(dissenting).
[¶ 21] I am unable to support the result here or decipher the Court’s logic in reaching it. If the majority is saying that when a doctor recommends vocational retraining for a change in employment, an employee must immediately quit work, I reject it as unsound. If the majority is saying that upon such advice, failure to quit one’s job constitutes misconduct, I renounce it as repugnant to the beneficent principles of workers’ compensation.
[¶22] Our workers’ compensation laws were enacted to “provide an injured employee a remedy which is both expeditious and independent of proof of fault” and to “provide employers and co-employees a liability which is limited and determinate.” Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D. 1993) (citations omitted). Negligence theory is discarded, and therefore, the affirmative defenses of assumption of the risk and contributory negligence are unavailable to employers. Keil v. Nelson, 355 N.W.2d 525, 530 (S.D. 1984). In South Dakota, benefits may be denied when an employee’s injuries result from 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 statute. The burden of proof under this section shall be on the defendant employer.
SDCL 62-4 — 37. “It is only in those instances that constitute serious, deliberate, and intentional misconduct, that the bar to benefits provided by SDCL 62 — 4-37 should be applied.” Phillips v. John Morrell & Co., 484 N.W.2d 527, 532 (S.D. 1992). Under this legislative blueprint, we construe workers’ compensation laws expansively to allow coverage.8
*491[¶ 28] Fenner previously injured his back in December 1991, while in the United States Army. During military service, he trained and worked as a “heavy wheel vehicle mechanic.” After completing active duty, he received an honorable discharge on March 2, 1992, and thereafter applied for disability benefits through the Veterans Administration. At approximately the same time, he submitted an employment application with Trimac. When he applied, Fenner did not tell Trimac of his disability request and his previous back injury, but he was not asked. After starting work he was awarded a 10% disability rating from the VA for his back. Yet nothing in his medical history at this point specified any restriction in the field for which he was qualified: truck maintenance.
[¶ 24] Fenner began employment with Trimac as a vehicle mechanic on June 15, 1992. His job responsibilities included heavy lifting. He sought medical attention at the VA Hospital for back pain on August 18 and September 2, 1992. In the latter visit, Dr. Lampert stated in Fenner’s progress notes, “This veteran must undergo voc rehab with a change in job so that he can forestall future physical difficulties.” (Emphasis in original.) Fen-ner, a married man with three children, continued working, but immediately began the application process to obtain vocational retraining through the VA On September 10, 1992, while lifting a truck tire, he injured his lower back.9 He then filed a workers’ compensation claim.
[¶ 25] After a hearing, the Department of Labor denied benefits on two grounds. First, pursuant to SDCL 62-4-46, it found Fenner falsely represented his physical condition to obtain employment. Second, it found Fenner’s failure to inform his employer about his previous back injury and thereafter continuing to work for the employer constituted “negligence,” barring an award of benefits. See 1 Arthur Larson, Workmen’s Compensation § 13.11 (1991)(acknowledging that in some jurisdictions negligence may be an intervening cause). On appeal, the circuit court reversed the Department’s interpretation of SDCL 62-4-46, ruling that Fenner had not “intentionally and willfully” falsified information on his employment application or in obtaining employment with Trimac.10 Despite this holding, the court affirmed the denial based on Fenner’s post-employment conduct. Inasmuch as the Department erroneously used the “negligence” standard, rather than remanding the matter, the circuit court re-labeled Fenner’s actions as “intentional.” It concluded as a matter of law that Fenner’s “intentional disregard of his physical limitations and his physician’s orders with respect to his injury bars his request for benefits.” Fenner’s appeal raises one issue: whether his post-employment conduct precludes an award of workers’ compensation benefits.
[¶ 26] The majority relies upon Detling v. Tessier, 60 S.D. 405, 244 N.W. 538 (1932), to support its position that Fenner’s disregard of his physician’s advice, by not immediately changing jobs, constitutes willful misconduct, precluding benefits. In Detling, an employee sustained an injury while working. After *492his injury, but before a final determination of disability, the employee threw himself into rollicking diversions plainly hazardous to his physical condition, all against medical advice. Id. at 409-10, 244 N.W. at 540. After he left the hospital without his doctor’s consent and failed to wear a back brace as recommended, he went to dances; engaged in fights; got drunk and spent time in jail, for almost a month on one occasion, where he slept on a concrete floor. He also performed various makeshift jobs, such as delivering sacks of flour, pitching bundles in a harvest field, lifting and moving a furnace, hoeing a garden, and cranking a ear. The employee was denied benefits due to his “willful and unreasonable conduct ” in disregarding his physician’s instructions, thus aggravating his own injury. Id. (emphasis added).
