Court says mauling covered by work comp

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The Montana Supreme Court has ruled in favor of granting workers’ compensation to a man who admitted smoking marijuana before being mauled by a captive grizzly bear at Great Bear Adventures near West Glacier in 2007.

The court upheld the findings of the Montana Workers’ Compensation Court, which previously characterized Brock Hopkins’ actions as “mind-bogglingly stupid” but ruled that marijuana use was not a major contributing cause of his injuries.

Hopkins was severely injured on Nov. 2, 2007, when a grizzly named Red attacked him while Hopkins was attempting to feed the animals at the privately owned drive-through park.

He applied to receive compensation through the Department of Labor and Industry the following month but initially was denied.

Great Bear Adventures owner Russ Kilpatrick opposed Hopkins’ claim and insisted that he never asked Hopkins to feed the bears and that he was not an employee.

The Uninsured Employer’s Fund, a division of the Department of Labor and Industry, also opposed the claim although it conceded that Hopkins was an employee.

The Supreme Court ruled that Hopkins was employed by Kilpatrick, that Hopkins was acting within the scope of his employment and that he worked for financial compensation and not aid and sustenance only.

Kilpatrick, who carried no workers’ compensation insurance, testified that he gave Hopkins money not as wages but “out of his heart” and that he technically was not employed by the park. He said he was helping Hopkins, who was facing the prospect of incarceration after smoking marijuana while on probation.

The Workers’ Compensation Court ruled in favor of Hopkins following a March 2, 2010, trial in Kalispell.

After the trial, Kilpatrick and attorneys for the Uninsured Employers’ Fund appealed the decision to the Supreme Court, which issued its unanimous ruling in favor of Hopkins on Tuesday.

Kilpatrick wrote in his opening brief that Hopkins had fabricated his claim.

“Hopkins was never an employee but a volunteer and entered the bear enclosure on Nov. 2, 2007, after being told not to disturb the bear going into hibernation,” wrote Kilpatrick, who chose to represent himself rather than hire an attorney.

Kilpatrick also argued that Hopkins had smoked marijuana before the mauling, a fact that Hopkins admitted during the trial.

The Supreme Court, citing the Workers’ Compensation Court ruling that declared grizzly bears “are equal opportunity maulers” without regard to marijuana consumption, agreed that there was no evidence of Hopkins’ level of impairment.

As for Kilpatrick’s claim that Hopkins was not an employee, Hopkins’ attorney Jeffrey Ellingson wrote that “while Kilpatrick persists in characterizing his payments to Hopkins for service to his business as favors, [Workers’ Compensation Court] Judge Jeremiah Shea properly noted that ‘there is a term of art used to describe the regular exchange of money for favors — it is called employment.’”

According to court documents, Hopkins was summoned to the park to perform maintenance on a fence. He later mixed food and went into an enclosure to feed the bears while Kilpatrick was asleep. Red, described as the largest bear in the cage, knocked Hopkins to the ground, sat on him and bit his leg and buttocks.

He was able to escape when a second bear, named Brodie, bit Red. Kilpatrick later found Hopkins under an electric fence and notified emergency responders. He was flown to Kalispell Regional Medical Center where he was treated for cuts and puncture wounds.

The Uninsured Employee Fund initially denied Hopkins’ request for compensation because it determined his actions were not within the scope of his employment and that it appeared he was working for aid and sustenance, not wages.

Reporter Eric Schwartz may be reached at 758-4441 or by email at eschwartz@dailyinterlake.com.

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