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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. The Estate of Brett M. Milos v. Quality Asphalt Paving, Inc. (10/13/2006) sp-6062

The Estate of Brett M. Milos v. Quality Asphalt Paving, Inc. (10/13/2006) sp-6062, 145 P3d 533

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


THE ESTATE OF BRETT M. )
MILOS, DECEDENT, TERRY ) Supreme Court No. S- 11835
AND STAN MILOS, PERSONAL )
REPRESENTATIVES OF THE ) Superior Court No. 3AN-03-10248 CI
ESTATE OF BRETT M. MILOS, )
ON BEHALF OF SAID ESTATE, ) O P I N I O N
and TERRY AND STAN MILOS, )
) No. 6062 - October 13, 2006
Appellants, )
)
v. )
)
QUALITY ASPHALT PAVING, )
INC., )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:  Phillip Paul Weidner  and  Lisa
          J.   Rosano,   Weidner  &  Associates,  Inc.,
          Anchorage, for Appellants.  Eric P.  Gillett,
          Preg   ODonnell  &  Gillett,  PLLC,  Seattle,
          Washington, and Mark E. Wilkerson, Wilkerson,
          Hozubin & Burke, Anchorage, for Appellee.

          Before:    Bryner,  Chief Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.
I.   INTRODUCTION
          Brett  Milos,  an  employee of Quality  Asphalt  Paving
(Quality), was driving a company ATV on a Quality work site  when
he  contacted  a power line and was electrocuted.  Miloss  estate
sued  Quality  for  wrongful death.  The superior  court  granted
summary  judgment  to  Quality, holding that  AS  23.30.055,  the
exclusive  remedy  provision of the Alaska  Workers  Compensation
Act, barred the estates claims.  Because the evidence permits  an
inference  that Milos was off-shift at the time of the  accident,
and  because this fact is material to whether Miloss death  arose
out  of  and  in  the course of his employment,  we  reverse  the
judgment of the superior court and remand.
II.  FACTS AND PROCEEDINGS
          Brett  Milos  worked for Quality Asphalt  Paving  as  a
materials  technician at a gravel pit near Willow.1   He  was  to
gather  and  test samples of the gravel after it was  crushed  to
determine  whether  it met standards for road construction.   His
job   required  a  significant  amount  of  waiting.    Materials
technician Patrick Cummins, a coworker, explained that each  test
lasted  two hours but required only thirty to forty-five  minutes
of  work  by  the  tester.  Employees spent  the  remaining  time
reading  books,  doing  paperwork, listening  to  the  radio,  or
otherwise passing the time.
          Quality   stored   the  gravel  in   large   stockpiles
throughout the work site.  Two of these stockpiles were placed on
either  side of a live power line running through the  site.   As
these two stockpiles grew, the gravel largely filled in the space
beneath the power line.  At the time of the accident, the  gravel
was only six feet below the power line.
          The  accident occurred around 10:00 P.M. on August  14,
2001.   Cummins and Milos were both working that evening.   Milos
was  testing a sample in the test lab while Cummins  was  in  the
gravel pit, examining rocks.  When Cummins returned, Milos was in
his pickup truck listening to the radio, apparently waiting for a
stage of the testing to finish.  Cummins entered the lab to check
Miloss calculations.  While Cummins was in the lab, Milos got  on
a  company ATV parked outside the lab and drove to the top of the
gravel piled under  the power line.  When Milos reached the  top,
his head contacted the power line and he was electrocuted.
          Cummins  and  another employee, crusher  operator  Mark
Crawley, both later testified that there was no reason for  Milos
to  be  on  the  stockpiles at the time  of  the  accident.   The
superintendent  of  the operation, Thomas  Pitt,  testified  that
Milos  was  goofing  off instead of doing  his  job  of  material
testing at the time of his death.
          Drawing  all  reasonable inferences  in  favor  of  the
estate,  we assume that Milos was not authorized to use the  ATV.
According  to  the  Alaska  Division of Occupational  Safety  and
Health (DOSH) report, the ATV was primarily used by the road crew
to take line and grade measurements and technicians used a pickup
truck  to  haul  samples.   Cummins testified  that  Quality  had
previously  allowed Milos to use the ATV to carry gravel  samples
back  to the lab but that by the time Cummins started working  at
the  site Milos was using a coworkers pickup truck and no  longer
needed   to  use  the  ATV.  Miloss  supervisor,  Larry  Schmidt,
testified that Milos had no business on that four-wheeler because
[h]e had a pickup truck there for his use to take samples.  Pitt,
          the superintendent, testified that he did not know Milos was
using  the  ATV but would have fired him had he known what  Milos
was  doing.  Roger Brown, the crusher foreman, testified that  he
did not know Milos was driving the ATV but would have stopped him
had  Brown  known.  Crawley, the crusher operator, also testified
that Milos was not authorized to use the four-wheeler.
          The  parties  dispute  on appeal whether  the  evidence
permits an inference that Milos was off-shift at the time of  his
death.   Although  the deposition testimony of  Crawley,  coupled
with  the DOSH accident report, suggests that Miloss shift  ended
before  the  accident,  both Cummins and Schmidt  testified  that
Milos was still on duty when the accident occurred.
          In  August  2003 Miloss estate sued Quality and  others
for  negligence,  loss  of  consortium, emotional  distress,  and
punitive  damages.  Quality moved for summary judgment  in  March
2004, arguing that workers compensation was the estates exclusive
remedy.   After procedural delays not relevant here, the superior
court  granted summary judgment to Quality, holding  that  Miloss
injuries arose out of and in the course of his employment even if
he  was  not authorized to use the ATV and was off-shift  at  the
time  of  the  accident.  The court therefore concluded  that  AS
23.30.055,  the exclusive remedy provision of the Alaska  Workers
Compensation Act (AWCA), barred the estates suit.2
          The estate appeals.
III. DISCUSSION
     A.   Standard of Review
          Summary   judgment  is  appropriate   if   the   record
demonstrates  that there is no genuine issue as to  any  material
fact  and . . . [the] party is entitled to a judgment as a matter
of  law.3   All reasonable inferences of fact must  be  drawn  in
favor of the losing party and against the prevailing party.4   We
review grants of summary judgment de novo.5
     B.     The  Superior  Court  Did  Not  Apply  the  Statutory
Presumption of           Compensation to Miloss Accident.

