Fair v. Nash Finch Co., No. 24073.

CourtSupreme Court of South Dakota
Writing for the CourtMeierhenry
Citation2007 SD 16,728 N.W.2d 623
Decision Date14 February 2007
Docket NumberNo. 24076.,No. 24073.
PartiesAnna FAIR, Claimant and Appellee, v. NASH FINCH COMPANY, Employer and Appellant, and Royal and Sun Alliance, Insurer and Appellant.
728 N.W.2d 623
2007 SD 16
Anna FAIR, Claimant and Appellee,
v.
NASH FINCH COMPANY, Employer and Appellant, and
Royal and Sun Alliance, Insurer and Appellant.
No. 24073.
No. 24076.
Supreme Court of South Dakota.
Considered on Briefs November 27, 2006.
Decided February 14, 2007.

[728 N.W.2d 625]

James D. Leach, Rapid City, South Dakota, Attorney for appellee.

Richard L. Travis, Jason W. Shanks of May & Johnson, P.C., Sioux Falls, South Dakota, Attorneys for appellants.

MEIERHENRY, Justice.


[¶ 1.] Anna Fair (Fair) claimed workers' compensation benefits due to an injury she received when she fell leaving the premises of her employer, Family Thrift Center (Family Thrift). The South Dakota Department of Labor, Unemployment Insurance Division (Department) determined that Fair's injury did not arise out of or in the course of her employment because she had shopped for a short time after completing her shift. The Department

728 N.W.2d 626

denied benefits. Fair appealed to circuit court. The circuit court reversed and remanded to the Department to determine whether Fair was permanently and totally disabled under the odd-lot doctrine. The Department found she was permanently and totally disabled. The circuit court affirmed. Employer appeals. We affirm.

FACTS

[¶ 2.] Seventy-year old Fair had worked at several entry-level positions since graduating from high school in 1950. Her employment with Family Thrift, a convenience store, was as a cashier. Her injury occurred on July 8, 2003. Fair completed her shift at 7:00 p.m. and clocked out at 7:04 p.m. Before leaving the store, Fair purchased the following items: a gallon of milk, 12-pack of pop, meat, Kleenex, bread, and a carton of cigarettes for her daughter. Fair's machine-stamped check shows that she paid for the groceries at 7:07 p.m. As Fair carried her groceries out of the store, she tripped over a rug near the store's exit and fell forward, hitting her head and leg on the floor. She described the fall as "the hardest fall I've ever fell in all my life." The night supervisor heard Fair fall and came to her assistance. Fair refused her fellow employee's offer to summon an ambulance or contact her daughter. Fair subsequently drove herself home although someone followed her to make sure she got home safely. The supervisor completed an accident report and later completed a first report of injury indicating he had been informed of Fair's injury on July 8, 2003. Fair had injured her ankle in 1993, 1996, 1999, 2001, and 2002, resulting in a recurrent ulcer forming on her ankle. The hard fall aggravated the ulcer, which began to seep yet that evening. Despite her injury, Fair returned to work the next day. After Fair's ankle injury worsened, she sought medical attention from Dr. Robert Preston in October of 2003. Dr. Preston eventually informed Fair that she would have to find work that allowed her to elevate her leg since her ankle was not healing properly because she stood on her feet all day. Because Family Thrift had no positions that she could perform within Dr. Preston's restrictions, Fair reluctantly left her job and has since been unemployed.

[¶ 3.] On November 21, 2003, Fair served a petition for hearing on Nash Finch Company1 and its insurer, Royal Sun Alliance, Inc. (collectively referred to as Employer), pursuant to South Dakota's Workers' Compensation Laws. The parties agreed to bifurcate the following issues: 1) whether Fair's injury arose out of and in the course of her employment; and 2) whether Fair was permanently and totally disabled under the odd-lot doctrine, and if so, the date of onset and medical expenses. As to the first issue, the Department entered an order dismissing Fair's petition for a hearing on the merits with prejudice because she had failed to establish by a preponderance of the evidence that her injuries arose out of and in the course of her employment. Fair appealed the Department's decision to the circuit court. The circuit court reversed the Department's order, entered a judgment in favor of Fair and remanded to the Department for a determination of whether Fair was permanently and totally disabled under the odd-lot doctrine.2 On remand, the administrative law judge concluded that Fair met her burden of persuasion in establishing

728 N.W.2d 627

that she was permanently and totally disabled under the odd-lot doctrine. Employer filed a notice of appeal to the circuit court. Fair filed a motion to dismiss the appeal because Employer failed to file a statement of issues as required by SDCL 1-26-31.4. The circuit court denied the motion to dismiss and affirmed the Department's findings. Both sides appeal. Fair appeals raising the following issue:

1. Whether the circuit court erred by not dismissing Employer's appeal based on the failure to file a statement of issues required by SDCL 1-26-31.4.

