Gordon v. St. Mary's Healthcare Center

Citation2000 SD 130,617 N.W.2d 151
Decision Date20 September 2000
Docket Number No. 21311, No. 21331.
PartiesDelores M. GORDON, a/k/a Dot Gordon, Employee, Claimant and Appellant, v. ST. MARY'S HEALTHCARE CENTER and Heritage Mutual Insurance Company, Employer, Insurer and Appellees.
CourtSupreme Court of South Dakota

Mark A. Moreno and Brett M. Koenecke of Schmidt, Schroyer & Moreno, Pierre, South Dakota, Attorneys for employee, claimant and appellant.

J.G. Shultz of Woods, Fuller, Shultz & Smith Sioux Falls, South Dakota, Attorneys for employer, insurer and appellees.

SEVERSON, Circuit Judge

[¶ 1.] Delores M. Gordon (Gordon) appeals the Department of Labor's (DOL) denial of her petition for worker's compensation benefits for injuries she sustained in July 1994. DOL found that Gordon's testimony on the notice issue lacked credibility, and determined that she did not provide sufficient notice of her July 1994 injuries. On appeal, the circuit court affirmed the decision of DOL. We affirm.

FACTS

[¶ 2.] Since 1979, Gordon has been employed as a licensed practical nurse at Maryhouse, a nursing home facility operated by St. Mary's Healthcare Center in Pierre. Gordon was frequently required to lift and move nursing home patients, equipment, and other heavy items. She experienced numerous work-related injuries during her tenure at Maryhouse, including a right shoulder strain in February 1985, a hip and neck injury in 1990, a neck, shoulder, and arm injury in 1991, a back injury in November 1991, an ankle sprain in 1992, and a back injury in 1993.

[¶ 3.] On July 2, 1994, Peggy Taft (Taft), a nurse's aid at Maryhouse, asked Gordon to assist her in moving a stroke resident off of a bathroom stool. As Taft and Gordon were lifting the patient, one of the patient's legs gave out, causing the patient to collapse against Gordon. Immediately after the incident, Gordon informed Taft that she injured her back, and laid down on the patient's bed. After resting on the bed, Gordon took some Tylenol, put ice on her back, and went back to work, completing her scheduled shift.

[¶ 4.] Other than telling co-worker Taft that she injured her back, Gordon did not report the incident either that day or the next, and did not seek medical treatment for her back in the following week. After the July 2 episode, and up until July 23, 1994, Gordon did not miss any of her scheduled workdays at Maryhouse.

[¶ 5.] Gordon took a trip to the Badlands on July 23 and 24. Following the trip, she was scheduled to be on vacation from July 25 through July 28. On July 25, Gordon began babysitting her eighteen-month-old grandson. During the daytime hours of July 25 and 26, she was the sole caregiver for the infant child. While she was at home on July 27, Gordon suffered an acute episode of back pain.

[¶ 6.] Gordon was immediately taken to see Dr. Curt Kuehl, her chiropractor. Kuehl could not help Gordon, and referred her to see Dr. S.Y. Stout, an orthopedist. Dr. Stout was not immediately available to see Gordon, so she was taken to see Dr. Kenneth Bartholomew, her family physician. Dr. Bartholomew administered pain medication to Gordon and sent her home.

[¶ 7.] The pain continued into the next day, and after midnight on July 29, 1994, Gordon was taken by ambulance and admitted to St. Mary's. Upon her admission to the hospital, Dr. Stout examined Gordon and diagnosed her with having a herniated disc at L4-5. Based on his diagnosis, Dr. Stout referred Gordon to see Dr. Michel Malek, a neurosurgeon from Aberdeen. On July 30, 1994, Gordon was transferred to St. Luke's Hospital in Aberdeen to have surgery performed on her back. Prior to her transfer to Aberdeen, Gordon's husband Jim (Jim), informed the staff at Maryhouse through several telephone calls that she required back surgery and that she would be unable to work.

[¶ 8.] The circumstances surrounding the July 27 episode are unclear. Although Gordon contends that she was walking empty handed across her living room when the back pain "hit," notes contemporaneously prepared by her treating physicians fail to support this claim. Dr. Kuehl's notes indicate that "she did nothing more than bend forward at home and she began to get acute severe pain." Gordon denies making this statement. Dr. Stout's notes indicate that "she got out of bed and apparently lifted the grandchildren." This statement apparently came from Jim. Finally, physical therapy notes taken on August 1, 1994, indicate that her symptoms began "following working in a stooped over position for a couple of hours." Gordon does not know where this information came from.

