Kasuske v. Farwell, Ozmun, Kirk & Co.

Decision Date08 February 2006
Docket NumberNo. 23571.,No. 23555.,23555.,23571.
CourtSouth Dakota Supreme Court
PartiesRandy KASUSKE, Claimant and Appellant, v. FARWELL, OZMUN, KIRK & CO., Employer and Appellee, and Great American Insurance Companies, Insurer and Appellee.

Brian L. Radke, Radke Law Office, Sioux Falls, South Dakota, Attorneys appellant.

Timothy M. Gebhart of Davenport, Evans, Hurwitz and Smith, Sioux Falls, South Dakota, Attorneys for appellees.

SABERS, Justice.

[¶ 1.] Randy Kasuske (Kasuske) petitioned the South Dakota Department of Labor (Department) to reopen his workers' compensation claim. After a hearing, the Department issued an order dismissing Kasuske's petition. On appeal, the circuit court affirmed the Department's decision. Kasuske appeals. We affirm.


[¶ 2.] Randy Kasuske was employed as a shipping clerk by Farwell, Ozmun, Kirk & Co. (Employer). In March 1983, Kasuske injured his lower back while lifting a seventy-five pound box. Kasuske felt pain in his lower back that extended down his left leg.

[¶ 3.] It was later discovered that Kasuske had suffered a herniated disk. Over the course of several years, Kasuske underwent multiple surgeries performed by multiple physicians. Employer, through its insurer, Great American Insurance Companies (Insurer), paid the expenses associated with Kasuske's surgeries, physical therapy, pain medications, and other workers' compensation benefits. Kasuske stopped working in 1987 and began receiving social security disability benefits in 1988. He later filed a petition for hearing with the Department, alleging that the injury had rendered him permanently and totally disabled.

[¶ 4.] In 1992, Kasuske entered into a settlement agreement with Employer and Insurer. He released Employer and Insurer from all past, present, and future claims, including his claims for permanent and total disability benefits under the odd lot doctrine. In exchange, Employer and Insurer paid Kasuske a lump sum of $60,000, plus an additional $1,795.18 in unpaid medical expenses. The agreement permitted Kasuske to pursue future medical treatment. However, Employer and Insurer reserved the right to dispute whether the treatment was reasonable, necessary, or medically related to Kasuske's injury. The Department approved the agreement and dismissed Kasuske's petition with prejudice.

[¶ 5.] Kasuske's physical condition did not change during the four years subsequent to signing the agreement. However, in 1996, he started complaining of pain in his upper back, shoulders, arms, and hands. He also complained of extreme headaches. Kasuske sought treatment for these ailments from several physicians.

[¶ 6.] He petitioned the Department to reopen his claim based upon the claim that his condition had deteriorated by developing new and more serious features. Employer responded by arguing that Kasuske had already been compensated for his permanent and total disability and that the agreement barred him from collecting further benefits. Both parties filed motions for summary judgment on whether the settlement agreement barred Kasuske's petition to reopen. The Department denied Employer's motion and granted summary judgment for Kasuske, relying on our decision in Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 575 N.W.2d 225. The matter was then scheduled for hearing.

[¶ 7.] Kasuske and his wife were the only witnesses who testified at the hearing. He introduced his medical evidence by stipulation. In addition, he introduced various letters between his attorney and his physicians. Employer introduced the deposition of its expert witness, Dr. Farnham, who had conducted an independent medical examination of Kasuske.

[¶ 8.] The Department concluded that Kasuske's present condition was not causally related to the injury he sustained in 1983 and, as a result, ruled in favor of Employer. Kasuske appealed to the circuit court. The circuit court affirmed, relying on the same rationale as the Department. We address the following issue on appeal:

Whether Kasuske met his burden of proving that his present medical conditions are causally related to the 1983 injury.1

Standard of Review

[¶ 9.] "In workers' compensation cases, our standard of review is controlled by SDCL 1-26-37." Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465. The Department's factual findings and credibility determinations involving Kasuske's testimony are reviewed under the clearly erroneous standard. Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83 (citing Tieszen v. John Morrell & Co., 528 N.W.2d 401, 403-04 (S.D.1995)). However, the vast majority of the record in this case is comprised of documentary evidence. We review documentary evidence de novo, affording no deference to the Department's findings or inferences. Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661 (citing Watertown Coop. Elevator Ass'n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171).

[¶ 10.] Finally, pure questions of law and mixed questions of law and fact are fully reviewable. Enger, 1997 SD 70, ¶ 10, 565 N.W.2d at 83 (additional citations omitted). Although SDCL 1-26-37 mandates the degree of deference we give to the Department's decision, the circuit court's decision receives no deference. Kassube, 2005 SD 102, ¶ 25, 705 N.W.2d at 465 ("When a circuit court has reviewed an administrative agency's decision, we review the agency's decision unaided by any presumption that the circuit's decision was correct.") (internal quotations omitted).


