The employer appeals from the compensation judge’s award of dependency benefits, contending that the employee’s death did not arise out of and in the course of his employment but was instead the result of the employee’s intoxication and/or the employee’s commission of a prohibited act.^[1]  We affirm the judge’s award.

In early October 2003, Craig Rebers hired the employee to work as the executive chef for the Roasted Pear [the employer],^[2] a restaurant Mr. Rebers was in the process of opening in Burnsville, Minnesota.  Prior to the projected opening date, the employee was to research and develop the menu.  Because the restaurant was undergoing extensive renovation, it was understood that the employee would work at home while planning the menu and developing recipes.

The employee’s resume, submitted to Mr. Rebers in connection with his application for the job, indicated that the employee was living at an address on Shelard Parkway, in Minneapolis.  However, in a statement subsequently taken in connection with litigation, Mr. Rebers indicated that he was aware that the employee had at some point moved into the house of his girlfriend’s parents, in Carver County.  The employee’s ex-wife testified that the employee had moved into that home toward the end of September of 2003.

After beginning work on October 6, 2003, the employee had periodic meetings with Mr. Rebers at the Roasted Pear, or, more frequently, at a fast food restaurant next door, construction activity making the Roasted Pear unsuitable for conducting business.  According to Mr. Rebers, most of the meetings lasted an hour or two, and specific meeting times were “left fairly loose” because of the employee’s child care responsibilities.

On Sunday, October 19, 2003, the employee attended a wine tasting at Mr. Rebers’ home, held to choose wines for the restaurant’s wine list.  Sixteen to eighteen people participated in the event.  During that gathering, the employee consumed wine and prepared a food item that was under consideration for the restaurant menu.  Mr. Rebers testified that he told the employee to take the next day off, “because he [had] worked on a Sunday.”  Later, however, Mr. Rebers testified that he did not consider the wine tasting to be a work event and did not consider the employee to be on the job at that time.

On Tuesday, October 21, 2003, the employee was scheduled to fly to Seattle, Washington, to receive training on a pizza oven that Mr. Rebers had decided to purchase for the restaurant.  Mr. Rebers had booked the flight, which was scheduled to depart from the Minneapolis/St. Paul International Airport at 11:00 a.m., and had given the employee the plane tickets.  Mr. Rebers testified that he had arranged to meet with the employee at the restaurant on the morning of the flight to give him cash for the trip and to discuss any last minute details.  According to Mr. Rebers’ appointment book, that meeting was scheduled to take place between 8:00 a.m. and 9:00 a.m.  The employee, however, did not attend the meeting and did not talk to Mr. Rebers that morning.

At 10:02 a.m., on the morning of October 21, 2003, the employee and his girlfriend, Lynn Marie Hines, were killed in an automobile collision while traveling southbound on Highway 41 in Carver County.  Ms. Hines was driving the car.  According to records and witness statements related to the accident, it appears that Ms. Hines may have lost control of her vehicle after attempting to pass the car in front of her, ending up in the oncoming lane of traffic.

Both the employee and Ms. Hines were pronounced dead at the scene of the accident; the cause of death for both was multiple blunt force injuries.  Autopsy reports indicate that the employee’s blood alcohol level was .08 gm/dl, and a blood drug screen was positive for cocaine, at 0.01 mg/l.  With regard to Ms. Hines, urine alcohol level was measured at .10 grams percent, and a urine screen was similarly positive for cocaine.  The state patrol accident reconstructionist concluded that Ms. Hines’ physical impairment from alcohol and cocaine, as well as careless or reckless driving, were contributing causes of the crash.

The employee’s ex-wife, the petitioner, filed a claim petition on behalf of the employee’s two young children, alleging entitlement to dependency benefits as a result of the employee’s death.  The employer, which was uninsured for workers’ compensation purposes,^[3] denied liability, and the matter came on for hearing before a compensation judge on December 7, 2005.  At that time, the employer alleged that the employee’s death was the direct result of the employee’s intoxication and/or of his commission of a prohibited act, that is, working while intoxicated.  The intoxication defense rested on the theory that the employee’s intoxication affected his judgment so as to render him unable to recognize the danger of riding in a car with a driver who was intoxicated.  There were also disputes as to where the employee had been living and where he had been going at the time of the accident.  The petitioner asserted that the employee had not been intoxicated at the time of the accident and that, even if he had been intoxicated, that intoxication was not the proximate cause of his death.  Three witnesses testified at hearing: Mr. Rebers, the petitioner, and Mike Mussell, a former coworker and close friend of the employee.

