Fenner v. Trimac Transp., Inc., 19425

CourtSupreme Court of South Dakota
Citation554 N.W.2d 485,1996 SD 121
Docket NumberNo. 19425,19425
PartiesJeffrey Lee FENNER, Claimant and Appellant, v. TRIMAC TRANSPORTATION, INC., Employer and Appellee. and Cigna Property and Casualty Companies, Insurer and Appellee. . Considered on Briefs
Decision Date24 April 1996

Lawrence R. Bihlmeyer, Rapid City, for claimant and appellant.

Leah Jeffries of Lynn, Jackson, Shultz & Lebrun, Rapid City, for appellees.

GILBERTSON, Justice (on reassignment).

¶1 Jeffrey Lee Fenner (Fenner) appeals from a denial of workers' compensation benefits. We affirm.


¶2 Fenner was a member of the United States Army with a rank of E-4, having trained and worked in the field of heavy vehicle mechanics, when he injured his back while lifting a box from a shopping cart in December 1991. The medical treatment provided by the military did not restore Fenner's back. He was ultimately honorably discharged in March of 1992. At that time, he underwent a disability evaluation by the military. In June of 1992, his injury was found to be a service-connected disability for which he was awarded a 10% disability rating to his back and a 10% disability rating to his left index finger. In July 1994, having been reevaluated by the military, Fenner was informed his back condition had worsened and was awarded an additional 10% disability rating to his back.

¶3 Despite his recent injury while in the Army, Fenner joined the National Guard in March of 1992, the same month as his discharge from the Army. One month later, Fenner obtained employment as a groundskeeper/maintenance worker but continued applying for alternative employment. He subsequently obtained employment as a heavy equipment mechanic for Heavy Constructors, Inc. before going to work for Trimac Transportation, Inc. in June 1992. Fenner obtained his job at Trimac after he had applied for disability benefits through the military but prior to his learning the outcome of that application. At Trimac, Fenner's duties included brake work, tarp work, and removing, repairing, and replacing tires that weighed up to 200 pounds. At his interview for this position, Fenner denied having any physical condition which would preclude his lifting up to 200 pounds. In July 1992, Fenner began receiving monthly disability payments from the Veteran's Administration for his service-connected "thoracic and lumbar spine condition."

¶4 Fenner continued to receive physical therapy from the military for his back injury through July and August. On August 18, 1992, he was seen by a military physician for his continued back pain. Fenner had also been taking pain and anti-inflammatory medications for his back during this time period. However, he did not inform Trimac of his pain, his medications, his doctor's appointments or his physical therapy. On September 2, 1992, he was seen by a physician at the Veteran's Administration Hospital who ordered Fenner to change his occupation to "forestall future physical difficulties." Fenner started the necessary paperwork to change jobs, but without informing Trimac. He also continued working.

¶5 On September 10, 1992, while lifting a truck tire, Fenner injured his back. He immediately reported the injury to his manager and completed a First Report of Injury. Fenner began treatment for his back injury with Dr. Massopust that day and did not return to work at Trimac. He was restricted by Dr. Massopust to no bending or lifting. Fenner was informed by Trimac there was no work for him there that did not require lifting or bending. Fenner's doctor also restricted Fenner's physical activity at an upcoming National Guard Camp. Nevertheless, from September 16-30, 1992, Fenner reported for duty at National Guard camp where he performed duties he admits were beyond his physical limitations.

¶6 Fenner applied for workers' compensation benefits which Trimac denied. Following a hearing, the Department of Labor denied Fenner's claim. The Department concluded Fenner's claim was barred pursuant to SDCL 62-4-46 because Fenner failed to inform Trimac about his pre-existing back condition and that Fenner's claim was barred due to a subsequent intervening cause. The Department's decision was appealed to the circuit court which reversed the Department on the issue of Fenner's alleged false representation of his physical condition and affirmed on the issue of subsequent intervening cause. Fenner appeals only the second portion of the circuit court's decision. 1


¶7 Our standard of review of workers' compensation appeals is well-settled. As we recently noted in Helms v. Lynn's, Inc., 1996 SD 8, 542 N.W.2d 764:

Our standard of review from decisions of administrative agencies is governed by SDCL 1-26-37. This statute provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

However, when the issue is a question of law, the agency's actions are fully reviewable. Further, we review the findings based on deposition testimony and documentary evidence de novo. The issue we must determine is whether the record contains substantial evidence to support the agency's determination.

