Beckman v. John Morrell & Co., 16969

• Court: Supreme Court of South Dakota
• Citation: 1 NDLRP 141,462 N.W.2d 505
• Docket Number: No. 16969,16969
• Parties: 1 NDLR P 141 Brian BECKMAN, Claimant and Appellant, v. JOHN MORRELL & COMPANY and the State of South Dakota, Department of Labor, Division of Labor and Management, Respondents and Appellees. . Considered on Briefs
• Decision Date: 23 May 1990

Page 505

462 N.W.2d 505

1 NDLR P 141

Brian BECKMAN, Claimant and Appellant, v. JOHN MORRELL & COMPANY and the State of South Dakota,

Department of Labor, Division of Labor and

Management, Respondents and Appellees.

No. 16969.

Supreme Court of South Dakota.

Considered on Briefs May 23, 1990.

Decided Oct. 31, 1990.

Rehearing Denied Dec. 6, 1990.

Bradley G. Bonynge, Sioux Falls, for claimant and appellant.

David J. Vickers and Michael S. McKnight of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for respondents and appellees John Morrell & Co.

JOHNSON, Circuit Judge.

Brian Beckman (Beckman) appeals from a circuit court judgment denying him both temporary total disability benefits and rehabilitation benefits. We affirm the denial of temporary total disability benefits and reverse the denial of rehabilitation benefits and reinstate the award.

FACTS

Beckman graduated from high school in 1976 and attended one year of college before becoming employed by John Morrell and Company (Morrell). He worked in the beef kill area for six years and in the pork cut area for about three years. Work in both of these areas required Beckman to perform production line labor consisting of heavy lifting and repetitive hand movements.

In the fall of 1986, Beckman experienced numbness in his right hand. This numbness was especially prevalent at night. In the morning he could not make a fist. With the help of elastic bandages and whirlpool treatments he continued working. Morrell had notice of this injury.

On April 3, 1987, in an incident unrelated to this action, Beckman was injured while working on the production line. A co-worker accidentally cut Beckman's right hand, including the tendon in his middle finger. Beckman missed the rest of work that day and returned to work the following Monday to one-handed light duty employment. Beckman remained on light duty through the end of the month.

From May 1, 1987, through November 1, 1987, Beckman and other members of Local 304A of the United Food and Commercial Workers Union went on a sympathy strike against Morrell. During this strike, Beckman notified Morrell that he was still suffering from numbness and swelling of his hand. These symptoms resulted from the 1986 injury and were unrelated to the April 1987 accident. Morrell referred Beckman to various physicians and Beckman's condition was eventually diagnosed as carpal tunnel syndrome of the right wrist. On December 31, 1987, Dr. Robert E. VanDemark (Dr. VanDemark) performed surgery which involved a release of carpal tunnel and anterior transposition of the ulnar nerve. On February 4, 1988, after a recuperative period, Dr. VanDemark released Beckman to light duty work with no lifting. Later the restriction was modified to allow lifting of up to 15 pounds.

While Beckman was on strike he helped shingle a relative's roof for five days in June 1987. Then he went to work for a roofing company carrying hot buckets of tar. Beckman quit after one week because he was afraid that he might drop a bucket of tar and splatter tar on himself or co-workers due to his injured hand.

On September 6, 1987, Beckman began a ten-month printing technology course at Southeast Vo-Tech Institute. Beckman attended class from 1:30 p.m. until 7:30 p.m. five days a week. At the same time he started a part-time job in the produce section of a local grocery store where he worked for about one month. Beckman then began to work for Metz Federal Credit Union (Metz) in their printing department. He started at $5.00 per hour and eventually received a raise of $.50 per hour, working from 8:00 a.m. to noon five days per week.

On June 26, 1988, Beckman graduated from the printing technology course and began a new job at Modern Press for $6.00 per hour plus employee benefits.

Morrell never called Beckman back to work. According to the terms of the collective bargaining agreement, striking workers were to be called back in order of seniority.

Beckman filed a claim for worker's compensation benefits. He sought rehabilitation benefits for the ten month printing technology course and temporary total disability benefits for the time period from February 4, 1988 (the day Dr. VanDemark released him to light duty work) to June 26 1988 (the day he began a new job at Modern Press).

The Department of Labor (Department) conducted a formal hearing which included Beckman's testimony, Morrell's safety officer's testimony, and Dr. VanDemark's deposition testimony.

