Day v. John Morrell & Co.

Citation490 N.W.2d 720
Decision Date20 April 1992
Docket Number17704,Nos. 17703,s. 17703
CourtSupreme Court of South Dakota
PartiesAmy DAY, Claimant and Appellant, v. JOHN MORRELL & COMPANY, Employer/Self-Insurer and Appellee and United Parcel Service, Inc., Employer and Appellee, and Liberty Mutual Insurance Co., Insurer and Appellee. . Considered on Briefs

Acie W. Matthews of Pruitt, Matthews, Muilenburg & Strange, Sioux Falls, for claimant and appellant.

Michael S. McKnight of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for appellee John Morrell & Co.

Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees United Parcel Service and Liberty Mut. Ins.

McMURCHIE, Circuit Judge.

Worker's compensation claimant Amy Day (Day) appeals the trial court judgment reversing the Department of Labor's (Department) order holding UPS and Mutual Liberty liable for Day's left and right carpal tunnel injuries. We affirm.


Day began working at John Morrell & Company (Morrell) on August 25, 1986, and continued there until October 14, 1986. As a utility worker, her duties included carrying and pushing loads of wieners weighing up to 50 pounds. On September 18, 1986, Day saw the company nurse complaining of numbness in the tips of her right thumb, index and middle fingers and left index and middle fingers. Day did not seek further medical treatment for these complaints while working at Morrell.

On August 5, 1987, Day went to the Central Plains Acute Care Clinic complaining of pain from her left shoulder to her wrist. On August 11, 1987, Day saw her family practice physician, Dr. Tam, complaining of left arm pain with some numbness in her hand. Day told Dr. Tam that she had similar problems while working at Morrell, but had gotten along well until recently when she began having problems again. Dr. Tam's impression was that Day was having some carpal type symptoms of the extremity and he suggested she undergo a nerve conduction study.

Carpal tunnel involves a compromise of the median nerve which produces pain and numbness in the thumb, index and middle fingers and part of the ring finger. A nerve conduction study is the main test used for detecting carpal tunnel syndrome. On August 28, 1987, a nerve conduction study was done. The nerve conduction test was negative for irritation of the median nerve. It was normal for the ulnar nerve. The ulnar nerve supplies sensation to the remaining portion of the ring finger and pinkie. These two nerves, median and ulnar, are separate, distinct and totally unrelated sources of possible injury.

In January 1988, Day began working as a clerk for UPS and worked until April 5, 1988. On April 4, 1988, she bumped her left elbow (crazy bone) on a tape dispenser while weighing a package. Day reported a pain in her left hand and that her ring finger and pinkie remained numb overnight. UPS referred Day to the Central Plains Clinic where she saw a physician's assistant on April 6, 1988. His preliminary diagnosis was possible early carpal tunnel.

On April 11, 1988, Day saw Dr. Tam and again complained of carpal tunnel symptoms and some numbness in the ring finger and pinkie. Dr. Tam recommended that Day repeat the nerve conduction study and get an orthopedic consultation. This second nerve conduction study was normal for the median nerve, but positive for the ulnar nerve. Day was referred to Dr. Carlson for an orthopedic consultation.

On April 18, 1988, two weeks after the elbow injury, Day returned to see Dr. Tam. At this time, the left hand carpal tunnel symptoms that Day complained of on April 6 and 11 had totally resolved. Dr. Tam provided no further treatment to Day for any carpal tunnel symptoms. On July 11, 1988, Dr. Jorge Johnson performed surgery on Day for compression of her ulnar nerve.

A third nerve conduction study was done on February 22, 1989. This test showed improvement in the ulnar nerve and the median nerve tested normal again.

In April of 1989, Day sought a second opinion from Dr. Cho as to her ulnar nerve problem. At this time, she underwent yet another nerve conduction study. For the first time Day had a positive reading regarding her median nerve. She was referred to Dr. VanDemark.

On May 18, 1989, Dr. VanDemark saw Day and diagnosed her as having left carpal tunnel syndrome. Day told Dr. VanDemark that this carpal tunnel developed in 1986 while working at Morrell. No reference was made to Day's work at UPS. On June 13, 1989, Day underwent surgery for left carpal tunnel release. Dr. VanDemark continued treating Day for pain in both the ulnar and median nerves.

