OPINION

JOHN ARCUDI, CHAIRMAN.

Both the claimant employee and the respondents, employer and insurer, have appealed the May 29, 1990 decision of the Commissioner at Large acting for the Fifth District. The commissioner found claimant was totally disabled due to paraplegia pursuant to Sec. 31-307(e) as a result of an automobile accident arising out of and in the course of his employment July 15, 1987.

Respondents contend the accident and the suffered injuries did not arise out of and in the course of employment. Claimant argues that he should have been awarded Sec. 31-308(b) specific permanent partial disability benefits rather than Sec. 31-307 total disability benefits. He also asserts that respondents should have been found to have accepted compensability by making payments on the case.

Claimant on July 15, 1987 between 12:45 a.m. and 1:15 a.m. while driving easterly on Route 68 in Prospect, Connecticut encountered a deer moving toward him in his lane of travel. He swerved the vehicle to avoid the deer and struck a tree. As a result the multiple injuries this caused rendered him paraplegic. The claimant prior to the accident had been working that night as General Manager of the employer's moving and storage business. Enroute to his office, he stopped at a restaurant for a meal. After leaving the restaurant he was on his way to his office in order to wire money to a driver in Florida. At the restaurant he imbibed alcoholic beverages. Circa 2:05 a.m. his blood alcohol level was 0.215%, considerably in excess of the 0.10% legal limit in Sec. 14-227a C.G.S. But the commissioner found that the accident was not caused by claimant's intoxication.

Respondents contest that conclusion and further argue that claimant was not in the scope of his employment at the time of the accident. They thus attack the Commissioner's factual conclusions. We cannot disturb those conclusions unless found to be without evidence, contrary to law, or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988).

Section 31-284(a) provides in pertinent part:

(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication . . . .

Liptak v. State, 176 Conn. 320 (1978) (per curiam), involved a matter where the intoxication defense was raised by the employer. The court held, "The allegations of wilful and serious misconduct or intoxication raise affirmative defenses on which the defendant bears the burden of proof . . . . The employer asserting such a defense must show not only the misconduct itself but also that the injury was caused by the misconduct. (citations omitted). Id at 322.

In the present case the commissioner found:

There is no question that the claimant operated his vehicle on Route 68 while the ratio of alcohol in his blood exceeded the maximum fixed by Section 14-227a, C.G.S., but was never charged with the offense nor found guilty by any competent authority. There is no testimony that the level of blood alcohol affected the claimant's decision to take evasive action nor the perception of the presence of a sudden emergency requiring it but, there is credible opinion evidence that the sudden emergency required evasive action and that the evasive action was reasonable. It is, therefore, found that the level of blood alcohol did not cause the accident. Paragraphs 9 10.

The evidence below from Dr. James P. Santacroce, a physician in the Waterbury Hospital emergency room that morning, indicates claimant was in command of his faculties and responded to the doctor's questions without difficulty. Further, the doctor testified claimant told him the accident was the result of trying to avoid a deer. See TR. pp. 10-11, 16-18, February 7, 1989 Hearing. Additionally, Edmund Sullivan, a former State Police Accident Reconstruction specialist testified that at the time of the accident he estimated the claimant was traveling at approximately 31.6 mph in a 35 mph zone. Mr. Sullivan also testified that the "swerving" action taken by the claimant was an appropriate defensive action to the sudden appearance of the deer in claimant's highway path. See TR, pp. 6 and 21-22, February 7, 1989 Hearing. This was evidence to support the commissioner's finding that the claimant's intoxication was not the cause of the accident.

But say the respondents even if the intoxication defense is not proved, claimant at the time of the accident was not in the scope of his employment. The commissioner did not so rule. Again, that assertion involves a question of fact. See e.g., True v. Longchamps, Inc., 171 Conn. 476 (1976). There was evidence presented here justifying the commissioner's finding on that point. There was testimony that claimant was enroute to the office to check security and to obtain cash to wire to a driver in Florida after his meal at the restaurant. See TR, pp. 12, 15, 16, October 28, 1988 Hearing and TR, pp. 29-31, August 1, 1989 Hearing. Here, too, we cannot say the finding was so unreasonable as to justify judicial interference. Bailey v. Mitchell, 113 Conn. 721 (1931).

Claimant's appeal seeks Sec. 31-308(b) specific indemnity benefits. The commissioner found that claimant was totally incapacitated under Sec. 31-307(e) which provides "The following — described injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: . . . (e) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm . . . ." The statutory presumption of total incapacity. As claimant has returned to work, and has reached a state of maximum medical improvement, the contention is that presumption is rebutted.

We do not agree. See 31-307 states without exception: "The following described injuries shall be consisted as causing total incapacity and compensation shall be paid accordingly." That language is clear and not ambiguous. The legislature's use of the verb "shall" imposes a mandatory duty to find total incapacity when those disabling conditions occur. Broadriver, Inc. v. Stamford, 158 Conn. 522, 529 (1969) noted, "The most satisfactory test of whether a statute is mandatory or merely directory `is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words whether it relates to matter of substance or to matter of convenience.'" Broadriver, supra at 529 quoting International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68 (1951). The instant case presents a matter of substance and not one of convenience.

Our affirmance of the commissioner's finding of compensability obviates the necessity to consider claimant's other issue on appeal.

We therefore affirm the May 29, 1990 Finding and Award.

Commissioners A. Thomas White, Jr. and James Metro concur.