ORDER ON REVIEW:

CLAIMANT REQUESTS REVIEW OF REFEREE NEAL'S ORDER THAT UPHELD THE INSURER'S DENIAL OF CLAIMANT'S RIGHT KNEE INJURY CLAIM. ON REVIEW, THE ISSUE IS WHETHER CLAIMANT'S INJURY AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT. WE REVERSE.

FINDINGS OF FACT

CLAIMANT WORKS FOR THE EMPLOYER AS A FREIGHT UNLOADER.

ON FEBRUARY 5, 1993, CLAIMANT VISITED WITH FRIENDS AND DRANK A 32-OUNCE BEER BEFORE WORK. WHILE CLAIMANT WAS ON HIS WAY TO WORK, A POLICE OFFICER STOPPED CLAIMANT'S VEHICLE FOR RUNNING A YELLOW LIGHT, CAUSING CLAIMANT TO BE ABOUT 15 MINUTES LATE FOR HIS SHIFT.

AT WORK, CLAIMANT PERFORMED WARM-UP EXERCISES AND BEGAN UNLOADING FREIGHT. ABOUT A HALF HOUR LATER, A BOX FELL FROM AN UNSTABLE STACK, STRIKING CLAIMANT'S RIGHT KNEE AND CAUSING HIM PAIN.

THE EMPLOYER TRANSPORTED CLAIMANT TO A HOSPITAL, WHERE CLAIMANT RECEIVED CONSERVATIVE TREATMENT. A BLOOD TEST REVEALED THE PRESENCE OF ALCOHOL IN CLAIMANT'S SYSTEM.

ON APRIL 30, 1993, THE INSURER DENIED CLAIMANT'S RIGHT KNEE INJURY CLAIM.

THE EMPLOYER HAD A WRITTEN DRUG AND ALCOHOL POLICY PROHIBITING ITS EMPLOYEES FROM GOING OR REMAINING ON DUTY WITH ALCOHOL OR CONTROLLED SUBSTANCES IN THEIR SYSTEMS. CLAIMANT WAS AWARE OF THAT POLICY.

CONCLUSIONS OF LAW AND OPINION

REASONING THAT CLAIMANT'S VIOLATION OF THE EMPLOYER'S DRUG AND ALCOHOL POLICY AMOUNTED TO OVERSTEPPING THE BOUNDARIES OF CLAIMANT'S ULTIMATE WORK, THE REFEREE FOUND THAT CLAIMANT'S RIGHT KNEE INJURY WAS NOT COMPENSABLE. WE DISAGREE.

THE PARTIES DO NOT DISPUTE THAT CLAIMANT WAS INJURED WHILE PERFORMING HIS REGULAR WORK AS A FREIGHT UNLOADER, THAT THE INJURY OCCURRED ON THE EMPLOYER'S PREMISES DURING REGULAR WORK HOURS AND THAT CLAIMANT'S CONDUCT AT THE TIME OF INJURY WAS FOR THE EMPLOYER'S BENEFIT. THEY ALSO DO NOT DISPUTE THAT CLAIMANT'S ACTIVITIES AT THE TIME OF INJURY WERE CONTEMPLATED BY THE EMPLOYER AND EMPLOYEE, THAT THE EMPLOYER DIRECTED OR ACQUIESCED IN THOSE ACTIVITIES AND THAT CLAIMANT WAS NOT ON A PERSONAL MISSION, AND THAT THE RISK OF INJURY FROM A FALLING BOX WAS SIMPLY AN ORDINARY RISK OF CLAIMANT'S EMPLOYMENT.

FURTHERMORE, THERE IS NO EVIDENCE THAT CLAIMANT'S PRE-WORK ALCOHOL CONSUMPTION IN ANY WAY CAUSED HIS INJURY. ASSUMING, ARGUENDO, THAT CLAIMANT VIOLATED THE EMPLOYER'S DRUG AND ALCOHOL POLICY, WE STILL FIND NO EVIDENCE IN THIS RECORD THAT SUCH A VIOLATION CONTRIBUTED TO THE CAUSE OF CLAIMANT'S INJURY.

