Fenner v. Trimac Transportation, Inc. , 1996 S.D. LEXIS 127 ( 1996 )

GILBERTSON, Justice

(on reassignment).

[¶ 1] Jeffrey Lee Fenner (Fenner) appeals from a denial of workers’ compensation benefits. We affirm.

FACTS & PROCEDURE

[¶ 2] Fenner was a member of the United States Army with a rank of E — 4, having trained and worked in the field of heavy vehicle mechanics, when he injured his back while lifting a box from a shopping cart in December 1991. The medical treatment provided by the military did not restore Fen-ner’s back. He was ultimately honorably discharged in March of 1992. At that time, he underwent a disability evaluation by the military. In June of 1992, his injury was found to be a service-connected disability for which he was awarded a 10% disability rating to his back and a 10% disability rating to his left index finger. In July 1994, having been reevaluated by the military, Fenner was informed his back condition had worsened and was awarded an additional 10% disability rating to his back.

[¶ 3] Despite his recent injury while in the Army, Fenner joined the National Guard in March of 1992, the same month as his discharge from the Army. One month later, Fenner obtained employment as a groundskeeper/maintenance worker but continued applying for alternative employment. He subsequently obtained employment as a heavy equipment mechanic for Heavy Constructors, Inc. before going to work for Trimac Transportation, Inc. in June 1992. Fen-ner obtained his job at Trimac after he had applied for disability benefits through the military but prior to his learning the outcome of that application. At Trimac, Fenner’s duties included brake work, tarp work, and removing, repairing, and replacing tires that weighed up to 200 pounds. At his interview for this position, Fenner denied having any physical condition which would preclude his lifting up to 200 pounds. In July 1992, Fen-ner began receiving monthly disability payments from the Veteran’s Administration for his service-connected “thoracic and lumbar spine condition.”

[¶ 4] Fenner continued to receive physical therapy from the military for his back injury through July and August. On August 18, 1992, he was seen by a military physician for his continued back pain. Fenner had also been taking pain and anti-inflammatory medications for his back during this time period. However, he did not inform Trimac of his pain, his medications, his doctor’s appointments or his physical therapy. On September 2,1992, he was seen by a physician at the Veteran’s Administration Hospital who ordered Fenner to change his occupation to “forestall future physical difficulties.” Fen-ner started the necessary paperwork to change jobs, but without informing Trimac. He also continued working.

[¶ 5] On September 10,1992, while lifting a truck tire, Fenner injured his back. He immediately reported the injury to his manager and completed a First Report of Injury. Fenner began treatment for his back injury with Dr. Massopust that day and did not return to work at Trimac. He was restricted by Dr. Massopust to no bending or lifting. Fenner was informed by Trimac there was no work for him there that did not require lifting or bending. Fenner’s doctor also restricted Fenner’s physical activity at an upcoming National Guard Camp. Nevertheless, from September 16-30, 1992, Fenner reported for duty at National Guard camp where he performed duties he admits were beyond his physical limitations.

[¶ 6] Fenner applied for workers’ compensation benefits which Trimac denied. Following a hearing, the Department of Labor denied Fenner’s claim. The Department concluded Fenner’s claim was barred pursuant to SDCL 62-4-46 because Fenner failed to inform Trimac about his pre-existing back condition and that Fenner’s claim was barred due to a subsequent intervening cause. The Department’s decision was appealed to the circuit court which reversed the Department on the issue of Fenner’s alleged false representation of his physical condition and affirmed on the issue of subsequent intervening cause.' Fenner appeals only the second portion of the circuit court’s decision.¹

STANDARD OF REVIEW

[¶7] Our standard of review of workers’ compensation appeals is well-settled. As we recently noted in Helms v. Lynn’s, Inc., 1996 SD 8, 542 N.W.2d 764:

Our standard of review from- decisions of administrative agencies. is governed by SDCL 1-26-37. This statute provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

However, when the issue is a question of law, the agency’s actions are fully reviewable. Further, we review the findings based on deposition testimony and documentary evidence de novo. The issue we must determine is whether the record contains substantial evidence to support the agency’s. determination.

Id. at ¶¶ 9-10, 542 N.W.2d at 766 (citations omitted).

ANALYSIS AND DECISION

[¶ 8] The sole issue on appeal is whether Fenner’s willful disregard of his physician’s advice constitutes a subsequent intervening cause that bars his claim to workers’ compensation benefits for his September 10,1992 injury.

[¶ 9] SDCL 62-4-37 provides no compensation when an employee’s actions constitute willful misconduct:

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 the statute. The burden of proof under this section shall be on the defendant employer.

The term “willful misconduct” has long been defined in this state as “something more than ordinary negligence but less than deliberate or intentional conduct. Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D.1983) (citing Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153 (1938) (emphasis original)). Black’s Law Dictionary defines the willful misconduct of an employee in this way: “Under workers’ compensation acts, precluding compensation, [willful misconduct] means more than mere negligence, and contemplates the intentional doing of something with knowledge that it is likely to result in serious injuries, or with reckless disregard of its probable consequences.” Black’s Law Dictionary, 6th ed. at 1600 (1990). SDCL 62-4-37 does not distinguish between work-related and non-work-related willful misconduct, and both types are contemplated by the statutory language. Cf. In re Andren, 917 P.2d 178 (Wyo.1996) (employee’s work-related and non-work-related activities caused aggravation of compensable injury and precluded further benefits).

