Intoxication, Wrong Route Don’t Show Pilot Died During Deviation

Frank Ferreri

Denver, CO ( – Although a pilot was intoxicated and had not returned to his hotel nor was en route to his hotel at the time he was struck and killed in the road by an automobile, that didn’t mean he was still on a personal deviation at the time of the injury.

Instead, the court in SkyWest Airlines Inc. v. Industrial Claim Appeals Office, 2020 COA 131 (Colo. Ct. App. 08/27/20) affirmed an appeals panel’s decision that held the pilot’s deviation ended he attempted to return to a coworker’s hotel regardless of his continued inebriation and location.

Celebrating, Wrong Hotel

The pilot traveled to Denver for job training. After successfully completing a test that concluded the training, he and coworker celebrated with a night of drinking.

At around 2 a.m., the pilots stopped drinking alcohol and returned to the coworker’s hotel, which was a block away from and on the same side of the street as the pilot’s hotel. Upon arriving at the coworker’s hotel, the pilot attempted to have a new key made for his room, but hotel staff told him he was at the wrong hotel. The pilot then went to the coworker’s room.

At around 5:30 a.m., the pilot again attempted to obtain a new key from hotel staff, with a clerk reminding him that his hotel was “about two buildings over” from the coworker’s hotel. After “struggling to put a lid on his coffee cup,” the pilot left the hotel and attempted to cross the street. He was struck by a vehicle and later died.

His widow and children filed a claim for survivor benefits under Colorado’s workers’ compensation law. An administrative law judge denied the claim, concluding that the pilot was in a personal deviation at the time of the accident due to hours of consuming alcohol and had not returned to travel status within the course and scope of his employment.

An appeals panel disagreed with the ALJ, finding that the injury was compensable and prompting the airline to appeal to court.

Deviation’s End

If an employee’s job duties require travel, the travel is considered to be a part of the job and injuries occurring during the travel will be compensable. However, a traveling employee’s injuries aren’t compensable if the injury occurred while the employee was engaged in a “personal deviation.” Thus, it was for the court determine if the pilot was removed from the employment relationship with the airline at the time he was struck by the car.

The court agreed with the appeals panel that the pilot’s deviation had ended at the time he was crossing the road. In particular, the court noted that: 1) the pilot had stopped drinking; 2) proceeded to the other pilot’s room when he couldn’t obtain a room key; 3) didn’t consume more alcohol upon reaching the room; and 4) the accident happened hours after the celebrating ended.

In rejecting the airline’s argument that the pilot’s intoxication showed that he continued in his personal deviation at the time of the accident, the court noted that the assertion was at odds with Colorado law.

“The General Assembly has not incorporated a provision barring an intoxicated worker from receiving benefits,” the court wrote. “And we lack authority to read such a provision into [state workers’ compensation law].”

Although there are times when the act of consuming alcohol can, by itself, constitute a personal deviation sufficient to remove an employee from the scope of employment, in this case, the court determined that the pilot had finished drinking hours earlier.

Thus, it affirmed the panel’s decision in the pilot’s favor and concluded that the accident arose out of and occurred in the course of the pilot’s employment.

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