THE ONLY QUESTION PRESENTED BY THIS CASE IS WHETHER, IN THE ABSENCE OF ANY CAUSAL CONNECTION BETWEEN CLAIMANT'S DRINKING AND HIS KNEE INJURY, VIOLATION OF THE EMPLOYER'S DRUG AND ALCOHOL POLICY CONSTITUTED MISCONDUCT SUFFICIENT TO TAKE CLAIMANT'S INJURY OUT OF THE COURSE AND SCOPE OF HIS EMPLOYMENT. FOR THE FOLLOWING REASONS, WE CONCLUDE THAT THE ANSWER TO THAT QUESTION IS "NO."

THIS IS A CASE OF FIRST IMPRESSION. THE PARTIES AGREE THAT UNDERWOOD V. PENDLETON GRAIN GROWERS, 112 OR APP 170 (1992), IS FACTUALLY DISTINGUISHABLE. THERE, Court HELD THAT, WHERE THE CLAIMANT HAD CONSUMED A LARGE QUANTITY OF ALCOHOL AND BARBITURATES DURING A 4 1/2 HOUR NONBUSINESS DELAY, THE CLAIMANT'S INJURY DURING A SUBSEQUENT AUTOMOBILE ACCIDENT DID NOT OCCUR IN THE COURSE OF EMPLOYMENT. IN REACHING THAT DECISION, Court FOCUSED ON THE FACTS THAT THE CLAIMANT HAD BEEN EXPRESSLY PROHIBITED FROM CARRYING OUT THE EMPLOYER'S BUSINESS AFTER CONSUMING ALCOHOL OR DRUGS AND THE LENGTH OF THE NONBUSINESS DEVIATION AND NATURE OF THE CLAIMANT'S ACTS. ID. AT 173-74. HERE, IN CONTRAST, WE MUST DETERMINE WHETHER VIOLATION OF AN EMPLOYER'S DRUG AND ALCOHOL POLICY IS, BY ITSELF, A SUFFICIENT BASIS FOR US TO CONCLUDE THAT THE CLAIMANT'S INJURY DID NOT OCCUR IN THE COURSE OF HIS EMPLOYMENT. *fn1

BEFORE WE ANALYZE THAT ISSUE, WE WISH TO CLARIFY THAT THIS IS A "COURSE AND SCOPE" CASE. IT IS NOT AN ORS 656.005(7)(B)(C) CAUSATION CASE. SEE GRACE L. WALKER, 45 VAN NATTA 1273 (1993), AFF'D MEM WALKER V. DANNER SHOE MANUFACTURING, 126 OR APP 313 (1994) (ORS 656.005(7)(B)(C) PRECLUDES COMPENSABILITY WHERE A CLAIMANT HAS OTHERWISE ESTABLISHED THAT THE INJURY AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT IF THE EMPLOYER ESTABLISHES THAT THE MAJOR CONTRIBUTING CAUSE OF THE CLAIMANT'S INJURY IS ALCOHOL OR UNLAWFUL DRUG CONSUMPTION (UNLESS THE EMPLOYER PERMITTED, ENCOURAGED OR HAD ACTUAL KNOWLEDGE OF SUCH CONSUMPTION)). *fn2 INDEED, THE INSURER CONCEDES THAT THERE IS NO EVIDENCE THAT CLAIMANT'S INJURIES WERE CAUSED BY HIS ALCOHOL CONSUMPTION; TO THE CONTRARY, THE EVIDENCE ESTABLISHES THAT CLAIMANT'S INJURY WAS CAUSED SOLELY BY A BOX THAT FELL ON HIM THROUGH NO FAULT OF HIS OWN.

THE TEST FOR DETERMINING WHETHER AN EMPLOYEE'S MISCONDUCT INVOLVED ACTIVITIES THAT ARE OUTSIDE THE COURSE AND SCOPE OF EMPLOYMENT IS STATED BY PROFESSOR LARSON:

