#23657-a-DG
2006 SD 35
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
CHRIS HOLSCHER, Claimant and Appellant,
v.
VALLEY QUEEN CHEESE FACTORY, Employer and Appellee,
and
ACUITY INSURANCE, Insurer and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
GRANT COUNTY, SOUTH DAKOTA
* * * *
HONORABLE ROBERT L. TIMM
Judge
* * * *
MARK J. FREEMAN of
Fitch, Johnson, Larson & Held, P.A.
Minneapolis, Minnesota Attorneys for appellant.
SUSAN BRUNICK SIMONS
KRISTI GEISLER HOLM of
Davenport, Evans, Hurwitz & Smith, L.L.P.
Sioux Falls, South Dakota Attorneys for appellees.
* * * *
ARGUED JANUARY 11, 2006
OPINION FILED 04/05/06
#23657
GILBERTSON, Chief Justice
[¶1.] Christopher Holscher (Holscher), was injured on October 1, 2003,
while working at Valley Queen Cheese Factory (Valley Queen). Valley Queen
established willful misconduct on Holscher’s part at a hearing before an
administrative law judge (ALJ), and Holscher’s workers’ compensation claim was
denied. Holscher appealed to the Secretary of the Department of Labor (Secretary),
who affirmed the ALJ’s ruling. Holscher’s appeal of the Secretary’s ruling in circuit
court was affirmed. He appeals the circuit court’s ruling. We affirm.
FACTS AND PROCEDURE
[¶2.] Valley Queen manufactures cheese and other related by-products at its
plant in Milbank, South Dakota. Numerous chemicals are used in the
manufacturing process, some of which are hazardous. Valley Queen houses several
chemicals in a central location known as the sabre room, including both alkaline
and acid-based chemicals. One of the hazardous chemicals housed in the sabre
room is a strong acid known as AC-55-5 (red acid). It is a clear red liquid with a
purple hue. Red acid causes chemical burns upon contact with skin. When mixed
with chlorine or chlorinated chemicals, red acid forms a hazardous chlorine vapor or
gas that smells of chlorine or mustard gas. Inhalation injuries include a burning
taste, sneezing, coughing, and difficulty breathing. A chlorine-based chemical
known as Ful-Bac is also used in the plant as a cleaning solvent.
[¶3.] Red acid is dispensed into a barrel in the sabre room from a holding
tank located above the room via a chemical line using a gravity-fed system.
Smaller hand held containers are filled from the barrel in the sabre room and then
transported to other locations in the plant for use in various production processes.
-1-
#23657
Valley Queen requires employees to use a spring-loaded valve installed on the
chemical line leading to the barrel. The spring-loaded valve operates only if the
handle is held open. When the handle of the spring-loaded valve is released, the
chemical ceases to flow into the barrel. Employees attend mandatory training
programs to learn and review how to use and dispense red acid and other chemicals
used on-site in a safe manner.
[¶4.] In November 1995, Holscher began working for Valley Queen in a
variety of capacities including that of a utility worker. As a utility worker,
Holscher filled in for absent employees in a variety of positions. Holscher first filled
in as a night supervisor sometime prior to 2003. He was eventually promoted to
night supervisor in June 2003.
[¶5.] During his employment at Valley Queen, Holscher received safety
training on chemical use and handling. Holscher received individual training from
a prior night supervisor when he was moved to the position of utility worker,
including how to properly fill red acid barrels in the sabre room. In February 1998,
Holscher attended a chemical use and handling training session where it was
stated that acid and chlorine should not be mixed, and that injury could result from
the chlorine gas produced by the mixture. During the February 1998 training, he
was asked to respond true or false to the following statement: “You should contact
your plant safety coordinator any time you see a major chemical spill.” Holscher
responded that the statement was true.
[¶6.] Holscher attended two training sessions in 2003 on chemical handling.
A session in January 2003 again reviewed the fact that chlorine and acid should not
be mixed. At that training session, Material Safety Data Sheets (MSDS) for
-2-
#23657
chemicals were reviewed, that included information on how to safely remove
chemical spills. The MSDS for red acid stated that large spills should be dammed
and removed with a pump. Small spills and residue could be flushed with water
into a sewer containment system. The training instructed that if the odor of gas
were present, the area should be immediately evacuated and a member of the
management team should be contacted. Proper chemical handling was also
reviewed at the training session.
[¶7.] At a May 2003 training session attended by Holscher, a revised
evacuation plan was reviewed that required evacuation and immediate contact with
management in the event the odor of gas was detected in the building. MSDSs
were reviewed as well at their location in the plant. The session also included a
review of the fact that acid and chlorine should not be mixed due to the creation of
dangerous chlorine gas, that employees should not attempt to identify chemicals
simply by color, and that all written procedures should be followed.
[¶8.] In addition to training employees with the MSDSs, Valley Queen
placed laminated tags on all containers that identified the chemicals contained.
Posters were placed on the walls in the sabre room that identified the chemicals
present in the room and their properties. According to the MSDSs provided by
Valley Queen to its employees for Ful-Bac and red acid, neither chemical required a
respirator as personal protective equipment. The MSDS for Ful-Bac also stated
that spills and vapors should not be breathed, that a spill area should be evacuated
and that personnel should not return until the vapors dissipated.
[¶9.] After Holscher began working at Valley Queen, but before the incident
on October 1, 2003, chemical spills had occurred in the sabre room due to an
-3-
#23657
employee propping open the spring-loaded valve by using a barrel cap or other
object to override the mechanism, which allowed chemicals to flow unattended. As
a result, Valley Queen adopted a safety rule that prohibited using caps or other
objects to prop open the spring-loaded safety valve. Valley Queen also posted signs
immediately adjacent to the spring-loaded valve on the red acid barrel that read:
“DO NOT PROP OPEN VALVE.”
