Helms v. Lynn's, Inc., No. 19162

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON; SABERS
• Citation: 1996 SD 8,542 N.W.2d 764
• Docket Number: No. 19162
• Decision Date: 18 October 1995
• Parties: Margaret HELMS, as Widow and Personal Representative of Bruce L. Helms, Deceased, Claimant and Appellee, v. LYNN'S, INC., Employer and Appellant, and The Travelers Companies, Insurer and Appellant. . Considered on Briefs

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542 N.W.2d 764 1996 SD 8 Margaret HELMS, as Widow and Personal Representative of
Bruce L. Helms, Deceased, Claimant and Appellee,
v.
LYNN'S, INC., Employer and Appellant,
and
The Travelers Companies, Insurer and Appellant. No. 19162. Supreme Court of South Dakota. Considered on Briefs Oct. 18, 1995.
Decided Jan. 24, 1996.
Rehearing Denied Feb. 20, 1996.

James G. Abourezk, Abourezk Law Office, Rapid City, for claimant and appellee.

Dennis H. Hill, of Costello, Porter, Hill, Heisterkamp & Bushnell, for appellants.

GILBERTSON, Justice.

¶1 Employer Lynn's, Inc. and its insurer appeal from the circuit court's reversal of the Department of Labor's determination that Employee Helms' heart attack was not caused by his employment. We reverse the circuit court and reinstate the Department of Labor's denial of worker's compensation benefits to Helms' widow, the claimant in this action.

FACTS AND PROCEDURE

¶2 Bruce Helms was a former employee and manager of Lynn's Super Valu in Faith and Eagle Butte, South Dakota, having worked for Lynn's, Inc. for twenty-five years. He was 70 years old at the date of his death, and was retired and drawing Social Security. To supplement his income, he worked at Lynn's in Faith part-time unloading groceries from the delivery truck.

¶3 On January 23, 1992, Helms arrived at Lynn's at 3:46 a.m. and spent one and one-half to two hours unloading the delivery truck. The truck driver testified he delivered 350 crates of food that morning, totalling 7,000 pounds. Tracy Veit, a high school student, assisted Helms that day. Veit carted the boxes of food out to the store shelves for display and, in fact, unloaded about one-third of the boxes from the truck. Both Veit and the delivery truck driver testified that Helms was his usual, cheerful self that morning and did not complain or appear to be sick. Veit testified Helms, who was a lifelong smoker, smoked cigarettes and drank coffee during a break.

¶4 Helms left Lynn's at 6:40 a.m. but did not arrive home until later in the morning, sometime between 10:00 and 11:00 a.m. Once home, Helms appeared pale and complained of nausea to his wife but when asked if he hurt anywhere, said no. Helms told his daughter the same thing when she asked. Helms laid down for awhile but when his condition did not improve, his wife drove him to a clinic 96 miles away in Hettinger, North Dakota.

¶5 At the clinic, Helms was seen by Dr. Terrence Mack, a family practitioner. Helms had phoned Dr. Mack in the morning prior to leaving Faith and informed the doctor his heart was beating 120 beats per minute and that he had been having trouble with chest discomfort. When Helms saw Dr. Mack at the clinic, he was not having any chest pain but informed the doctor he had had chest pain on days previous to January 23 brought on by physical exertion such as working and walking to work, especially on cold days. This pain was relieved by rest. Dr. Mack noted no sign of distress at this visit and performed an EKG which showed signs of Helms' 1986 heart attack but no changes from his last EKG. Dr. Mack prescribed medication Helms had been on previously for his heart but which he had stopped taking and a prescription for nitroglycerin if Helms had any further chest pain. Helms and his wife then returned home after having the prescriptions filled.

¶6 Helms' wife testified they returned home around 3:00 p.m. Helms stated he felt fine and ate some bread pudding. At 4:00 p.m. he had chest pain, sweating, and dizziness. Helms took two aspirin and his nitroglycerin prescription and laid down to rest. He ate supper at about 9:00 p.m. and thereafter complained of chest pain, sweating and faintness. He told his wife he had pain in his shoulders and the backs of his arms. Helms' wife drove him back to Hettinger, this time to the hospital's emergency room since the clinic was now closed. An EKG was performed at the hospital at approximately 11:00 p.m. At 11:10 p.m., a CPK MB test was administered which measured cardiac enzymes released into Helms' bloodstream and which can be used to time a heart attack. ¹

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Helms was diagnosed as having a heart attack and, because he had also developed massive gastrointestinal bleeding, was flown to Bismarck, North Dakota where both the heart specialist and the equipment he now needed were located.

¶7 A third EKG was performed at 6:00 a.m. on January 24, 1992 at St. Alexius Medical Center in Bismarck, North Dakota and yet another later in the day. Also, at 6:50 a.m. a second CPK MB reading was taken. This test showed significant elevation in both the CPK and MB readings, but not enough series of tests were run to determine whether these readings indicated peak elevation. A third CPK MB was later administered but found unreliable for identifying peak elevations as heparin had been given to Helms by that time which could influence the test results. Also this third test was run on a different machine from the earlier tests making comparisons unreliable.

¶8 Helms died January 31, 1992 in the Bismarck hospital.

STANDARD OF REVIEW

¶9 Our standard of review from decisions of administrative agencies is governed by SDCL 1-26-37. This statute 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.

However, when the issue is a question of law, the agency's actions are fully reviewable. Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991). Further, we review the findings based on deposition testimony and documentary evidence de novo. Caldwell, 489 N.W.2d at 357.

¶10 The issue we must determine is whether the record contains substantial evidence to support the agency's determination. In re Establishing Certain Territorial Elec. Boundaries, 318 N.W.2d 118, 121 (S.D.1982); Nehlich v. S.D. Comprehensive Health, 290 N.W.2d 477, 478 (S.D.1980); Dail v. S.D. Real Estate Comm'n, 257 N.W.2d 709, 712 (S.D.1977).

ANALYSIS AND DECISION

¶11 SDCL 62-1-1(7) defining "injury" under our workers' compensation statutes was amended in 1995 to require that the employment or employment-related activities be a major contributing cause of the employee's injury. However, Helms' injury occurred in 1992 and the law in effect when the injury occurred governs the rights of the parties. See West v. John Morrell & Co., 460 N.W.2d 745, 747 (S.D.1990); Lyons v. Lederle Laboratories, 440 N.W.2d 769, 770 (S.D.1989); Wold v. Meilman Food Industries, Inc., 269 N.W.2d 112, 114 n1 (S.D.1978). In 1992, "injury" under our workers' compensation statutes was defined in SDCL 62-1-1(2) as "only injury arising out of and in the course of the employment, and shall not include a...