"WHEN MISCONDUCT INVOLVES A PROHIBITED OVERSTEPPING OF THE BOUNDARIES DEFINING THE ULTIMATE WORK TO BE DONE BY THE CLAIMANT, THE PROHIBITED ACT IS OUTSIDE THE COURSE OF EMPLOYMENT. BUT WHEN MISCONDUCT INVOLVES A VIOLATION OF REGULATIONS OR PROHIBITIONS RELATING TO THE METHOD OF ACCOMPLISHING THAT ULTIMATE WORK, THE ACT REMAINS WITHIN THE COURSE OF EMPLOYMENT." 1A LARSON, WORKMEN'S COMPENSATION LAW 6-8, sec 31.00 (1985) (HEREINAFTER, "SECTION 31.00") (EMPHASIS IN ORIGINAL). BOTH THIS BOARD AND Court OF APPEALS HAVE ADOPTED THIS RULE TO DETERMINE WHETHER A WORKER'S MISCONDUCT INVOLVED ACTIVITIES THAT ARE OUTSIDE THE COURSE AND SCOPE OF EMPLOYMENT. SEE DAVIS V. R & R TRUCK BROKERS, 112 OR APP 485 (1992); PATTERSON V. SAIF, 64 OR APP 652 (1983); MICHAEL THORNTON, 45 VAN NATTA 743 (1993).

IN PATTERSON, THE CLAIMANT WAS A SECURITY GUARD FOR THE EMPLOYER, OREGON HEALTH SCIENCES UNIVERSITY. THE EMPLOYER HAD A RULE PROHIBITING THE TRANSPORT OF UNWANTED PERSONS BEYOND THE EDGE OF THE EMPLOYER'S PREMISES. ALTHOUGH THE CLAIMANT KNEW OF THIS RULE, HE TRANSPORTED AN UNRULY PATIENT TO DOWNTOWN PORTLAND, AT WHICH POINT HE WAS INJURED. THE EMPLOYER ARGUED THAT, BECAUSE THE CLAIMANT WAS INJURED WHILE HE DELIBERATELY DISOBEYED THE EMPLOYER'S RULE, THE CLAIMANT'S INJURY DID NOT ARISE OUT OF AND IN THE COURSE OF EMPLOYMENT AND, HENCE, WAS NOT COMPENSABLE.

Court DISAGREED, CONCLUDING THAT THE CLAIMANT'S INJURY WAS SUFFICIENTLY WORK RELATED TO BE COMPENSABLE. Court SAID: "[THE CLAIMANT] WAS INJURED WHILE HE WAS EXECUTING THE ASSIGNED TASK OF REMOVING AN UNRULY PATIENT FROM THE EMPLOYER'S PREMISES. HIS DISREGARD OF THE EMPLOYER'S RULES WAS DELIBERATE BUT DID NOT INVOLVE A PROHIBITED OVERSTEPPING OF THE BOUNDARIES DEFINING HIS ULTIMATE JOB RESPONSIBILITIES. RATHER, HIS MISCONDUCT INVOLVED A VIOLATION OF THE EMPLOYER'S RULES GOVERNING THE METHOD OF ACCOMPLISHING HIS ULTIMATE WORK, AND THEREFORE, HE REMAINED WITHIN THE SCOPE OF HIS EMPLOYMENT. SEE 1A LARSON, WORKMEN'S COMPENSATION LAW 6-7, SEC. 31.00 (1979).

"BECAUSE [THE CARRIER] CONCEDES THAT THE DISPOSITIVE MISCONDUCT HERE IS THE PROHIBITED ACT OF LEAVING THE PREMISES, [THE] CLAIMANT'S MISCONDUCT IS NOTHING MORE THAN DISOBEDIENCE TO SPECIFIC INSTRUCTIONS LIMITING THE SPHERE OF THE EXECUTION OF HIS EMPLOYMENT RESPONSIBILITIES. BECAUSE WE FIND THAT MISCONDUCT TO BE A MERE VIOLATION OF THE DESIGNATED METHOD OF EXECUTION OF HIS ULTIMATE JOB DUTY, THE RESULTING INJURY IS SUFFICIENTLY WORK-RELATED TO BE COMPENSABLE." PATTERSON V. SAIF, SUPRA, 64 OR APP AT 565 (EMPHASIS IN ORIGINAL).