[¶10.] Valley Queen had occasion to enforce the rule and took steps to do so
against another employee, Dave Cardwell (Cardwell). Sometime in 2002, Cardwell
violated the safety rule and a chemical spill occurred. As a result of the violation of
the safety rule, Cardwell was suspended from work for five days. Cardwell violated
the rule on a second occasion that resulted in a second chemical spill, and
Cardwell’s employment was terminated as a consequence.
[¶11.] As a result of the chemical spills that resulted in Cardwell’s discharge,
Valley Queen instituted yet another safety policy in 2002. The policy limited the
number of individuals who were permitted to access the red acid barrel and placed
the duty for dispensing the chemicals in the sabre room with supervisors. A sign
was posted on the acid barrel that articulated the new policy: “Chemical To Be
Dispensed By Supervisor Only!”
[¶12.] Sometime prior to the incident on October 1, 2003, Holscher was
working as the night supervisor. When his immediate supervisor, Lance Johnson,
passed through and noticed that a cap had been used to prop open the spring-
loaded valve on a red acid barrel located in another room in the plant known as the
DOH room. Holscher was present in the room at the time, and therefore, Johnson
did not consider the open valve to be unattended and no chemical spill resulted
-4-
#23657
from the incident. However, Johnson told Holscher that his action of propping open
the spring-loaded valve was a violation of Valley Queen’s policies. Holscher
admitted to Johnson that he knew he violated the policy. Johnson told Holscher
that since he was a supervisor he had to set an example for other employees and
that Holscher would not be able to do so if he himself violated the safety rules and
policies. Johnson then reminded Holscher of the incidents that led to Cardwell’s
termination. Johnson ultimately reprimanded Holscher orally for his violation of
the safety rules and policies, and concluded that an oral reprimand was appropriate
based on the fact that Holscher had been present in the room, had not left the valve
unattended, and that no chemical spill had resulted. No written warning was
issued and no further disciplinary action was taken at the time, as Johnson
believed Holscher would not violate the policy again.
[¶13.] Approximately two weeks later, Don Rieger (Rieger), an employee
under the supervision of Holscher while on the night shift, observed Holscher
violate the do-not-lock-open rule in the sabre room. Rieger observed Holscher
standing with his arms crossed and leaning against another barrel with the spring-
loaded valve propped open, waiting for the acid barrel to fill. Rieger warned
Holscher that his actions were a violation of the safety policy, and Holscher
conceded in response that he was aware of the safety policy. Holscher related to
Rieger that Johnson had caught him propping open the valve with a cap in the
DOH room. Holscher told Rieger that he had understood from Johnson that he
could prop open the spring-loaded valve as long as he remained in the room.
Johnson would later testify that he did not recall telling Holscher that he could
prop open the spring-loaded valve as long as he remained in the room.
-5-
#23657
[¶14.] In 2003, the South Dakota Department of Environment and Natural
Resources (SDDENR) required Valley Queen to install a plug in the drain in the
sabre room floor in order to contain any major chemical spills that might occur
when employees were not on site, or if a chemical barrel were to fail when it was
unattended or the plant was closed. On August 20, 2003, Valley Queen notified
SDDENR that the drain plug had been installed. Valley Queen issued a
memorandum to employees that stated: “Note: If there is a noticeable amount of
chemical on the floor or in the drain do not remove the drain plug! Contact a
supervisor for proper cleanup of the spilled chemical.”
[¶15.] On October 1, 2003, Holscher again violated the safety rule and
propped open the spring-loaded valve on the red acid barrel in the sabre room.
After propping open the valve, Holscher left the room to attend to other duties and
forgot that he had propped open the valve. A major chemical spill of approximately
forty to fifty gallons of red acid occurred as a result of Holscher’s actions.
[¶16.] At 8:15 p.m. employee, Daniel Berglund (Berglund), walked past the
doorway to the sabre room during the course of his duties and noticed an unusual
darkness in the room that caught his attention. Berglund looked into the room,
observed what he knew to be red acid on the floor, and noticed that acid was
continuing to flow over the top of the unattended barrel. From where he stood,
Berglund could see that the spring-loaded valve had been propped open and that no
one was present in the room. Berglund was not wearing rubber boots at the time,
and therefore, did not enter the room to stop the acid spill. Instead, Berglund went
to the lunch room to find Rieger whom Berglund knew to be wearing rubber boots,
as rubber boots are not adversely affected by acid. Berglund located Rieger in two
-6-
#23657
to three minutes, advised Rieger of the situation, and asked him to run to the sabre
room with his boots and stop the flow of red acid. Rieger quickly left the lunch
room and went to the sabre room.
[¶17.] Upon arriving at the sabre room, Rieger noticed a bluish haze in the
room and observed liquid pooled on the floor. Rieger recognized the liquid as acid
due to its red color and an odor he knew to be indicative of acid. Rieger did not
detect the presence of any substance other than red acid when he arrived at the
sabre room. Rieger then held his breath, carefully “tiptoed” across the room so as
not to disturb the red acid on the floor, and removed the cap from the spring-loaded
valve. Rieger then exited the room in the same manner, spending no more than ten
to fifteen seconds in the sabre room. No more than three minutes had elapsed from
the time Berglund had notified Rieger of the spill and the time Rieger stopped the
flow of red acid.