          The  estate first argues that the superior court  erred
because  it applied to Miloss accident the AWCA presumption  that
an  employees  claim  is compensable under workers  compensation.
Alaska Statute 23.30.120 provides that [i]n a proceeding for  the
enforcement of a claim for compensation under this chapter it  is
presumed  in the absence of substantial evidence to the contrary,
that  .  .  . the claim comes within this chapter.  The  superior
court  mentioned  AS  23.30.120 in  explaining  why  the  estates
argument that Milos was not covered by workers compensation if he
was off-shift was oversimplifie[d].
          The   estate   is  correct  in  contending   that   the
presumption of compensability does not apply to cases in which an
employer  is  using  workers  compensation  as  a  defense  to  a
negligence  suit.6   But  it is mistaken in  believing  that  the
superior   court   actually  applied  any  sort  of   evidentiary
presumption here.  The court mentioned the presumption only once,
while explaining that the scope of workers compensation is broad.
The  court  appeared to be citing the presumption as evidence  of
the  legislatures intent to cast the net of workers  compensation
          broadly, not as a principle of law directly applicable to this
case.   There  is no indication that the superior court  required
the estate to produce substantial evidence that Miloss injury was
not within the scope of workers compensation.  In fact, the court
effectively  accepted all of the estates factual contentions  but
held that they were immaterial to the question of compensability:
The relatedness [between Qualitys actions and Miloss accident] is
sufficiently  strong that it overpowers and dispels all  contrary
factors: the end of the shift, the lack of employer benefit,  the
unauthorized use of the four wheel ATV for horseplay.
          The  estates briefing on this issue appears to  suggest
that  summary judgment imposes some sort of burden on the  movant
to persuade the court on issues of law as well as issues of fact.
The estate argues [i]t is not the Appellants burden to prove that
the on-shift or off-shift status of an employee precludes a grant
of  summary judgment.  Although it is certainly true that a party
can waive a legal argument by giving it only cursory treatment in
its  brief,7 the movant need not prove its interpretation of  the
law.  It is the courts responsibility to determine the law.  Once
a  party  has  made a bona fide legal argument  on  a  particular
point,  the  court may properly consider it even  if  the  partys
presentation  of  its  argument is unpersuasive  or  inept.   The
estates argument therefore fails.
     C.    The  Dispute About Miloss Clock Status at the Time  of
the Accident        Is Genuine.

