Therkildsen v. Fisher Beverage

• Decision Date: 13 February 1996
• Docket Number: No. 19176,19176
• Citation: 545 N.W.2d 834,1996 SD 39
• Parties: Donna THERKILDSEN, Appellant, v. FISHER BEVERAGE and the Travelers, Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 834

545 N.W.2d 834

1996 SD 39

Donna THERKILDSEN, Appellant, v. FISHER BEVERAGE and the Travelers, Appellees.

No. 19176.

Supreme Court of South Dakota.

Considered on Briefs Feb. 13, 1996.

Decided April 10, 1996.

Dennis W. Finch, Finch, Bettman & Maks, Rapid City, for appellant.

Thomas E. Simmons, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for appellees.

GILBERTSON, Justice.

¶1 Donna Therkildsen, Claimant, appeals from a denial of death benefits under the Worker's Compensation Act. We affirm.

FACTS AND PROCEDURE

¶2 Kerry Therkildsen, Claimant's husband, was employed as a sales manager for Fisher Beverage (hereinafter Employer), a beer distributor. His job entailed promoting Employer and its products. His employment duties involved traveling a 65-mile area in a company car assigned to him and calling on liquor establishments to pre-sell accounts to those with beer licenses. Employer set up a separate expense account with which Therkildsen was expected to purchase drinks for Employer's customers. Employer stated that Therkildsen also drank with the customers and that this was a "normal practice" of his job. However, Employer testified there was a "clear understanding" that employees were not to become under the influence of alcohol while working.

¶3 On the afternoon of April 25, 1991, Therkildsen called upon the Casino Bar in the Deadwood/Lead area, a customer on his sales route. There, Therkildsen drank beer ¹ and was in the bar approximately 2 1/2 hours. During that time, he won twice on the video lottery machine and bought a round of drinks for the house. Prior to his leaving the bar at approximately 7:30 p.m., Therkildsen spoke with the bar owner and bartender, both of whom testified he did not appear to be intoxicated. Therkildsen gave one of the patrons a ride home from the bar. This patron also stated he did not believe Therkildsen was intoxicated.

¶4 At approximately 8:25 p.m., Therkildsen was discovered dead by a South Dakota Highway patrolman on Interstate 90 east of Sturgis. He had apparently been the victim of a one-vehicle rollover accident wherein he was ejected from the vehicle and killed. Road conditions were dry and visibility was clear. There were no skid marks left on the highway, but from marks left by Therkildsen's vehicle in the median it was determined Therkildsen was traveling at a minimum of 71 miles per hour.

¶5 The patrolman who was first on the scene testified he found no evidence of alcohol at the accident site nor did he smell alcohol on the victim. Blood samples taken from Therkildsen immediately following the accident were tested for alcohol content. The first test, run four days after the accident, resulted in a .145% blood alcohol level. The second test, run two months after the accident, resulted in a .139% blood alcohol level. The third test, run six days after the second test and by a different chemist, resulted in a blood alcohol level of .12%. According to testimony before the Department of Labor, these decreasing levels over time were consistent with one another.

¶6 Claimant sought death benefits under the Worker's Compensation Act. Employer asserted Therkildsen's intoxication barred recovery under SDCL 62-4-37, which precludes worker's compensation benefits for employee's injuries caused by the employee's intoxication. Claimant argued Employer had not sustained its burdens of proving that Therkildsen was intoxicated and that intoxication was a substantial factor in causing Therkildsen's death. Further, Claimant stated Employer should be estopped from asserting the intoxication defense due to Employer's encouragement of Therkildsen's drinking alcohol on the job.

¶7 The South Dakota Department of Labor awarded death benefits finding that intoxication was a substantial factor in causing Therkildsen's death but that Employer was estopped from using the intoxication defense in this case. Employer appealed to the circuit court. The circuit court affirmed the finding that intoxication was a substantial factor in causing Therkildsen's death but reversed the Department's conclusion that Employer should be estopped from asserting the intoxication defense. Claimant appeals the following issues to this Court:

1. Whether the Department of Labor and the Circuit Court erred in finding that intoxication was a substantial factor in causing Therkildsen's automobile accident and death?

2. Whether the Circuit Court erred in reversing the Department's legal conclusion that Employer should be estopped from asserting the intoxication defense?