[¶18.] Within eight minutes of Berglund’s discovery of the acid spill, he was
able to locate Holscher and advise him that someone had propped open the spring-
loaded valve resulting in a red acid spill in the sabre room. Holscher responded by
saying: “Oh shit.” Berglund and Holscher quickly walked back to the sabre room,
and en route Holscher repeatedly expressed his concern that he would lose his job
over the incident. They arrived at the sabre room about four to five minutes later to
find that the acid was no longer flowing into the barrel and onto the floor.
[¶19.] According to Berglund, by this time the odor of acid was much stronger
so he suggested to Holscher that they ventilate the building by opening doors,
shutting down the exhaust fans and turning up the intake fans to evacuate the
odor. Berglund left the sabre room and proceeded to open doors and turn on fans in
-7-
#23657
order to ventilate the area. Berglund then left the area and returned to his duties
in the laboratory.
[¶20.] Holscher proceeded to the shower room where he encountered Rieger
who had sustained minor chemical burns to his left foot due to a small hole in his
rubber boots. As Rieger passed Holscher in the locker room, Rieger observed him
putting on a pair of rubber boots. Holscher stated that he had “really screwed up,”
to which Rieger replied: “Yes, you did.”
[¶21.] Holscher returned to the sabre room and entered at least twice in
failed attempts to remove the plug from the floor drain. Holscher then retrieved a
small pump from the control room and attempted to suction the acid from the floor
into a barrel. At approximately 8:45 p.m., thirty minutes after the spill was
discovered, Holscher returned to the control room and asked Berglund if he knew
where to find a respirator. Holscher had never received training on respirators but
had used one prior to that day due to ammonia fumes created in the production
processes at the plant. Berglund told Holscher to locate maintenance as they had
been trained on how to use respirators. Holscher located Doug Mertens (Mertens),
a Valley Queen maintenance worker, in the lunch room and asked about a
respirator. Mertens and Holscher went to the mechanical room where Mertens
located a respirator and handed it to Holscher without assembling it. Mertens then
left for the maintenance shop to retrieve his respirator in order to assist in the
sabre room cleanup. Mertens next saw Holscher near the lab, and Holscher told
Mertens that his respirator was not working and handed it to Mertens. Mertens
noted that the respirator was assembled incorrectly and was missing the canisters.
Mertens reassembled the respirator and attached the canisters.
-8-
#23657
[¶22.] The two men then proceeded to the sabre room and, without entering,
attempted to use the small pump to force the liquid on the floor into an empty
barrel. The pumping was not effective, and Holscher and Mertens decided to
retrieve a larger pump from across the street. However, Holscher changed his mind
as he felt there was not enough time to retrieve another pump as a purple haze had
begun to form in the sabre room. He then decided that he should try to force the
plug from the drain. Holscher obtained a crow bar from the mechanical room,
entered the sabre room, and was able to use it to push the plug from the drain.
Mertens observed Holscher was in the sabre room attempting to manipulate the
plug for approximately five minutes before succeeding. Mertens never entered the
sabre room.
[¶23.] Finally, at 9:00 p.m., after Holscher had removed the plug from the
sabre room floor, he telephoned his immediate supervisor Brad Snaza, (Snaza).
Snaza told Holscher to keep everyone out of the sabre room. Snaza arrived within
five to six minutes and, when he entered the sabre room, he found Holscher hosing
down the floor and that there was no red acid pooled on the floor. Snaza then met
with Holscher about the chemical spill. Holscher estimated that forty to fifty
gallons of red acid had overflowed onto the floor of the sabre room and that it was a
major chemical spill. Holscher repeatedly expressed concern over losing his job
during the conversation.
[¶24.] Holscher sustained a respiratory injury from inhaling hazardous
chlorine gas vapors. He eventually had to undergo surgery to insert an artificial
trachea, and at the time of the hearing it was unknown if he would ever be able to
-9-
#23657
return to any type of work due to his poor lung capacity. Holscher also sustained
chemical burns from contact with the red acid on one of his feet and on his hands.
[¶25.] Holscher filed a workers’ compensation claim, which Valley Queen
denied. He then filed a petition for a hearing before an ALJ. Valley Queen filed its
answer contending Holscher’s claim was barred by SDCL 62-4-37 due to his willful
misconduct. The parties agreed to bifurcate the claim and a hearing was held on
the matter of Holscher’s willful misconduct.
[¶26.] The ALJ found that Holscher’s failure to use a safety appliance
constituted willful misconduct within the meaning of SDCL 62-4-37. In addition,
the ALJ found that Holscher violated safety rules when he failed to call a
supervisor after a major chemical spill per the evacuation plan and per the
chemical spill policy enforced by Valley Queen. The ALJ also found Holscher
violated safety rules when he failed to consult and follow the procedures on the
MSDSs for red acid and other chemicals located in the sabre room. Finally, the ALJ
found Holscher’s willful misconduct in failing to use the safety device was a
substantial factor in causing the chemical spill and his injuries, and denied his
claim.
[¶27.] Holscher appealed the ALJ’s decision to the Secretary, and the
decision was affirmed. Holscher then appealed to circuit court, which affirmed the
Secretary’s decision. Holscher appeals the circuit court’s final judgment to this
Court raising the following issues:
1. Whether Valley Queen presented sufficient evidence to support
the Department’s ruling that the spring-loaded valve was a
safety appliance furnished by the employer within the meaning
of SDCL 62-4-37.
-10-
#23657
2. Whether Valley Queen presented sufficient evidence to support
the Department’s ruling that Holscher was barred from
receiving workers’ compensation benefits pursuant to SDCL 62-
4-37, for engaging in willful misconduct.
3. Whether the application of SDCL 62-4-37 returns principles of
negligence to the workers’ compensation statutory scheme such
that it is necessary to weigh the conduct of the employer before
limiting an employee’s right to recovery.
