A woman who worked as a bartender/manager of a VFW facility was working on September 19, 1997 when in addition to cigarette smoke there was a heavy concentration of cigar smoke. The woman, who had been asthmatic since grade school, experienced an abrupt attack of constricted breathing and the inability to swallow.  She was taken to an emergency room and hospitalized overnight.  Upon her release, her physician ordered eight weeks of bedrest; she never returned to work for the VFW.  She sued for workers’ compensation benefits; the circuit court awarded her temporary total disability and permanent partial disability benefits.  The VFW appealed, arguing that her decision to work in a smoke-filled environment with her asthmatic condition constituted willful misconduct and that she had self-inflicted her injury by smoking cigarettes.  The Supreme Court of South Dakota upheld the award, ruling that “Jennifer’s injury happened while at work at VFW.  Her physician stated that the environment at work was a major contributing factor.  VFW offered no evidence to contradict her physician’s opinion.  Because there is no genuine issue of material fact, summary judgment was appropriate.”  See Kafka, J., “Smoking Injury Lawsuit Headed Back to Circuit Court,” Aberdeen (S.D.) News, January 8, 2004.

2004 S.D. 4, 674 N.W. 2d 329, 2004 S.D. LEXIS 1 (2004).