[¶ 10] In Detling v. Tessier, 60 S.D. 405, 244 N.W. 538 (1932), aff'd. on reh’g, 61 S.D. 403, 249 N.W. 686, this Court addressed the situation involving a workers’ compensation claimant with a compensable back injury who failed to follow medical advice concerning the injury and who later attempted to obtain additional compensation for aggravation to that injury. We reversed the judgment of the circuit court granting additional compensation. The evidence showed the claimant had willfully disregarded his physician’s advice by continuing to perform heavy manual labor, as well as engaging in such activities as dancing, fighting, and being jailed for public intoxication.² We stated that:

[an i]njury aggravated or extended in time by the employee’s neglect or disobedience of his physician’s instructions is not com-pensable as to the additional period.... The proposition that one may continue, or even increase, his disability by his willful and unreasonable conduct, and then claim compensation from his employer for his disability so caused, is untenable.

Id. at 410, 244 N.W. at 541 (citing Honnold, Workmen’s Compensation, vol.l, § 137, pp. 521, 523).

[¶ 11] Courts in other jurisdictions have also recognized the rule in Detling, albeit applying their own states’ standards. See Appleby v. Belden Corp., 22 Ark.App. 243, 738 S.W.2d 807 (1987) (holding that claimant’s actions in heavy houseeleaning and house painting, in contravention of medical restrictions, was so unreasonable as to bar compensation for aggravation of her back injury); Amoco Chemical Corp. v. Hill, 318 A.2d 614, 618 (Del.Super. 1974); Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12, 13, (Fla. 1960) (holding that “[i]f a claimant, knowing of certain weaknesses, rashly undertakes activities likely to produce harmful results, the chain of causation is broken by the claimant’s own negligence”); Giacoletto v. Silver Bow Pizza Parlor, 231 Mont. 191, 751 P.2d 1059, 1062 (1988) (“the degree of claimant’s misconduct required to break the chain of causation must be ‘intentional conduct which is clearly unreasonable’ ”); Horne v. Universal Leaf Tobacco Processors, 119 N.C.App. 682, 459 S.E.2d 797, 799 (1995); Simpson v. H.D. Lee Co., 793 S.W.2d 929, 931 (Tenn. 1990) (finding medication prescribed for compensable injury but taken in direct contravention to physician’s instructions was an independent intervening cause of injury precluding additional workers’ compensation benefits for employee’s subsequent death); Leadbetter, Inc. v. Penkalski, 21 Va. App. 427, 464 S.E.2d 554, 556 (1995); Andren, 917 P.2d at 180.

[¶ 12] In his discussion of intervening causes, Professor Larson has noted that:

It is only when we come to cases involving the conduct of the claimant himself that the possibility of a break in the chain of compensable consequences is encoun-tered_ [C]onduct of the employee related to the treatment of a compensable injury ... should not break the chain of causation unless it amounted to an intentional violation of an express or implied prohibition.

Larson, supra at § 13.21(d) (1996) (emphasis added). Here, the evidence reveals such a violation.³

[¶ 13] In the present ease, following Fen-ner’s December 1991 injury, the United States Army found him to be 10% disabled due to his “thoracic and lumbar spine condition.” ⁴ On September 2, 1992, Fenner was seen by Dr. Lampert at the Veteran’s Administration Hospital for Fenner’s continued back pain due to his December 1991 injury. At the September 2 appointment, Dr. Lam-pert noted: “This veteran must undergo Voc Rehab with a change in jobs so that he can forestall future physical difficulties.” (emphasis original).⁵ Fenner claims he started the paperwork necessary to change jobs, but continued to work for Trimae. He did not inform Trimae of Dr. Lampert’s order or that he had begun paperwork to comply with the order. Eight days later, Fenner injured his back while lifting a tire at work.

[¶ 14] Fenner asserts in his briefing to this Court that Dr. Lampert’s order constituted a mere suggestion that he change jobs, and, as such, could not be disobeyed. This interpretation is contrary to the plain language of the unambiguous order itself. Furthermore, this interpretation is contrary to Fenner’s own testimony at the Department of Labor hearing in which he stated: “[Dr. Lampert] made it very clear that I needed to change my occupation.” Fenner cannot now claim, after offering this testimony, that his doctor’s order was ambiguous or constituted a suggestion only. A party may not claim a better version of the facts than his prior testimony. Parkhurst v. Burkel, 1996 SD 19, ¶ 19, 544 N.W.2d 210, 214; Parsons v. Dacy, 502 N.W.2d 108, 111 (S.D. 1993). Fenner also demonstrates a clear understanding of his physician’s instruction as he claimed to “start some paper work” to change jobs prior to the September 10 injury and in response to Dr. Lampert’s order, albeit without notifying Trimae and while continuing to work.