STANDARD OF REVIEW
[¶28.] This Court’s standard of review for administrative agency decisions is
well settled and governed by SDCL 1-26-37, which provides in relevant part that on
review we “shall give the same deference to the findings of fact, conclusions of law,
and final judgment of the circuit court as [given] to other appeals from the circuit
court. Such appeal may not be considered de novo.” However, if the issue is a
question of law, the Department’s actions are fully reviewable by this Court under
the de novo standard. Fenner v. Trimac Transp., Inc., 1996 SD 121, ¶7, 554 NW2d
485, 487 (quoting Helms v. Lynn’s Inc., 1996 SD 8, ¶¶9-10, 542 NW2d 764, 766).
[¶29.] “Issues of causation in worker’s compensation cases are factual issues
that are best determined by the Department.” Therkildsen v. Fisher Beverage,
1996 SD 39, ¶8, 545 NW2d 834, 836 (quoting Lawler v. Windmill Restaurant, 435
NW2d 708, 709 (SD 1989)). When reviewing findings of fact we apply the clearly
erroneous standard of review, giving great weight to the agency’s findings and
inferences drawn on questions of fact.1 Id. “However, ‘we review findings based on
1. Some confusion may still exist among the bench and Bar as to the
appropriate standard of review for an administrative agency’s findings of
fact. This Court, in Sopko v. C & R Transfer Co., 1998 SD 8, ¶7, 575 NW2d
225, 228-29, abandoned use of the “substantial evidence” standard of review
(continued . . .)
-11-
#23657
deposition testimony and documentary evidence under the de novo standard of
review.’” Mudlin v. Hills Materials Co., 2005 SD 64, ¶5, 698 NW2d 67, 71 (quoting
Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶7, 619
NW2d 260, 262) (citation omitted).
ANALYSIS AND DECISION
[¶30.] 1. Whether sufficient evidence was presented by
Valley Queen to support the Department’s ruling
that the spring-loaded valve was a safety appliance
furnished by the employer within the meaning of
SDCL 62-4-37.
[¶31.] Holscher argues that the Department erred when it determined that
the spring-loaded valve was a safety appliance furnished by the employer within
the meaning of SDCL 62-4-37. He relies on case law from Louisiana for the
proposition that an appliance furnished by an employer may only be considered a
safety appliance when it is “provided by the employer principally as a safety or
protection for the employee.” See Kagar v. Chashoudian, 432 So2d 982, 983 (LaApp
1983). Holscher argues that the spring-loaded valve’s primary purpose was to
________________________
(. . . continued)
in favor of the clearly erroneous standard and provided an in-depth analysis
of the two standards and how they differ. However, legal publishers have not
consistently noted that our cases published prior to Sopko that use the
“substantial evidence” test are no longer good law. E.g., Kester v. Colonial
Manor of Custer, 1997 SD 127, ¶16, 571 NW2d 376, 380; Zoss v. United Bldg.
Centers, Inc., 1997 SD 93, ¶6, 566 NW2d 840, 843. Because legal publishers
have not reflected this change, the “substantial evidence” standard
occasionally appears in briefs before this Court, and has appeared at least
once in an opinion since 1998. See South Dakota Subsequent Injury Fund v.
Casualty Reciprocal Exchange, 1999 SD 2, ¶25, 589 NW2d 206, 211.
-12-
#23657
prevent chemicals from entering the city sewer system and to prevent the wasting
of chemicals.
[¶32.] SDCL 62-4-37 provides:
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). No definition is provided within the code for the term “safety
appliance.” Nor has this Court had occasion to review when a device qualifies as a
“safety appliance” within the meaning of SDCL 62-4-37.
[¶33.] “Words and phrases in a statute must be given their plain meaning
and effect. When the language in a statute is clear, certain and unambiguous,
there is no reason for construction, and the Court’s only function is to declare the
meaning of the statute as clearly expressed.” Martinmaas v. Engelmann, 2000 SD
85, ¶49, 612 NW2d 600, 611. Therefore, we must examine the plain meaning of the
words “safety appliance” in SDCL 62-4-37.
[¶34.] Safety is defined as “[t]he condition of being safe; freedom from
danger, risk, or injury.” American Heritage College Dictionary 1199 (3rd ed 1997).
Appliance is defined as “[a] device that performs a specific function.” Id. at 66.
Thus, the two words used together suggest as a definition: a device that performs a
specific function that prevents danger, risk or injury. A “safety device” under SDCL
62-4-37 is a device that performs a specific function that prevents danger, risk or
injury and that is “furnished by the employer.”
-13-
#23657
[¶35.] The language of the statute does not imply that the main or primary
purpose of the appliance must be for safety. The plain meaning suggests that the
appliance must serve the specific function of preventing danger, risk or injury but
not to the exclusion of all other purposes. Holscher attempts to graft “primary
purpose” on to the statutory language in SDCL 62-4-37. Our rules of statutory
construction do not permit such an interpretation. Because the plain meaning of
the language in SDCL 62-4-37 is clear, we do not need to resort to case law, much
less case law from another jurisdiction, in order to ascertain its meaning.
[¶36.] Supervisor Lance Johnson testified at the hearing before the ALJ that
the spring-loaded valve was furnished by the employer with the purpose of
providing for employee safety, preventing chemical spills, and preventing waste.
Johnson’s testimony that the valve was furnished by the employer for employee
safety is supported by the employee safety training conducted by Valley Queen.
