Chiolis v. Lage Development Co., 18213

• Court: Supreme Court of South Dakota
• Citation: 512 N.W.2d 158,89 Ed.LawRep. 267
• Docket Number: No. 18213,18213
• Parties: 89 Ed. Law Rep. 267 George Thomas CHIOLIS, Claimant and Appellee, v. LAGE DEVELOPMENT COMPANY and United Fire & Casualty Company, Employer, Insurer and Appellants. . Considered on Briefs
• Decision Date: 01 September 1993

Page 158

512 N.W.2d 158

89 Ed. Law Rep. 267

George Thomas CHIOLIS, Claimant and Appellee, v. LAGE DEVELOPMENT COMPANY and United Fire & Casualty Company, Employer, Insurer and Appellants.

No. 18213.

Supreme Court of South Dakota.

Considered on Briefs Sept. 1, 1993.

Decided Feb. 9, 1994.

Talbot J. Wieczorek, Gunderson, Palmer, Goodsell & Nelson, Rapid City, for claimant and appellee.

Leah J. Fjerstad, Lynn, Jackson, Shultz & Lebrun, Rapid City, for employer, insurer and appellants.

AMUNDSON, Justice.

Lage Development Company and United Fire & Casualty Company (Lage) appeal the circuit court's ruling which affirmed a decision of the South Dakota Department of Labor (Department) in favor of George Chiolis (Chiolis) on Chiolis' claim for vocational rehabilitation benefits. We reverse and remand.

FACTS

On February 15, 1989, Chiolis, while employed with Lage as a carpenter, fell from a roof fracturing the radial head of his right elbow. Following a number of medical procedures, it was determined that Chiolis would not be able to return to his usual and customary employment as a carpenter. Chiolis was evaluated by Dr. Dale Anderson and was given a twenty-five percent permanent partial impairment rating of the right upper extremity as a result of the pain and discomfort experienced from the injury. Lage paid worker's compensation benefits for the injury.

After receiving temporary benefits, Chiolis filed a petition for hearing with Department claiming medical expenses, temporary total disability, and other compensable losses. The issues before Department were whether Chiolis was entitled to additional benefits for loss of use and whether he was entitled to vocational rehabilitation benefits.

At the worker's compensation hearing, Chiolis' vocational expert testified that Chiolis was unable to return to like employment due to his injury. Lage's vocational expert testified that jobs existed at seventy-five to eighty percent of Chiolis' previous salary of $6.50 per hour. Lage's expert also explained that those positions would have to be modified to accommodate his disability. No determination had been made regarding the willingness of a potential employer to modify these positions on behalf of this claimant. Lage's expert's opinion was that some short-term retraining may be necessary.

At the time the Department hearing was held, Chiolis was enrolled in and had successfully completed the spring and summer terms of a four-year mechanical engineering program at South Dakota School of Mines & Technology (SDM & T). At the hearing, Chiolis sought rehabilitation benefits for two years. He planned to apply these rehabilitation benefits to his engineering degree at SDM & T.

Chiolis' own expert testified that a two-year vocational program would return him to suitable employment but a four-year college education was not required to return him to a wage commensurate to his pre-injury wage.

After considering this evidence, Department determined that two years of rehabilitation would be necessary to restore Chiolis to comparable employment. Department ruled that Chiolis' current program at SDM & T was a reasonable means of restoring Chiolis to comparable employment and allowed him to apply the two years of rehabilitation benefits to his college education. Lage appealed to the circuit court which affirmed Department's decision.

ISSUE

Can a worker's compensation claimant who has been awarded two years' rehabilitation benefits apply those benefits to a four-year college degree?

ANALYSIS

In reviewing the decisions of an administrative agency, this court's scope of review is prescribed by SDCL 1-26-37. Our standard of review is the same as the circuit court's when reviewing the decision of an administrative agency. We determine whether the agency's findings of fact are clearly erroneous and whether the law has been correctly applied. Cozine v. Midwest Coast Transport Inc., 454 N.W.2d 548 (S.D.1990) (citing Barkdull v. Homestake Mining Co., 317 N.W.2d 417 (S.D.1982) (Barkdull I )). Our review of the circuit court's decision is without any presumption that its decision is correct. Id.

