Gilchrist v. Trail King Industries, Inc.

• Decision Date: 24 May 2000
• Docket Number: No. 20782.,20782.
• Parties: John GILCHRIST, Plaintiff and Appellant, v. TRAIL KING INDUSTRIES, INC., and Rehabilitation Strategies, Inc., Defendants and Appellees.
• Court: South Dakota Supreme Court

612 N.W.2d 10

2000 SD 67

John GILCHRIST, Plaintiff and Appellant, v. TRAIL KING INDUSTRIES, INC., and Rehabilitation Strategies, Inc., Defendants and Appellees.

No. 20782.

Supreme Court of South Dakota.

Considered on Briefs June 1, 1999.

Decided May 24, 2000.

Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, J.M. Grossenburg, Winner, for plaintiff and appellant.

Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellee Trail King.

Lisa Hansen Marso and Gary J. Pashby of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendant and appellee Rehabilitation Strategies.

KONENKAMP, Justice

[¶ 1.] John Gilchrist appeals summary judgment in favor of defendant Rehabilitation Strategies, Inc. We affirm.

Facts

[¶ 2.] Gilchrist was an employee of Trail King Industries, Inc. On September 1, 1994, while working in the scope of his employment, he slipped and fell off a platform. As he fell, a ring on his right "pinkie" finger caught on a bracket, momentarily suspending his fall and injuring him. He was treated that day by Dr. M.J. Christensen and sent home. He complained of injuries to his finger, neck, shoulder, rotator cuff, hands, back, and internal organs.

[¶ 3.] After the initial appointment, Dr. Christensen referred Gilchrist to Dr. Edward Adams, an orthopedic surgeon, who in turn, sent him to Dr. Myung Cho, a physiatrist. Doctors P.H. Rasmussen and Dennis Leland, among others, also treated him for various medical problems. Although he was consulting other doctors, Dr. Cho considered herself Gilchrist's treating physician for his work-related injury.

[¶ 4.] Trail King, a self-insured employer, began paying workers' compensation benefits to Gilchrist, including medical expenses. After he participated in physical therapy for eight weeks, Trail King hired Rehabilitation Strategies, Inc. (RSI) to oversee his rehabilitation program. RSI's employee, Kathy Burns, was assigned to his case. Burns sent him a letter on November 4, 1994 introducing herself, and stating that she would work with him, his employer, his physicians, and others "to assist [him] in returning to work." When they first met on November 7, Burns told him that she was hired to get him "squared away." She began attending his doctor appointments with him and discussed his return to work with Trail King. Burns later explained that it was her policy "to keep [Trail King] informed as to when Mr. Gilchrist was able to go to work and what his medical status was."

[¶ 5.] On December 5, 1994, Dr. Cho saw Gilchrist. Burns was also there, and the three discussed the topic of Gilchrist's return to work. Based on the progress he was making in physical therapy, Dr. Cho issued a release to work on light duty, four hours per day. Dr. Cho was not aware, however, that he was vomiting blood and was bleeding from his rectum, as he did not report these problems to her. According to Dr. Cho, she had requested Burns to give her Gilchrist's other medical records to review, but she did not receive them. Burns had access to those records and knew of Gilchrist's ongoing medical problems, but did not mention these other conditions to Dr. Cho.

[¶ 6.] On December 13, 1994, Gilchrist went to Trail King and reported that he was still too ill to work. Norman Tarbell, Trail King's workers' compensation coordinator, told him to come back the next day and together they would call any physician Gilchrist requested to discuss his medical condition. Gilchrist did not return. On December 14, Trail King sent Gilchrist a certified letter informing him that because Dr. Cho had authorized a release, he was to report to work within forty-eight hours of the receipt of the letter or he would be terminated.¹ Trail King then arranged for Gilchrist to see Dr. David Hoversten for an independent medical evaluation. Also on December 14, Gilchrist saw doctors Leland and Christensen and both authorized no work.² Burns knew that Dr. Adams also had questions regarding a work release because Burns faxed Tarbell a note on December 20 stating "Doctor Adams questions jobs per phone." Gilchrist's final work release was also to be approved by Dr. Christensen. Burns admitted that she "had no communication whatsoever with Dr. Christensen." She explained that this was because "[h]e was not actively involved with the injuries that were related to Mr. Gilchrist's case at that time."