The training emphasized the importance of not mixing acids and chlorine, the
danger from vapors that would result if the chemicals were mixed, and the
hazardous properties of red acid generally. Consequently, it indicated that the
spring-loaded valve was furnished by the employer in order to control the flow of
red acid and to avoid spills that could injure employees. The safety purpose of the
valve is also supported by the training and rule regarding how and by whom red
acid could be dispensed.
[¶37.] The Department found that the purpose of the spring-loaded valve was
to prevent chemical spills that would present a danger to employees. The evidence
supports Valley Queen’s position that it furnished the spring-loaded valve in order
to limit the number of persons who could dispense red acid into the barrel, to
-14-
#23657
require that a person maintain control over the dispensing so that any spills could
be quickly identified, and to safely handle the chemicals using the appropriate
method as specified on the relevant MSDS. Therefore, the Department found the
spring-loaded valve was a safety appliance furnished by the employer within the
meaning of SDCL 62-4-37.
[¶38.] Holscher argues that preventing spills is a purpose separate and
distinct from protecting employees. He contends that spill prevention is geared
toward preventing chemicals from entering into the City of Milbank sewer system
and preventing the wasting of chemicals. He also contends that because spring-
loaded valves are used in other locations in the plant to control the flow of other
chemicals as they are added into the production process, the primary purpose of the
spring-loaded valve on the acid barrel in the sabre room cannot be for the protection
of employees.
[¶39.] Holscher’s argument that the primary purpose of the spring-loaded
valve was to prevent chemical spills from entering the city sewer system is
unsupported in the record. The evidence indicates that the floor plug and
containment system below the floor served to prevent spills from entering the city
sewer system. The proper operation of the spring-loaded valve would prevent
chemical spills on the floor that might enter the containment system, but once that
system was operational the chemicals could not enter the sewer system. Yet, Valley
Queen continued to maintain the spring-loaded valve and relevant work place
safety rules in order to prevent red acid spills in the sabre room. The evidence
supports Valley Queen’s position that the spring-loaded valve was furnished by the
-15-
#23657
employer to prevent chemical spills inside the sabre room and to protect employees
from the potentially hazardous consequences of such a spill.
[¶40.] Holscher’s further argument that the spring-loaded valve primarily
served to prevent the wasting of chemicals rather than a safety purpose is also not
supported by the record. A supervisor indicated that the prevention of waste is one
purpose of the valve, but nowhere in the record is this offered as a primary or sole
purpose of the valve.
[¶41.] Holscher’s next argument concerning the purpose for other spring-
loaded valves in other locations in the plant also lacks merit. Holscher cites to a
Tennessee case holding that the proper analysis of the purpose of a safety appliance
requires an examination of the context in which the device was used by the
employee, rather than examining the device itself or uses for the device other than
the use at the time of the injury. See Nashville, C & St. L. Ry. v. Coleman, 269 SW
919, 920 (Tenn 1925). Therefore, reviewing the use of the spring-loaded valve in
areas other than the sabre room would not comport with Holscher’s proposition that
the device must be examined in the context in which it was used or should have
been used when the employee was injured.
[¶42.] Finally, Holscher contends that failing to limit the rule to devices that
are used primarily for safety would create a loophole in the law that would allow
employers to escape liability for work place injuries as long as a safety purpose, no
matter how insignificant, was alleged. He argues that devices such as floor mats
that keep floors clean but also provide a safety benefit, brightly colored shirts that
identify employees and have the added benefit of protecting employees from
-16-
#23657
motorists in the parking lot, rounded desk corners, lighting, and all manner of
equipment would qualify and defeat the underlying purpose of the workers’
compensation statutory scheme.
[¶43.] However, Holscher fails to note that claiming a safety purpose alone
does not serve as a talisman for the employer to deny a workers’ compensation
claim. See 2 Arthur Larson, Larson’s Workers’ Compensation Law § 35.02 (2004)
(noting that an employer may not escape liability by merely posting written rules
forbidding a potentially injurious practice). The analysis of an employer’s claim of
willful misconduct requires much more that the claimed existence of a safety
appliance. First, the employer must prove that the safety appliance was furnished
by the employer. SDCL 62-4-37. Next, the employer must prove that the
employee’s failure to use the safety appliance was willful. Id. Finally, the employer
must prove by a preponderance of the evidence that willful failure to use the safety
appliance was the proximate cause of the employee’s injury. Cavender v. Bodily,
Inc., 1996 SD 74, ¶19, 550 NW2d 85, 89 (citing SDCL 62-4-37; Driscoll v. Great
Plains Mktg. Co., 332 NW2d 478 (SD 1982) (“equating ‘due to’ in SDCL 62-4-37
with ‘proximate cause’ under negligence law”)).
[¶44.] The Department did not err when it found that the spring-loaded valve
was a safety appliance furnished by the employer within the meaning of SDCL 62-
4-37. While there is evidence to support Holscher’s contention that other purposes
were served by the valve, South Dakota law does not require an exclusive safety
purpose for an appliance before an employer can claim willful misconduct under
SDCL 62-4-37 as a bar to workers’ compensation benefits. Therefore, the
-17-
#23657
Department’s finding of fact that the spring-loaded valve was a safety appliance
within the meaning of SDCL 62-4-37 was not clearly erroneous.
[¶45.] 2. Whether Valley Queen presented sufficient evidence to
support the Department’s ruling that Holscher was
barred from receiving workers’ compensation benefits
pursuant to SDCL 62-4-37, for engaging in willful
misconduct.
[¶46.] The ALJ found that Valley Queen presented sufficient facts to prove by
a preponderance of the evidence that Holscher engaged in willful misconduct, in
that he made a conscious decision not to use a safety appliance furnished by the
employer when he disengaged the spring-loaded valve. The ALJ also found that
Holscher violated additional safety rules concerning major chemical spills, the
evacuation plan and the use of MSDSs.