IN DAVIS V. R & R TRUCK BROKERS, SUPRA, THE CLAIMANT, A TRUCK DRIVER, PICKED UP A LOAD FOR TRANSPORT FROM VANCOUVER, WASHINGTON TO GRANTS PASS, OREGON. WHEN THE CLAIMANT CALLED THE EMPLOYER FROM VANCOUVER, THE EMPLOYER INSTRUCTED THE CLAIMANT NOT TO COMPLETE THE TRIP BUT TO RETURN THE TRUCK TO THE EMPLOYER'S YARD IN TURNER, OREGON. THE CLAIMANT DISOBEYED THE DIRECTIVE AND, AFTER PICKING UP THREE PASSENGERS, TRAVELED FURTHER SOUTHBOUND ON I-5. NORTH OF GRANTS PASS, THE TRUCK FLIPPED OVER AND CLAIMANT WAS INJURED.

THE EMPLOYER DENIED THE CLAIM, ARGUING THAT, BY FAILING TO RETURN THE TRUCK TO TURNER AS DIRECTED, THE CLAIMANT HAD LEFT THE COURSE OF HIS EMPLOYMENT. Court AGREED. RELYING ON SECTION 31.00 OF PROFESSOR LARSON'S TREATISE, Court CONCLUDED THAT CLAIMANT'S CONDUCT WAS "MORE THAN A VIOLATION OF A REGULATION OR PROHIBITION RELATING TO THE METHOD OF ACCOMPLISHING HIS WORK. HE WAS SPECIFICALLY TOLD TO RETURN THE TRUCK AND TO STOP WORKING. INSTEAD HE REFUSED TO DO EITHER AND CONTINUED ON TOWARD GRANTS PASS, CONTRARY TO HIS JOB RESPONSIBILITIES. CLAIMANT OVERSTEPPED THE BOUNDARIES OF THE WORK THAT HE WAS TO DO FOR EMPLOYER." DAVIS, SUPRA, 112 OR APP AT 491.

SIMILARLY, IN MICHAEL THORNTON, 45 VAN NATTA 743 (1993), WE CONCLUDED THAT THE CLAIMANT'S VIOLATION OF THE EMPLOYER'S SPECIFIC DIRECTION NOT TO WORK ON THE DAY OF THE INJURY CONSTITUTED MORE THAN A VIOLATION OF A REGULATION OR PROHIBITION RELATING TO THE METHOD OF ACCOMPLISHING HIS WORK. THEREFORE, WE CONCLUDED THAT, WHEN THE CLAIMANT WAS INJURED AT THE WORKSITE, HE HAD OVERSTEPPED THE BOUNDARIES OF THE WORK THAT HE WAS TO DO FOR THE EMPLOYER. ID. AT 744.

HERE, ALTHOUGH CLAIMANT APPARENTLY VIOLATED THE EMPLOYER'S DRUG AND ALCOHOL POLICY, WE CONCLUDE THAT CLAIMANT'S MISCONDUCT INVOLVED A VIOLATION OF A REGULATION OR PROHIBITION RELATING TO THE METHOD OF ACCOMPLISHING HIS WORK. AS IN PATTERSON, CLAIMANT WAS INJURED WHILE HE WAS EXECUTING AN ASSIGNED WORK TASK; VIZ., UNLOADING FREIGHT. HIS DISREGARD OF THE EMPLOYER'S NO-ALCOHOL RULE WAS DELIBERATE BUT DID NOT INVOLVE A PROHIBITED OVERSTEPPING OF THE BOUNDARIES DEFINING HIS ULTIMATE FREIGHT UNLOADING RESPONSIBILITIES. THAT IS, UNLIKE DAVIS AND THORNTON, CLAIMANT WAS NOT PERFORMING WORK THAT HE HAD EXPRESSLY BEEN FORBIDDEN TO PERFORM; TO THE CONTRARY, HE WAS PERFORMING THE EXACT WORK THAT HE HAD BEEN HIRED TO PERFORM WHEN, THROUGH NO FAULT OF HIS OWN, HE WAS INJURED BY A FALLING BOX. WE FIND THAT THE EMPLOYER'S DRUG AND ALCOHOL POLICY WAS A MANIFESTATION OF ITS DESIRE THAT ITS EMPLOYEES PERFORM THEIR ULTIMATE WORK RESPONSIBILITIES UNENCUMBERED BY DRUGS OR ALCOHOL. THEREFORE, WE CONCLUDE THAT CLAIMANT'S MISCONDUCT WAS A MERE VIOLATION OF THE DESIGNATED METHOD OF EXECUTION OF HIS ULTIMATE JOB DUTIES.

