Vansteenwyk v. Baumgartner Trees
Decision Date | 11 April 2007 |
Docket Number | No. 24138.,24138. |
Parties | Thomas VANSTEENWYK, Claimant and Appellee, v. BAUMGARTNER TREES AND LANDSCAPING, Employer and Appellant, and Farmers Insurance Group, Insurer and Appellant. |
Court | South Dakota Supreme Court |
Ronald A. Parsons, Jr., A. Russell Janklow of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, South Dakota, Attorneys for claimant and appellee.
Eric C. Blomfelt, Jeremy D. Nauman of Eric C. Blomfelt & Associates, P.C., Windsor, Colorado Attorneys for employer, insurer and appellants.
[¶ 1.] Thomas VanSteenwyk (VanSteenwyk) sought workers' compensation benefits for an injury he received while working for Baumgartner Trees and Landscaping. VanSteenwyk, an admitted regular marijuana user, had smoked marijuana the evening before the day of his workplace injury. Baumgartner and its insurer, Farmers Insurance Group (collectively referred to as Baumgartner), opposed the granting of benefits and argued that Van-Steenwyk's off-duty illegal drug use constituted willful misconduct pursuant to SDCL § 62-4-37, which would bar him from receiving workers' compensation benefits. The parties agreed to bifurcate the issues and address the issue of willful misconduct first. Based on the evidence, the South Dakota Department of Labor (Department) concluded that Baumgartner had not met its burden of proving that VanSteenwyk's willful misconduct proximately caused his injury. Baumgartner appealed the Department's ruling to circuit court. The circuit court affirmed the Department's ruling. We affirm the Department and circuit court.
[¶ 2.] VanSteenwyk began working for Baumgartner as a landscaper and laborer one year prior to his injury on April 30, 2004. Part of VanSteenwyk's job included operating a skid loader. He was injured while attaching a bucket to the front of the skid loader. Attaching the bucket required a set of manual procedures and safety precautions. Baumgartner claims that VanSteenwyk's off-duty marijuana use impaired his ability to perform the procedures or heed the safety precautions.
[¶ 3.] VanSteenwyk admitted that he used marijuana on a daily basis for the past fifteen to twenty years. Although VanSteenwyk never smoked marijuana before or during work hours, he routinely smoked marijuana after he completed work and before going to bed. Thus, the day before the injury following his usual routine, VanSteenwyk smoked marijuana. After completing a full work-day, VanSteenwyk and his supervisor, Troy Daggett (Daggett), went to Daggett's house to smoke marijuana and relax, just as they had done for the past year. After spending 30 to 60 minutes at Daggett's house, VanSteenwyk returned to his home in Canistota, South Dakota, where he took a shower, had dinner with his family, watched television and put his children to bed. Prior to going to bed between midnight and 12:30 A.M., he once again smoked marijuana. VanSteenwyk stated that he smoked a total of three to five joints of marijuana that evening.
[¶ 4.] The next day, VanSteenwyk picked up Daggett for work at 8:00 A.M. They went to Baumgartner's shop and then proceeded to their worksite. Brian Baumgartner, company owner, joined them at the worksite around 9:00 A.M. and worked with them most of the morning. VanSteenwyk was working with a skid loader as he often did as part of his duties. Around 11:30 A.M., Daggett asked VanSteenwyk to remove the fork from the skid loader and attach the bucket so they could clean-up the worksite. Although Daggett believed two people should engage in this task, Baumgartner had given Daggett orders that only one person should be involved in changing the bucket in order to save man-hours.
[¶ 5.] The skid loader came equipped with various attachments for the hydraulic arm or boom, including a fork for lifting and a metal bucket for digging, loading and moving materials. The skid loader had various safety mechanisms to prevent injury while changing attachments. First, there were locking pins under the hydraulic arm that prevented it from being lowered beyond the height of the pin. However, Baumgartner had not instructed his employees to use the locking pins and normally did not use them himself. Second, the seat on the skid loader had a pressure switch, which turned off the hydraulics when there was no pressure on the seat. Third, the skid loader was equipped with a seatbelt safety system. The safety system would not let the loader start unless the seatbelt was securely buckled. If the seatbelt became unbuckled, the hydraulics would shut down. Baumgartner, however, had disengaged the seatbelt safety system and had installed a manual toggle switch in its place. Consequently when the pressure switch was triggered because of no pressure on the seat and the hydraulics shut off, the operator needed to sit on or apply pressure to the seat and reset the toggle switch in order to reengage the hydraulics.
