Goebel v. Warner Transp., No. 21185.

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Justice
• Citation: 612 N.W.2d 18,2000 SD 79
• Decision Date: 14 June 2000
• Docket Number: No. 21185.
• Parties: Eugene F. GOEBEL, Claimant and Appellant, v. WARNER TRANSPORTATION, Employer and Appellee, and Dakota Truck Underwriters, Insurer and Appellee, and J.W. Hutton, Inc., Intervenor.

612 N.W.2d 18
2000 SD 79

Eugene F. GOEBEL, Claimant and Appellant,
v.
WARNER TRANSPORTATION, Employer and Appellee, and
Dakota Truck Underwriters, Insurer and Appellee, and
J.W. Hutton, Inc., Intervenor

No. 21185.

Supreme Court of South Dakota.

Considered on Briefs April 24, 2000.

Decided June 14, 2000.

612 N.W.2d 19

Thomas M. Issenhuth of Arneson, Issenhuth & Gienapp, Madison, for claimant and appellant

Susan Brunick Simons of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for Employer, Insurer and appellees.

GILBERTSON, Justice

[¶ 1.] Eugene Goebel (Goebel) appeals the circuit court's order denying his claim for worker's compensation benefits. The Department of Labor (Department) and the circuit court found Warner Transportation (Warner) had met its burden of proving SDCL 62-4-37 barred Goebel's claim. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On June 12, 1993, Goebel left Sioux Falls, South Dakota, to drive a semi-truck for his employer, Warner, to Salinas, California, where he arrived on June 15. After completing his duties in Salinas, Goebel was off-duty for approximately ten hours.

612 N.W.2d 20

He and some other drivers obtained a hotel room. He did not sleep during that time. Goebel left Salinas at approximately midnight on June 16, 1993 and drove through Nevada and Wyoming. According to his "Driver's Daily Log," Goebel slept for eight hours between Las Vegas and Mesquite, Nevada on June 16. On June 17th, Goebel slept four hours between Mesquite and Rawlings, Wyoming. Goebel slept for approximately four hours in Laramie, Wyoming, before continuing his journey. Upon reaching North Platte, Nebraska, Goebel stopped for one-half hour to shower. His next stop was at a rest area approximately fifteen minutes outside of Grand Island to use the restroom. At approximately 4:50 a.m., Goebel's truck left the paved surface of Interstate 80 about five miles outside of Grand Island, Nebraska, and hit a bridge rail, rolling onto the driver's side, and eventually coming to rest in the interstate median ditch. It appeared to law enforcement that the truck had simply drifted off the road and tipped over, as there was no evidence of braking or skid marks present on the pavement

[¶ 3.] Goebel had to be removed from the truck by rescue personnel, as there was extensive damage to the driver's side of the truck's cab. He was taken to a Grand Island hospital, where he was alert and awake, although he could not remember what happened since his stop at the rest area. Goebel complained of neck pain and stated he could not feel or move his lower extremities. He was diagnosed with a closed head injury, a C6-7 fracture (fracture of the sixth and seventh cervical vertebrae of the neck), with C6 quadriplegia and a compound fracture of the left shoulder. Thus, Goebel, 36 years old at the time of the accident, has been rendered a quadriplegic with no possibility of physical recovery to his lower extremities.

[¶ 4.] While medical staff were evaluating Goebel, an implied consent form was read to him so that a blood sample could be taken for the purpose of ascertaining the presence of any alcohol.¹ The results of this test were negative.

[¶ 5.] A urinalysis was subsequently requested and taken when a member of the rescue team at the scene of the accident found a black wallet which contained drug paraphernalia, including a small mirror, razor, spoon and a small brown vial containing a white powdery substance. A field test indicated the substance was methamphetamine. The wallet was found when law enforcement requested rescue personnel to search the truck, to look for identification of the accident victim, as Goebel's identity was not known at that time.

[¶ 6.] The urine sample was analyzed by the Nichols Institute, which utilized testing protocols established by the United States Department of Transportation. The testing showed a positive result for the drugs methamphetamine and marijuana. These two drugs are illegal, controlled substances pursuant to 21 C.F.R. § 1308.11, and classified as Schedule I drugs which are specifically prohibited by the DOT Federal Motor Carrier Safety Regulations Handbook. Goebel eventually admitted to smoking one marijuana cigarette on June 11, 1993, before beginning his trip to California, and snorting 1/10th of a gram of methamphetamine at midnight on June 15, 1993, while waiting for his truck to be loaded in Salinas. He had purchased $25.00 worth of methamphetamine while in Salinas.