IN REACHING THIS CONCLUSION, WE NOTE THE DISSENT'S REFERENCE TO THE LAST SENTENCE OF SECTION 31.00, WHICH PROVIDES: "VIOLATIONS OF EXPRESS PROHIBITIONS RELATING TO INCIDENTAL ACTIVITIES, SUCH AS SEEKING PERSONAL COMFORT, AS DISTINGUISHED FROM ACTIVITIES CONTRIBUTING DIRECTLY TO THE ACCOMPLISHMENT OF THE MAIN JOB, ARE AN INTERRUPTION OF THE COURSE OF EMPLOYMENT." 1A LARSON, WORKMEN'S COMPENSATION LAW 6-8, SEC. 31.00 (EMPHASIS ADDED).

THE DISSENT ARGUES THAT, BECAUSE PROFESSOR LARSON CONSIDERS CONSUMING ALCOHOL O BE A "PERSONAL COMFORT" ACTIVITY, SEE ID. AT 6-13, SEC.12, WE ARE ECESSARILY BOUND BY THE LAST SENTENCE OF SECTION 31.00. WE DISAGREE.

FIRST, NEITHER THIS BOARD NOR ANY OREGON APPELLATE COURT HAS ADOPTED THE LAST ENTENCE OF SECTION 31.00 AS THE LAW OF THIS STATE. WE DECLINE TO ADOPT IT HERE.

FURTHERMORE, WE AGREE WITH THE REASONING OF THE NEW YORK COURT OF APPEALS ASE CITED BY PROFESSOR LARSON, BURNS V. MERRITT ENGINEERING COMPANY, 302 NY 31, 96 NE2D 739 (1951). IN THAT CASE, THE CLAIMANT WAS INJURED WHEN HE DRANK ROM A BOTTLE MARKED "GIN" THAT ACTUALLY CONTAINED A POISON THAT A CO-WORKER HAD UT IN THE BOTTLE AS A PRANK. THE EMPLOYER HAD A NO-ALCOHOL RULE. Court ONCLUDED THAT THE CLAIMANT'S INJURIES WERE COMPENSABLE ON THE GROUND THAT THE LAIMANT HAD BEEN AN INNOCENT VICTIM OF HORSEPLAY. Court ALSO SAID THAT, VEN IF THERE HAD BEEN A VIOLATION OF THE EMPLOYER'S NO-ALCOHOL RULE, IT SHOULD E TREATED NO DIFFERENTLY THAN A VIOLATION OF ANY OTHER RULE DESIGNED TO IMPROVE LANT EFFICIENCY AND TO SAFEGUARD EMPLOYEES, I.E., A VIOLATION OF A PROHIBITED ETHOD OF PERFORMING WORK. ID., 96 NE2D AT 740.

WE STRONGLY DISAGREE WITH THE DISSENT'S ATTEMPT TO CREATE A PER SE RULE THAT, F A CLAIMANT HAS ALCOHOL IN HER SYSTEM IN VIOLATION OF AN EMPLOYER'S DRUG AND LCOHOL POLICY, SHE IS AUTOMATICALLY OUT OF THE COURSE AND SCOPE OF HER MPLOYMENT. SUCH A RULE WOULD EXCLUDE FROM COVERAGE CASES SUCH AS THIS, WHERE AN MPLOYEE WAS PERFORMING ASSIGNED WORK, ALBEIT AFTER CONSUMING ALCOHOL, WHEN, HROUGH NO FAULT OF HIS OWN, AND IN THE ABSENCE OF ANY CAUSAL CONNECTION WITH IS DRINKING, HE IS INJURED. WE BELIEVE THAT SUCH A RESULT WOULD BE UNDULY ARSH, AND WE DECLINE TO ADOPT IT HERE. *fn3

IN REACHING OUR DECISION IN THIS CASE, WE HAVE CAREFULLY CONSIDERED THE UBLIC POLICY AND SAFETY CONCERNS UNDERLYING DRUG AND ALCOHOL POLICIES SUCH AS HAT PRESENT IN THIS CASE. WE ENCOURAGE EMPLOYERS TO CONTINUE TO ENSURE SAFE AND RODUCTIVE WORK ENVIRONMENTS THROUGH THE IMPLEMENTATION OF SUCH POLICIES.

