Clausen v. Northern Plains Recycling

• Decision Date: 28 May 2003
• Docket Number: No. 22544.,22544.
• Citation: 663 N.W.2d 685,2003 SD 63
• Parties: Kelly CLAUSEN, Claimant and Appellant, v. NORTHERN PLAINS RECYCLING, Employer, Fireman's Fund, Insurer, Able Construction Co., Employer, Milwaukee Casualty Insurance Co., Insurer, Gil Haugan Construction Co., Employer and Appellee, Regent Insurance Company, Insurer and Appellee.
• Court: South Dakota Supreme Court

663 N.W.2d 685

2003 SD 63

Kelly CLAUSEN, Claimant and Appellant, v. NORTHERN PLAINS RECYCLING, Employer, Fireman's Fund, Insurer, Able Construction Co., Employer, Milwaukee Casualty Insurance Co., Insurer,

Gil Haugan Construction Co., Employer and Appellee,

Regent Insurance Company, Insurer and Appellee.

No. 22544.

Supreme Court of South Dakota.

Considered on Briefs February 11, 2003.

Decided May 28, 2003.

Brian L. Radke of Radke Law Office, Sioux Falls, South Dakota, Attorneys for claimant and appellant.

Michael S. McKnight and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellees.

VON WALD, Circuit Judge.

[¶ 1.] Kelly Clausen appeals a circuit court order affirming a decision by the South Dakota Department of Labor denying his claim for workers' compensation benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] In January 1994, Clausen suffered the first in a series of work-related injuries to his back. Clausen was working for Northern Plains Recycling and he filed a claim with Northern's insurer, Fireman's Fund Insurance. Clausen received workers' compensation benefits for his injury. In August 1998, while working for Able Construction Company, Clausen suffered a flare-up of his old injury. This time, he filed a workers' compensation claim with Able's insurer, Milwaukee Insurance. Milwaukee paid for Clausen's medical bills resulting from the injury and Clausen received no further benefits.

[¶ 3.] In May 2000, Clausen began work for Gil Haugan Construction Company.¹ Gil Haugan is insured by Regent Insurance Company. On August 8, 2000, Clausen experienced some discomfort in his back while shoveling concrete shards on a job site. He told co-employee Dave Beckman that he was experiencing a sore back. The next morning, Clausen did not show up for work. Clausen claimed that he attempted to call his supervisor, Jim Sammons, on Jim's cell phone sometime before 8:00 a.m. that morning. He also claimed that, after telling Sammons of the pain in his back, he was cut-off before Sammons could respond. Clausen did not try to call Sammons back and Sammons had no recollection of receiving a phone call from Clausen on that occasion.²

[¶ 4.] Clausen testified that, on August 10, he called Gil Haugan's office and spoke to Chris Biren, an engineer with no supervisory capacity. Clausen further testified that he told Biren that his back was still painful and that he would not be coming to work that day. Biren has no recollection of the conversation. Clausen also claimed that he called Gil Haugan on August 14 and spoke to the bookkeeper, Sue Peterson, telling her that he had a flare-up of his back condition. Peterson did not remember speaking to Clausen on that occasion.³

[¶ 5.] On August 16, 2000, Clausen called Sammons, told him about his back and that it was possible that it had been injured while he was on the job. Gil Haugan contended that this was the first point at which it had any notice of the injury. Clausen then began to get treatment for his back and eventually brought a claim for workers' compensation benefits against Gil Haugan and it's insurer, Regent.⁴

[¶ 6.] At the administrative hearing, Department found that Clausen failed to show that Gil Haugan or any of its representatives had notice of his injury within the three business-day period required under SDCL 62-7-10. Department also ruled that Clausen failed to demonstrate good cause for his failure to timely notify any Gil Haugan representative of this injury. The case was then appealed to the circuit court which affirmed Department's decision. Clausen now appeals to this Court.

ISSUES

Whether Department erred when it ruled that Gil Haugan did not have actual notice of the work-related nature of the injury as required by SDCL 62-7-10.

Whether Department erred when it ruled that Clausen failed to establish good cause for his failure to notify Gil Haugan of his injury under SDCL 62-7-10(2).

We hold that there was no error.

STANDARD OF REVIEW

[¶ 7.] This Court reviews administrative decisions in the same manner as the circuit court. Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995). Factual findings are reviewed under the clearly erroneous standard. Beckman v. John Morrell & Co., 462 N.W.2d 505, 507 (S.D.1990). Using this standard, we do not search the record to reverse. See Zoss v. United Bldg. Centers, Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843

. Unless we are left with a definite and firm conviction that a mistake has been made, we will uphold Department's factual determination. Lien v. Miracle Span Corp., 456 N.W.2d 563, 565 (S.D.1990).

