Cantalope v. VFW
| Decision Date | 07 January 2004 |
| Docket Number | No. 22710, No. 22716. |
| Citation | 674 N.W.2d 329,2004 SD 4 |
| Parties | Jennifer CANTALOPE and James Cantalope, Plaintiffs and Appellees, v. VETERANS OF FOREIGN WARS CLUB ("VFW") OF EUREKA, South Dakota, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Kimberly Dorsett, Harvey Oliver, Aberdeen, South Dakota, Attorneys for plaintiffs and appellees.
Drew C. Johnson, Aberdeen, South Dakota, Attorney for defendant and appellant.
[¶ 1.] Jennifer, employed with her husband James (Cantalopes) as bartenders/managers of the Veterans of Foreign Wars (VFW) facility, had an asthmatic episode at work resulting in injury to her lungs. Jennifer sought worker's compensation benefits for her injury by proceeding against the VFW in circuit court since VFW carried no worker's compensation insurance. The circuit court found in favor of Jennifer and awarded her temporary total disability and permanent partial disability benefits. Jennifer and James also brought suit to recover for overtime hours they claim to have worked during their VFW employment. The circuit court ruled against Cantalopes finding that VFW did not have constructive knowledge of the overtime hours. VFW appeals the worker's compensation award; Cantalopes appeal the trial court's ruling on the overtime claims. We affirm in part, reverse in part and remand.
[¶ 2.] VFW hired Cantalopes for "the managing job" for 80 hours a week.1 It was expected that one of them would be on the premises during all business hours. Jennifer's worker's compensation claim is based upon an incident on the evening of September 19, 1997, when she and James were both at VFW serving customers. Customers were allowed to smoke in the establishment; however, in addition to cigarette smoke that evening there was a heavy concentration of cigar smoke in the area where Jennifer was working. Jennifer, who had been asthmatic since grade school, experienced an abrupt attack of constricted breathing and the inability to swallow. She was taken to an emergency room and hospitalized overnight. The physician diagnosed her condition as subcutaneous pneumomediastinum which is air rupturing into body tissues. Upon release her physician ordered eight weeks of bedrest. Jennifer never returned to her employment with VFW.2 Additionally, Cantalopes claim that VFW owes them wages under state and federal wage and hour laws for overtime pay.
[¶ 3.] Several pre-trial motions were filed. Initially the Cantalopes moved for partial summary judgment to resolve the issue of whether Jennifer's injury was work related.3 VFW argued that Jennifer committed willful misconduct which precluded her eligibility for worker's compensation. The court granted the Cantalopes' motion for partial summary judgment ruling that Jennifer had suffered a work related injury. Jennifer, then moved for summary judgment on her worker's compensation damages. Additionally, the Cantalopes moved for partial summary judgment on their claims for wage and hour violations. The court denied Cantalopes' motions finding there were genuine issues of material fact. Further, the trial court ruled that the VFW had no right to a jury trial for the worker's compensation issues. A court trial was held to determine the issue of Jennifer's damages, and Jennifer and James' wage and hour claims under the Fair Labor Standards Act (FLSA). Both parties appeal raising the following issues:
ISSUES
1. Whether Jennifer was precluded from receiving worker's compensation benefits.
2. Whether Jennifer was entitled to temporary total disability and permanent partial disability benefits.
3. Whether the VFW was entitled to a jury trial on the worker's compensation claim.
4. Whether the trial court had sufficient evidence to remove the Cantalopes' federal and state wage and hour claims.
[¶ 4.] The issue before the Court on summary judgment was whether Jennifer was precluded from worker's compensation benefits because of willful misconduct. Our standard of review with summary judgment has long been established. Viewing the evidence in the light most favorable to the nonmoving party, we must determine if a genuine issue of material facts exists and if not, whether the party is entitled to judgment on the merits as a matter of law. Hasse v. Fraternal Order of Eagles # 2421, 2003 SD 23, ¶ 7, 658 N.W.2d 410, 412. VFW argued two points relating to willful misconduct: (1) that Jennifer's decision to work in a smoke-filled environment with her asthmatic condition constituted willful misconduct, and (2) that Jennifer self-inflicted her injury by smoking cigarettes.
