Strackbein v. Fall River County Highway Dept.

Decision Date04 September 1987
Docket NumberNo. 15535,15535
Citation416 N.W.2d 270
PartiesDouglas STRACKBEIN, Appellant, v. FALL RIVER COUNTY HIGHWAY DEPARTMENT, Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Rodney C. Lefholz of Fousek, Lefholz & Mairose, Rapid City, for appellant.

Kenneth R. Dewell, Hot Springs, for appellee.

SABERS, Justice.

Douglas Strackbein (Strackbein) filed a grievance with the South Dakota Department of Labor claiming that his employer, the Fall River County Highway Department (County) did not have "just cause" for dismissing him under the County's collective bargaining agreement with Strackbein's union. After the grievance hearing, a Department hearing examiner found there was just cause for dismissing Strackbein and concluded that the County did not violate its agreement. On appeal to the circuit court the hearing examiner's order was affirmed. Strackbein appeals and we affirm.

FACTS

Strackbein is 34 years old and was hired as a mechanic's helper for the County on July 6, 1976. The record reflects no substantial complaints about Strackbein's job performance. Strackbein's union had a collective bargaining agreement with the County that provided: "[T]he county reserves the traditional rights of management ... [including] ... [t]he right to select and hire, to promote, to lay off or discharge for just cause...." Strackbein was terminated by the County in July 1983.

As a mechanic's helper Strackbein serviced the County's heavy equipment including changing tires and oil, overhauling engines, and welding. He worked on and repaired equipment such as dump trucks, bulldozers, belly dump trucks, road graders, mowers and tractors. Sometimes he would perform repairs from as high as 12 to 15 feet off the ground. His work occasionally required him to do field repairs on equipment or to tow it or drive it into the County shop, sometimes from as far away as 30 to 40 miles. In repairing equipment he drove an average of 200 miles a week, either in a County pickup or in heavy equipment. In addition to making repairs, he also operated the equipment for field tests.

When there were no repairs, Strackbein occasionally worked as a highway laborer. This work included driving trucks, installing culverts, operating equipment such as a mix plant, and operating snow removal equipment in emergencies.

Strackbein first saw a doctor about his severe headaches in November 1982. His work records show that he twice reported having headaches or migraines at work, once in February 1982 and again in July 1983. In early 1983 Strackbein reported to his supervisor at work: "You know, I get to doing different things [and] all at once I come to and I don't know what I have done." As a result, the County requested Strackbein to obtain information about his medical condition. Dr. Hefferen, a neurologist, diagnosed Strackbein as suffering from migraine headaches and vertigo (dizziness, often accompanied by nausea). His report stated: "[I]f he [Strackbein] is having vertigo, it is recommended that he not work. Since this vertiginous problem is only an intermittent one, perhaps the patient could be given some time off during those periods in order to recuperate from the vertigo that he might develop." Based on Strackbein's own complaint about his medical condition and the report from Dr. Hefferen, the County terminated Strackbein.

Some evidence indicated that Strackbein's condition should not interfere with his work. An affidavit by Dr. Hefferen indicated that Strackbein's migraines were mild to moderate and could be controlled with medication without interfering with his work. A second doctor who examined Strackbein also concluded that his mild and short-lived vertigo episodes would allow Strackbein to determine when they would occur and allow him to stop his work and wait until they disappeared. Although Strackbein was to take prescribed medication on an "as needed" basis to reduce the severity of any spell, the medical opinions did not overcome the probability that his condition could affect his job performance.

ISSUE

Was the trial court clearly erroneous in affirming the hearing examiner's finding that Strackbein's medical condition could potentially affect his job performance.

DECISION

In appeals from administrative agencies, this court reviews the record to determine whether the agency's findings of fact are clearly erroneous. Conclusions of law are fully reviewable and will be overturned if there is an error of law. SDCL 1-26-36. Permann v. Dept. of Labor, 411 N.W.2d 113 (S.D.1987); Barkdull v. Homestake Mining, 411 N.W.2d 408 (S.D.1987).