[¶ 6.] Proceeding with his task of removing the fork and attaching the bucket, VanSteenwyk drove the skid loader to the bucket. When VanSteenwyk slid the bucket onto the skid loader's hydraulic arm, the locking mechanism would not engage. On this particular skid loader, attaching the bucket could be difficult because the mechanism to which the bucket attached had previously been cracked and welded. The welding left the bucket slightly warped and off-center, making it difficult to slide the bucket onto the hydraulic arm and to lock it into place. Consequently, Baumgartner had instructed VanSteenwyk and the other employees to get off the seat and use their right legs to kick the front right locking lever to engage the locking mechanism. Whether VanSteenwyk got off the seat to kick the locking lever was disputed. However, it was undisputed that while his right leg was extended, his left foot accidentally pushed the pedal on the floor of the skid loader.1 By pushing this pedal, VanSteenwyk inadvertently lowered the hydraulic arm, which caused his leg to become Pinned between the lip of the cab and the crosspiece of the arm. VanSteenwyk was able to disengage the hydraulics before any bones were broken but not before suffering a serious crush injury2 that required hospitalization. A urinalysis at the hospital revealed marijuana in VanSteenwyk's system.
[¶ 7.] Baumgartner contends that VanSteenwyk was impaired by the marijuana and that the impairment caused his injury. At the hearing before the Department, Baumgartner presented expert testimony to support his claim. Dr. Michael Evans, a board certified toxicologist, testified that based on the high level of THC detected in VanSteenwyk's urinalysis, he was significantly impaired at the time of the accident although a casual observer would not notice any signs of impairment. However, Dr. Evans indicated that he could not give an opinion as to whether VanSteenwyk's impairment caused the accident.
[¶ 8.] VanSteenwyk presented deposition testimony of Dr. John Vasiliades, an expert in clinical and forensic toxicology. Dr. Vasiliades disagreed with Dr. Evans' opinion that VanSteenwyk was impaired at the time of the accident. Dr. Vasiliades testified that he "would not expect any impairment from the effects of the drug 12 hours" after ingestion. He also testified that it was unlikely that VanSteenwyk suffered any impairment on the day of the accident because of the observations of VanSteenwyk's co-workers. All of VanSteenwyk's co-workers testified that on the morning of the accident VanSteenwyk was alert, coordinated, working hard, and performing a routine task he had performed many times.
[¶ 9.] The Department ruled that VanSteenwyk was not barred from receiving workers' compensation benefits because of his off-duty marijuana use. Baumgartner appeals and raises one issue:
ISSUE
Whether the Department of Labor and the circuit court erred in finding that VanSteenwyk's illegal drug use was not a substantial factor in causing his injuries.
[¶ 10.] In workers' compensation cases our standard of review is established by SDCL 1-26-36. "Under SDCL 1-26-36, the applicable standard of review `will vary depending on whether the issue is one of fact or one of law.'" Orth v. Stoebner & Permann. Const., Inc., 2006 SD 99, ¶ 27, 724 N.W.2d 586, 592 (quoting Tischler v. United Parcel Service, 1996 SD 98, ¶ 23, 552 N.W.2d 597, 602). "When the issue is a question of fact, then the actions of the agency are judged by the clearly erroneous standard; and when the issue is a question of law, then the actions of the agency are fully reviewable [i.e., de novo]." Id. (internal quotations and citations omitted). "Mixed questions of fact and law are fully reviewable." Id. (quoting Brown v. Douglas Sch. Dist., 2002 SD 92, ¶ 9, 650 N.W.2d 264, 268).
[¶ 11.] The applicable standard of review also varies depending on whether the Department was presented with live testimony or documentary evidence. When findings of fact are made based on live testimony, the clearly erroneous standard applies. Id. ¶ 28. Id. (quoting Brown, 2002 SD 92, ¶ 9, 650 N.W.2d at 268).
[¶ 12.] Baumgartner argues that the Department erred when it failed to find that VanSteenwyk's willful misconduct in the form of off-duty illegal drug use was a substantial factor in causing the accident. SDCL 62-4-37 provides that injuries caused by willful misconduct by illegal use of Schedule I or Schedule II drugs 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...
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