[¶ 11.] "Ordinarily, workers' compensation awards whether by agreement or adjudication are final unless the Department reserves jurisdiction." Sopko, 1998 SD 8, ¶ 9, 575 N.W.2d at 229. However, the rules governing the finality of releases in workers' compensation cases are more forbearing. Id. ¶ 10. We have continually held that a release may be set aside "when the consequences of an injury were ... discovered after the release was signed." Id.; Mills v. Spink Electric Coop., 442 N.W.2d 243 (S.D.1989); Novak v. C.J. Grossenburg and Son, 89 S.D. 308, 232 N.W.2d 463 (1975). The Legislature codified an exception to the finality rule in workers' compensation cases by enacting SDCL 62-7-33. That statute provides in part:

Any payment, including medical payments under § 62-4-1, and disability payments under § 62-4-3 if the earnings have substantially changed since the date of injury, made or to be made under this title may be reviewed by the Department of Labor pursuant to § 62-7-12 at the written request of the employer or of the employee and on such review payments may be ended, diminished, increased, or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition of the employee warrants such action[.]

(emphasis added).

[12.]The party asserting a "change in condition" bears the burden of proving it.2 Sopko, 1998 SD 8, ¶ 12, 575 N.W.2d at 230 (citing Mills, 442 N.W.2d at 246). Only when that burden has been met, may the Department reopen a previous award. Id. ¶ 12 (additional citations omitted). In Mills, we adopted a broad interpretation of the term "change in condition," noting:

The "change in condition" which justifies reopening and modification is ordinarily a change, for better or worse in claimant's physical condition. This change may take such forms as progression, deterioration, or aggravation of the compensable condition, achievement of disabling character by a previously symptomatic complaint, appearance of new and more serious features, such as discovery of a disc herniation in a back case, failure to recover within the time originally predicted, and superimposition or worsening of a neurotic condition.

442 N.W.2d at 246. Even if a claimant proves a "change in condition," the Department may refuse to reopen the claim if the "change in condition" was foreseeable at the time of settlement. Sopko, 1998 SD 8, 15, 575 N.W.2d at 233 ("When an injured worker seeks to reopen a settlement which includes a waiver of future rights, the focus is on whether the asserted "change in condition" derives from an injury unknown at the time of the settlement or from a known injury with its disabling character unknown."); see also Mills, 442 N.W.2d at 246 ("Because he [Mills] could not have anticipated such extensive future medical expenses, any alleged waiver is ineffective.").

[13.]It is also well settled that "to recover disability benefits under the work[ers'] compensation statutes, the claimant has the burden of establishing a causal connection between the employment and the disability." Day v. John Morrell Co., 490 N.W.2d 720, 724 (S.D.1992) (citing Lawler v. Windmill Restaurant, 435 N.W.2d 708, 710 (S.D.1989)) (internal quotations omitted). Ordinarily, the opinions of experts are required to establish a causal relationship between the incident and the injury. Id. (citing Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991)). "A workers' compensation award cannot be based on possibilities or probabilities, but must be based on sufficient evidence that the claimant incurred a disability arising out of and in the course of his employment." Id. (quoting Wold v. Meilman Food Industries, 269 N.W.2d 112, 115 (S.D.1978)). Thus, claimant must introduce medical evidence sufficient to establish causation by a preponderance of the evidence. Enger, 1997 SD 70, ¶ 18, 565 N.W.2d at 85 (citing Hanten v. Palace Builders, Inc., 1997 SD 3, 8, 558 N.W.2d 76, 78).

[14.]Our modern cases have not focused on the causation element of reopening a workers' compensation claim. Mills focused only on the effect of the release and settlement and whether the claimant had proved a "change in condition." Mills, 442 N.W.2d at 244. However, the burden of causation remains a prerequisite to reopening a claim. In order to reopen a claim, the claimant must...

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  • Johnson v. United Parcel Serv.
    • United States
    • South Dakota Supreme Court
    • June 24, 2020
    ...under previously established legal principles, including SDCL 62-7-33. 2014 S.D. 64, ¶ 29, 834 N.W.2d 878, 886 (citing Kasuske v. Farwell, Ozmun, Kirk & Co., 2006 S.D. 14, ¶ 12, 710 N.W.2d 451, 455). If Hayes was novel in any way, it was because it involved an employer's continuing obligati......
  • McDowell v. Citibank
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    • June 6, 2007
    ...standard of review on the claim of entitlement to additional workers' compensation is controlled by SDCL 1-26-37. See Kasuske v. Farwell, Ozmun, Kirk & Co., 2006 SD 14, ¶ 9, 710 N.W.2d 451, 454 (citing Kassube v. Dakota Logging, 2005 SD 102, ¶ 25, 705 N.W.2d 461, 465). "The Department's fac......
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    • United States
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    • August 27, 2014
    ...proves a compensable injury, SDCL 62–7–33 provides the method for a party to assert a change in condition. See Kasuske v. Farwell, Ozmun, Kirk & Co., 2006 S.D. 14, ¶ 12, 710 N.W.2d 451, 455 (quoting Mills v. Spink Elec. Co-op., 442 N.W.2d 243, 246) (S.D.1989)(The “change in condition” which......
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    • South Dakota Supreme Court
    • February 21, 2007
    ...reviewed de novo. Id. (citations omitted). We also examine, de novo, the documentary evidence contained in the record. Kasuske v. Farwell, Ozmun, Kirk & Co., 2006 SD 14, ¶ 9, 710 N.W.2d 451, 453 (citations omitted). A reviewing court must consider the evidence in its totality and set the De......

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