Krier v. John Morrell & Co.

MILLER, Chief Justice

(concurring specially).

I agree with the majority that Hanson v. Penrod Const. Co., 425 N.W.2d 396 (S.D.1988), controls this case.* Since Hanson controls this case, I concur, albeit with trepidation.

I think it is proper to note that if a claimant, such as Krier, puts on weight again, his employer will not necessarily have to pay again.

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.)

Johnson v. Chicago & N.W. Ry. Co., 69 S.D. 111, 7 N.W.2d 145 (1942) (an injury aggravated by the willful or unreasonable conduct of an employee is not compensable as to the additional period of disability).

Furthermore, as stated in 1A Larson, Workmen’s Compensation Law § 13.00 (Supp.1990):

*500When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. (Emphasis added.)

Given the unique facts of this case, I concur specially.

Employer has failed to argue that this is not a compensable "injury" under our worker’s compensation statutes. Lather v. Huron College, 413 N.W.2d 369 (S.D.1987).