[¶ 7.] Goebel brought a claim for worker's compensation benefits before the Department. Warner denied liability for his injuries, claiming SDCL 62-4-37 barred compensation because Goebel's illegal drug use was a substantial factor contributing to

612 N.W.2d 21

his accident and resulting injuries. Warner presented the expert testimony of Dr. Michael Evans, a board certified toxicologist at the American Institution of Toxicology in Indiana, who testified that to a reasonable degree of scientific probability, Goebel's use of methamphetamine and marijuana impaired his driving ability, and that the impairment was a substantial factor in his accident

[¶ 8.] Dr. Paul Pentel, Director of the Division of Clinical Pharmacology and Toxicology at the Hennepin County Medical Center in Minnesota, testified on behalf of Goebel. He testified impairment could not be determined solely from the positive urine drug test, stating there was not enough information available to form a credible conclusion as to whether Goebel was in fact impaired at the time of the accident.

[¶ 9.] The Department entered its decision and an order and findings of fact and conclusions of law on February 10, 1999, finding Warner, as a matter of law, had met its burden in proving Goebel's illegal use of Schedule I drugs was a substantial factor in the cause of the June 18, 1993 accident. Goebel appealed to the Hughes County Circuit Court which affirmed the Department's decision. Goebel appeals, raising three issues which can be consolidated into one:

Whether the Department and the circuit court erred in finding that illegal drug use was a substantial factor in causing Goebel's injuries.

STANDARD OF REVIEW

[¶ 10.] Our standard of review pursuant to SDCL 1-26-36 requires us to give great weight to the Department or hearing examiner on factual questions. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citing Helms v. Lynn's, Inc., 1996 SD 8, ¶¶ 9-10, 542 N.W.2d 764, 766; Finck v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988)). This Court reviews agency findings in the same manner as the circuit court in deciding whether they were clearly erroneous in light of all the evidence. Id. (citing In Matter of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986)). Only if after a review of the entire record we are definitely and firmly convinced a mistake has been committed will we reverse. Id. (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)). When the issue is a question of law, the actions of the agency are fully reviewable. Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 15, 571 N.W.2d 376, 379 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766) (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D. 1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991)). "We review the findings based on deposition testimony and documentary evidence under a de novo standard of review." Id. ¶ 15, 571 N.W.2d at 380 (citing Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 8, 558 N.W.2d 76-78) (citing Caldwell, 489 N.W.2d at 357). "Likewise, mixed questions of fact and law which require the application of a legal standard are fully reviewable." Egemo, 470 N.W.2d at 820 (other citations omitted).

ANALYSIS AND DECISION

[¶ 11.] Whether the Department and the circuit court erred in finding that illegal drug use was a substantial factor in causing Goebel's injuries.

[¶ 12.] Goebel challenges the Department's finding that his use of illegal Schedule I drugs was a substantial factor in causing the accident that led to his injuries. SDCL 62-4-37 provides that injuries caused by the use of Schedule I or Schedule II drugs are not compensable:

No compensation shall be allowed for any injury or death due to the employee's willful misconduct, including intentional self-inflicted injury, intoxication,

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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 statute. The burden of proof under this section shall be on the defendant employer. (emphasis added).

[¶ 13.] Under SDCL 62-4-37, Warner has the burden to prove Goebel's injuries were due to the illegal use of methamphetamine and marijuana. Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 11, 545 N.W.2d 834, 836. The words "due to" in SDCL 62-4-37 refer to proximate cause. Id. ¶ 13, 545 N.W.2d at 837 (citing Driscoll v. Great Plains Marketing Co., 322 N.W.2d 478, 479 (S.D.1982)). This Court stated in Driscoll:

When an injury may have had several contributing or concurring causes, the correct standard against which cause is measured is the substantial factor test and not a `but for' test. `When there is evidence of concurring or contributing causes, the trial court is required to apply the proximate causation standard expressed in South Dakota Pattern Jury Instructions[.]'

When the expression `proximate cause' is used, it means that cause which is an immediate cause and which, in natural or probable sequence, produced the injury complained of. It is a cause without which the injury would not have been sustained. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.

322 N.W.2d at 479 (quoting Leslie v. City of Bonesteel, ...