Norton v. DEUEL SCHOOL DIST.# 19-4

• Decision Date: 14 January 2004
• Docket Number: No. 22812.,22812.
• Citation: 2004 SD 6,674 N.W.2d 518
• Parties: Renee NORTON, Claimant/Appellant, v. DEUEL SCHOOL DISTRICT # 19-4, Employer and Appellee, and ASBSD (Work Comp Fund), Provider and Appellee.
• Court: South Dakota Supreme Court

674 N.W.2d 518

2004 SD 6

Renee NORTON, Claimant/Appellant, v. DEUEL SCHOOL DISTRICT # 19-4, Employer and Appellee, and ASBSD (Work Comp Fund), Provider and Appellee.

No. 22812.

Supreme Court of South Dakota.

Argued November 19, 2003.

Decided January 14, 2004.

Ronald L. Schulz of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Watertown, Attorneys for appellant.

Karla L. Engle of Tieszen Law Office, Pierre, Attorney for appellees.

SABERS, Justice.

[¶ 1.] Renee Norton filed a claim for worker's compensation for an injury she received while snow skiing. The Department of Labor (Department) denied benefits, holding that she had not sustained a work-related injury. The circuit court affirmed and Norton appeals. We affirm.

FACTS

[¶ 2.] Every year, the students in the Deuel School District Future Farmers of America club (FFA) take a "fun trip." In 2001, the students decided to use their trip to go skiing. The students held a fund raiser and their advisor, Jason Karels, made arrangements for the trip. Karels contacted a ski resort which agreed to give the club a group discount based on the understanding that at least 20 students would be attending. As it turned out, only 13 or 14 students took the trip and there were extra lift tickets. Karels offered one of those tickets to the bus driver, Renee Norton. Norton accepted. Testimony at the hearing revealed that Norton decided to ski only after she was offered the free ticket. When he purchased the tickets, Karels did not include Norton in his calculations and gave her the ticket only because it would otherwise go to waste. While skiing, Norton fell down and sustained a torn ligament and a blood clot in her leg. Although she was able to drive the students home from the ski trip, Norton ended up having to miss work because of her injuries.

[¶ 3.] Norton is a full-time school bus driver for the Deuel School District (District). She has a regular route taking children to and from school. Drivers for the District also transport students to extra-curricular activities such as ball games, field trips and this ski trip.¹ The drivers have a rotation based on their bus numbers that generally determines who will drive for the extra trips. When their bus number comes up, they are asked whether they would like to drive for that activity. Dan Tobin, the Transportation Manager and Norton's supervisor, testified that the drivers are not required to accept the extra driving duties. The drivers are free to decline and they are not disciplined for doing so. When they accept the extra trips, the drivers are paid their regular rate for the time they are driving, but a different rate for the time they wait for students' activities to end. During that "down time," drivers are paid $25.00 for the first three hours and $5.00 per hour after that.

[¶ 4.] The District policy is that teachers and advisors are not to use the drivers as chaperones on activity trips unless it is first cleared through Tobin. Such pre-approval was not sought for this trip. Nonetheless, Norton asserts she was injured while supervising the students as they skied and that she was required to supervise the children by her job description and contract. She filed a worker's compensation claim for the injuries she received while skiing. The Department denied her claim. Norton appealed to the circuit court which affirmed the determination that her injury was not work-related. Norton appeals raising one issue:

Whether Norton's injury arose out of and in the course of her employment.

STANDARD OF REVIEW

[¶ 5.] In a worker's compensation case, we review the agency's decision in the same manner as the circuit court. Sopko v. C & R Transfer Co., Inc., 2003 SD 69, ¶ 7, 665 N.W.2d 94, 96. The circuit court's decision is not presumed correct. Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262 (citing Appeal of Templeton, 403 N.W.2d 398, 399 (S.D.1987)). We give great weight to the agency's findings of fact and inferences drawn from the facts. Id. (citations omitted). Our standard of review on factual issues is clearly erroneous, meaning we will reverse only if we are "definitely and firmly convinced a mistake has been committed." Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228). We review the agency's determination of questions of law under the de novo standard of review. Id. (citing Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240) (additional citations omitted).