[¶47.] The parties stipulated to the fact that Holscher knew his act of
propping open the spring-loaded valve and leaving the acid barrel unattended was
a violation of posted Valley Queen policies, and that he had prior knowledge of the
specific policies he violated on October 1, 2003. The parties further stipulated that
Holscher knew that a plug had been placed in the drain in the sabre room prior to
October 1, 2003, and that Valley Queen did not have gas masks available in the
sabre room. It is also undisputed in the record that Holscher knew that red acid
could cause skin burns, and in combination with chlorine could cause hazardous
vapors or gas.
[¶48.] SDCL 62-4-37 places the burden on the employer to prove that an
employee committed “willful misconduct” and that the injury was incurred “due to”
the employee’s willful misconduct. Wells v. Howe Heating & Plumbing, Inc., 2004
SD 37, ¶10, 677 NW2d 586, 590 (citing Goebel v. Warner Transp., 2000 SD 79, ¶13,
-18-
#23657
612 NW2d 18, 22). The language “willful misconduct” in SDCL 62-4-37,
contemplates conduct that “constitute[s] serious, deliberate, and intentional
misconduct.” Phillips v. John Morrell & Co., 484 NW2d 527, 532 (SD 1992).2
2. We recently noted in Mudlin:
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.”
Fenner v. Trimac Transportation, Inc., 1996 SD 121, ¶9, 554
NW2d 485, 487 (citing VerBouwens v. Hamm Wood Products,
334 NW2d 874, 876 (SD 1983)).
2005 SD 65, ¶28, 698 NW2d 67, 76. The definition of willful misconduct used
in Mudlin was taken from Fenner and VerBouwens, which in turn relied
upon the definition used in Granflaten v. Rohde, 66 SD 335, 339-40, 283
NW2d 153, 155 (1938). Although Granflaten was a case dealing with South
Dakota’s guest statute, a subject unrelated to our workers’ compensation
statutory scheme, it correctly defined the concept of willful misconduct under
tort law. Granflaten, 66 SD at 339-40, 283 NW2d at 155.
However, the language in the Granflaten definition was altered in Fenner
and VerBouwens to “something more than ordinary negligence but less than
deliberate or intentional conduct.” The original language in Granflaten
stated:
The conduct within the meaning of the statute must be
something more than negligence or failure to exercise ordinary
care. In Melby v. Anderson, 64 SD 249, 266 NW 135, the
meaning of “gross negligence or willful and wanton misconduct”
[page 136] is expressed in the following language: “The words
‘gross negligence’ are, for practical purposes, substantially
synonymous with the phrase ‘willful and wanton misconduct.’
Willful and wanton misconduct (and gross negligence as it is
employed in this statute) means something more than
negligence. They describe conduct which transcends negligence
and is different in kind and characteristics. They describe
conduct which partakes to some appreciable extent, though not
entirely, of the nature of a deliberate and intentional wrong.
(continued . . .)
-19-
#23657
Willful misconduct under the workers’ compensation statutory scheme
“contemplates the intentional doing of something with the knowledge that it is
likely to result in serious injuries, or with reckless disregard of its probable
consequences.” Fenner, 1996 SD 121, ¶9, 554 NW2d at 487-88 (quoting Black’s Law
Dictionary, 6th ed. at 1600 (1990)).
[¶49.] A four-part test is used to determine whether an employee’s violation
of workplace safety rules constitutes willful misconduct. 2 Larson’s Workers’
Compensation Law § 35.01. The same four-part test is applied to cases involving
the failure to use a safety appliance furnished by the employer.3 Id. The four-part
test requires that: (1) the employee must have actual knowledge of the rule or
________________________
(. . . continued)
Id. Fenner and VerBouwens are overruled to the extent of the alteration of
the definition of “willful misconduct” to “but less than deliberate or
intentional conduct.” Willful misconduct for purposes of the workers’
compensation statutory scheme is defined as conduct that “constitute[s]
serious, deliberate, and intentional misconduct.” Phillips, 484 NW2d at 532.
3. Jurisdictions that have enacted similar safety rule statutes generally fall into
two categories. Alabama, Florida, Georgia, Idaho, Indiana, Kentucky, South
Carolina and Virginia permit an employer to use the safety rule defense with
regard to an employee who fails to follow safety rules or who fails to use a
safety appliance furnished by the employer. 2 Larson’s Workers’
Compensation Law § 35.01 n1 (citing Ala Code §§ 25-5-31, 25-5-51; Fla Stat
Ann § 440.09.5; Ga Code Ann § 34-9-17; Idaho Code Ann § 72-442; Ind Code §
22-3-2.8; Ky Rev Stat Ann § 342.165; SC Code Ann § 42-11-100.1; Va Code
Ann § 65.2-306)). A second group of jurisdictions that includes Delaware,
Kansas, Louisiana, Oklahoma, Tennessee and Vermont, permit the defense
only when an employee fails to use a safety appliance furnished by the
employer. 2 Larson’s Workers’ Compensation Law § 35.01 n2 (citing Del
Code Ann tit 19 § 2353; Kan Stat Ann § 44-501; La Rev Stat Ann § 23:1081;
Okla Stat tit 85, § 11; Tenn Code Ann § 50-6-10; Vt Stat Ann tit 21, § 649).
South Dakota has previously been counted among the jurisdictions in the
second group, permitting an employer the defense only for an employee’s
failure to use a safety appliance. Id.