Department found that Beckman was entitled to rehabilitation benefits because he was unable to return to his usual and customary line of employment and rehabilitation was necessary to return him to suitable, substantial, and gainful employment. Department denied Beckman's claim for temporary total disability benefits finding that Beckman was unable to work because of his strike participation rather than because of work-related injuries.

Morrell appealed the award of rehabilitation benefits and Beckman filed a notice of review challenging Department's denial of temporary total disability benefits.

The circuit court reversed Department's award of rehabilitation benefits finding that when Dr. VanDemark released him to limited light duty work on February 4, 1988, there were five light duty rehabilitation jobs available to Beckman at the same hours and pay. Additionally, the court found that Beckman's participation in the 1987 strike precluded him from being offered light duty work. Thus, the court affirmed department's denial of temporary total disability benefits.

SCOPE OF REVIEW

SDCL 1-26-37 controls this court's scope of review from decisions of administrative agencies. This court reviews an agency's decisions in the same manner as the circuit court. There is no presumption that the circuit court's decision is correct. Thus, we decide, considering all of the evidence of the record, whether or not the agency's findings of fact are clearly erroneous and whether the law has been correctly applied. Barkdull v. Homestake Min. Co., 317 N.W.2d 417 (S.D.1982).

DECISION

I. REHABILITATION BENEFITS

SDCL 62-4-5.1 ^* controls whether an injured employee is entitled to rehabilitation benefits. The statute establishes five requirements an injured employee must meet before receiving rehabilitation benefits:

1. The employee must be unable to return to his usual and customary line of employment;

2. Rehabilitation must be necessary to restore to the employee suitable, substantial, and gainful employment;

3. The program of rehabilitation must be a reasonable means of restoring the employee to employment;

4. The employee must file a claim with his employer requesting the benefits; and

5. The employee must actually pursue the reasonable program of rehabilitation.

Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548 (S.D.1990).

Here, the disagreement is whether Beckman meets the first, second, and third requirements of SDCL 62-4-5.1, the first of which is inability to return to usual and customary line of employment.

Beckman maintains that his usual and customary line of employment was that of a heavy production line laborer. This requires full use of both hands, the ability to complete repetitive movements with both hands, and the ability to lift heavy objects. Since Beckman has full use of only one hand he contends that he can no longer compete or take part in his usual line of employment.

Morrell argues that Beckman's usual and customary line of employment was general labor. Morrell maintains that since Beckman was a general laborer it could assign him to a number of different work duties including anything from heavy production line work to light duty work requiring the full use of only one hand. Morrell asserts that except for Beckman's participation in the 1987 strike, it would have offered him at least five different one-handed jobs at the same hours and pay. Thus, Morrell concludes, Beckman was able to function in his usual and customary line of employment (general labor) but admittedly, in a position requiring the use of only one hand.

The hearing examiner determined that Beckman's usual and customary line of employment was manual labor, "involving repetitive movement and heavy lifting" and that he was unable to return to this line of employment. We agree.

A person's usual and customary line of employment may be determined by such factors as the skills or abilities of the person, the length of time the person has spent in the type of work, the proportion of time the person has spent in the type of work when compared to the worker's entire working career, and the duties and responsibilities of the person at the work place.

Here, Beckman did not possess or develop any transferable skills while at Morrell. His only ability was manual labor. Until the sympathy strike, he spent his entire adult work life--some nine years--at Morrell. Beckman's duties and responsibilities always presupposed that he could lift heavy objects and complete repetitive movements. He was hired to work in the beef kill area. During Beckman's six years in beef kill, his main duty was shackling cattle. Then, he was transferred to the pork cut department. His duty in this area was to bone hams which involved the use of a knife in his right hand. It is unreasonable to assert, as Morrell does, that five one-handed jobs bear any resemblance to the usual and customary line of employment Beckman held while at Morrell.

The second requirement of SDCL 62-4-5.1 is: rehabilitation must be necessary to restore the employee to suitable, substantial, and gainful employment. Beckman offered testimony and evidence that he was unable to obtain employment at more than minimal wages following his injury. Morrell argues that there were jobs that Beckman could perform without rehabilitation. Five of these jobs were with Morrell at the same hours and pay as Beckman's old job. In order to prevail, Morrell must show that employment was regularly and...