STANDARD OF REVIEW

¶8 "Issues of causation in worker's compensation cases are factual issues that are best determined by the Department." Lawler v. Windmill Restaurant, 435 N.W.2d 708, 709 (S.D.1989) (citing Newbanks v. Foursome Package & Bar, Inc., 201 Neb. 818, 272 N.W.2d 372, 376 (1978)). Our standard of review of factual issues is the clearly erroneous standard. SDCL 1-26-36(5); Driscoll v. Great Plains Marketing Co., 322 N.W.2d 478, 479 (S.D.1982). Under this standard, we must determine whether there was substantial evidence to support the Department's finding. Helms v. Lynn's, Inc., 1996 SD 8, p 10, 542 N.W.2d 764, 766; In re SDDS, Inc., 472 N.W.2d 502, 507 (S.D.1991). " '[T]he question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding[, and t]he court shall give great weight to findings made and inferences drawn by an agency on questions of fact.' " SDDS, Inc., 472 N.W.2d at 507 (quoting Schlenker v. Boyd's Drug Mart, 458 N.W.2d 368, 371 (S.D. 1990) and citing Lawler, 435 N.W.2d at 711 (Morgan, J., concurring specially)). We review deposition testimony de novo. Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). We review questions of law de novo. Stang v. Meade Sch. Dist., 526 N.W.2d 496, 498 (S.D.1995).

ANALYSIS AND DECISION

¶9 1. Whether the Department of Labor and the Circuit Court erred in finding that intoxication was a substantial factor in causing Therkildsen's automobile accident and death?

¶10 Claimant challenges the Department of Labor's finding that Therkildsen was intoxicated at the time of the accident and that his intoxication was a substantial factor in causing his accident and death. SDCL 62-4-37 provides that injuries caused by intoxication 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, 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).

¶11 Claimant correctly points out that Employer must prove both intoxication and that the intoxication was the cause of Therkildsen's death. Evidence regarding intoxication was submitted through the three blood alcohol test results, experts' opinions regarding the effects such blood alcohol levels would have on driving abilities, observances of Therkildsen by persons who saw him that evening prior to his death, and the circumstances surrounding the accident itself. Although observers testified Therkildsen did not appear to be intoxicated, both of the experts agreed that with the level of alcohol which was tested to be in Therkildsen's blood, there would be impairment in judgment and driving abilities. The experts disagreed on degree of impairment. ²

¶12 The worker's compensation statute does not define "intoxication." Our state's Motor Vehicle Code, however, provides a legal presumption of intoxication ³ for persons with blood alcohol levels of .10% or greater. SDCL 32-23-7(3). This level is prima facie proof of intoxication. Spry, 87 S.D. 318, 329, 207 N.W.2d at 510; see also 2800 Corp. v. Fernandez, 528 N.W.2d 124, 129 (Iowa 1995); Smith v. State Roads Comm'n, 240 Md. 525, 214 A.2d 792, 797 (1965). As Therkildsen met his death while driving a company car, we look to this section to define "intoxication" under the facts of this case. See Stewart v. Oliver B. Cannon & Son, Inc., 551 A.2d 818, 821 (Del.Super.1988) ("Since the Court in Smith was deciding a workman's compensation claim that involved the death of an employer [sic] driving a motor vehicle while intoxicated, it necessarily considered the appropriate State statute restricting the use of intoxicants while driving a motor vehicle.") We do not address this statute's application to worker's compensation cases which do not involve an employee injured while operating a motor vehicle. Here, Therkildsen's blood alcohol levels were more than sufficient to raise the statutory presumption that he was intoxicated at the time his accident and death occurred. It should also be noted that Therkildsen violated the safety statute governing excessive speed. ⁴

¶13 We turn our attention to the causation issue. In Driscoll v. Great Plains Marketing Co., 322 N.W.2d 478 (S.D.1982), we determined the words "due to" in SDCL 62-4-37 referred to proximate cause. Id. at 479. The factual situation of that case, as is present here, was that the injury may have had several contributing or concurring causes. In the present case, there is evidence that both speed and alcohol were involved, though to what extent either factor was an instrument of causation is disputed. We stated in Driscoll,

[w]hen 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...