On December 4, 1989, Dr. VanDemark examined Day and found that she had pain and numbness in her right hand. He continued treating her periodically for these right carpal tunnel symptoms. On September 7, 1990, Day had surgery for right carpal tunnel release.

Day sought worker's compensation benefits as a result of the carpal tunnel symptoms which she claims occurred during the course of her employment and which primarily manifested themselves while she was working for UPS, or shortly after she left UPS. UPS and its insurer, Liberty Mutual, did not contest that Day sustained a work-related ulnar nerve injury in April 1988. Day was paid temporary total and permanent partial disability benefits as well as all medical bills associated with the ulnar nerve injury.


On June 16, 1989, Day filed a petition for hearing with the Department seeking worker's compensation benefits from UPS and Liberty Mutual and from Morrell for left carpal tunnel syndrome. On July 14, 1989, Day filed an amended petition for hearing adding a claim for rehabilitation benefits. On August 18, 1989, Day filed a second amended petition for hearing adding a claim for additional permanent partial disability benefits from UPS and Liberty Mutual resulting from an unrelated injury to her ulnar nerve. On July 16, 1990, Day filed a third amended petition for hearing adding a claim for alleged right carpal tunnel syndrome against all parties.

At a hearing on October 2, 1990, Day testified personally while Dr. Tam and Dr. VanDemark's testimony was by deposition. In its decision, the Department found that Day had sustained a gradually developing injury and held UPS and Liberty Mutual liable on the basis that Day's employment with UPS was the last employment where Day was injuriously exposed. The Department also found that Day had provided proper notice to UPS and Liberty Mutual of her claim for benefits for bilateral carpal tunnel syndrome. The Department further determined that Morrell was not liable for Day's left or right carpal tunnel syndrome and dismissed Day's claims against them with prejudice.

On March 6, 1991, UPS and Liberty Mutual filed their notice of appeal to the Sixth Judicial Circuit. Their statement of issues on appeal was filed March 15, 1991. Neither Day nor Morrell filed a notice of appeal to the circuit court.

On August 7, 1991, the circuit court appeal was heard and an oral decision entered reversing, in part, and affirming, in part, the Department's order. The court:

1. Reversed the Department's order holding UPS and Liberty Mutual liable for Day's left and right carpal tunnel injuries because there was insufficient record evidence to support this conclusion.

2. Reversed the Department's conclusion that Day had provided proper notice to UPS and Liberty Mutual of her alleged right carpal tunnel injuries.

3. Affirmed the Department's decision that Day had provided proper notice to UPS of the left carpal tunnel.

4. Held that Day's failure to file a notice of review concerning the Department's decision regarding Morrell's non-liability rendered the Department's decision on res judicata.

On August 22, 1991, Day filed an application for remand contending she should be given an opportunity to introduce adequate medical testimony to support the award for carpal tunnel and to introduce adequate evidence that her disability was caused by a condition that developed gradually, was progressive in nature and was caused by her work activity at UPS.

On August 28, 1991, the circuit court denied the application for remand for two reasons. First, it was not timely. Day's request was made after the court made its decision. An application for remand must be made before the matter is considered by the circuit court. See, SDCL 1-26-34; Vilhauer v. Dixie Bake Shop, 453 N.W.2d 842 (S.D.1990). Second, a claimant should introduce all of its evidence before the agency. Day did not give any reason why she did not present the proper evidence before the Department. Day was aware of the applicable law and failed to introduce the facts necessary to show entitlement to compensation.

Day filed a notice of appeal with this court on October 9, 1991. UPS and Liberty Mutual filed a notice of review on October 11, 1991.


SDCL 1-26-37 controls this court's scope of review from decisions of administrative agencies. SDCL 1-26-37 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 circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

The standard of review of administrative decisions in South Dakota is firmly established. This Court will overrule an agency's findings of fact only when they are clearly erroneous. Lien v. Miracle Span Corp., 456 N.W.2d 563 (S.D.1990). The test is whether after reviewing all the evidence we are left with a definite and firm conviction that a mistake has been made. Id. Dakota Harvestore v. S.D. Dept. of Revenue, 331 N.W.2d 828 (S.D.1983). However, conclusions of law are given no deference by this Court on appeal and...

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