Enger v. FMC
| Decision Date | 29 April 1996 |
| Docket Number | No. 19851,19851 |
| Citation | 1997 SD 70,565 N.W.2d 79 |
| Parties | Juanita ENGER, Claimant and Appellee, v. FMC, Employer and Appellant, and National Union Fire Insurance Company, Insurer and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Drew Johnson of Fritz, Hogan & Johnson, Aberdeen, for appellee.
Peter Sommervold and Melanie Carpenter of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for appellants.
¶1 FMC and its workers' compensation insurer, National Union Fire Insurance Company, appeal from the circuit court's determination that Juanita Enger was entitled to payments for permanent total disability under the odd-lot doctrine of workers' compensation. We affirm.
¶2 Juanita Enger was employed in November 1988 as a shop technician at FMC in Aberdeen. FMC is a defense contractor which builds missile canisters for the federal government. During the five years Enger was employed by FMC, she assembled cables. She testified her duties consisted of [S]tripping wires with a tool, pulling the sleeving off of the wire, winding the inside wires back and around, attaching a solder sleeve over that, melting the sleeve down, taking the wires apart on the inside, clipping off the ends of the inside insulation, attaching a pin, and crimping the pin down, putting the wires together into a bundle, putting them into a hose, pinning the wires that are in the hose into a connector. The connector can have from ... two wires up to 100 wires [that must be pinned] into a connector.
Enger worked at least 40 hours per week, with frequent overtime.
¶3 After working for FMC three years, in late 1991 and early 1992, Enger began experiencing pain in her hands and sought medical treatment. Her condition was initially diagnosed and treated as tendonitis. In January 1993, Enger was diagnosed as having bilateral carpal tunnel in both hands and in her wrists. Enger underwent surgery to release the pressure on the nerves. Surgery on one hand was performed February 4, 1993; surgery on the other was February 23, 1993. She returned to work at FMC on April 5, 1993. About three weeks later, Enger was diagnosed with tardy ulnar nerve palsy in her left elbow. She underwent surgery on her elbow on May 6, 1993 and returned to work at FMC one month later. It is the opinion of the orthopedic surgeon who treated Enger, Dr. Michael Holte, that the hand and elbow injuries were caused by the repetitive nature of Enger's work at FMC. FMC and its insurer paid for temporary disability benefits for these injuries.
¶4 Defense industry cutbacks and overseas competition resulted in layoffs at FMC, and Enger was one of the workers who found herself unemployed. Because of the nature of the layoffs, Enger qualified for federal retraining funds. She enrolled in the histology 1 program at Presentation College with hopes of getting a job in a medical laboratory after graduation. Enger took a heavier course load so that she could graduate in two years rather than three, because the retraining funds were only available for two years. Even though Enger made the dean's list, she dropped out of college after one semester and summer school. Enger testified the pain in her arms and hands prevented her from taking notes, and alternate methods (including tape recording lectures and borrowing notes) did not allow her to keep up with her classwork. In addition, she discovered that there was no job market for histology graduates in Aberdeen, since the college kept the local labs supplied with interns from the college. Enger is 53 years old, lives on the family farm near Groton, and testified it was not feasible to relocate.
¶5 Enger immediately attempted to obtain employment with area electronic manufacturers and retail stores. She found work as a cashier at Wal-Mart, but quit that job after three weeks. Enger testified she could not feel the money and had difficulty counting out change, due to the loss of sensation in her fingertips. The problem caused her to be so slow in balancing out her till at the end of the night that she was often the last clerk to leave the store. She said she was frightened to leave alone and make the 20-mile drive to her home late at night.
¶6 Enger started looking for a job again, and in September 1994 was hired by the Super 8 motel chain as a reservations clerk. She took telephone reservations and entered them into a computer. Enger continued to have problems with her hands and arms and returned to Dr. Holte in early December 1994. Dr. Holte took Enger off work for a week, and when she returned to the doctor for a follow-up visit a week later, he took her off work indefinitely. Enger has remained off work since December 14, 1994.