          The  estate argues that the question whether Milos  was
on-  or off-shift at the time of the accident is both genuine and
material  to  whether Miloss injuries arose out  of  and  in  the
course  of  his  employment  with Quality.   The  superior  court
appears to have thought that the dispute over Miloss clock status
was  genuine but held that the dispute was not material.  Quality
argues  that Miloss clock status is neither genuine nor material.
We turn first to the question of genuineness.
            The  standard for finding a genuine issue of fact  at
summary judgment is lenient.  We will not engage in a weighing of
the  evidence on summary judgment;  there is a genuine  issue  of
material  fact  as  long  as the non-movant  has  presented  some
evidence in support of its legal theory.8  Thus we have held that
a putative father created a genuine issue of fact by contesting a
highly accurate paternity test with a sworn statement that he was
not the father.9
          Under  this  lenient  standard,  the  estate  submitted
enough  evidence to create a genuine issue of fact as  to  Miloss
clock   status.   Crusher  operator  Crawley  testified  in   his
deposition  that  he  thought Miloss shift  on  the  day  of  the
accident ran from noon to 10:00 P.M.  The DOSH report places  the
time  of  the  accident at between 10:00 and 10:30 P.M.   Crawley
also testified that he had no reason to dispute an alleged police
report10 stating that troopers responded to the 911 call regarding
Miloss accident at 10:08 P.M.  A factfinder could reasonably find
from  this evidence that the accident occurred after Miloss shift
ended.
          Although   Quality  points  to  what   it   calls   the
          unequivocal testimony of Cummins that Milos was on-shift at the
time of the accident, the DOSH report and Crawleys testimony,  if
believed,  suggest  that Miloss shift ended before  the  accident
occurred.   It  is for a factfinder to determine which  witnesses
are most credible.
          Quality  argues that there is no evidence that  Crawley
had personal knowledge of what time Miloss shift ended on the day
of   the  accident  and  that  Crawleys  testimony  is  therefore
inadmissible under Alaska Evidence Rule 602.  Rule 602  prohibits
witnesses  from testifying to a matter unless it is  demonstrated
that they have personal knowledge of it.
          The  estates  attorney asked Crawley how  he  knew  the
hours of Miloss shift.  Crawley responded:
          Well,  its  just that we had one  technician.
          Hes  taking care of two shifts.  And when  he
          come  in  at noon, he took care of the  first
          shift,  and then the last  later part of  his
          shift  after   when first shift  stopped  and
          then  night shift started, the second  shift,
          there  is  a 30-minute dead time of  the  two
          shifts corresponding, ganging up, getting the
          maintenance  done on the crusher,  oiling  or
          any   you  know, taking care of any problems.
          And  then  he would take off.  Then we  would
          take off.
          
          Brett  [Milos] would be back to take samples.
          He  would run one sample, two samples for  me
          and   he  would run one sample.  If  all  the
          samples were good that day, he would run  one
          sample.  If we were having problems where our
          gradations  were  jumping around  on  us  and
          stuff,  he would hang in there and  run  more
          samples.
          
Although this passage is a little hard to decipher, it appears to
establish  that  Crawley was basing his statements  about  Miloss
hours  on both his knowledge obtained through working with  Milos
and   his  understanding  that  the  overall  operation  required
materials testers to work at certain times relative to the crews.
It  is  true  that Crawleys statements appear to be  informed  by
general knowledge of Miloss typical working hours rather than  by
specific knowledge of his hours on the day of the accident.   But
evidence  of  Qualitys routine practice of  assigning  shifts  is
admissible  under  Alaska Evidence Rule 406  to  prove  that  the
conduct of the . . . organization on a particular occasion was in
conformity with the . . . routine practice.  Crawleys explanation
therefore  provides  an  adequate foundation  for  his  statement
despite  testimony  of  other employees that  Milos  was  working
different  hours on the day of the accident.  If  the  factfinder
were  to  find  Crawleys  testimony more credible  than  that  of
Qualitys  witnesses,  it could properly find  that  Miloss  shift
ended at 10:00 P.M.
     D.    The  Dispute About Miloss Clock Status at the Time  of
the Accident        Is Material.