[¶ 5.] An employee's willful misconduct can preclude the employee from receiving worker's compensation benefits under certain circumstances. SDCL 62-4-37. The statute provides:
[¶ 6.] In applying the statute, this Court has defined willful misconduct as Fenner v. Trimac Transp., Inc., 1996 SD 121, ¶ 9, 554 N.W.2d 485, 487 (citations omitted). "[M]ere negligence... however great, does not constitute willful misconduct ... and will not defeat recovery of compensation by the employee or his dependents." Id. at ¶ 30, 554 N.W.2d at 493 (Justices Konenkamp and Sabers dissenting) (citations omitted).
[¶ 7.] VFW argues Jennifer engaged in willful misconduct because she knowingly worked in a smoke-filled environment even though she understood and appreciated it could exacerbate her asthma. VFW relies on Fenner, in which this Court affirmed the denial of worker's compensation benefits to an employee who intentionally and deliberately disregarded his physical limitations and physician's orders. VFW argues the same reasoning should apply to the present case.
[¶ 8.] The evidence before the trial court was that Dr. Luzier had treated Jennifer for asthma since childhood. Dr. Luzier was board certified in pediatrics in 1981 and then became a board certified allergist, immunologist and asthma specialist in 1983. Dr. Luzier testified that the severity of Jennifer's asthma ranged from moderate to severe and was managed with medication. In the months preceding her injury, she had gained control of her asthma which consequently stabilized her air passages. Nevertheless, various triggers such as pollen, cold air, and smoke could destabilize her. She had been able to tolerate the smoke environment at the VFW prior to the incident. Jennifer's physician of 10 years submitted an affidavit in which he stated that she could not have foreseen or predicted her asthma attack on September 19, 1997. Dr. Luzier stated:
Plaintiff Jennifer did not have a type of asthma such that her presence in a bar or around smokers would make her sick or have an attack every time. It is therefore my expert opinion that the particular asthma attack that occurred on the night in question was unpredictable and unforeseeable and therefore not something that Plaintiff Jennifer could have predicted or expected.... [I]t was something she had not encountered prior to the night in question.
Although VFW challenged his affidavit during deposition, Dr. Luzier explained his assertions and reiterated his position. Also, he stated during deposition, "I did not advise her to not work in the bar." VFW presented no expert or other evidence which controverted the physician's testimony.
[¶ 9.] The evidence submitted to the trial court in the form of affidavits, depositions and other records shows that Jennifer had no "conscious realization" that her injury was "probable." Id. at ¶ 9, 554 N.W.2d at 487 (citations omitted). Her physician stated that she had her asthma controlled and had been working at the bar for over a year without incident. Additionally, she was not under physician orders to refrain from working in any particular environment. Given these facts, even considered in the light most favorable to VFW, Jennifer's conduct does Phillips v. John Morrell & Co., 484 N.W.2d 527, 532 (S.D.1992). As we stated in Harden v. South Dakota Credit Union League, Inc. "[r]ecovery may not be denied merely because [employee] had a prior history of back problems." 87 S.D. 433, 436, 209 N.W.2d 665, 666 (1973). The same can be said here that Jennifer cannot be denied benefits merely because she has a history of asthma. Moreover, this Court stated long ago "[i]n so far as the pre-existing condition is concerned we must take the employee as we find him." Elmstrand v. G G Rug Furniture Co., 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958). The trial court did not err in ruling as a matter of law that Jennifer's choice of employment with VFW does not bar her from benefits.
[¶ 10.] VFW next argues Jennifer's injury was intentionally self-inflicted because she allegedly smoked cigarettes. Jennifer testified that she had not smoked. VFW presented affidavits from three of Jennifer's neighbors who claimed they saw Jennifer smoking prior to the episode...
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