¶7 FMC and its insurer paid for temporary disability benefits, but denied additional benefits, claiming Enger's work at Super 8 caused a successive injury that shifted any responsibility for further disability benefits away from FMC. Enger appealed the denial of benefits to the South Dakota Department of Labor, claiming total permanent disability due to a recurrence of the repetitive motion injuries she received at FMC. Following a hearing, the Department issued a decision on April 3, 1996, concluding that: 1) Enger had not suffered a successive injury that would shift the workers' compensation liability to the subsequent employer (Super 8); and 2) Enger was obviously unemployable and thereby entitled to odd-lot benefits.
¶8 FMC and its insurer appealed the decision of the Department to the circuit court. Following briefing and oral argument, the court reversed the Department's finding that Enger was obviously unemployable, but affirmed the determination that Enger was totally disabled under the odd-lot doctrine. In addition, the court affirmed the Department's determination that the injury was recurring rather than an aggravation of the pre-existing injury.
¶9 FMC raises the following issues on appeal:
1. Whether the circuit court erred in ruling that FMC was responsible for Enger's final disability.
2. Whether the circuit court erred in ruling that Enger had established her entitlement to odd-lot benefits.
3. Whether the circuit court erred by failing to remand the case based on its reversal of the Department's determination that Enger was obviously unemployable and based on its determination that the Department did find that a reasonable job search was made.
¶10 The Department of Labor is a state agency. Our review of agency decisions is well-settled.
The standard of review ... is controlled by SDCL 1-26-36. The Supreme Court makes the same review of the administrative agency's decision as did the circuit court, unaided by any presumption that the circuit court's decision was correct. When the issue is a question of fact, the actions of the agency are judged by the clearly erroneous standard. When the issue is a question of law, the actions of the agency are fully reviewable. Mixed questions of law and fact are also fully reviewable.
Tieszen v. John Morrell & Co., 528 N.W.2d 401, 403-04 (S.D.1995).
¶11 1. Whether the circuit court erred in ruling that FMC was responsible for Enger's final disability.
¶12 South Dakota has adopted the "last injurious exposure rule" when considering successive injuries. Under that rule,
When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.
Schuck v. John Morrell & Co., 529 N.W.2d 894, 900 (S.D.1995) (citing Novak v. C.J. Grossenburg & Son, 89 S.D. 308, 311, 232 N.W.2d 463, 464-65 (1975)).
¶13 The determination of how the last injurious exposure rule applies to a particular claim is based on a factual determination: whether the successive injury is a mere recurrence or an independent aggravation of the first injury.
In successive injury cases, the original employer/insurer remains liable if the second injury is a mere recurrence of the first. If the second injury is an aggravation that contributes independently to the final disability then the subsequent employer/insurer is liable.
¶14 Because whether an injury is a mere recurrence or an independent aggravation is a question of fact, see, e.g., Hull v. Aetna Ins. Co., 247 Neb. 713, 529 N.W.2d 783, 789 (1995); Peek v. SKW/Clinton, 855 P.2d 415, 418 (Alaska 1993), it is subject to the clearly erroneous standard of review. The application of the last injurious exposure rule to that factual determination is a question of law subject to de novo review. Paulson v. Black Hills Packing Co., 1996 SD 118, p 7, 554 N.W.2d 194, 196.
¶15 The circuit court in this case properly stated the clearly erroneous standard of review should be used to determine whether the injury to Enger was a mere recurrence rather than an independent aggravation. When we review under the clearly erroneous standard:
The question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding. In other words, even if there is evidence in the record which tends to contradict the Department's factual determination, so long as there is some "substantial evidence" in the record which supports the Department's determination, this court will affirm. Great weight is given to the findings made and inferences drawn by an agency on questions of fact.
Kent v. Lyon, 1996 SD 131, p 15, 555 N.W.2d 106, 110.
¶16 The clearly erroneous standard of review applies to findings of fact based on the entire record. However, the medical testimony in this case appears to be the sole basis for the circuit court's finding of recurrence, and that testimony was solely by deposition. It is well settled that deposition testimony...
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