          The  primary  issue  in this appeal is  whether  Miloss
clock  status is material  to whether his injuries arose  out  of
and in the course of his employment.
          The   superior   court  held  that   the   unforgivable
misconduct  of Quality by placing a stockpile below a power  line
and   the  foreseeability  of  the  resulting  injury  to   Milos
established  that  the  injury was sufficiently  work-related  to
arise  out  of Miloss employment with Quality.  The court  stated
that  contrary factors such as the end of the shift, the lack  of
employer  benefit, [and] the unauthorized use of the  four  wheel
ATV for horseplay were overpower[ed] by Qualitys misconduct.   On
appeal, the estate argues that Miloss activities cannot be  work-
related if they occurred after his shift ended.11  Although it is
not  necessary  to consider whether, as the estate  contends,  an
employee  must be on-shift when injured to be covered by  workers
compensation, we do hold that in the circumstances of this  case,
Miloss  off-shift  status, if proved, may exclude  him  from  the
scope of workers compensation.
          Alaska   Statute  23.30.010(a)  provides  that  workers
compensation  extends to injuries that arose out of  and  in  the
course  of  the  employment.  According to AS  23.30.395(2),  the
phrase arising out of and in the course of employment includes
          employer-required or supplied travel  to  and
          from a remote job site;  activities performed
          at  the direction or under the control of the
          employer;  and employer-sanctioned activities
          at    employer-provided   facilities;     but
          excludes   recreational   league   activities
          sponsored    by    the    employer,    unless
          participation is required as a  condition  of
          employment,  and  activities  of  a  personal
          nature     away     from    employer-provided
          facilities.
          
Alaska  Statute 23.30.010(a) requires payment of benefits if,  in
relation to other causes, the employment is the substantial cause
of  the  disability or death or need for medical  treatment.   We
have  looked  in  our cases to whether the accidental  injury  or
death is connected with any of the incidents of ones employment12
and whether the employees activity is reasonably contemplated and
foreseeable  by  the employment situation.13   Another  important
consideration  is whether the activity benefits the  employer  in
some way.14
          The  statutory definition of arising out of and in  the
course  of  employment  provides little guidance  here.   Quality
argues  that  AS  23.30.395(2)s  exclusion  of  activities  of  a
personal  nature  away from employer-provided facilities  implies
that  personal activities on an employers premises are  included,
even  if  they occur off-shift.  But Qualitys argument  fails  to
recognize  that Miloss actions also do not fall within the  scope
of  activities identified by the statute as included  in  workers
compensation.   Resolving all inferences in favor of  Milos,  his
          use of the ATV was not an employer-sanctioned activit[y] at
employer-provided facilities15 because he was not  authorized  by
Quality  to use the ATV.  It is also difficult to see  how  Milos
might  be  considered to have been acting under  the  control  of
Quality at the time of the accident if it is true that Milos  was
both  off-shift and committing a fireable offense.16  Hence,  the
most  relevant examples of covered activities in the statute seem
to  exclude  Miloss  actions.  Because the  statutory  definition
neither clearly includes nor clearly excludes Miloss actions,  we
turn to our case law.
          Quality  argues  that Seville v. Holland  America  Line
Westours17  requires us to affirm the superior  court.   In  that
case,  an  employee leaving work slipped on an icy sidewalk  that
the  employer was legally obligated to maintain.18  We held  that
workers compensation was applicable, reasoning that
          when  an  employer,  in connection  with  the
          operation of its business, is charged with  a
          legal  duty  to control or abate  a  specific
          hazard  in the area adjacent to its  premises
          even  a  common hazard to which  the  general
          public  is  exposed   the legal  duty  itself
          supplies    the    necessary    element    of
          work-relatedness.[19]
          