HOWEVER, WE REITERATE THAT THERE IS NO CONTENTION THAT CLAIMANT'S INJURY WAS AUSALLY RELATED TO HIS RULE VIOLATION. CLAIMANT DID NOT CREATE THE HAZARD THAT AUSED HIS ACCIDENT BY VIOLATING THE EMPLOYER'S RULE OR OTHERWISE. HE WAS SIMPLY NJURED WHILE EXECUTING HIS JOB DUTIES. CONSEQUENTLY, WE CONCLUDE THAT, OTWITHSTANDING THE EMPLOYER'S AND THE PUBLIC'S INTERESTS IN A DRUG- AND LCOHOL-FREE WORKPLACE, CLAIMANT REMAINED WITHIN THE COURSE AND SCOPE OF HIS MPLOYMENT, DESPITE HIS APPARENT VIOLATION OF THE EMPLOYER'S DRUG AND ALCOHOL OLICY. SEE PATTERSON V. SAIF, 64 OR APP 652 (1983); SEE ALSO 1A LARSON, WORKMEN'S COMPENSATION LAW 6-8, sec.00.

CLAIMANT IS ENTITLED TO AN ASSESSED Counsel FEE FOR PREVAILING ON THE CLAIM. ORS 656.386(1). AFTER CONSIDERING THE FACTORS SET FORTH IN OAR 438-15-010(4) AND APPLYING THEM TO THIS CASE, WE FIND THAT A REASONABLE ASSESSED COUNSEL FEE FOR CLAIMANT'S COUNSEL SERVICES AT HEARING AND ON REVIEW IS $3,500, TO BE PAID BY THE INSURER. IN REACHING THIS CONCLUSION, WE HAVE PARTICULARLY CONSIDERED THE TIME DEVOTED TO THE CASE (AS REPRESENTED BY CLAIMANT'S APPELLANT'S BRIEF AND THE HEARING RECORD), THE COMPLEXITY OF THE ISSUE, THE VALUE OF THE INTEREST INVOLVED AND THE RISK THAT CLAIMANT'S Counsel MIGHT GO UNCOMPENSATED.

ORDER

THE REFEREE'S ORDER DATED OCTOBER 1, 1993 IS REVERSED. THE INSURER'S DENIAL IS SET ASIDE AND THE CLAIM IS REMANDED TO THE INSURER FOR FURTHER PROCESSING ACCORDING TO LAW. FOR SERVICES AT HEARING AND ON REVIEW, CLAIMANT'S Counsel IS AWARDED A $3,500 Counsel FEE, PAYABLE BY THE INSURER.

WORKERS' COMPENSATION BOARD

NELSON R. HALL, BOARD MEMBER

RUDOLPH S. WESTERBAND, BOARD MEMBER

DISSENT-BY: BOARD MEMBER HAYNES DISSENTING

DISSENT: THE MAJORITY HOLDS THAT BECAUSE, IN ITS VIEW, THE EMPLOYER'S DRUG AND ALCOHOL POLICY CONCERNED THE CLAIMANT'S METHOD OF PERFORMING WORK, CLAIMANT'S VIOLATION OF THAT POLICY DID NOT TAKE HIM OUT OF THE COURSE AND SCOPE OF HIS EMPLOYMENT. BECAUSE THAT HOLDING FLIES IN THE FACE OF WELL-REASONED LEGAL PRINCIPLES AND COMMON SENSE, I DISSENT.