[¶ 7.] Gilchrist saw Dr. Hoversten on December 22. Dr. Hoversten found that Gilchrist suffered a rotator cuff injury and had carpal tunnel syndrome in both hands. He recommended that surgery be performed at the same time to repair both the rotator cuff injury and the carpal tunnel syndrome in the right hand. He later testified that it would have been good practice to do the surgeries simultaneously, but performing them together was not medically necessary. The surgery was scheduled for February 4, 1995.

[¶ 8.] Burns, as the coordinator for Gilchrist's health care, was also in contact with his other doctors and the representatives of Risk Administration, the third party administrator for Trail King. Risk Administration asked Dr. Cho to evaluate the extent of Gilchrist's work-related injuries. By letter dated January 25, Dr. Cho explained that Gilchrist's right shoulder injury and injury to his right hand were the result of his fall at work; however, the rest of his injuries were not caused by the accident.

[¶ 9.] On January 30, Gilchrist saw Dr. Cho again, accompanied by a representative of RSI. At this appointment, Gilchrist was still reporting internal bleeding, which was being treated by Dr. Christensen. Gilchrist expressed confusion to Dr. Cho about whether he was able to return to work with his ongoing medical problems. Dr. Cho believed that Trail King was willing to have him come back to work. She wrote another work release returning him to the same light duty she had authorized previously, provided Dr. Christensen approved the release.³ Dr. Cho's treatment notes also reflect that she discussed the need for Dr. Christensen's prior approval with RSI's representative. RSI assured Dr. Cho that Dr. Christensen would be contacted. No release was ever sought from Dr. Christensen, apparently.

[¶ 10.] After RSI received Dr. Cho's letter on the unrelatedness of Gilchrist's carpal tunnel syndrome to his workers' compensation injury, it recommended to Trail King that it not accept responsibility for the cost of the carpal tunnel surgery. When Dr. Hoversten received this news he notified Gilchrist. Gilchrist later said he could not go through with surgery because workers' compensation was "jerking him around," and he did not have the money to pay for the uncovered portion of the surgery.⁴ He cancelled the entire procedure.

[¶ 11.] Gilchrist filed a workers' compensation action. He also brought this suit on March 16, 1995 against both Trail King and RSI alleging bad faith, intentional infliction of emotional distress, and wrongful termination. In October 1995, the circuit court ordered a stay of the bad faith cause of action, "pending the exhaustion of administrative remedies, except as it may relate to the remaining causes of action."

[¶ 12.] The Department of Labor issued a decision on workers' compensation benefits in December 1997. It ruled that Gilchrist was entitled to rotator cuff and carpal tunnel surgery on his right hand, but that his claimed total disability from severe depression was not caused by the work injury. Gilchrist appealed in February 1998. Based on the Department's decision, RSI and Trail King moved for summary judgment. At the hearing, Gilchrist urged the trial court to postpone its decision on summary judgment until after the ruling on Gilchrist's appeal from the Department's decision. The court declined to wait, granted summary judgment to RSI on all Gilchrist's claims, and denied Trail King's summary judgment motion. The court also granted RSI certification under SDCL 15-6-54(b). In the meantime, the circuit court presiding in the workers' compensation appeal reversed the Department's decision on Gilchrist's psychological disability claim and found it to be work related and compensable. Thereafter, the Department ruled that the "depression that both sides agree now makes him totally disabled," entitles Gilchrist to continued total disability benefits. The circuit court later affirmed. Today, in an opinion issued concurrently with this one, we affirm that ruling. Gilchrist v. Trail King Industries, Inc., (Gilchrist II), 2000 SD 68, 612 N.W.2d 1.

[¶ 13.] Gilchrist appeals, contending that (a) the court was premature in granting summary judgment to RSI after staying proceedings, including discovery; (b) material issues of fact exist to bar summary judgment; and (c) judgment was improperly certified for appeal under SDCL 15-6-54(b).⁵ We review summary judgments under our familiar standard first set out in Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Analysis and Decision

Summary Judgment Granted During Stay of Discovery

[¶ 14.] Gilchrist contends that the court prematurely granted summary judgment as it had earlier ordered a stay of proceedings, including discovery, pending exhaustion of Gilchrist's administrative remedies. Nonetheless, Gilchrist did not request a continuance or submit an affidavit on his inability to respond to the summary judgment motions. If additional discovery is needed before a matter is ready for summary judgment, the party opposing the motion must by affidavit show that facts essential to justify opposition cannot be presented by affidavit without further discovery. SDCL 15-6-56(f); Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., 511 N.W.2d 567, 569 (S.D.1994...