Howell v. Cardinal Industries, Inc.
| Decision Date | 11 January 1993 |
| Docket Number | No. 17942,17942 |
| Citation | 497 N.W.2d 709 |
| Parties | Dianne HOWELL and Don Howell, Plaintiffs and Appellees, v. CARDINAL INDUSTRIES, INC. and Cardinal Plastics, Inc., Defendants and Appellants. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark K. Kroontje of Seiler & Cain, Herreid, for plaintiffs and appellees.
Dennis Maloney of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendants and appellants.
Cardinal Industries, Inc. appeals from a circuit court judgment granting Dianne Howell worker's compensation benefits pursuant to SDCL 62-3-11. We affirm.
Cardinal Plastics, Inc. is a wholly owned subsidiary of Cardinal Industries, Inc., a Minnesota corporation authorized to do business in the State of South Dakota. Cardinal Plastics maintains a place of business in Mobridge, South Dakota, where Howell was formerly employed.
Howell routinely rode with a co-worker, Mark Fuhrer, during the winter of 1988-89, to and from their employment with Cardinal. Upon arriving at Cardinal on January 31, 1989, Fuhrer parked his pickup in one of the company owned and controlled parking lots surrounding Cardinal's building. Howell completed her regular workshift at 4:00 p.m., punched the time clock and, accompanied by Fuhrer, left the building through a door to the parking lot which Cardinal requested the employees to use. Fuhrer got into his pickup and when Howell did not join him, he got out to discover her lying on her back as a result of a fall on the ice in the parking lot. Water from a downspout near where the pickup was parked caused the accumulation of ice. As a result of Howell's fall, she momentarily lost consciousness. She also experienced pain where she fell on her buttocks, as well as pain in her back, the back of her head and her neck. She did not seek medical attention at the time.
Howell returned to work the next day though she was still experiencing pain. She complained of the pain to her supervisor and asked about filling out an accident report which she filled out the next day, February 2. Howell was not able to complete that day's work and was examined later that day by Dr. Weiland who treated her for injuries sustained from her fall. Dr. Weiland told Howell it would be at least three weeks before she should return to work though it developed that more than six weeks elapsed. Howell saw a physical therapist at various times during the two months following her fall.
When Howell returned to work on March 21, 1989, she did not return to her former duties as an operator of both manual and automatic machines. Rather, she did lighter "secondary" work. Though the exact time is in dispute, Howell was eventually reassigned to her former duties as a machine operator. Howell alleges this aggravated the injuries she received in her fall. Howell was taking various muscle relaxants and prescription pain killers after returning to work in March, though usually just in the evening as taking them during the day affected her work. After taking a two-week vacation in August, she was hospitalized on September 3, 1989. Howell again saw the physical therapist following her hospitalization.
Dr. Weiland made an entry into his records shortly after Howell was hospitalized reflecting her disability was one hundred percent. Apparently, the Social Security Administration has also made a determination that Howell suffers a disability as social security disability has paid at least a portion of her medical expenses.
Howell has been examined and treated by numerous doctors since her fall. All agree Howell is suffering from injuries sustained in her fall. There was medical testimony that her disability is permanent though at least one doctor thought that at some indefinite time in the future Howell would be able to return to work. Nevertheless, even that doctor indicated Howell's pain is genuine and unlikely to completely disappear.
At the time Howell suffered her injuries in Cardinal's parking lot, Cardinal did not have worker's compensation coverage and their premises liability insurer denied coverage of Howell's injury. Nevertheless, Cardinal paid her medical bills until March 20, 1989. Howell ceased to be employed by Cardinal in March, 1990. Cardinal paid Howell her normal wages up until that time.
Subsequent to leaving Cardinal, Howell and her husband 1 brought an action against Cardinal in two alternatives: (1) worker's compensation and (2) negligence on the part of Cardinal for failure to maintain safe conditions in its parking lot. 2 The worker's compensation cause of action was brought in circuit court pursuant to SDCL 62-3-11 which reads in part:
Any employee, who is employed by an employer who is deemed not to operate under this title in accordance with Sec. 62-5-7, ... may elect to proceed against the employer in any action at law to recover damages for personal injury ... or may elect to proceed against the employer in circuit court under the provisions of this title, as if the employer had elected to operate thereunder ... and the benefits shall be that provided by Sec. 62-4-1 plus twice the amount of other compensation allowable under this title; provided that such employee ... shall not recover from both actions.
Howell moved for summary judgment on her worker's compensation cause of action. Her motion was granted and in a memorandum opinion the court determined Howell was injured out of and in the course of her employment as defined by SDCL 62-1- 1(2) 3 and that her action fell within the worker's compensation statutes as found in SDCL Title 62. 4 Cardinal's petition to this court seeking an intermediate appeal was denied.
Howell next moved to bifurcate the worker's compensation cause of action. The motion was granted and tried to the court. The trial judge determined Howell is entitled to compensation for temporary total disability for a period of six years. The compensation, to be paid in a lump sum, is composed of: (1) Disability compensation in the amount of $38,120.00; (2) doubled disability compensation pursuant to SDCL 62-3-11 in the amount of $38,120.00; (3) three years' costs of the TENS Unit 5 in the amount of $16,200.00; and (4) medical expenses, including travel, in the amount of $8,696.00, for a total of $101,136.00. The trial court also retained jurisdiction to redetermine Howell's future disability and medical expenses.
WHETHER HOWELL'S INJURIES AROSE OUT OF AND IN THE COURSE OF
HER EMPLOYMENT.
Cardinal asserts that the trial court erred when it determined Howell was injured out of and in the course of her employment. In support of its position Cardinal relies heavily on the fact that all parties admit Howell was injured after she punched the time clock at the end of the workday. Cardinal argues that because Howell had punched out and ended her workshift, anything she did after that time could not be within the scope of her employment. 6
Howell asserts that although the general rule in this state is that an injury received by an employee while going to or from work is not compensable, Driessen v. Schiefelbein, 67 S.D. 645, 649, 297 N.W. 685, 687 (1941), the mere fact that she punched out on the time clock is not determinative. Howell asserts her injury falls within an exception to the rule and brings this court's attention to the observation in Driessen that there are exceptions to the rule. Id.
This court has long ago disavowed a strict interpretation of the phrase "out of and in the course of employment." Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D.1979); Krier v. Dick's Linoleum Shop, 78 S.D. 116, 119, 98 N.W.2d 486, 487 (1959); Lang v. Board of Educ., 70 S.D. 343, 347, 17 N.W.2d 695, 697 (1945); Meyer v. Roettele, 64 S.D. 36, 42, 264 N.W. 191, 194 (1935). Worker's compensation statutes "do not limit [their] application to the period during which an employee is actually engaged in the work that he is hired to perform." Krier, 78 S.D. at 119, 98 N.W.2d at 487.
This court looks to whether the activity which resulted in the injury is one in which an employee might reasonably be expected to engage or has been impliedly authorized to perform, Piper v. Neighborhood Youth Corps, 90 S.D. 443, 447, 241 N.W.2d 868, 870 (1976); Krier, 78 S.D. at 119, 98 N.W.2d at 487, or "if what he is doing is naturally related or incidental to his employment, ..." Krier, 78 S.D. at 119, 98 N.W.2d at 487; Lang, 70 S.D. at 347, 17 N.W.2d at 697, or if he is doing what "he is expressly or impliedly authorized to do by the contract or nature of the employment." Bearshield, 278 N.W.2d at 168.
In Driessen, the employee was injured in his...
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