Mr. Rebers testified that he had made clear to the employee, during the job interview process, that working while intoxicated was expressly prohibited, and a questionnaire used during the interview was submitted in support of that proposition.  That printed questionnaire contains the following question: “you suspect that an employee is coming to work under the influence.  What is your first step?”  Mr. Rebers recorded the employee’s answer to the question as, “talk to them - suspend 3 days.”  Mr. Rebers also testified that, consistent with restaurant policy, if he had known that the employee had been intoxicated on the morning of October 21, 2003, he would not have allowed the employee to take the trip to Seattle.

The petitioner, the employee’s ex-wife, testified primarily about the employee’s residence at the time of his death.  According to the petitioner, the employee and Ms. Hines had moved in with Ms. Hines’ parents, at 6045 Cajed Lane, Excelsior, in late September of 2003.  The petitioner further testified that the employee’s children had visited him there and that he had moved all of his belongings into that residence.  After the employee’s death, the petitioner picked up some of the employee’s clothing, children’s toys, children’s clothing, and other items from the house; the following spring, she picked up the employee’s furniture and miscellaneous other belongings, including cookbooks.^[4]

Mr. Mussell testified that he had been with the employee at a restaurant October 20, 2003, the night before the employee’s death.  Ms. Hines was not present.  According to Mr. Mussell, the employee had consumed four drinks during a three-hour period between approximately 6:15 p.m. and 10:15 p.m., along with a meal, and had showed no signs of intoxication.  Mr. Mussell also testified that the employee had told him of his planned trip to Seattle the following day, indicating that Ms. Hines would be driving him to the airport.  Finally, Mr. Mussell testified that he had socialized with the employee frequently, that the employee had typically consumed four to five drinks during these social occasions, and that he had seen the employee intoxicated only twice.

Documentary evidence submitted at hearing included autopsy reports; maps showing the location of the collision relative to the airport and to the Roasted Pear; witness statements and reports prepared by the Minnesota State Highway Patrol; Mr. Rebers’ daily planner; reports from experts on the effects of intoxication; and an affidavit from a bartender at the restaurant the employee had eaten at the night before the accident.  In the affidavit, the bartender estimated that the employee had consumed about five drinks that evening and indicated that she had overheard a conversation that the employee had had on his cell phone.  The bartender, who knew the employee, “believe[d] he was talking to Lynn Hines” and that he had “mentioned something” about going to a popular Minneapolis bar.

In a decision issued on March 7, 2006, the compensation judge concluded that the employee had been in the course and scope of his employment when he was killed in the automobile collision on October 21, 2003; that the employer had failed to prove that intoxication was the proximate cause of the employee’s death; and that the employee had not been engaged in a prohibited act so as to render his death noncompensable.  The employer appeals.

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. § 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The compensation judge concluded that the employee was on his way to the airport to catch his flight to Seattle at the time of the fatal collision and that, as a “traveling employee,” the employee was in the course and scope of his employment at the time of his death.  See Voight v. Rettinger Transp., 306 N.W.2d 133, 136, 33 W.C.D. 625, 630 (Minn. 1981) (“The general rule is that an employee whose work entails travel away from the employer’s premises is, in most circumstances, under continuous workers’ compensation coverage from the time he leaves home until he returns”).  On appeal, the employer argues, in part, that the evidence was insufficient to determine where the employee was going that morning, that the employee was not engaged in employment-related activities at the time of his death, and that, because the location of the employee’s actual residence was not established at hearing, it is inferable that the employee was on a personal trip when the accident occurred.  We are not persuaded.

The testimony of the petitioner is, standing alone, adequate to support the conclusion that the employee was living at the Excelsior residence of Ms. Hines’ parents on the date of his death.  There is, however, other evidence on this issue as well.  The Department of Public Safety accident report indicates that the coroner had verified that the address of both the employee and Ms. Hines was 6045 Cajed Lane, Excelsior, and the coroner’s report itself also lists that as the employee’s address.  Furthermore, his testimony to the contrary notwithstanding, Mr. Rebers previously indicated, in a statement given to the Special Compensation Fund, that he believed that the employee had moved “in with his girlfriend into her parent’s house,” a “Carver County” address.  Given this evidence, the record is clearly adequate to establish that the employee had taken up residence in Excelsior, in Carver County, as of the date of the fatal accident.^[5]

We are also satisfied that the record supports the compensation judge’s inference that the employee was traveling from his residence in Excelsior to the airport at the time of his death.  It is undisputed that Mr. Rebers had given the employee the airplane tickets.  As the compensation judge noted, maps indicate that the car in which the employee was riding was on what would have been a reasonably direct route to the airport from the employee’s residence in Excelsior, and the fact that the employee was a passenger, as opposed to the driver, supports the inference that Ms. Hines intended to drop the employee off.  This inference is also supported by the testimony of Mr. Mussell, who indicated that the employee had informed him of his travel plans the night before.  Finally, travel time estimates submitted into evidence indicate that the employee could have reasonably been expected to arrive at the airport about a half-hour before the flight’s scheduled departure time.  While the employer asserts that the employee would have arrived too late to board the plane given post 9/11 check-in procedures, that argument is speculative.^[6]  Moreover, even if it had been established that the employee would have been denied access to the flight, that fact would not take the employee out of the course and scope of his employment as long as the purpose of his trip to the airport was to attempt to complete his business travel to Seattle.