THIS BOARD AND Court OF APPEALS HAS HAD OCCASION TO CITE PROFESSOR LARSON FOR THE PROPOSITION THAT "WHEN MISCONDUCT INVOLVES A PROHIBITED OVERSTEPPING OF THE BOUNDARIES OF THE ULTIMATE WORK TO BE DONE BY THE CLAIMANT, THE PROHIBITED ACT IS OUTSIDE THE COURSE OF EMPLOYMENT. BUT WHEN MISCONDUCT INVOLVES A VIOLATION OF REGULATIONS OR PROHIBITIONS RELATED TO THE METHOD OF ACCOMPLISHING THAT ULTIMATE WORK, THE ACT REMAINS WITHIN THE COURSE OF EMPLOYMENT." 1A LARSON, WORKMEN'S COMPENSATION LAW 6-8, SEC. 31.00 (1985) (HEREINAFTER, "SECTION 31.00") (EMPHASIS IN ORIGINAL). SEE DAVIS V. R & R TRUCK BROKERS, 112 OR APP 485 (1992); PATTERSON V. SAIF, 64 OR APP 652 (1983); MICHAEL THORNTON, 45 VAN NATTA 743 (1993).

THESE CASES FAIL TO MENTION THE LAST SENTENCE OF SECTION 31.00, WHICH PROVIDES: "VIOLATIONS OF EXPRESS PROHIBITIONS RELATING TO INCIDENTAL ACTIVITIES, SUCH AS SEEKING PERSONAL COMFORT, AS DISTINGUISHED FROM ACTIVITIES CONTRIBUTING DIRECTLY TO THE ACCOMPLISHMENT OF THE MAIN JOB, ARE AN INTERRUPTION OF THE COURSE OF EMPLOYMENT." 1A LARSON, WORKMEN'S COMPENSATION LAW 6-8, SEC. 31.00 (EMPHASIS ADDED). PROFESSOR LARSON MAKES IT CLEAR THAT CONSUMING ALCOHOL IS CONSIDERED A "PERSONAL COMFORT" ACTIVITY. SEE ID. AT 6-13, SEC. 31.12. HE CRITICIZES A NEW YORK COURT OF APPEALS' CASE, BURNS V. MERRITT ENGINEERING COMPANY, 302 NY 131, 96 NE2D 739 (1951) (4:3 DECISION), WHICH CONCLUDED THAT A WORKERS COMPENSATION CLAIMANT'S VIOLATION OF THE EMPLOYER'S NO-ALCOHOL RULE SHOULD BE TREATED NO DIFFERENTLY THAT ANY OTHER VIOLATION RELATING TO PLANT EFFICIENCY OR EMPLOYEE SAFETY. LARSON STATES THAT "THIS REASONING OVERLOOKS THE BASIC DISTINCTION BETWEEN PROHIBITED ACTIVITIES THAT ARE NOT PART OF THE WORK AND PROHIBITED METHODS OF DOING WORK. 1A LARSON, WORKMEN'S COMPENSATION LAW 6-13, SEC. 31.12.

I AGREE WHOLEHEARTEDLY WITH PROFESSOR LARSON. CONSUMING ALCOHOL AND OTHER MIND-ALTERING SUBSTANCES IS NOT A PART OF THIS (OR PERHAPS, ANY) CLAIMANT'S WORK. THE EMPLOYER'S DRUG AND ALCOHOL POLICY CLEARLY MANIFESTED ITS DESIRE THAT ITS EMPLOYEES NEVER WORK WHILE ENCUMBERED BY DRUGS OR ALCOHOL. I PARTICULARLY AGREE THAT THE CONSUMPTION OF DRUGS AND ALCOHOL IS AN INCIDENTAL ACTIVITY, AKIN TO SEEKING PERSONAL COMFORT, AS DISTINGUISHED FROM ACTIVITIES CONTRIBUTING DIRECTLY TO AN EMPLOYEE'S WORK. ACCORDINGLY, UNDER THE LAST SENTENCE OF SECTION 31.00, I WOULD CONCLUDE THAT CLAIMANT'S VIOLATION OF THE EMPLOYER'S DRUG AND ALCOHOL POLICY CONSTITUTED AN INTERRUPTION OF THE COURSE OF EMPLOYMENT.

ALTERNATIVELY, I WOULD CONCLUDE THAT CLAIMANT'S VIOLATION OF THE EMPLOYER'S DRUG AND ALCOHOL POLICY CONSTITUTED MISCONDUCT INVOLVING A PROHIBITED OVERSTEPPING OF THE BOUNDARIES DEFINING HIS ULTIMATE WORK.