Id. at pp 9-10, 542 N.W.2d at 766 (citations omitted).


¶8 The sole issue on appeal is whether Fenner's willful disregard of his physician's advice constitutes a subsequent intervening cause that bars his claim to workers' compensation benefits for his September 10, 1992 injury.

¶9 SDCL 62-4-37 provides no compensation when an employee's actions constitute willful misconduct:

No compensation shall be allowed for any injury or death due to the employee's willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure or refusal to use a safety appliance furnished by the employer, or to perform a duty required by the statute. The burden of proof under this section shall be on the defendant employer.

The term "willful misconduct" has long been defined in this state as "something more than ordinary negligence but less than deliberate or intentional conduct. Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct." VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983) (citing Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938) (emphasis original)). Black's Law Dictionary defines the willful misconduct of an employee in this way: "Under workers' compensation acts, precluding compensation, [willful misconduct] means more than mere negligence, and contemplates the intentional doing of something with knowledge that it is likely to result in serious injuries, or with reckless disregard of its probable consequences." Black's Law Dictionary, 6th ed. at 1600 (1990). SDCL 62-4-37 does not distinguish between work-related and non-work-related willful misconduct, and both types are contemplated by the statutory language. Cf. In re Andren, 917 P.2d 178 (Wyo.1996) (employee's work-related and non-work-related activities caused aggravation of compensable injury and precluded further benefits).

¶10 In Detling v. Tessier, 60 S.D. 405, 244 N.W. 538 (1932), aff'd. on reh'g, 61 S.D. 403, 249 N.W. 686, this Court addressed the situation involving a workers' compensation claimant with a compensable back injury who failed to follow medical advice concerning the injury and who later attempted to obtain additional compensation for aggravation to that injury. We reversed the judgment of the circuit court granting additional compensation. The evidence showed the claimant had willfully disregarded his physician's advice by continuing to perform heavy manual labor, as well as engaging in such activities as dancing, fighting, and being jailed for public intoxication. 2 We stated that:

[an i]njury aggravated or extended in time by the employee's neglect or disobedience of his physician's instructions is not compensable as to the additional period.... The proposition that one may continue, or even increase, his disability by his willful and unreasonable conduct, and then claim compensation from his employer for his disability so caused, is untenable.

Id. at 410, 244 N.W. at 541 (citing Honnold, Workmen's Compensation, vol.1, § 137, pp. 521, 523).

¶11 Courts in other jurisdictions have also recognized the rule in Detling, albeit applying their own states' standards. See Appleby v. Belden Corp., 22 Ark.App. 243, 738 S.W.2d 807 (1987) (holding that claimant's actions in heavy housecleaning and house painting, in contravention of medical restrictions, was so unreasonable as to bar compensation for aggravation of her back injury); Amoco Chemical Corp. v. Hill, 318 A.2d 614, 618 (Del.Super. 1974); Johnnie's Produce Co. v. Benedict & Jordan, 120 So.2d 12, 13, (Fla. 1960) (holding that "[i]f a claimant, knowing of certain weaknesses, rashly undertakes activities likely to produce harmful results, the chain of causation is broken by the claimant's own negligence"); Giacoletto v. Silver Bow Pizza Parlor, 231 Mont. 191, 751 P.2d 1059, 1062 (1988) ("the degree of claimant's misconduct required to break the chain of causation must be 'intentional conduct which is clearly unreasonable' "); Horne v. Universal Leaf Tobacco Processors, 119 N.C.App. 682, 459 S.E.2d 797, 799 (1995); Simpson v. H.D. Lee Co., 793 S.W.2d 929, 931 (Tenn. 1990) (finding medication prescribed for compensable injury but taken in direct contravention to...

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