[¶ 6.] Whether Norton's injury arose out of and in the course of her employment.

[¶ 7.] To recover under worker's compensation, a claimant must prove by a preponderance of the evidence that she sustained an injury "arising out of and in the course of the employment." SDCL 62-1-1(7); Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D.1992) (additional citations omitted). The worker's compensation scheme also requires that the claimant prove that employment or employment-related activities were a major contributing cause of the condition of which the employee complained, or, in cases of a preexisting disease or condition, that the employment or employment-related injury is and remains a major contributing cause of the disability, impairment, or need for treatment. SDCL 62-1-1(7)(a)-(b).

[¶ 8.] In order for an injury to "arise out of" employment, the employee must show that there is a "causal connection between the injury and the employment." Canal Insurance Co. v. Abraham, 1999 SD 90, ¶ 12, 598 N.W.2d 512, 516 (additional citations omitted). The Court has been careful to stress that the employment "need not be the direct or proximate cause of injury," rather, it is sufficient if "the accident had its origin in the hazard to which the employment exposed the employee while doing [her] work." Id. Therefore, to show that an injury "arose out of" employment, it is sufficient if the employment 1) contributes to causing the injury; or 2) the activity is one in which the employee might reasonably be expected to engage; or 3) the activity brings about the disability upon which compensation is based. Grauel, 2000 SD 145 at ¶ 12, 619 N.W.2d at 263 (additional and internal citations omitted).

[¶ 9.] The phrase, "in the course of" employment "refers to the time, place and circumstances under which the accident took place." Phillips, 484 N.W.2d at 530 (quoting Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D.1979)). An employee is considered within the course of employment if "[s]he is doing something that is either naturally or incidentally related to employment." Id. We have also noted that an activity that was expressly or impliedly authorized by the contract or nature of employment falls within the course of employment. Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 21, 607 N.W.2d 596, 603.

[¶ 10.] We construe the phrase "arising out of and in the course of employment" liberally. Id. Therefore, application of worker's compensation statutes is not limited solely to the times during which an employee is "actually engaged in the work that [she] is hired to perform." Rohlck v. J & L Rainbow Inc., 1996 SD 115, ¶ 19, 553 N.W.2d 521, 526-27 (additional citations omitted).

[¶ 11.] Although different cases have stressed different parts of the analysis, both elements of the statute, "arising out of employment" and "course of employment," must be present in all claims for worker's compensation. However, while both elements of the statute must be analyzed independently, they are part of the general inquiry of whether the injury or condition complained of is connected to the employment. Therefore, the factors are prone to some interplay and "deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other." 2 Arthur Larson, Larson's Workers' Compensation Law, § 29, 29-1 (1999).

[¶ 12.] Norton argues that the determinative inquiry is whether she could reasonably have been expected to ski on the activity trip. She asserts that she believed her job description required her to supervise the students even when they were away from her bus. She further argues that she was never informed that she was not expected to supervise the students. Based on these assertions, she concludes that she could reasonably have been expected to ski on the day in question and that her injury is compensable.

[¶ 13.] To support her assertions, Norton relies on her contract which provides in part that she was required:

To travel over the route as directed by the Transportation Manager and to stop at the stations as determined by the administration.

To exercise all proper care in protecting children from injury, exposure and harassment.

To maintain order among the children at all times when they are being transported to and from school and allow them to enter and leave the bus only at such places as shall be stipulated by the Transportation Manager and to report all cases of disobedience, improper conduct and speech, and in cases of tardiness.

(Emphasis supplied.) Norton relies on the emphasized language for her assertion that she was reasonable in believing that her job required her to ski that day. As a threshold matter, the language of this contract, taken in context, does not require that Norton supervise the students when they are away from her bus. The language makes clear that Norton is required to protect students from "injury, exposure or harassment" and to "maintain order" and "report cases of disobedience" while the children are under her care on the bus. There is nothing in the language to indicate that Norton's responsibilities as emphasized in the contract require her to exercise those responsibilities when the students are engaged in their activities under the supervision of a teacher and/or advisor.

[¶ 14.] Norton concedes that on her regular school route, her supervisory duties end as soon as students...