plaintiff was intoxicated at the time of the accident is based on the hospital report of his blood alcohol content. Based on the reported level of alcohol in Plaintiff's blood .284 Dr. Shebuski opined that Plaintiff would have been intoxicated. There was no other evidence of intoxication from any physician nurse law enforcement officer or Monte Carlo patron. Plaintiff was not convicted of any alcohol related traffic offense as a result of the accident. Dr. Shebuski could not remember who ordered the blood alcohol test at the hospital. There was no foundation testimony showing the procedures which were followed in drawing or testing the blood. Therefore the report of the blood alcohol content offered into evidence is not found to have established that Plaintiff was intoxicated at the time of the accident. Similarly no conclusions can be drawn from the report as to the amount of alcohol consumed by Plaintiff on the night of the accident from which an inference of gross deviation from employment can be drawn.

While the magistrate was dissatisfied with the foundation issues of the doctor's inability to recall who ordered the blood alcohol test and the lack of description as to the underlying procedures gone through to obtain a determination of plaintiff's level of intoxication he erred as a matter of law in considering these foundation issues. The parties stipulated to the admission of the hospital record containing the blood alcohol test results. No further foundation is needed. This evidence such as it is is the only evidence as to plaintiff's intoxication. Plaintiff's Counsel clearly limited his objection to placement of the decimal point. Based on the above quoted portion of his void dire of the doctor on this point even that objection could be dismissed. For whatever reason the parties chose not to call other witnesses to plaintiff's condition that night. The testimony of bar patron Joseph Sayen was not of any assistance since he left before 7:00 p.m. Although the magistrate to a limited extent may also be disparaging the weight of this evidence it nevertheless stands unrequited and is therefore determinative on the issue of intoxication.

Consequently for the reasons stated above there is not competent material and substantial evidence for the magistrate's findings as required by MCL 418.861a(3). The magistrate erred as a matter of law in disregarding the evidence of plaintiff's intoxication. Because plaintiff became intoxicated and drove illegally his injuries are not compensable. Therefore we reverse the award of benefits and deny compensation for the specific loss of use of plaintiff's eye as not arising out of or in the course of his employment.

Commissioner Skoppek concurs. MILLER COMMISSIONER DISSENTING

I respectfully dissent. I would affirm the decision of the magistrate. I believe that my colleagues by reversing the magistrate because "[p]laintiff's action of driving while intoxicated is the misconduct barring his receipt of benefits in this case" violates our standard of review and misreads basic rules of evidence.

We unlike our predecessor the Workers' Compensation Appeal Board do not have de novo powers of review. We may only review the magistrate's findings of fact and determine whether they are supported by competent material and substantial evidence on the whole record. If so supported then these findings are conclusive upon us. MCL 418.861a(3).

Instead of adhering to MCL 418.861a(3) my colleagues have chosen to brush aside the magistrate's evidentiary rulings disregard his path of reasoning and retry this issue themselves; in doing so they misapprehend or grossly misapply the substantial evidence standard. Holden v. Ford Motor Co., 439 Mich. 257, 269 (1992).

The magistrate found:

The nexus between Plaintiff's employment and his injury was not broken in spite of the fact that the evidence establishes that he consumed some alcoholic beverages at the Monte Carlo after concluding his business with Mr. McKie and before driving home. Although the consumption of alcohol increased the risk of injury with unfortunate consequences in this instance it is found that it occurred within the continuum of Plaintiff's employment on March 4 as evidenced by the fact that he made an additional call on a customer after leaving the Monte Carlo en route to his in-home office. Defendant's claim that Plaintiff was intoxicated at the time of the accident is based on the hospital report of his blood alcohol content. Based on the reported level of alcohol in Plaintiff's blood .284 Dr. Shebuski opined that Plaintiff would have been intoxicated. There was no other evidence of intoxication from any physician nurse law enforcement officer or Monte Carlo patron. Plaintiff was not convicted of any alcohol related traffic offense as a result of the accident. Dr. Shebuski could not remember who ordered the blood alcohol test at the hospital. There was no foundation testimony showing the procedures which were followed in drawing or testing the blood. Therefore the report of the blood alcohol content offered into evidence is not found to have established that Plaintiff was intoxicated at the time of the accident. Similarly no conclusions can be drawn from the report as to the amount of alcohol consumed by plaintiff on the night of the accident from which an inference of gross deviation from employment can be drawn.

I doubt that the magistrate's path of reasoning leading to his conclusion that the evidence (being of little weight) failed to establish that plaintiff was intoxicated could be more clearly expressed. As correctly stated in Brusch v. Papa Bears, 1993 ACO #373 at slip op 2 "Ultimately the decision of a Magistrate on the admissibility of evidence is a matter of discretion and our review is limited to the question of whether the magistrate has abused that discretion." It follows that the weight that a magistrate assigns to evidence is also a matter of discretion.

