Brown v. Douglas School Dist.

• Citation: 650 N.W.2d 264,2002 SD 92
• Decision Date: 31 July 2002
• Docket Number: No. 22050.,22050.
• Parties: Dorothy J. BROWN, Plaintiff and Appellee, v. DOUGLAS SCHOOL DISTRICT, Employer and Appellant, and Associated School Boards of South Dakota Worker's Compensation Trust Fund, Provider and Appellant.
• Court: Supreme Court of South Dakota

650 N.W.2d 264

2002 SD 92

Dorothy J. BROWN, Plaintiff and Appellee, v. DOUGLAS SCHOOL DISTRICT, Employer and Appellant, and Associated School Boards of South Dakota Worker's Compensation Trust Fund, Provider and Appellant.

No. 22050.

Supreme Court of South Dakota.

Argued February 12, 2002.

Decided July 31, 2002.

James D. Leach of Viken, Viken, Pechota, Leach & Dewell, Rapid City, South Dakota, Attorneys for plaintiff and appellee.

Karla L. Engle of Tieszen Law Office, Pierre, South Dakota, Attorneys for appellants.

GORS, Acting Justice.

[¶ 1.] Dorothy Brown (Brown) filed a petition for worker's compensation benefits with the South Dakota Department of Labor (Department) seeking an award of permanent total disability. After a hearing, the Department denied Brown's request. Brown appealed and the trial court reversed the Department's order. Brown's employer, the Douglas School District (the School), and the Associated School Boards of South Dakota Workers Compensation Trust Fund appeal. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Brown, age 59 in 2001, worked in the cafeteria at the School for twenty-four years. She began her work for the School in 1973 as a temporary substitute in food service. She was eventually promoted to cafeteria supervisor, and for the last twelve years she was responsible for serving 30 breakfasts a day, 1200 to 1400 hot lunches a day and more than 200 breakfasts and lunches for Head Start children. At all times her work involved physical labor and lifting food.

[¶ 3.] On May 8, 1997, Brown was preparing mashed potatoes. This required Brown to carry a five-gallon pot that was roughly two-thirds full of water to a floor mixer. Brown bent forward and twisted to pour the water, lifting and tilting the pot by the handle. She felt a severe sharp pain in her back. Brown set the pot down and took a seat on a stool that a co-worker placed under her. Brown could not move. The School called the rescue department, an ambulance arrived, and Brown was transported to the hospital emergency room. Brown was diagnosed with compression fractures of the T12 and L1 vertebrae of her back. She was hospitalized for two weeks and subsequently released with a hard cast over her torso.

[¶ 4.] In September of 1997, Brown returned to work for two hours a day. Due to the pain in her back, she only could handle work for two weeks. On February 16, 1998, Brown's rehabilitative physician, Dr. Lawlor, concluded that she had reached maximum medical improvement and would not be able to work. Brown took a medical leave of absence and resigned her employment in May of 1999.

[¶ 5.] Before the May 8, 1997 injury, Brown had other physical problems. She began smoking forty years ago. Over the years she smoked as much as two packs a day. Brown's pulmonologist, Dr. McCafferty, testified that Brown was "terribly addicted" to nicotine. As a result of her smoking, she was diagnosed with chronic obstructive pulmonary disease (COPD) in 1991. COPD is a lung disease with symptoms including destruction of lung tissue, narrowing of the airways, shortness of breath and difficulty with the flow of air to the lungs. For this disease, Dr. McCafferty prescribed Prednisone, a steroid that, among others, has a side effect of causing osteoporosis. Dr. McCafferty's testimony and medical records established that he clearly explained to Brown that she would have to continue taking Prednisone if she did not quit smoking.

[¶ 6.] Nevertheless, Brown continued to smoke, and in 1994 she was diagnosed with osteoporosis. Osteoporosis is a disease which results in the gradual weakening of the bones and bone fractures. According to Dr. Cynthia Anderson Weaver (Dr. Weaver), Brown's rheumatologist, the bones that are most likely to fracture in a person with osteoporosis are the vertebrae of the spine. In addition to suffering from COPD and osteoporosis, Brown also suffered from shingles, a viral disorder that Brown describes as "extremely" painful. Furthermore, on August 3, 1998, (five months after her work injury) Dr. Lawlor concluded that Brown's x-rays showed a mild compression fracture at L3, which could have occurred prior to her work injury.

[¶ 7.] In the one-year period before Brown's May 8, 1997, injury, she was hospitalized on seven different occasions and visited the emergency room eight times for non-work related problems. Also, less than a month before the injury on May 8, 1997, Brown took a two-month leave of absence from work due to her COPD and shingles. Prior to the May 8, 1997, injury, however, Brown was always able to return to work despite her other health problems. After the May 8, 1997, injury her schedule became sporadic until she was completely unable to work.

