Kassube v. Dakota Logging

• Citation: 2005 SD 102,705 N.W.2d 461
• Decision Date: 12 October 2005
• Docket Number: No. 23309.,No. 23308.,23308.,23309.
• Parties: Harlan KASSUBE, Claimant and Appellee, v. DAKOTA LOGGING, Employer, and Triple R Construction, Employer and Appellee, and Estes Brothers, Employer and Appellant, and Cigna Property & Casualty Company, Insurer and Appellant, and American States Insurance Company, Insurer, and The United Fire Group, Insurer and Appellee, v. Dean Kurtz Construction, Employer and Appellee, and American States Insurance Company, Insurer and Appellee.
• Court: Supreme Court of South Dakota

Page 461

705 N.W.2d 461

2005 SD 102

Harlan KASSUBE, Claimant and Appellee, v. DAKOTA LOGGING, Employer, and Triple R Construction, Employer and Appellee, and Estes Brothers, Employer and Appellant, and Cigna Property & Casualty Company, Insurer and Appellant, and American States Insurance Company, Insurer, and The United Fire Group, Insurer and Appellee, v. Dean Kurtz Construction, Employer and Appellee, and American States Insurance Company, Insurer and Appellee.

No. 23308.

No. 23309.

Supreme Court of South Dakota.

Argued February 16, 2005.

Decided October 12, 2005.

Rodney C. Lefholz, Rapid City, South Dakota, Attorney for claimant and appellee Harlan Kassube.

Steven J. Morgans and Nichole Nachtigal Emerson of Lynn, Jackson, Schultz &amp Lebrun, Sioux Falls, South Dakota, Attorneys for employer and appellants Estes Brothers and Cigna Property Casualty Company.

Lisa Hansen Marso and Michael S. McKnight of Boyce, Greenfield, Pashby & Welk, Sioux Falls, South Dakota, Attorneys for employer and appellees Triple R Construction and United Fire Group.

Scott Sumner of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota, Attorneys for appellees Dean Kurtz Construction and American States Insurance Company.

SRSTKA, Circuit Judge & MEIERHENRY, Justice.

[¶ 1.] Circuit Judge WILLIAM J. SRSTKA, sitting for Justice RICHARD W. SABERS, disqualified, delivers the majority opinion of the Court on Issue One, which holds that the Department of Labor had subject matter jurisdiction over Estes Brothers' third party petition against Kurtz because of the substantial dispute regarding Kassube's right to benefits.

[¶ 2.] Judge SRSTKA delivers the majority opinion of the Court on Issue Two, which holds that Kassube has a permanent total disability under the odd-lot doctrine.

[¶ 3.] Justice JUDITH K. MEIERHENRY delivers the majority opinion on Issue Three, which holds that the last injurious exposure rule should be applied in this case because Kassube was not disabled and drawing compensation at the time of his final injury.

[¶ 4.] Judge SRSTKA dissents on Issue Three.

[¶ 5.] Justice MEIERHENRY delivers the majority opinion on Issue Four, which holds that Estes Brothers is responsible for Kassube's medical expenses relating to his upper back, neck and shoulder from 1990 to the date of any subsequent compensable injury and that subsequent liability must be determined under the last injurious exposure rule.

[¶ 6.] Judge SRSTKA dissents on Issue Four.

[¶ 7.] SRSTKA, Circuit Judge, writing the majority opinion on Issue One.

FACTS AND PROCEDURE

[¶ 8.] As a result of six injuries suffered during employment by four different employers over a course of time, Harlan Kassube (Kassube) commenced a workers' compensation proceeding against these employers and their insurers before the South Dakota Department of Labor (Department). The four employers in the claim were Dakota Logging and its insurer American States Insurance Company (Dakota Logging); Estes Brothers and its insurer Cigna Property & Casualty Company (Estes Brothers); Dean Kurtz Construction and its insurer American States (Kurtz); and Triple R Construction and its insurer United Fire Group (Triple R).

[¶ 9.] Kassube spent his working career in heavy logging and construction labor. The first injury occurred in 1986 while he was employed at Dakota Logging. A piece of timber fell on his head and he sustained neck and head injuries.

[¶ 10.] In November 1990 Kassube fell on a roof while working for Estes Brothers and sustained a cervical and lumbar sprain/strain. This was his second injury. Kassube initially treated with Dr. Gruba, his chiropractor, and received approximately fifteen treatments from the time of injury until May 1991. He received treatments in the fall of 1991 for complaints of low and mid-back pain. Dr. Gruba treated him once in 1992. He received additional treatments from February to July 1993.

[¶ 11.] In July 1993 Kassube felt as though a rib popped out of place and experienced shortness of breath and stabbing pains in his back. This was his third injury. At that time he was employed by Kurtz. He returned to Dr. Gruba for treatment until August 1993. From September 1993 to January 1994 he continued to receive treatment for mid-back pain and rib pain.

