Terveen v. S.D. Dep't of Transp., No. 27097.

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice.
• Citation: 861 N.W.2d 775
• Parties: Aaron TERVEEN, Claimant and Appellant, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, Employer and Appellee, and South Dakota Worker's Compensation, Appellee.
• Decision Date: 04 March 2015
• Docket Number: No. 27097.

861 N.W.2d 775

Aaron TERVEEN, Claimant and Appellant
v.
SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, Employer and Appellee
and
South Dakota Worker's Compensation, Appellee.

No. 27097.

Supreme Court of South Dakota.

Considered on Briefs on Jan. 12, 2015.
Decided March 4, 2015.

861 N.W.2d 777

Daniel E. AshmoreRebecca L. Mann of Gunderson, Palmer, Nelson & Ashmore LLP, Rapid City, South Dakota, Attorneys for claimant and appellant.

Robert B. Anderson of May, Adam, Gerdes & Thompson LLP, Pierre, South Dakota, Attorneys for employer and appellees.

Opinion

GILBERTSON, Chief Justice.

¶ 1.] Aaron Terveen was on a business trip from Belle Fourche to Yankton, South Dakota. On the return trip, Terveen was injured in a car accident outside Belle Fourche while driving on a dead-end road just off the highway. Terveen applied for workers' compensation benefits. The Department of Labor granted Terveen's claim, but the circuit court reversed. We affirm.

Facts and Procedural History

[¶ 2.] Terveen was an employee for the South Dakota Department of Transportation (DOT) working out of Belle Fourche. Terveen was a journey transportation technician, which required him to travel to various locations outside of Belle Fourche. Terveen usually checked in at the office when he returned from a work-related trip. There was no DOT policy prohibiting employees from making stops along their travel routes. DOT allowed its employees to engage in certain personal activities during their work-related trips, such as seeing family and friends and stopping at Cabela's for personal shopping.

[¶ 3.] Terveen was returning from a work-related trip to Yankton on November 16, 2011. At 6:28 p.m., Terveen sent a text message to his wife telling her that he would meet her at dinner in fifteen minutes at the Belle Inn located across the road from the DOT shop. Before he could check into the DOT office, Terveen was injured in a one-automobile accident between 6:30 p.m. and 7:00 p.m. one-half mile away from the highway. At the time of the accident, Terveen was travelling eastward on Prairie Hills Road toward Highway 85—a highway to Belle Fourche. Prairie Hills Road is only accessible from Wood Road, which itself is accessible only from Highway 85. Driving from Highway 85 to Prairie Hills Road then back to the highway would take less than ten minutes. The site of the accident was approximately two-and-a-half miles from the DOT shop. Terveen has no recollection of the accident or why he turned onto Prairie Hills Road. Neither Terveen nor anyone else knows why he was at the location where the accident occurred.

[¶ 4.] Along with his DOT job, Terveen occasionally worked for Tom Janklow by repossessing vehicles. Terveen spoke to Janklow at 5:48 p.m. before the accident. They did not discuss any aspect of the repossession business during this conversation. However, Terveen's personal Blackberry was recovered from his car after the accident, and it was on an internet website showing a repossession order for a vehicle located on Prairie Hills Road. To repossess the vehicle, Terveen would have required an order for repossession and a truck from Janklow's office, neither of which Terveen had at the time of the accident. No vehicles associated with the

[861 N.W.2d 778

account Terveen accessed have been repossessed.

¶ 5.] Terveen applied for workers' compensation benefits with the Department of Labor (the Department). The Department determined Terveen sustained an injury arising out of and in the course of his employment. DOT appealed to the circuit court. The circuit court reversed the Department's decision and dismissed Terveen's claim. Terveen appeals raising one issue—whether the court erred in holding Terveen's accident and resulting injuries did not arise out of and in the course of his employment with DOT.

Standard of Review

[¶ 6.] Our standard of review is governed by SDCL 1–26–37. Vollmer v. Wal–Mart Store, Inc., 2007 S.D. 25, ¶ 12, 729 N.W.2d 377, 382. The agency's findings are reviewed for clear error. Id. However, findings based on documentary evidence, such as depositions, are reviewed de novo.