-20-
#23657
appliance, and its purpose; (2) the employee must have an actual understanding of
the danger involved in the violation of the rule or failure to use the appliance; (3)
the rule or use of the appliance must be kept alive by bona fide enforcement by the
employer; and (4) the employee had no valid excuse for violating the rule or failing
to use the appliance. 2 Larson’s Workers’ Compensation Law § 35.01 - .04.
[¶50.] In the instant case, Valley Queen entered evidence into the record that
it provided the spring-loaded valve as a safety appliance to prevent spills of red acid
and to promote employee safety. It also entered into evidence that Holscher
attended safety training sessions where the use and purpose of the spring-loaded
valve was reviewed, and that the “supervisor only” rule had been posted in the
sabre room prior to the date of the accident. Holscher’s attendance at training
sessions is documented, and he admitted in his testimony that he knew of the
policy.
[¶51.] Training sessions attended by Holscher also indicate that he knew and
understood the dangers presented by red acid, as the skin injuries and inhalation
injuries caused by red acid were reviewed at those sessions. It is also clear from the
content of the training sessions that Holscher had actual knowledge of the presence
of chlorine-based chemicals in the sabre room, and that these two chemicals could
come into contact with each other in the sabre room. Holscher’s testimony further
supports the ALJ’s finding that he knew and appreciated the danger of skin contact
with red acid, as Holscher retrieved rubber boots and used a pallet to stand on
while attempting to remove the floor drain plug. The record clearly supports an
inference that Holscher understood the danger of vapors from mixing red acid and
-21-
#23657
chlorine, as he attempted to ventilate the building after the chemical spill and also
attempted to use a respirator in order to protect him from the hazardous vapors.
[¶52.] Next, Valley Queen established via testimony from Johnson that
Holscher had received an oral reprimand for propping open the spring-loaded valve
just two weeks prior to the October 1, 2003 chemical spill. He was further
cautioned that such violations could result in a chemical spill and disciplinary
action up to and including discharge. There is also evidence in the record that
Holscher knew and understood that Cardwell had been fired in 2002 for twice
failing to use the spring-loaded valve provided by Valley Queen and as it required.
The sign posted by Valley Queen on the acid barrel that articulated the required
use of the safety appliance: “DO NOT PROP OPEN VALVE” was present from the
time the policy was instituted until the date and time Holscher’s failure to use the
spring-loaded valve caused the chemical spill. Therefore, the ALJ’s finding that the
rule requiring use of the spring-loaded valve was kept alive by bona fide
enforcement by Valley Queen was not clearly erroneous.
[¶53.] Finally, Holscher presented no evidence to show he had a legitimate
reason for failing to use the spring-loaded valve as required by Valley Queen. His
comments to Reiger that he had “really screwed up,” show that he knew he had
failed to use the spring-loaded valve properly.
[¶54.] The evidence in the record supports the ALJ’s finding that Holscher
failed to use a safety appliance provided by his employer, and that his failure
constituted willful misconduct within the meaning of SDCL 62-4-37. Although our
standard of review does not require such a determination, the record contains no
evidence to support a contrary finding as suggested by Holscher. Thus, the ALJ’s
-22-
#23657
finding that Holscher failed to use a safety device and that the failure constituted
willful misconduct was not clearly erroneous.
[¶55.] In addition to the employer’s required showing that the employee
engaged in willful misconduct, SDCL 62-4-37 also requires the employer to show
that the employee’s injury was “due to” the employee’s willful misconduct. Wells,
2004 SD 37, ¶10, 677 NW2d at 590 (citing Goebel v. Warner Transp., 2000 SD 79,
¶13, 612 NW2d 18, 22). This Court has stated that the language in SDCL 62-4-37,
“due to” refers to proximate cause. Therkildsen, 1996 SD 39, ¶13, 545 NW2d at 837
(citing Driscoll, 322 NW2d at 479). Therefore, an employer will prevail under
SDCL 62-4-37 when it shows that the employee’s “willful misconduct” was a
proximate cause of the claimed injury. Wells, 2004 SD 37, ¶10, 677 NW2d at 590
(citing Cavender, 1996 SD 74, ¶19, 550 NW2d at 89).
[¶56.] An employee’s willful misconduct will be the proximate cause of an
injury when it “is a cause that produces [the injury] in a natural and probable
sequence and without which the [injury] would not have occurred.” Estate of
Gaspar v. Vogt, Brown & Merry, 2003 SD 126, ¶6, 670 NW2d 918, 921. However,
the employer is not required to show that the employee’s misconduct was the only
cause of the injury. Id. (citing Estate of Gaspar, 2003 SD 126, ¶6, 670 NW2d at
921). An injury that may have had several contributing or concurring causes,
including willful misconduct, will be barred under SDCL 62-4-37 only when the
employee’s willful misconduct was a substantial factor in causing the injury.
Cavender, 1996 SD 74, ¶19, 550 NW2d at 89 (citing Driscoll, 322 NW2d at 479-80).
-23-
#23657
[¶57.] Holscher contends that Valley Queen failed to show his injuries were
the foreseeable consequence of his willful misconduct of failing to use the spring-
loaded valve properly, and therefore SDCL 62-4-37 does not act as a bar to his
workers’ compensation claim. He argues that unless the precise type of injury he
incurred was a foreseeable consequence of his actions, the willful misconduct bar
does not apply. He also contends that there were other concurring and contributing
causes to his injury without which the injury would not have occurred.