IT GOES WITHOUT STAYING THAT THE ULTIMATE WORK TO BE PERFORMED BY AN EMPLOYEE IS TO DO HIS JOB TO THE VERY BEST OF HIS ABILITY. AN EMPLOYER HAS THE RIGHT TO EXPECT THAT EVERY EMPLOYEE WILL OPERATE AT FULL CAPACITY WITH THAT OBJECTIVE IN MIND. IT FOLLOWS THAT RULES THAT ARE DESIGNED TO ENSURE THAT EMPLOYEES PERFORM AT OPTIMAL CAPACITY NECESSARILY CONCERN THE EMPLOYEES' ULTIMATE WORK. BECAUSE DRUG AND ALCOHOL POLICIES ARE OBVIOUSLY DESIGNED, AT LEAST IN PART, TO ENSURE THAT EMPLOYEES REMAIN HIGHLY PRODUCTIVE, IN THE ALTERNATIVE, I WOULD CONCLUDE THAT CLAIMANT'S VIOLATION OF THE EMPLOYER'S DRUG AND ALCOHOL POLICY INVOLVED A PROHIBITED OVERSTEPPING OF THE BOUNDARIES DEFINING HIS ULTIMATE JOB RESPONSIBILITIES.

THIS CONCLUSION IS PARTICULARLY COMPELLING WHEN VIEWED IN LIGHT OF THE FACTS OF THIS CASE. SHORTLY BEFORE HE BEGAN WORK, CLAIMANT CONSUMED 32 OUNCES OF BEER. CLAIMANT'S BLOOD ALCOHOL LEVEL OVER FIVE HOURS AFTER THE ACCIDENT WAS 0.04 GRAMS/DL. (EX. 3B). DR. BARTON, AN OCCUPATIONAL HEALTH SPECIALIST, ESTIMATED THAT, AT THE TIME OF THE ACCIDENT, CLAIMANT'S BLOOD ALCOHOL LEVEL WOULD HAVE BEEN BETWEEN 0.10 AND 0.14 GRAMS/DL. (EX. 7-2). I REFUSE TO BELIEVE THAT CLAIMANT COULD HAVE BEEN OPERATING AT OPTIMAL CAPACITY SO ENCUMBERED. I LIKEWISE REFUSE TO BELIEVE THAT THE EMPLOYER'S ATTEMPT TO PREVENT CLAIMANT FROM WORKING IN SUCH A STATE DID NOT HAVE A DIRECT BEARING ON CLAIMANT'S ULTIMATE WORK RESPONSIBILITIES.

FINALLY, I DISAGREE WITH THE MAJORITY THAT LEGISLATIVE SANCTION WOULD BE REQUIRED BEFORE THIS BOARD COULD ADOPT THE APPROACH PROPOSED BY THIS DISSENT. ORS 656.005(7)(B)(C) PRECLUDES COMPENSABILITY WHERE A CLAIMANT OTHERWISE HAS ESTABLISHED THAT THE INJURY AROSE OUT OF AND IN THE COURSE OF EMPLOYMENT IF THE EMPLOYER ESTABLISHES THAT THE MAJOR CONTRIBUTING CAUSE OF THE CLAIMANT'S INJURY IS ALCOHOL CONSUMPTION (UNLESS THE EMPLOYER PERMITTED, ENCOURAGED OR HAD ACTUAL KNOWLEDGE OF SUCH CONSUMPTION). SEE GRACE L. WALKER, 45 VAN NATTA 1273 (1993), AFF'D MEM WALKER V. DANNER SHOE MANUFACTURING, 126 OR APP 313 (1994). THE STATUTE IS SILENT ABOUT WHETHER A CLAIMANT LEAVES THE COURSE OF HER EMPLOYMENT BY VIOLATING HER EMPLOYER'S DRUG AND ALCOHOL POLICY. ACCORDINGLY, IN VIEW OF THAT LEGISLATIVE SILENCE, I WOULD CONCLUDE THAT RESORT TO COMMON LAW PRINCIPLES IS PROPER. SINCE I BELIEVE THAT THE COMMON LAW WARRANTS THE ANALYSIS AND CONCLUSIONS SET FORTH HERE, I RESPECTFULLY DISSENT.

SANDRA K. HAYNES, BOARD MEMBER