Whether an illness constitutes sufficient cause for an employer to terminate an employment contract depends on the facts in the particular case. Fahey v. Kennedy, 230 A.D. 156, 243 N.Y.S. 396 (1930); Annotation, Right of Employer to Terminate Contract Because of Employee's Illness or Physical Incapacity, 21 A.L.R.2d 1247 (1952). Depending upon the various facts, the courts have found that medical conditions may or may not affect work performance and serve as the grounds for termination of employment. Cameron v. J.C. Lawrence Leather Co., 47 Tenn.App. 671, 342 S.W.2d 65 (1960) (laborer who performed heavy lifting and had congenital back anomaly was predisposed to injuries and could be terminated for "just cause"); State ex rel. Baranowski v. Koszewski, 251 Wisc. 383, 29 N.W.2d 764 (1947) (employee who served as matron in sheriff's office, weighed 285 pounds, had poor vision and high blood pressure, was not physically unfit to perform her work duties). Determinations concerning the physical conditions that affect job performances are as diverse as the ailments and work activities themselves, and are made on a case by case basis depending on a variety of factors. See, Annot., supra.

In this case Strackbein was terminated because his condition could potentially affect his job performance by putting himself, other employees, and the general public at risk of injury or death. A medical condition that predisposes an employee to injury may serve as "just cause" for discharging an employee. Cameron, supra. Although Strackbein's condition has not yet resulted in any work accidents, the evidence fairly supports the inference that the potential for damage, injury or accidental death existed. Any damage or injury could be that much more serious given the type of vehicles and equipment Strackbein repaired and operated on public roads. Although some evidence indicated that Strackbein's condition was manageable to a certain extent, the doctors' opinions about how Strackbein "could" control his condition or how it "should not" jeopardize his job did not completely overcome the County's legitimate safety concerns. Thus, the hearing examiner was not clearly erroneous in finding that Strackbein's condition could potentially affect his job performance because it posed the threat of injury or death. This finding, in turn, supported the conclusion that the County did not violate the collective bargaining agreement in discharging Strackbein for "just cause."

Despite the apparent harsh result in this case, we are bound to apply the appropriate standards of review. Other common principles of charity and human understanding might have guided the County in reaching a less harsh solution to the problem presented by Strackbein's condition. Nevertheless, we must exercise restraint and operate within our limited power as an appellate court reviewing administrative proceedings. SDCL 1-26-37. Whatever result might have been reached under more humanitarian principles, we cannot say that the examiner's findings were clearly erroneous or that his conclusions were affected by any error of law. *

The judgment is affirmed.

WUEST, C.J., and MORGAN, J., concur.

MILLER, J., concurs in result.

HENDERSON, J., dissents.

MILLER, Justice (concurring in result).

I concur in the result of this opinion. I would vote a straight concurrence, except that I cannot agree to the language and tenor of the last paragraph. In my view, it is improper in a judicial writing to moralize, sermonize, or speculate what we "might" have done "under more humanitarian principles." I suggest that we leave the argument to the lawyers and the preaching to the clergy.

HENDERSON, Justice (dissenting).

Appellant Strackbein's issue, by pleading, is raised in these words:

The Deputy Director of the Division of Labor and Management for the State of South Dakota errored [sic] as a matter of law in dismissing Appellant's grievance for the reason that the evidence does not support the finding that Appellant's physical condition would interfere with his job as a mechanic for Appellee.

This issue was propounded to the circuit judge. A record of all proceedings was certified on March 3, 1986, to Circuit Judge Roland Grosshans. Judge Grosshans read the record, took no testimony, and affirmed the Deputy Director's decision by a one-page letter on August 19, 1986, with two key remarks: (1) "The record before me contains substantial evidence to support the decision of the agency, and for that matter, the decision of Appellee"; (2) "The decision of the agency was not clearly erroneous in light of the record before me." As regards (1) above, we have long abandoned the substantive evidence test, and (2) I respectfully disagree with Judge Grosshans' assessment of the record and this Court's affirmance of his decision. Strackbein, an ordinary working man, put his foot in his mouth by making some statements. For these statements, he lost his job. As far as the medical testimony is concerned and his job performance, he is capable of adequately performing his assigned duties and no party disputes that he has, indeed, performed his duties and performed them well. Judge Grosshans entered a Memorandum Opinion on August 19, 1986, and an Order on August 22, 1986, affirming the decision of the Deputy Director and dismissing Strackbein's appeal.

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