The employer also suggests that the employee may well have been on his way to the Roasted Pear, as opposed to the airport, on the day he was killed, pointing to evidence of the scheduled meeting between the employee and Mr. Rebers.  However, as the compensation judge noted, the employee’s death during a trip between his home and the Roasted Pear would also have been compensable, under the theory that the employee was traveling between two work places.  See Kahn v. State of Minnesota, 289 N.W.2d 737, 32 W.C.D. 351 (Minn. 1980).  It is undisputed that Mr. Rebers not only allowed but expected the employee to work at home, researching and developing recipes.

Finally, the employer argues that the employee’s death should not be found compensable, even if the accident occurred en route to the airport, in that there was no “causal connection between the traveling employee’s injuries and [his] status as an employee.”  However, the employer bases this argument largely on the “rule” purportedly established by the dissenting opinion in Snyder v. General Paper Co., 277 Minn. 376, 152 N.W.2d 743, 24 W.C.D. 255 (1967).  Dissenting opinions do not establish precedent.  The general rule in Minnesota is that traveling employees are afforded portal-to-portal coverage.  See id; Voight, 306 N.W.2d 133, 33 W.C.D. 625.

Substantial evidence supports the compensation judge’s decision that the employee was killed on the way from his home to the airport, where he intended to catch a flight to Seattle for business purposes.  We therefore affirm the judge’s decision on this issue.

Pursuant to Minn. Stat. § 176.021, subd. 1,

Mr. Hardin reported that the employee’s blood cocaine concentration was consistent with usage of cocaine within eight to twelve hours of his death and that his blood alcohol concentration of .08 g/dl was consistent with consumption of alcoholic beverages “within the recent period before the time of his death.”  Mr. Hardin then concluded that a person with the employee’s blood alcohol and cocaine level would be impaired in the performance of tasks typically associated with employment, exhibiting “diminished judgment and reasoning,” and that the employee would have been displaying signs of intoxication, including

The report of Dr. Patrick contains similar analyses, concluding as follows:

Despite this evidence, and despite the petitioner’s failure to submit expert opinion on the issue of intoxication, the compensation judge concluded that “the evidence fails to support the employer’s assertion that, at the time of the accident, the employee was intoxicated and impaired.”  The employer contends that the judge’s decision is clearly erroneous and unsupported by the record as a whole.  After careful review of the entire record, we find no basis to reverse.  Several factors are important to our decision.

The Minnesota Supreme Court has recognized on several occasions that “individuals have different tolerances for alcohol.” Manthey v. Charles E. Barnick, Inc., 306 N.W.2d 544, 547, 33 W.C.D. 415, 420 (Minn. 1981); Olson v. Felix, 275 Minn. 335, 146 N.W.2d 866, 24 W.C.D. 83 (1966).  The record in this matter, especially the testimony of Mr. Mussell, reasonably supports the inference that the employee was an experienced drinker who may well have had a high tolerance for alcohol.  Significantly, neither expert dealt with the issue of tolerance at all, and there was no direct evidence, except for blood test results, that the employee was actually intoxicated.  That is, there were no witnesses who observed the employee exhibiting any signs of alcohol intoxication either the night before or on the morning of the accident, and we would observe that, at the time of the employee’s accident and death, his blood alcohol level was below the legal limit then in effect for driving in Minnesota.

With regard to the employer’s complaint that the compensation judge did not adequately consider the issue of the employee’s alleged intoxication by cocaine, as opposed to alcohol, it is important to note that Dr. Patrick’s opinion was limited to the effects of alcohol, and Mr. Hardin did not differentiate symptoms of cocaine intoxication from those of alcohol.  At no point did Mr. Hardin state that the employee would have been intoxicated by the effects of cocaine alone, and Mr. Hardin indicated that the employee’s blood cocaine level was consistent with cocaine use eight to twelve hours before the accident.  Given this evidence, it would not have been unreasonable for the compensation judge to have concluded that it had not been established that cocaine, specifically, had played any significant role in the employee’s death.