[¶ 4.] Employer appeals and raises the following issues:

1. Whether the circuit court erred in determining that Fair's injuries arose out of and in the course of her employment.

2. Whether the department and circuit court erred in finding that Fair is entitled to permanent-total-disability benefits.

STANDARD OF REVIEW

[¶ 5.] This Court reviews a workers' compensation case in the same manner as the circuit court. Norton v. Deuel School Dist. # 19-4, 2004 SD 6, ¶ 5, 674 N.W.2d 518, 520. The circuit court's determination is not presumed correct. Id. "We give great weight to the findings and inferences made by the agency on factual questions." Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262. We use the clearly erroneous standard when reviewing factual issues, meaning we will reverse only if we are "definitely and firmly convinced a mistake has been committed. . . ." Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228). We review questions of law under the de novo standard of review. Id.

ANALYSIS

1) Fair's Motion to Dismiss

[¶ 6.] Fair argues that the circuit court erred when it refused to dismiss Employer's appeal because Employer had not filed a statement of the issues with the notice of appeal as required by SDCL 1-26-31.4. The circuit court determined that SDCL 1-26-31.4 only requires a statement of the issues to be filed, with the notice of appeal, if there are multiple parties involved. SDCL 1-26-31.4 provides as follows:

Within ten days after the filing of the notice of appeal as required by § 1-26-31, the appellant, if there are multiple parties to the appeal, shall file with the clerk of the circuit court a statement of the issues he intends to present on the appeal and shall serve on the other parties a copy of such statement. If any other party wishes to raise additional issues on appeal, he shall file an additional statement of issues on appeal within ten days after service of the appellant's statement.

The circuit court concluded that the insurer's and the employer's interests were identical; therefore, they were not considered "multiple parties" under SDCL 1-26-31.4.3

728 N.W.2d 628

[¶ 7.] We review statutory interpretation de novo as a matter of law. Loesch v. City of Huron, 2006 SD 93, ¶ 3, 723 N.W.2d 694, 695. Our first inquiry is to look at the plain meaning of the language of the rule or statute. We have said:

Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Courts only function is to declare the meaning of the statute as clearly expressed.

In re Yanni, 2005 SD 59, ¶ 8, 697 N.W.2d 394, 397. The determination here centers on what is meant by the statutory term "multiple parties."

[¶ 8.] The plain meaning of the statutory term "multiple parties" means more than one party. In this case, there was clearly more than one party. The parties included the claimant, the employer and the employer's insurance company. Even if the employer and insurance company are considered one party because of their identical interests, there are still two parties. Consequently under the plain meaning of the rule, Employer should have filed a statement of issues with the clerk of the circuit court. Nevertheless, this error did not affect the circuit court's jurisdiction because jurisdiction had been established by Employer's notice of appeal. See Oberle v. City of Aberdeen, 470 N.W.2d 238, 242 (S.D.1991). We have stated that "[b]ecause jurisdiction is conferred by the filing of the notice of appeal, it would be inconsistent to require that, even if the notice of appeal is filed, the statement of the issues must also be filed to properly invoke jurisdiction." Id. (noting that the circuit court may suspend the requirement that a statement of issues be filed or extend the time period for such filing). Accordingly, although the circuit court may have used the wrong rationale, failing to dismiss the Employer's appeal was not error. As a result, we will address the issues raised by Employer.

2) Whether Fair's injuries arose out of and in the course of her employment

[¶ 9.] Employer argues that the circuit court erred in concluding that Fair's injuries arose out of and in the course of her employment. Because the facts are not in dispute, the resolution of this issue is a question of law which we review de novo. Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 20, 607 N.W.2d 596, 603. A claimant who wishes to recover under South Dakota's Workers' Compensation Laws "must prove by a preponderance of the evidence that [s]he sustained an injury `arising out of and in the course of the employment.'" Bender v. Dakota Resorts Management Group, Inc., 2005 SD 81, ¶ 7, 700 N.W.2d 739, 742 (quoting SDCL 62-1-1-(7)) (additional citations omitted). "Both factors of the analysis, `arising out of employment' and `in the course of employment,' must be present in all claims for workers' compensation." Id. ¶ 9...