Quality argues that if failure to abate a danger off-premises can
create  the necessary element of work-relatedness, then a failure
to abate a danger on-premises must also create work-relatedness.
          The superior court agreed, noting that [t]his judge has
great  difficulty  understanding why a  tumble  by  an  off-shift
worker,  off-premises, due to a hazard (icy sidewalk) not  abated
by  the employer, should be compensable; but a post-shift on-site
accident  from  a  hazard affirmatively created by  the  employer
should not be compensable.
          Seville  is  distinguishable from this  case.   Seville
created  an  exception to the premises rule.  The  premises  rule
states  that employees are covered by workers compensation  while
coming  and going from work for only as long as they are  on  the
employers  premises.20  The exception to this rule recognized  in
Seville,  known as the special hazards exception, holds  that  an
injury occurring due to special hazards on the normal route  that
employees  must  traverse  to reach  the  employers  premises  is
covered by workers compensation.21  But neither the premises rule
nor any of its exceptions is directly relevant here because Milos
was not going to or coming from work at the time of the accident.
          Qualitys argument  that Sevilles holding that  an  off-
premises accident was compensable requires us to hold that Miloss
on-premises accident is also compensable  ignores a crucial  part
of  our holding in that case.  We reasoned there that the special
hazard exception is justified because if employees are forced  to
traverse a particular route to reach their worksite, the  special
hazards  of  that  route become the hazards of the  employment.22
Leaving work for the day via an employer-maintained sidewalk is a
hazard  reasonably contemplated and foreseeable by the employment
situation.23  We are not convinced that Miloss unauthorized, post-
          shift activities were similarly reasonably contemplated by or
incidental  to  Miloss employment, even if they might  have  been
foreseeable.24  Traveling to and from work is an unavoidable part
of  employment.  Employees necessarily rely upon the employer  to
keep  the  paths  into  the workplace free  from  hazards.25   In
contrast,  drawing  all inferences in the estates  favor,  Miloss
actions  were voluntary, unauthorized, and on his own  time.   He
could  not  have necessarily relied upon Quality to  protect  him
from  the  exposed  power line because there was  no  employment-
related  reason  for him to drive the ATV up the  stockpile.   In
short,  the  hazards  posed by the ATV  and  power  line  in  the
particular  circumstances of this case were not  necessarily  the
hazards of the employment.26
          Quality also points to Witmer v. Kellen to support  its
argument  that  workers  compensation is broad  enough  to  cover
Miloss  actions.27  But Witmer is also distinguishable from  this
case.   Witmer, the president and sole shareholder of a  company,
was  injured  while accompanying a subordinate on a  work-related
errand.28  Although Witmer claimed that his motives for taking the
trip  were  personal, we noted that he would inevitably  evaluate
the  performance of the subordinate and stood to benefit from the
subordinates successful completion of the errand.29 Also, because
Witmer  was  the  president of the company, his  actions,  unlike
Miloss,  could not be considered unauthorized.30  Hence, even  if
Witmer  could be understood as being off-shift during  the  trip,
there  was  a  stronger  nexus between Witmers  actions  and  his
employment than is present in this case.
          Quality  argues  that  the  estate  seeks  to  draw  an
arbitrary   line   in  time,  making  all  post-shift   accidents
noncompensable.   We  agree  that  an  arbitrary  line  would  be
undesirable.  But  we are also unwilling to accept  the  contrary
view that any employee injury occurring on the employers premises
is  automatically compensable, no matter how far removed from the
employees working hours.  The Larson treatise strikes a  sensible
compromise between these absolutist positions, suggesting that an
employee  injured  during a reasonable  period  before  or  after
working  hours  may  be covered if she is engaged  in  activities
necessary  or reasonably incidental to her work,31  but  that  an
employee who merely loiters around the work place before or after
hours may not be covered.32  Under Larsons approach, arriving  at
work  early  to  change clothes and have a cup  of  coffee,33  or
leaving late because of commuting arrangements,34 might be within
the scope of workers compensation, but remaining at the workplace
to drink beer and become intoxicated would not be.35
          Applying  the  Larson  standard to  this  case,  Miloss
activities are outside the exception for employees injured during
a  reasonable  interval  after their  shift  ends.   Drawing  all
inferences  in favor of the estate, Miloss shift ended  at  10:00
and   he   suffered  his  fatal  injury  within  thirty   minutes
thereafter.   We assume that thirty minutes can be  a  reasonable
interval  in  some circumstances.  But regardless of whether  the
interval  was  reasonable, Miloss unauthorized  use  of  the  ATV
cannot  be considered necessary or reasonably incidental  to  his
work.   If a factfinder believes the estates evidence, Milos  was
          loitering at the work site for purely personal reasons after his
shift  had ended.  Quality presented no evidence to suggest  that
his  loitering  benefitted Quality in any way, or  was  otherwise
connected  to  his  work.  The estate has therefore  demonstrated
that  there  is  a genuine issue of material fact as  to  whether
Miloss actions were outside the scope of workers compensation.
          We  also  note  that  Miloss  post-shift  diversion  is
distinguishable from that of an employee acting during a lull  in
his  duties.   Some  jurisdictions have held that  the  scope  of
workers  compensation  is  broader if  the  injury  results  from
horseplay during such a lull.36  Quality presses us to apply  the
same  principle in this case.37  An employee in a lull has little
choice  but to find a way to  pass the time as he waits  for  his
duties to resume; an off-shift employee is free to leave the work
site  and  pursue  recreational activities on  his  own.   If  he
chooses to stay on the employers premises for reasons unconnected
to his work and then injures himself, such an injury is generally
too  remote  from the course of his employment to be  covered  by
workers compensation.
IV.  CONCLUSION
          We  hold that if all reasonable inferences are drawn in
favor  of the estate there is no sufficient nexus between  Miloss
unauthorized, post-shift actions and his employment with  Quality
to allow summary judgment based on the exclusive remedy provision
of  the  workers compensation statute.  We therefore REVERSE  the
summary judgment and REMAND for further proceedings.
_______________________________
     1     Because we are reviewing the superior courts grant  of
summary  judgment to Quality, we recite the facts  in  the  light
most  favorable to the estate.  See Kaiser v. Umialik  Ins.,  108
P.3d  876, 879 (Alaska 2005).  This statement of facts  does  not
preclude the parties from litigating any genuine factual disputes
on remand.