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 410-11, 244 N.W. at 541 (citing Hon-nold on Workmen’s Compensation, vol 1, § 137, pp. 521, 523).
[¶ 27] In addition to more egregious facts exhibiting willful misconduct, Detling is patently distinguishable.11 First, most of the misconduct in Detling occurred while the employee engaged in nonwork related activities. Here, Fenner was working at the time of his injury, attempting to make a living for himself and his family. How can we brand this “willful and unreasonable” conduct? Surely public policy encourages workers to seek and maintain gainful employment, even if they suffer disabilities. Second, in Detling, the continuance or increase in disability arose after the employment injury occurred, but before a final determination of disability, thus muddling the degree of disability suffered from work as opposed to what was incurred from reckless dissipation.
[¶28] The Court also cites Matter of Andrew, 917 P.2d 178 (Wy. 1996), to support its mistaken judgment. In Andrew, the claimant returned to work even though his surgeon had not released him. In this instance, conversely, Fenner’s doctor did not tell him he could not return to Trimae. Moreover, the facts in Andren go much further: he trimmed his surgical pins; treated his wound with honey despite his doctor’s warnings against it; failed to take his antibiotics; failed to wear his splint at all times; eventually pulled the surgical pins out of his infected finger; and when infection caused severe pain, insisted the surgeon amputate. These facts correspond with those in Detling. Nothing Fenner did comes close to such behavior.
[¶ 29] In South Dakota, recovery may not be denied merely because an employee has a prior history of medical problems. Harden v. South Dakota Credit Union League, Inc., 87 S.D. 433, 209 N.W.2d 665, 666 (1973); Elmstrand v. G & G Rug & Furniture Company, 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958). Insofar as a preexisting condition is concerned, employers must take their employees as they find them. Harden, 209 N.W.2d at 666; Elmstrand, 77 S.D. at 155, 87 N.W.2d at 608. “If 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.” Harden, 209 N.W.2d at 666 (quoting Elmstrand, 77 S.D. at 155, 87 N.W.2d at 608). To offset this burden, the employers can suitably protect themselves from employees susceptible to injuries by carefully screening unfit applicants before employment. Employers have statutory protections if employees falsely represent their physical condition when obtaining employment. See SDCL 62-4-46. With this background in mind, let us more closely examine what the majority calls “willful misconduct.”
*493Medical Advice
[¶30] The Court focuses on the progress notes Dr. Lampert entered approximately one week before the employment injury: “This veteran must undergo Voe Rehab with a change in job so that he can forestall future difficulties.” Imperative or subjunctive, the intent and immediacy of this statement is unclear. Neither party obtained Dr. Lam-pert’s testimony to clarify it. Even if it were an order, as the majority characterizes it, the statement is quite indefinite about a time frame for action and fails to delimit the type of employment to be avoided. Only one person was called upon to reflect on the significance of this statement — Fenner himself.
Q: Now, with Dr. Lampert, there in the V.A. at Fort Meade, did he order you to stop work at Trimac Transportation, Incorporated?
A: No.
Q: What, exactly, did he tell you, if you can remember the words or maybe the sense of the words?
A: He — He was trying to help me to get a — I think he — he—what he did was he evaluated what was going on with me, and he was trying to help me find a direction or a path to go, an alternate route.
Q: What did he say to you?
A: I don’t recall, word for word, but he said, “As soon as you can, you should get into a different line of work.”
Q: Did you understand a sense of urgency there? or was it not so urgent? — I mean, if you can characterize that.
A: It was moderate. I would say it was moderate. It would be a moderate type urgency.
Q: Did he indicate that you ought to do it next week? — or the following week?— or some definite time in the future?
A: No. No, he did not. In fact, I— believe I had already started paperwork to go to school.
Q: Do you think you told him that?
A: And he was just — Yeah, I’m sure that he was just trying to help the paperwork out for the V.A.
Q: So you think you told him that you were starting the paperwork for V.A. assistance for school?
A:- Yes. Yes
Q: And he didn’t tell you to quit the job, the next day. Is that right?
A: That’s correct.
Although Fenner’s decision to continue working in truck maintenance while seeking retraining for a new job may have been negligent, as the Department found, how can we can say his behavior was deliberate and intentional misconduct? “[Mjere negligence ... however great, does not constitute willful misconduct ... and will not defeat recovery of compensation by the employee or his dependents.” Barry v. Aetna Life & Casualty Company, 133 Ga.App. 527, 211 S.E.2d 595, 596 (1974).