[¶ 12.] In January 1994, while still employed at Kurtz, Kassube reportedly fell in the snow and experienced pain in his shoulder. This was his fourth injury. Dr. Gruba treated him five times from the date of injury until April 1994. In March 1996 he had a left C5-C6 decompression with arthrodesis¹ done. Because of continued shoulder pain, he later underwent an arthroscopic subacromial decompression² and shoulder repair.

[¶ 13.] In September 1998 Kassube sustained a fifth injury while working at Triple R. That injury was to the low back and occurred while he was pounding a stake into the ground with an eight pound sledgehammer. He missed one week of work after that injury.

[¶ 14.] The final and sixth injury occurred in November 1998 when he again sustained a low back injury while picking up a sheet of plywood. He was employed by Triple R during this injury. He treated with Dr. Gruba for neck pain and Dr. Teuber, a neurosurgeon, for continued low back pain. He continues to receive treatment for neck and back pain since that injury. Kassube has not been able to return to work since November 22, 1998.

[¶ 15.] Kassube's initial claim sought benefits from Dakota Logging and Estes Brothers for the first and second injuries sustained in 1986 and 1990.

[¶ 16.] Estes Brothers filed a third-party claim in the proceeding against Kurtz since Kassube suffered the third and fourth injuries while working for Kurtz after Kassube's employment with Estes Brothers. In the meantime Kassube filed an amended petition in the proceeding adding Triple R for the fifth and sixth injuries.

[¶ 17.] After two hearings Department determined that Kassube was entitled to permanent total disability benefits and assigned liability between employers Estes Brothers and Triple R pursuant to SDCL 62-4-29. Department apportioned the liability of permanent total disability benefits making Estes Brothers responsible for two-thirds and Triple R for one-third of benefits. Department further determined that Triple R was responsible for medical expenses for treatment for the low back and Estes Brothers for the upper back, neck, shoulder and headaches.

[¶ 18.] Estes Brothers and Triple R appealed Department's determination to the circuit court. During the proceeding before Department Kurtz moved to dismiss the Estes Brothers' claim for lack of jurisdiction. Department never ruled on this motion and Kurtz did not appeal to the circuit court. Department had previously granted Dakota Logging's motion for summary judgment. No party appealed the Dakota Logging summary judgment.

[¶ 19.] In the appeal to the circuit court Estes Brothers and Triple R raised essentially the same issues presented to us on this appeal. The court denied requested findings and orders from Estes Brothers and Triple R. Kurtz requested no findings or orders from the court. After a hearing, the court entered a judgment affirming Department's decision.

[¶ 20.] Estes Brothers appealed to this Court. Triple R filed a notice of review. Kurtz was still in the lawsuit and participated throughout the appellate process including oral argument.

[¶ 21.] Estes Brothers raises two issues:

Whether Department erred in determining that Estes Brothers is responsible for any permanent total disability benefits awarded to Kassube.

Whether Department erred in determining that Estes Brothers is responsible for all treatment provided to Kassube for his upper back, neck and shoulder from 1990 and forward.

[¶ 22.] Triple R seeks review of two issues:

Whether Department erred in determining Kassube is entitled to permanent total disability benefits under the odd-lot test.

Whether Department erred in apportioning to Triple R one-third of the liability for permanent total disability benefits.

[¶ 23.] Kurtz raises the issue:

Whether Department had subject matter jurisdiction over the claim asserted by Estes Brothers against Kurtz.

ISSUES

[¶ 24.] Although the four volume record is bulky and the proceeding protracted and procedurally involved, four issues present themselves for review and determination.

Issue One: Should Kurtz be dismissed from the proceeding for lack of jurisdiction?

Issue Two: Is Kassube totally disabled under the odd lot doctrine?

Issue Three: Which theory applies for the assigning of the liability for payment of the total disability benefits — the apportionment statute or the last injurious exposure rule?

Issue Four: Is Estes Brothers liable for all treatment provided to Kassube for his upper back, neck and shoulder?

STANDARD OF REVIEW

[¶ 25.] In workers' compensation cases, the standard of review is controlled by SDCL 1-26-37. Lagge v. Corsica Co-op., 2004 SD 32, ¶ 14, 677 N.W.2d 569, 573. "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." Wagaman v. Sioux Falls Const., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240. "`Mixed questions of law and fact are also fully reviewable.'" Kermmoade v. Quality Inn, 2000 SD 81, ¶ 10, 612 N.W.2d 583, 586 (quoting Zoss v. United Bldg. Centers, 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843). When a circuit court has reviewed an administrative agency's decision, we review the agency's decision "`unaided by any presumption that the circuit court's decision was correct.'" Zoss, 1997 SD 93 at ¶ 6, 566 N.W.2d at 843.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 26.] Should Kurtz be dismissed from the proceeding for lack of jurisdiction?

[¶ 27.] Kassube brought no claim against Kurtz. Estes Brothers impleaded Kurtz by a third party petition. Kurtz contends pursuant to SDCL 62-7-12 Department...