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12 practice notes
  • Rabo Agrifinance, Inc. v. Rock Creek Farms, Nos. 26092
    • United States
    • Supreme Court of South Dakota
    • March 14, 2012
    ...procedural errors deemed jurisdictional in nature and, therefore, we find them distinguishable. See Fair v. Nash Finch Co., 2007 S.D. 16, 728 N.W.2d 623 (failure to file a statement of issues in an administrative appeal in circuit court); Christenson v. Bergeson, 2004 S.D. 113, 688 N.W.2d 4......
  • Voeller v. HSBC Card Servs., Inc., No. 26331.
    • United States
    • Supreme Court of South Dakota
    • July 10, 2013
    ...to the times when the employee is engaged in the work that he [or she] was hired to perform.” Fair v. Nash Finch Co., 2007 S.D. 16, ¶ 9, 728 N.W.2d 623, 628–29. Even though we analyze each requirement independently, “they are part of the general inquiry of whether the injury or condition co......
  • Baier v. Dean Kurtz Const., Inc., No. 24940.
    • United States
    • Supreme Court of South Dakota
    • February 4, 2009
    ...unavailability of suitable employment by showing that he has unsuccessfully made reasonable efforts to find work. Fair v. Nash Finch Co., 2007 SD 16, ¶ 19, 728 N.W.2d 623, 632-33 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 34, 705 N.W.2d 461, 467 (internal citations [¶ 26.] Here, the......
  • McKibben v. Horton Vehicle Components, No. 25000.
    • United States
    • Supreme Court of South Dakota
    • June 17, 2009
    ...of the evidence. Progressive Halcyon Ins. Co. v. Philippi, 2008 SD 69, ¶ 16, 754 N.W.2d 646, 652-53 (quoting Fair v. Nash Finch Co., 2007 SD 16, ¶ 9, 728 N.W.2d 623, [¶ 13.] The evidence presented at the hearing before the ALJ consisted of live testimony from McKibben, Tom Audet, McKibben's......
  • Request a trial to view additional results
12 cases
  • Rabo Agrifinance, Inc. v. Rock Creek Farms, Nos. 26092
    • United States
    • Supreme Court of South Dakota
    • March 14, 2012
    ...procedural errors deemed jurisdictional in nature and, therefore, we find them distinguishable. See Fair v. Nash Finch Co., 2007 S.D. 16, 728 N.W.2d 623 (failure to file a statement of issues in an administrative appeal in circuit court); Christenson v. Bergeson, 2004 S.D. 113, 688 N.W.2d 4......
  • Voeller v. HSBC Card Servs., Inc., No. 26331.
    • United States
    • Supreme Court of South Dakota
    • July 10, 2013
    ...to the times when the employee is engaged in the work that he [or she] was hired to perform.” Fair v. Nash Finch Co., 2007 S.D. 16, ¶ 9, 728 N.W.2d 623, 628–29. Even though we analyze each requirement independently, “they are part of the general inquiry of whether the injury or condition co......
  • Baier v. Dean Kurtz Const., Inc., No. 24940.
    • United States
    • Supreme Court of South Dakota
    • February 4, 2009
    ...unavailability of suitable employment by showing that he has unsuccessfully made reasonable efforts to find work. Fair v. Nash Finch Co., 2007 SD 16, ¶ 19, 728 N.W.2d 623, 632-33 (quoting Kassube v. Dakota Logging, 2005 SD 102, ¶ 34, 705 N.W.2d 461, 467 (internal citations [¶ 26.] Here, the......
  • McKibben v. Horton Vehicle Components, No. 25000.
    • United States
    • Supreme Court of South Dakota
    • June 17, 2009
    ...of the evidence. Progressive Halcyon Ins. Co. v. Philippi, 2008 SD 69, ¶ 16, 754 N.W.2d 646, 652-53 (quoting Fair v. Nash Finch Co., 2007 SD 16, ¶ 9, 728 N.W.2d 623, [¶ 13.] The evidence presented at the hearing before the ALJ consisted of live testimony from McKibben, Tom Audet, McKibben's......
  • Request a trial to view additional results

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