Spaulding v. Spaulding, 355 Mich 220 (1959), set the standard regarding issues of abuse of discretion at 384-385 indicating that the abuse must be so violative in fact and logic that it shows "not the exercise of will but perversity of will not the exercise of judgment but defiance thereof not the exercise of reason but rather passion or bias." In People v. Bailey,101 Mich App 144 (1980) Court stated that reversible error depends upon whether the error "is so offensive to the maintenance of a sound judicial system as to require reversal." Justice Levin concurring in People v. Talley, 410 Mich 378 (1981) advocated "a more balanced view" than that expressed in Spading and said at 398 quoting Langnes v. Green, 282 US 531 541; 51 S St 243 (1931):The term "discretion" denotes the absence of a hard and fast rule. . . . When invoked as a guide to judicial action it means a sound discretion that is to say a discretion exercised not arbitrarily or willfully but with regard to what is right and equitable under the circumstances and the law and directed by the reason and conscience of the Court to a just result.

The case law when viewed as a whole may be summarized as saying that in matters where questions of discretionary powers are raised the standard should be whether the Court acted soundly equitably and correctly under the circumstances and not arbitrarily or willfully. See Dacon v. Transue, 441 Mich., 315 329 (1992); Poet v. Traverse City Osteopathic Hospital, 433 Mich. 228, 251 (1989); People v. Talley, 410 Mich. 378 387 (1981); Cooper v. Cooper, 93 Mich. App 220 228 (1978); Brown v. Brown, 181 Mich. App 61 71 (1989); Stamp v. Hagerman, 181 Mich. App 332 340 (1989).

This magistrate committed no offense to constitute abuse of discretion. The opposite is true. Had he found based on the evidence before him that plaintiff was intoxicated he could well have been challenged on a due process theory. Plaintiff had no opportunity to submit to a second testing by a physician or laboratory of his choice had no opportunity to determine whether the technician was qualified to do the testing and had no opportunity to challenge the methods and procedures used in the test. Furthermore as the magistrate pointed out plaintiff's blood loss casts doubt on the validity of the BAC especially in view of the fact that the ratio was so high; almost three times the level at which one is considered to be legally intoxicated assuming that the figure on the medical report "284 mg % " equates to .284% "Blood Alcohol Content by weight " the standard used in Michigan statutes to determine legal alcohol impairment or intoxication. See for example MCL 257.625(2). This is a big assumption since even Dr. Shebuski was confused as evidenced by his deposition testimony at pages 14-15:

Q. And that the--If it didn't have the point in front of the 2 assuming it just 284 milligrams would that change at all? Do you have to have a point there? Does the point make any difference whether it's there or not? Assuming the point is not .284 but just--it the original record show 284 milligram percent it that--

A. If it did not say percent it wouldn't matter but if there's a percent there then you have to have a decimal point. In other words if it was 284 milligrams?

Q. That's right.

A. That could be. But it couldn't be 284 milligram percent.

Q. Okay. If it read 284 milligrams?

A. Right.

Q. What would that relate to in terms of blood alcohol content?

A. Essentially the same thing. I've seen them reported that way. Each hospital has it own reporting methods. Some hospital will report it just as the three digit number in milligrams and the would be milligrams or cc probably but I can't tell you since each hospital has a different way of reporting it what would be the most correct way. The record is bereft of any evidence establishing that the entry ".284 mg%" equates to ".284% BAC." There was absolutely no foundation to establish the validity of the blood test. People v. Krulikowski, 60 Mich. App 28 (1975).

The mere presence of a chemical test in a hospital file does not prima facie make it valid much less as my colleagues now decide dispositive. The magistrate properly assigned little if any weight to the blood test and correctly awarded benefits to plaintiff.

Even if the evidence supported a finding that plaintiff was intoxicated (which it did not) the award of benefits might well be appropriate. Allison v. Pepsi Cola,183 Mich. App 101 (1990); Richards v. Rockwell International 1990 ACO #277.

And even if it was found that the employment nexus was broken by the Club Monte Carlo activities which is arguable plaintiff had clearly reestablished it prior to the accident. Plaintiff had drinks with clients at the Club Monte Carlo. He then made a sales call. He then had something to eat at a restaurant. He then drove a company car with logo toward his office which happened to be located at his residence; Thomas v. Certified Refrigeration, Inc. 392 Mich. 623 (1974).

The magistrate's findings of fact are supported by competent material and substantial evidence on the whole record and his conclusions of law need not be corrected or clarified. I would affirm.

Order

This cause came before the Appellate Commission on appeal by defendants from the order of Magistrate Judd R. Spray mailed January 17, 1991, granting benefits for the specific loss of vision from plaintiff's left eye. The Commission has considered the record and the briefs of Counsel and believes that the decision should be reversed. Therefore

IT IS ORDERED that the magistrate's decision is reversed.