[¶ 9.] On August 2, 1994, Dr. Malek performed surgery on Gordon to correct her herniated disc and related back problems. Shortly after the surgery, Dr. Malek informed Gordon's family members that her employment duties at Maryhouse contributed to her back condition, and the resulting need for corrective surgery. Gordon's daughter relayed this information to Gordon on August 3, 1994, the day after the surgery. Gordon was discharged from St. Luke's and allowed to return home on August 4, 1994.

[¶ 10.] A few days later, on August 7, 1994, Gordon's son informed her of Dr. Malek's opinion regarding the work-related nature of the injury. According to Gordon, she was not aware her condition was work-related until she was told of Dr. Malek's opinions in August 1994. Gordon testified during the DOL hearing that she called Paul Marso (Marso), St. Mary's Vice President for Human Resources, on August 8, 1994, and informed him that she would like to file a worker's compensation claim. Marso disputed this version of events, and testified before DOL that he received the phone call from Gordon not on August 8, but between August 25 and September 1.

[¶ 11.] Gordon testified that following her discussion with Marso, she submitted a completed incident report form before September 1, 1994 that detailed the work-related nature of her injuries and her desire to seek worker's compensation benefits. However, the incident report form Gordon claims to have submitted has never been found. Gordon further testified that on September 1, 1994, she received a phone call from Carol Laumbach, a secretary at Maryhouse, informing her that the incident report form she allegedly submitted prior to September 1 was defective because it pertained to her 1991 back injury. Gordon claims that Laumbach informed her that she would have to make out a new incident report form. While acknowledging that these events "may have happened," Laumbach testified that she cannot confirm or deny speaking with Gordon about the first incident report form Gordon claims to have filled out.

[¶ 12.] From the date of the incident on July 27, 1994, through September 25, 1994, Gordon did not work at Maryhouse. On September 26, 1994, Gordon returned to work at Maryhouse on a part-time basis. Eventually, on November 11, 1994, she returned to full-time status. While Gordon was working at Maryhouse on December 1, 1994, she slipped and fell in some water, injuring her back, head, neck, hip and legs. Gordon reported this incident that same day to Linda Thorson, the Nursing Director at Maryhouse.

[¶ 13.] Heritage Mutual Insurance Company (Heritage) provided worker's compensation coverage for St. Mary's between August 1, 1993 through August 1, 1994. Thereafter, Reliance National Company (Reliance) provided St. Mary's with coverage, and was on the risk for providing benefits when Gordon's December 1, 1994 incident occurred. In August 1995, Gordon commenced this action by filing a petition for hearing with DOL alleging entitlement to worker's compensation benefits from Heritage for her July 1994 injuries, and Reliance for her December 1994 injury.

[¶ 14.] After conducting a hearing, DOL issued a decision denying both claims for worker's compensation benefits. DOL ruled that Gordon was not entitled to benefits for the injuries she sustained in July 1994 because she failed to sustain her burden of proving any of the following: that she provided timely notice of the alleged injuries, that St. Mary's had timely actual or constructive knowledge of the alleged injuries, that the alleged injuries were work-related, or that she had good cause for failing to provide timely notice of the alleged injuries. DOL's ruling on the two incidents in July 1994 turned on the hearing examiner's factual finding that Gordon's testimony on the issue of notice lacked credibility. DOL also denied Gordon benefits for the December 1, 1994 incident, ruling that the incident was not a contributing factor to Gordon's back injury.

[¶ 15.] Gordon appealed DOL's decision regarding the July 1994 incidents to the circuit court, but elected not to appeal DOL's ruling on the December 1, 1994 incident. On appeal, the circuit court affirmed DOL's decision. Gordon appeals to this Court, presenting the following two issues for our review:

Whether DOL committed prejudicial error by imposing an increased burden of proof on Gordon with respect to St. Mary's knowledge of her July 1994 injuries.
Whether St. Mary's, by and through one or more of its representatives, had notice/knowledge of Gordon's July 1994 injuries for purposes of SDCL 62-7-10.
STANDARD OF REVIEW

[¶ 16.] Our standard of review in worker's compensation cases is well settled. In worker's compensation cases, this Court gives great weight to the findings and inferences made by DOL on factual questions. Wagaman v. Sioux Falls Const., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225). "Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency's findings; however, when the issue is a question of law, the actions of the agency are fully reviewable." Id. (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766). When reviewing agency findings, we "will reverse, only if, after careful...

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