SDCL 62-4-5.1 sets forth when an individual is entitled to rehabilitation benefits under the South Dakota Worker's Compensation statute. ^* At the time of Chiolis' injury, SDCL 62-4-5.1 provided as follows:

An employee who suffers disablement as defined by subdivision (2) of Sec. 62-8-1 or an injury, and is unable to return to his usual and customary line of employment, shall receive compensation at the rate provided by Sec. 62-4-3 during the period he is engaged in a program of rehabilitation which is reasonably necessary to restore the employee to suitable, substantial and gainful employment. The employee shall file a claim with his employer requesting such compensation and the employer shall follow the procedure specified in chapter 62-6 for the reporting of injuries when handling such claim. If the claim is denied the employee may petition for a hearing before the department. (Emphasis added.)

In Cozine, 454 N.W.2d at 553, this court interpreted SDCL 62-4-5.1 as requiring five elements before an injured employee could receive rehabilitation benefits. The five requirements are as follows:

(1) The employee must be unable to return to his usual customary line of employment;

(2) Rehabilitation must be necessary to restore the employee to 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.

Id. at 553.

Department was correct when it determined that Chiolis had met the first and second requirements. It is undisputed that he was unable to return to his usual line of employment as a carpenter. Although evidence was shown that Chiolis had not aggressively pursued further employment, there was a consensus among the experts that Chiolis would have to undergo some form of retraining to obtain comparable employment. Lage's expert testified that jobs were available at approximately eighty percent of Chiolis' prior wage; however, certain modifications would have to be made to accommodate Chiolis' disability. "The statute requires more than mere restoration to employment. The new employment must be suitable when compared to the employee's former job." Id. at 554. Lage has not met its burden of establishing that Chiolis would be capable of finding such employment without rehabilitation because it did not present any potential employers who were willing to pay seventy-five to eighty percent of Chiolis' prior wage and make the necessary modifications to accommodate Chiolis. See Wendel v. Domestic Seed & Supply, 446 N.W.2d 265 (S.D.1989). Therefore, finding that rehabilitation was necessary to restore Chiolis to suitable, substantial and gainful employment was correct.

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

The kind of rehabilitation program contemplated by SDCL 62-4-5.1 is that which enables the disabled employee to find suitable and gainful employment not to elevate his station in life. An injured worker cannot insist upon a college education if other suitable employment opportunities exist which do not require college training.

Barkdull v. Homestake Mining Co., 411 N.W.2d 408, 410 (S.D.1987) (Barkdull II ).

Although Chiolis did not insist upon four years of rehabilitative benefits for his college education, his interpretation of SDCL 62-4-5.1 is directly contrary to its express construction. SDCL 62-4-5.1 specifically allows rehabilitation benefits while a claimant is "engaged in a program of rehabilitation which is reasonably necessary to restore the employee to suitable, substantial and gainful employment." (Emphasis added.) This statute allows rehabilitation benefits while the claimant is engaged in a "program" of rehabilitation, not simply a "period" of rehabilitation. "A statute is primarily interpreted by according the statutory language its 'plain, ordinary and popular meaning.' " McCloud v. Andersen, 485 N.W.2d 799, 801 (S.D.1992) (quoting Matter of Estate of Pejsa, 459 N.W.2d 243, 246 (S.D.1990)). This court will not liberally construe a statute to avoid a seemingly harsh result where such action would do violence to the plain meaning of the statute under construction. Appeal of Presentation Sisters, Inc., 471 N.W.2d 169, 175 (S.D.1991) (citing In re Certification of Questions of Law, 402 N.W.2d 340 (S.D.1987)).

The four-year program of college education embarked upon by Chiolis falls outside the terms of the South Dakota statute allowing rehabilitative benefits. Rather than retraining Chiolis for suitable and gainful employment, as required by our ruling in Barkdull II, the college program expands his occupational horizons and elevates his station in life. Barkdull II, 411 N.W.2d at 410.

As this court unanimously held in Cozine:

Cozine bears the burden of establishing the reasonableness of her rehabilitation program, yet she has not demonstrated that the only suitable employment opportunities that are available to her require a college education. It is her right to seek a college education, but Midwest cannot be compelled to pay for such a program if it is not necessary.

Id., 454 N.W.2d at 554.

The same holds true in this case. Chiolis bears the burden of establishing the reasonableness of his rehabilitation program. However, not even Chiolis' own vocational rehabilitation expert would agree that a four-year program was necessary to return Chiolis to substantial, gainful employment.

Q. You would agree, wouldn't you, Mr. Peniston, that Mr. Chiolis does not need a four-year college degree to return him to substantial, gainful employment?

A. Yes.

Q. And so, in fact, the program that he is currently in is not necessary...