[¶ 8.] The Department concluded that Brown was not entitled to permanent total disability benefits because she failed to prove her injury at work was "a major contributing cause" of her disability, pursuant to SDCL 62-1-1(7). Rather, the Department concluded, Brown's osteoporosis, COPD and shingles were "a major contributing cause," and therefore her injury was not compensable. The trial court disagreed, and awarded Brown permanent total disability benefits. The School appeals on the following issues:

1. Whether Brown's work injury was "a major contributing cause" of her disability.

2. Whether the School must file a timely notice of review to obtain a trial court's review of an agency decision.

STANDARD OF REVIEW

[¶ 9.] The standard of review in an administrative appeal is governed by SDCL 1-26-36. Fact questions are reviewed under the clearly erroneous standard¹ and questions of law are reviewed de novo. Wendell v. South Dakota Dept. of Transp., 1998 SD 130, ¶ 5, 587 N.W.2d 595, 597. We give deference, Watertown Coop. Elevator Assn. v. State Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171, and great weight to the agency or hearing officer on fact questions. Goebel v. Warner Transp., 2000 SD 79, ¶ 10, 612 N.W.2d 18, 21; Kurtz v. SCI, 1998 SD 37, ¶¶ 9-10, 576 N.W.2d 878, 881-82; Sopko, 1998 SD 8 at ¶ 6, 575 N.W.2d at 228. Findings of fact are clearly erroneous when the reviewing court has a definite and firm conviction that a mistake has been made. Goebel, 2000 SD 79 at ¶ 10, 612 N.W.2d at 21; Kurtz, 1998 SD 37 at ¶ 9, 576 N.W.2d at 882; Sopko, 1998 SD 8, at ¶ 6, 575 N.W.2d at 228. When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule. Watertown Coop. Elevator, 2001 SD 56 at ¶ 10, 627 N.W.2d at 171; Kurtz, 1998 SD 37 at ¶ 10, 576 N.W.2d at 882. Mixed questions of fact and law are fully reviewable. Herr v. Dakotah, Inc., 2000 SD 90, ¶ 11, 613 N.W.2d 549, 552.

[¶ 10.] In this case, the Department's decision was made on deposition testimony from the doctors and experts. The only live testimony came from claimant Brown.² The trial court applied the proper de novo standard of review. The trial court made findings of fact and conclusions of law that are required when an administrative decision is reversed, in order to enable the Supreme Court to review the trial court's reasoning. SDCL 1-26-36; Schroeder v. Dept. of Social Services, 529 N.W.2d 589, 591-92 (S.D.1995).

[¶ 11.] Brown argues that the standard of review on appeal from the trial court's reversal of the agency decision is the clearly erroneous standard set forth in SDCL 15-6-52(a). In other words, the trial court reviews the agency decision de novo, unhampered by the clearly erroneous rule, but this Court would be bound to review the trial court's findings of fact under the clearly erroneous standard.

[¶ 12.] The Supreme Court's review of a trial court's findings of fact was amended in 2000 when the legislature revised SDCL 15-6-52(a). This Court noted the following in Parmely v. Hildebrand:

This case was presented to the trial court through prepared written statements of facts, exhibits, and depositions. In such a situation, we would have previously reviewed a trial court's findings of fact de novo. However, last year the legislature amended SDCL 15-6-52(a), which now requires all findings of fact, "whether based on oral or documentary evidence" to be reviewed under the clearly erroneous standard. SL 2000, ch. 91, § 1. Therefore, the trial court's findings of fact will not be set aside unless "we are left with a definite and firm conviction that a mistake has been made."

2001 SD 83, ¶ 6, 630 N.W.2d 509, 512 (internal citations omitted). Brown buttresses her argument with SDCL 1-26-37, which provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the [trial] court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

Brown contends that the "same deference to findings of fact" is the clearly erroneous standard as set forth in SDCL 15-6-52(a). We disagree.

[¶ 13.] The question of whether the new standard of review applied to trial court appellate review of an administrative decision was alluded to in Webster Educ. Ass'n v. Webster Sch. Dist., where this Court stated:

Our legislature has recently revised our standard of review for agency decisions: "Findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous[.]" SDCL 15-6-52(a). Since the parties stipulated to the facts before the DOL, the issues presented to the circuit court were solely legal issues to be reviewed de novo.

2001 SD 94, ¶ 4, 631 N.W.2d 202, 204 (additional citations omitted). However, Justice Konenkamp noted in his concurring opinion, "[t]he majority opinion reaches the correct conclusion, and I concur with it. The parties agreed to de novo appellate review. But whether we apply the...