[¶ 15] The record reflects Fenner intentionally and deliberately disregarded his physical limitations and his physician’s order with respect to his back injury. We believe that a reasonable person, returning to work at Trimae under these circumstances, would realize that injury was not merely possible, but probable. Under the rule provided in SDCL 62-4-37 and as analyzed in Detling, Fenner’s claim to workers’ compensation for the injury which occurred eight days later must be denied and the circuit court’s order affirmed. We do not look for reasons to reverse, even if we would not have made a similar decision, Peterson v. Beck, 537 N.W.2d 375, 379 (S.D. 1995), but confine our review to a determination whether the record contains substantial evidence to support the agency’s decision. We find such substantial evidence in the present case.

[¶ 16] Our holding today in no way diminishes the disability award Fenner has been receiving for this injury from the United States Army since July 1992,⁶ nor does it affect his application for vocational rehabilitation benefits through the military. It affects only a workers’ compensation claim against Trimae for Fenner’s aggravation of his original back injury.

[¶ 17] Our holding further does not negatively impact on any public policy described by the dissent as “encourag[ing] workers to seek and maintain gainful employment, even if they suffer disabilities.” If the particular disability suffered prevents the worker from performing his job, and that worker has been informed by his doctor that he must change jobs to “forestall future physical difficulties,” workers’ compensation benefits will not be awarded for the subsequent injury caused by the worker’s willful disregard for his physical limitations and his doctor’s orders. This Court noted long ago that ‘“[a] recognized purpose of the Workmen’s Compensation Law is to transfer from the worker to the employer, and ultimately to the public, a greater portion of the economic loss due to industrial accidents and injuries_’” Therkildsen v. Fisher Beverage, 1996 SD 39, ¶ 23 545 N.W.2d 834, 839 (quoting Oviatt v. Oviatt Dairy, Inc. 80 S.D. 83, 85, 119 N.W.2d 649, 650 (1963)). However, this purpose has its well recognized limits. It does not embrace a claimant’s willful misconduct which is a bar to benefits provided by SDCL 62-4-37; Therkildsen, 1996 SD 39 at ¶ 10, 545 N.W.2d at 836; Phillips v. John Morrell & Co., 484 N.W.2d 527, 532 (S.D. 1992). If Fenner’s actions in this case are not held to constitute such misconduct, how many times should Fenner be permitted to draw from the public poeketbook, workers’ compensation benefits for injuries suffered from repeated attempts to return to his job despite his medical restrictions?⁷ The public should not be required to bear the economic loss due to Fenner’s own willful actions in clear violation of his doctor’s orders.

[¶ 18] We affirm.

[¶ 19] MILLER, C.J., and AMUNDSON, J., concur. [¶ 20] SABERS and KONENKAMP, JJ., dissent.

1 . A notice of review of the first issue, Fenner’s alleged false representation, filed by Trimac and its insurer, was deemed untimely by this Court. As such, our review is limited to the issue of subsequent intervening cause.

2 . Detling found himself in jail three times for public intoxication, including one time for twenty-five days wherein he slept on concrete floors.

3 . Fenner cites to case authority that addresses compensation for preexisting conditions, a situation distinguishable from that in the present case. In Harden v. South Dakota Credit Union League, Inc., 87 S.D. 433, 209 N.W.2d 665, 666 (1973), this Court held “[i]f a compensable event contributed to the final disability, recovery may not be denied because of the preexisting condition, even though such condition was the immediate cause of the disability.” In Elmstrand v. G & G Rug & Furniture Co., 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958), we stated the applicable rule in preexisting condition cases is "we must take the employee as we find him.”

The facts of the present case, however, illustrate a situation described by Larson as the "original compensable injury causing subsequent injury.” On this subject, Larson notes that:

As to the primary injury, it has been shown that the ‘arising’ test is a unique one quite unrelated to common-law concepts of legal' cause, and ... the employee's own contributory negligence is ordinarily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of ‘direct and natural results,’ and of claimant's own conduct as an intervening cause.

Larson, supra at § 13.11 (emphasis added).

4 .Fenner's continued claim that the present injury affects a different area of his back and is unrelated to his December 1991 back injury is not supported by, and is in fact contrary to, his medical records. It is also contrary to Fenner’s informing Dr. Massopust on September 10, 1992, after injuring his back at work that day, that he had "similar” back injuries in December which were treated in the military.

5 . Dr. Lampert was so emphatic about the medical necessity of this directive that he underlined the word "must” twice in his handwritten notes of his September 2, 1992 examination of Fenner.

6 . As noted previously in this opinion, in July 1994 the Army awarded Fenner an additional 10% disability rating to his back after finding his back condition had worsened.

7 . Two physicians, Drs. Massopust and Goff, concluded after Fenner’s September 10, 1992 injury that he was unable return to his duties at Trimac. Under the dissent’s theory of the case, however, Fenner could return to Trimac, suffer further injury, and expect to receive compensation for additional aggravation to his back condition.