[¶ 31] Even if a claimant’s actions amount to “disregard of medical recommendations” in returning to work, it is not “wilful misconduct.” Id. at 599, 211 S.E.2d 595. “To hold otherwise would penalize the claimant for attempting to continue working even though hurt to some extent.” Aetna Cas. & Sur. Co. v. Cagle, 106 Ga.App. 440, 126 S.E.2d 907, 908 (1962)(emphasis added). Nonetheless, Fenner did not disregard medical advice: no doctor told him he had to quit his present job. It was not until after his injury of September 10, 1992 at Trimac that he was told he could not return to work. Up until that time, Fenner was performing the very job for which he was most qualified to maintain himself and his family. See Wyoming Workers’ Comp. Div. v. Hollister, 794 P.2d 886 (Wyo. 1990)(injured logger returned to logging, the only work he was qualified for, incurring another injury; holding it was not grounds for forfeiture of benefits); Jones v. Director, OWCP, U.S. Dept. of Labor, 977 F.2d 1106 (7th Cir. 1992)(claimant suffered work-related back injury in job involving heavy lifting, reinjured himself after returning to the same work after doctor suggested no heavy lifting over fifty pounds; holding, under the Longshore and Harbor Worker’s Compensation Act, new injury was not supervening cause). “It would make little sense to administer this remedial statute intended for the benefit of ... employees in *494a way that would unreasonably circumscribe their pursuit of employment.” Jones, 977 F.2d at 1111. Employers carry the burden to show an employee’s conduct was willful. SDCL 62-4-37; Therkildsen v. Fisher Beverage, 1996 SD 39 ¶ 10, 545 N.W.2d 834, 836. Trimac failed to carry its burden of proof.
Attendance at National Guard Camp
[¶ 32] The Court refers to Fenner’s attendance at National Guard Camp as a factor aggravating his injury. During this time, he painted fire hydrants, a shed, and operated a power washer. What the majority leaves unmentioned, however, is that Dr. Masso-pust, Fenner’s physician at the time, advised him he could attend Guard Camp, but limited him to no heavy lifting or bending. In De-tlmg, all the physicians who examined the employee agreed his willful disregard of medical instructions aggravated his injuries and if he had followed the advice, he probably would have partially, if not completely, recovered. Detling, 60 S.D. at 410, 244 N.W. at 540. Fenner left for Guard duty after consulting with his doctor and obtaining his approval. We review conclusions of law and mixed questions of fact and law under a de novo legal standard. Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995). The majority’s conclusion is wrong: Fenner’s post-injury behavior falls far short of willful misconduct.
[¶33] Countless Americans show up for work every day with disabilities, ailments, aches and pains — we call this perseverance, not misconduct. I would reverse and remand to the Department for further proceedings consistent with this writing.
[¶ 34] SABERS, J., joins this dissent.
. The majority cites a definition of "willful misconduct” from VerBouwens v. Hamm Wood Products, 334 N.W.2d 874 (S.D. 1983). That case did not involve employee misconduct under SDCL 62 — 1—37. The definition used in that case referred to an employer’s knowledge of a danger*491ous condition in the workplace. Therefore, characterizing the employee's actions under the VerBouwens definition as "something more than ordinary negligence but less than deliberate or intentional conduct” is a misapplication of the law. In South Dakota, to constitute willful misconduct an employee’s actions must be, in fact, wholly intentional.
. Both parties place much emphasis on whether the employment injury was separate and distinct, or merely an aggravation of the Army related injury. It appears they are arguing whether there was a causal connection between the Army injury and the alleged injury at Trimac. We need not consider these facts dispositive of the issue before us, but observe that they should be considered by the Department upon remand when making factual determinations regarding the causal connection of the injury and its com-pensability. See Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357-58 (S.D. 1992)(discussion of what employee must prove to establish causal connection and right to compensation).
. The circuit court held that SDCL 62-4 — 46 requires an "intentional and willful” false representation and Fenner had not misrepresented his condition as he was merely asked his opinion about his physical abilities: “Do you have any injuries, you know, that would prevent you from doing this type of work.” Fenner answered in the negative. Whether this ruling was correct must remain unexamined. Trimac’s appeal on this issue was deemed untimely by this Court, and consequently, we are constrained to review only Fenner’s post-employment conduct.
. Some of the cases the majority offers to support its argument are inapplicable, as well, because they rely on a lower standard than that required in South Dakota. See, e.g., Appleby, 22 Ark.App. 243, 738 S.W.2d 807 (considering whether an employee's actions aggravating a pri- or injury were merely reasonable); Amoco Chemical Corp., 318 A.2d 614 (holding an employee's actions in disregarding his doctor’s warnings were negligent); Johnnie’s Produce Co., 120 So.2d 12 (noting a claimant’s actions for worker’s compensation after aggravation of a preexisting injury would be barred if the intervening cause was the employee's negligence).