     2    AS 23.30.055 provides in relevant part that

          [t]he liability of an employer prescribed  in
          [the  workers compensation act] is  exclusive
          and  in  place of all other liability of  the
          employer  and  any  fellow  employee  to  the
          employee, the employees legal representative,
          husband or wife, parents, dependents, next of
          kin, and anyone otherwise entitled to recover
          damages  from the employer or fellow employee
          at  law  or  in admiralty on account  of  the
          injury or death.
          
     3    Alaska R. Civ. P. 56(c).

     4     Kaiser, 108 P.3d at 879; Alpine Indus., Inc. v.  Feyk,
22 P.3d 445, 447 (Alaska 2001).

     5    Kaiser, 108 P.3d at 879.

     6     AS  23.30.120  (limiting scope  of  presumption  to  a
proceeding for the enforcement of a claim for compensation  under
this  chapter); Himschoot v. Shanley, 908 P.2d 1035, 1041 (Alaska
1996) (holding that presumption was inapplicable in case in which
injured  worker  sued  in tort); see also Alaska  Pulp  Corp.  v.
United Paperworkers Intl Union, 791 P.2d 1008, 1011 (Alaska 1990)
(characterizing statutory presumption as pro-worker and  refusing
to apply it to facilitate proof of an employee status contrary to
that asserted by the worker).

     7     Adamson  v.  Univ. of Alaska, 819 P.2d  886,  889  n.3
(Alaska 1991) (holding that point given only cursory statement in
argument portion of brief is waived).

     8     Alakayak  v. British Columbia Packers, Ltd.,  48  P.3d
432, 449 (Alaska 2002) (emphasis in original).

     9     See  Meyer  v. State, Dept of Revenue,  Child  Support
Enforcement Div. ex rel. N.G.T., 994 P.2d 365, 368 (Alaska 1999).