Id. Questions of law are also reviewed de novo. Kuhle v. Lecy Chiropractic, 2006 S.D. 16, ¶ 16, 711 N.W.2d 244, 247. Our review of the circuit court's appellate review is “unaided by any presumption that the [circuit] court is correct.” Brown v. Douglas Sch. Dist., 2002 S.D. 92, ¶ 17, 650 N.W.2d 264, 269 (quoting Kurtz v. SCI, 1998 S.D. 37, ¶ 10, 576 N.W.2d 878, 882).

Analysis and Decision

[¶ 7.] Terveen argues his injury arose out of and in the course of his employment because Terveen's employment with DOT contributed in causing his injury and because DOT allowed him to step aside from his work-related travel for personal reasons. DOT responds that Terveen's injury did not arise out of and in the course of his employment because working for another employer is not the type of personal errand covered under South Dakota law.

[¶ 8.] A claimant wanting to recover worker's compensation “must prove by a preponderance of the evidence that she sustained an injury ‘arising out of and in the course of the employment.’ ” Fair v. Nash Finch Co., 2007 S.D. 16, ¶ 9, 728 N.W.2d 623, 628 (alteration in original) (quoting Bender v. Dakota Resorts Mgmt. Grp., Inc., 2005 S.D. 81, ¶ 7, 700 N.W.2d 739, 742). “Both factors of the analysis, ‘arising out of employment’ and ‘in the course of employment,’ must be present in all claims for workers' compensation.” Id. (quoting Bender, 2005 S.D. 81, ¶ 9, 700 N.W.2d at 742). “The interplay of these factors may allow the strength of one factor to make up for the deficiencies in strength of the other.” Id. “These factors are construed liberally so that the application of the workers' compensation statutes is ‘not limited solely to the times when the employee is engaged in the work that he was hired to perform.’ ” Id. ¶ 9, 728 N.W.2d at 628–29 (quoting Bender, 2005 S.D. 81, ¶ 8, 700 N.W.2d at 742). “Each of the factors is analyzed independently although ‘they are part of the general inquiry of whether the injury or condition complained of is connected to the employment.’ ” Id. ¶ 9, 728 N.W.2d at 629 (quoting Bender, 2005 S.D. 81, ¶ 9, 700 N.W.2d at 742).

[¶ 9.] The first aspect of Terveen's claim is to address whether Terveen's injury “arose out of” his employment. “In order for the injury to ‘arise out of’ the employment, the employee must show that there is a ‘causal connection between the injury and the employment.’ ” Id. ¶ 10 (quoting Bender, 2005 S.D. 81, ¶ 10, 700 N.W.2d at 742). While the employment does not need to “be the direct or proximate cause of the injury, the accident must have its ‘origin in the hazard to which the employment exposed the

[861 N.W.2d 779

employee while doing her work.’ ” Id. (quoting Bender, 2005 S.D. 81, ¶ 10, 700 N.W.2d at 742). It needs to be shown that the injury “would not have occurred but for the employment.” Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D.1992). “The injury ‘arose out of the’ employment if: 1) the employment contributes to causing the injury; 2) the activity is one in which the employee might reasonably engage; or 3) the activity brings about the disability upon which compensation is based.”Fair, 2007 S.D. 16, ¶ 10, 728 N.W.2d at 629 (quoting Bender, 2005 S.D. 81, ¶ 10, 700 N.W.2d at 742).

¶ 10.] Terveen argues that his injury did arise out of his employment because he was injured on his way back from a work-related trip to Yankton. Because he had yet to return to the DOT office, as he normally did when returning from work-related trips, Terveen contends the accident had its “origin in the hazard to which the employment exposed[.]” See id. (quoting Bender, 2005 S.D. 81, ¶ 10, 700 N.W.2d at 742) (internal quotation mark omitted). Furthermore, Terveen points out that the detour was ten minutes in relation to an 840–mile round trip and that DOT has accepted and condoned personal activities during work-related travel. Terveen argues that his short detour was an activity in which a DOT employee may reasonably engage. We disagree.

[¶ 11.] Terveen was not engaging in work-related travel at the time of the accident. Even while acknowledging that Terveen's employment caused him to travel from Yankton to Belle Fourche, Terveen's employment did not compel him to travel down Prairie Hills Road. Terveen responds by arguing that he would not have been in a position to go down Prairie Hills Road if he were not coming back from Yankton on work-related travel. While Terveen's...