TOPEKA — The Kansas Supreme Court will decide whether a man hit by a drunk driver while on a work-related trip in Oklahoma is entitled to workers compensation payments despite the fact his injury occurred after hours.

Jesse Atkins’ case hinges on whether his injury arose because of his employment even though he was walking back to his hotel from a bar after work hours when the drunk driver hit him.

Atkins had a leg, finger and toe amputated after he was hit by a drunk driver in Enid, Okla., and he also lost the use of one arm and eye. He was initially granted workers compensation, but the Workers Compensation Appeals Board decided his injury did not result from his employment.

Melinda Young, Atkins’ attorney, argued before the court Monday that travel was an integral part of Atkins’ job as a commercial roofer for Webcon Inc. She said his injury resulted from his being in Oklahoma for work and entitled him to compensation.

“When an employee has to travel to various locations, travel is an integral part of employment,” Young said.

She said employees on work-related trips should be considered “working” at all times unless they do something to deviate from their employment goals, like go on a weekend trip away from their remote worksite. She said they should not be treated like commuters, who would not receive compensation if they suffered an injury during their commute.

“They are subject to risks other employees would not be,” Young said.

Webcon’s attorney, Roy Artman, said Atkins’ employment was as a laborer rebuilding the roof of a grain elevator and that travel was not part of his job.

“Travel was not any more intrinsic to him than any other commuter,” Artman said.

Artman said Atkins’ work site was the grain elevator, and he wasn’t working when he went to the bar.

“At the time of his assault, he was not performing any type of work related errand and was simply returning to his temporary residence at the end of his work day,” Artman says in a court filing.

Justices will have to decide based on Atkins’ case whether he was in the course of his work duties when he was injured and whether the circumstances of his travel change that. Atkins and other employees took a company car to and from Enid from Hutchinson, and they stayed at a hotel selected by the company. When Atkins went out after work, he had no personal car and walked to the nearby Ramada hotel’s bar.

“You’ve tied their hands — so to speak — even if they’re off hours,” said Justice Dan Biles.

Artman said Atkins could have brought his own car and selected his own hotel with some expense.

Up for debate was what parts of an employee’s work travel would be subject to workers compensation and what employees would be responsible for.

“Why should workers compensation cover an employee who is out of town and goes out drinking and gets injured?” Nuss said.

Spokeswoman Barbara Hersh said the Kansas Department of Labor could not comment on pending litigation.