     10     The  police  report itself is not  in  the  appellate
record.   Police  reports are inadmissible in civil  cases  under
Alaska Evidence Rule 803(8)(b).

     11    We infer, from the estates exclusive focus on the issue
of  whether Milos was off-shift at the time of the accident, that
it  concedes  that Miloss lack of authorization to use  the  ATV,
standing  alone,  is  not  sufficient to  place  Miloss  accident
outside the scope of workers compensation.

     12     M-K Rivers v. Schleifman, 599 P.2d 132, 13435 (Alaska
1979)  (quoting  N.  Corp. v. Saari, 409 P.2d  845,  846  (Alaska
1966)).

     13     Id.  at 136; see also Marsh v. Alaska Workmens  Comp.
Bd., 584 P.2d 1134, 1136 (Alaska 1978) (holding that activity  is
covered if reasonably foreseeable and incidental to employment).

     14     See Luth v. Rogers & Babler Constr. Co., 507 P.2d 764
(Alaska 1973).

     15    AS 23.30.395(2).

     16     See  id.  Quality argues that Miloss activities  were
under the control of the employer because Quality controlled  the
ATV, the employees, and the existence of the stockpiles.  Quality
reads the direction or control requirement of AS 23.30.395(2) too
broadly.  It is apparent from the plain text of the statute  that
it is not the personnel or instrumentalities of the activity that
must  be directed or controlled by the employer, but the activity
itself.  Thus, to fall into this category, the activity must,  at
a  minimum,  be  authorized by the employer.   Quality  does  not
dispute that there is a genuine factual dispute about whether  it
authorized Miloss use of the ATV.

     17     Seville  v. Holland Am. Line Westours, 977  P.2d  103
(Alaska 1999).

     18    Id. at 105.

     19    Id. at 109.

     20     Id.  at  106; see also 1 Arthur Larson & Lex  Larson,
Larsons Workers Compensation Law  13.01 (2005).

     21    Seville, 977 P.2d at 108.

     22     Id. (quoting Sokolowski v. Best W. Golden Lion Hotel,
813 P.2d 286, 290 (Alaska 1991)).

     23    Witmer v. Kellen, 884 P.2d 662, 665 (Alaska 1984).

     24    M-K Rivers, 599 P.2d at 136; Marsh, 584 P.2d at 1136.

     25    Seville, 977 P.2d at 109.

     26    Id. at 108.

     27    Witmer v. Kellen, 884 P.2d 662 (Alaska 1994) (quoting M-
K Rivers, 599 P.2d at 136).

     28    Id. at 664.

     29    Id. at 666.

     30    Id.

     31    See 2 Larson, supra note 21,  21.06[1][a].

     32    Id.  21.06[1][c].

     33     See Stewart v. United States, 716 F.2d 755, 759,  763
(10th  Cir.  1982)  (holding  that injury  suffered  by  employee
arriving  twenty-three minutes early to change clothes  and  have
cup of coffee was covered by workers compensation).

     34     See Babkees v. Electrolux Corp.,163 N.Y.S.2d 809, 809
(N.Y.  App. Div. 1957) (holding that injury suffered by  employee
while being picked up by her husband one hour after working hours
was covered by workers compensation).

     35     See Lona v. Sosa, 420 N.E.2d 890, 892, 895 (Ind. App.
1981).

     36     See 2 Larson, supra note 21,  23.07[5] (citing  cases
and  noting  that  workers whose jobs call for vigorous  physical
activity  cannot be expected, during idle periods,  to  sit  with
folded hands in an attitude of contemplation).

     37     Quality asserts that it is undisputed that Milos  was
injured  during . . . a lull in work.  But in fact,  the  estates
entire  appeal is based on its contention that Milos was  injured
after   his  shift  ended.   As  noted  above,  the  estate   has
effectively conceded that it cannot prevail if Milos was on-shift
at  the  time of the accident.  Therefore, we interpret  Qualitys
brief  as  arguing that the lull doctrine should  also  apply  to
employees engaging in horseplay and other diversions after  their
shift is complete.

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