In addition to rejecting the employer’s claim that the employee had been intoxicated at the time of the accident, the compensation judge rejected other premises necessary to support the employer’s theory that the employee’s intoxication was the proximate cause of his death.  Specifically, the judge was not convinced that the employee understood or was aware that Ms. Hines was intoxicated on the morning of the accident, and the judge was not necessarily persuaded that Ms. Hines’ intoxication was the cause of the collision.

With regard to the employee’s knowledge of Ms. Hines’ condition, the compensation judge noted that there was no direct evidence that the employee had observed Ms. Hines drinking alcohol or ingesting cocaine on the evening before or the morning of the accident, there is no evidence that anyone observed Ms. Hines exhibiting signs of intoxication, and there is no evidence that the employee was even familiar with the signs of intoxication.  While the fact that the employee lived with Ms. Hines might support the inference that the two had used alcohol and cocaine together, the compensation judge was not required to draw that inference, especially given testimony indicating that the employee was out with friends, not including Ms. Hines, the night before the accident.^[7]

Similarly, it was not unreasonable for the judge to have concluded, based on the statements of witnesses to the collision, that the accident might well have been due to mere negligence, as opposed to intoxication.  Ms. Hines was not speeding and did not weave in her driving lane.  As the compensation judge explained, it is entirely plausible that accident occurred because Ms. Hines was in a hurry to get the employee to the airport in time for his flight.

It is not enough for intoxication to be a contributory cause of an employee’s injury; intoxication must be the proximate cause.  Thake v. Backhauls, Inc. 345 N.W.2d 745, 36 W.C.D. 565 (Minn. 1984).  Moreover, the supreme court has suggested that the intoxication defense must fail unless the employee’s intoxication is the only proximate cause of the injury.  See id.  The defense raises a fact issue, and the judge’s decision must be affirmed if it is reasonably supported by the evidence.  In the present case, the overriding fact is that, intoxicated or not, the employee was not the driver of the automobile, and there is no evidence that he did anything to contribute to the crash.  As the compensation judge concluded, the employee’s intoxication, if indeed he was intoxicated, was at most a contributing factor in his death, too remote to constitute proximate cause.  We also decline to conclude that an employee who has used illegal drugs is per se disqualified from benefits; indeed, benefits have been awarded in such cases.  Waldoch v. Donnie Hischer, 62 W.C.D. 522 (W.C.C.A. 2002); Veatch v. City of Duluth, slip op. (W.C.C.A. Nov. 10, 2003).  Whether the drugs are legal or illegal, the issue is whether intoxication was the proximate cause of the employee’s injury.  We therefore affirm the judge’s decision on this issue.

The employer also appeals from the compensation judge’s decision that the employee was not engaged in a prohibited act at the time of his death, arguing that the employee had violated the employer’s express prohibition against working while intoxicated.  In support of this argument, the employer points to Mr. Rebers’ testimony about alcohol policy at the restaurant and to the questionnaire completed during the employee’s interview.  We are not persuaded.

An employee who is injured while engaged in conduct specifically prohibited by the employer may be excluded from coverage under the workers’ compensation act.  “In order for the exclusion to be found, there must be an unequivocal and specific prohibition which is clearly communicated to the employee and which has been enforced by the employer.”  Gunderson v. Mac’s Landscaping Ctr., 65 W.C.D. 274, 280 (W.C.C.A. 2005); see also Otto v. Midwest of Cannon Falls, 59 W.C.D. 25 (W.C.C.A. 1999); Hassan v. Sherion Corp., 63 W.C.D. 491 (W.C.C.A. 2003).  More importantly, benefits may not be denied unless there is a direct relationship between the prohibited conduct and the employee’s injury.  Yacouf v. American Nat’l Ins., 59 W.C.D. 104, 109 (W.C.C.A. 1999).

In the present case, Mr. Rebers admitted that there was no policy prohibiting consumption of alcohol prior to work, only a policy against working while intoxicated or under the influence.  Moreover, the employee’s consumption of wine at the wine tasting event on October 19, 2003, suggests that consumption of alcohol on work time was in fact permissible, at least under certain circumstances.  And, as previously indicated, the compensation judge was not persuaded that the employee was actually intoxicated at the time of the accident.  Finally, even if the employee had been intoxicated, that intoxication had only a remote relationship to his death.  Again, the employee, who was merely a passenger in the car driven by Ms. Hines, did nothing to cause the collision.  Therefore, even assuming that the employee was acting in violation of an express prohibition against working while intoxicated, there is insufficient causal connection between the employee’s intoxication and his death to warrant denying compensation under the prohibited act doctrine.  We therefore affirm the judge’s decision on this issue as well.