Department's conclusions of law are reviewed de novo. Sudrla v. Commercial Asphalt & Materials, 465 N.W.2d 620, 622 (S.D.1991)

. Mixed questions of law and fact are also fully reviewable. Fiegen v. North Star, Ltd., 467 N.W.2d 748, 750 (S.D.1991).... Claimant still retains the burden of proving all facts essential to compensation. Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992).

Miller v. Lake Area Hosp., 1996 SD 89, ¶ 9, 551 N.W.2d 817, 819.

ANALYSIS AND DECISION

[¶ 8.] Clausen had the burden of proving that he provided timely notice of his injury or that Gil Haugan had actual knowledge of the injury. SDCL 62-7-10; Miller, 1996 SD 89 at ¶ 11, 551 N.W.2d at 819; Schuck, 529 N.W.2d at 898. Not only was Clausen required to prove that Gil Haugan had notice of the injury, he was also required to prove that Gil Haugan was on notice of the work-related nature of the injury. Tieszen v. John Morrell & Co., 528 N.W.2d 401, 404 (S.D.1995); Streyle v. Steiner Corp., 345 N.W.2d 865, 866 (S.D. 1984). "`[N]otice to the employer of an injury is a condition precedent to compensation.'" Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 16, 606 N.W.2d 919, 923 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 8, 557 N.W.2d 764, 766). "The intention of the Workmen's Compensation Act is that an employer be fairly appraised of an injury so that there may be an opportunity to investigate its cause and nature." Schuck, 529 N.W.2d at 897.

[¶ 9.] SDCL 62-7-10 requires a claimant to provide written notice of an injury within three business days of the injury.⁵ According to the statute, that notice must be given directly to the employer or one of employer's representatives. SDCL 62-7-10(1). It is undisputed that Clausen began to experience pain in his back sometime during the afternoon of August 8, 2000. However, he did not tell his supervisor, Jim Sammons, about the pain at that time.

[¶ 10.] Clausen claimed that he called Sammons' cellular phone before 8:00 a.m. on the morning of August 9, but Sammons had no recollection of the call. Also, Sammons' cellular phone records showed no incoming call before a quarter to eleven that morning. Clausen insisted that he also called Gil Haugan's business office and spoke to Chris Biren, one of Gil Haugan's engineers. However, Biren also had no recollection of any call made by Clausen. It was Gil Haugan's contention that it did not have any notice of the injury or its work-related nature until an August 16 call from Clausen to Sammons. Department found Biren and Sammons' testimony credible and we are in no position to substitute our judgment for that of Department.

[¶ 11.] Miller, supra, provides insight as to what is considered proper notice under SDCL 62-7-10. Miller involved a hospital worker who filed a workers' compensation claim due to chronic elbow pain aggravated by work. Miller, 1996 SD 89 at ¶ 5, 551 N.W.2d at 818-819. Claimant was told by her physical therapist that the tendonitis was aggravated by work and, eventually, surgery was performed in February 1992. However, claimant did not file a claim for workers' compensation benefits until September of that year. The issue was whether or not claimant gave timely notice of her elbow injury to her employer, Lake Area. Relying heavily on prior precedent, this Court observed that "`[t]he fact that [Claimant] suffered from pain and other symptoms is not the determinative factor and will not support a determination that [Claimant] had knowledge of the existence or extent of [her] injury" with regard to the good cause issue. Miller, 1996 SD 89 at ¶ 12, 551 N.W.2d at 820 (quoting Bearshield v. City of Gregory, 278 N.W.2d 164, 166 (S.D.1979)).

[¶ 12.] In Miller, considerable reliance was placed on the following facts: claimant was told by her physical therapist some four years earlier that the pain in her elbow was work-related; claimant received prior treatment for her injuries; and, claimant testified five years earlier that she sought medical treatment for her elbow because it was aggravated at work. This Court upheld Department's findings and held that claimant should have given Lake Area notice in 1987 of the work-related nature of her injuries. Since she did not do so, this Court held that she was precluded from recovering any workers' compensation benefits.

[¶ 13.] This Court also adopted a reasonable person test in Miller for determining when a person should know that their injury requires attention and that the notice time limit has commenced running. The proper test is:

"The time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of [the] injury or disease." 2B Arthur Larson, Larson's Workmen's Compensation Law, § 78.41(a) at XX-XXX-XX (1995). This reasonable person test does not place an affirmative duty on Claimant to continue seeking medical advice where further treatment is not warranted and there is no suggestion that the condition may have a work-related component.

Miller, 1996 SD 89 at ¶ 14, 551 N.W.2d at 820.

[¶ 14.] Clausen is a knowledgeable man. There is evidence in the record that he obtained his GED and spent some time in the military. He also submitted workers' compensation claims in the past. On...