[¶58.] Holscher argues that the floor drain plug and the lack of a respirator
in the sabre room on the night of October 1, 2003, were the proximate causes of his
injury rather than his failure to use the spring-loaded valve. He argues that if the
floor drain plug had not been installed, the red acid would have flowed into the
containment system and he would not have had to remove the floor drain plug in
order to eliminate the danger to himself and other employees presented by the
chlorine gas in the sabre room. In the alternative, Holscher argues that if he had
been properly trained on the use of respirators during red acid spills and if a
respirator with the correct type of canister would have been available he would
have avoided injury. Therefore, Holscher concludes the lack of training and of a
properly assembled respirator with the correct type of canister were the proximate
cause of his inhalation injury.
[¶59.] Valley Queen entered evidence into the record that the chemical spill
caused by Holscher was a “major chemical spill” by his own estimation and
admission, in that approximately forty to fifty gallons of red acid flowed onto the
sabre room floor. It also entered evidence to show that Holscher’s failure to use the
spring-loaded valve without propping it open caused the major chemical spill.
-24-
#23657
Without the chemical spill, Holscher would not have come into contact with such a
large volume of red acid and would not have been exposed to the danger of the acid
mixing with chlorine or other chemicals present on the sabre room floor.
[¶60.] While the floor plug may have contributed to Holscher’s injury in that
it prevented the chemicals from exiting the sabre room, there would not have been
forty to fifty gallons of dangerous chemicals on the floor if Holscher had not
willfully failed to use the spring-loaded valve and abandoned the filling barrel.
Thus, there would have been no need for Holscher to remove the floor drain plug in
an effort to eliminate the danger presented by the chlorine vapors.
[¶61.] Similarly, the lack of respirators in the sabre room and Holscher’s lack
of training on which canisters to use in the event of a red acid spill also contributed
to the injuries suffered by Holscher. However, there would have been no need for a
respirator if Holscher had not willfully failed to use the spring-loaded valve and
caused the major chemical spill. Without his original willful misconduct, there
would have been no reason for Holscher to violate the evacuation plan and major
chemical spill safety rules. Nor would entering the sabre room with an improperly
assembled respirator have caused any injury to Holscher in the absence of the
chemical spill caused by his original willful misconduct.
[¶62.] Without Holscher’s willful misconduct in failing to use the spring-
loaded valve on the evening of October 1, 2003, the drain plug and respirator would
not have caused any injury to Holscher. Neither the drain plug nor the respirator
presented a danger without Holscher’s initial willful misconduct of failing to use a
safety appliance furnished by the employer that set the events into motion.
-25-
#23657
[¶63.] Valley Queen was not required to show that Holscher’s willful
misconduct was the only cause of his injury. Rather, it was required to show that
the willful misconduct was a substantial factor in causing the injury. See Cavender,
1996 SD 74, ¶19, 550 NW2d at 89 (citing Driscoll, 322 NW2d at 479-80). Valley
Queen showed that Holscher’s willful misconduct was a substantial factor in
causing his injury. Therefore, the ALJ did not err when it found that Holscher’s
willful misconduct was the proximate cause of his injuries.
[¶64.] 3. Whether the application of SDCL 62-4-37 returns
principles of negligence to the workers’ compensation
statutory scheme such that it is necessary to weigh the
conduct of the employer before limiting an employee’s
right to recovery.
[¶65.] Holscher argues that the application of the willful misconduct
exception under SDCL 62-4-37 returns principles of negligence to the workers’
compensation scheme. As such, he urges this Court to hold that it is necessary to
weigh the conduct of the employer before limiting an employee’s right to recovery
under SDCL 62-4-37.
[¶66.] Holscher’s argument lacks merit, as this Court has made it
unequivocally clear that the doctrine of negligence has no place in South Dakota’s
workers’ compensation scheme. See Keil v. Nelson, 355 NW2d 525, 530 (SD 1984).
In Scissons v. City of Rapid City, we stated:
Workmen’s compensation legislation is based upon the idea that
the common law rule of liability for personal injuries incident to
the operation of industrial enterprises, based as it is upon the
negligence of the employer, with its defenses of contributory
negligence, fellow servants’ negligence, and assumption of risk,
is inapplicable to modern conditions of employment. Under the
compensation acts the theory of negligence as the basis of
liability is discarded.
-26-
#23657
The general purposes of workmen’s compensation legislation,
therefore, is the substitution in place of the doubtful contest for
a recovery based on proof of the employer’s negligence and the
absence of the common law defenses of a right for the employees
to relief based on the fact of employment, practically automatic
and certain, expeditious and independent of proof of fault and
for the employers a liability which is limited and determinate.
251 NW2d 681, 686 (SD 1977) (quoting 81 AmJur2d Workmen’s Compensation, § 2).
The preclusion of a recovery under SDCL 62-4-37 does not herald a return to
traditional theories of recovery under negligence as claimed by Holscher. Rather,
SDCL 62-4-37 serves as a bar to employees only “in those instances that constitute
serious, deliberate, and intentional misconduct.” Phillips, 484 NW2d at 532.
[¶67.] Thus, it was not err for the ALJ to refuse to weigh the conduct of
Valley Queen to determine if it breached a duty to protect itself from injury. Given
the lack of error in the record below, we affirm on all issues.
[¶68.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.
[¶69.] ZINTER, Justice, concurs with a writing.
ZINTER, Justice (concurring).
[¶70.] Considering the plain language of SDCL 62-4-37, Holscher’s proposed
construction of the term “safety appliance” does not comport with logic and common
sense. What could possibly be more dangerous and more detrimental to employee
safety than this type of acid spill in the workplace? The spring-loaded valve was
specifically intended to prevent such spills and injuries. If this type of device were
not contemplated by the statute, nothing could qualify as a safety appliance. For
-27-
#23657
the reasons expressed by the Court, the spring-loaded valve was an employer
furnished safety appliance within the meaning of the willful misconduct statute.
-28-