Kuhle v. Lecy Chiropractic, No. 23736.

• Court: Supreme Court of South Dakota
• Writing for the Court: Sabers
• Citation: 2006 SD 16,711 N.W.2d 244
• Parties: Kami KUHLE, Claimant and Appellant, v. LECY CHIROPRACTIC, Employer and Appellee, and Acuity, Insurer and Appellee.
• Decision Date: 01 March 2006
• Docket Number: No. 23736.

Page 244

711 N.W.2d 244 2006 SD 16 Kami KUHLE, Claimant and Appellant,
v.
LECY CHIROPRACTIC, Employer and Appellee, and
Acuity, Insurer and Appellee. No. 23736. Supreme Court of South Dakota. Considered on Briefs January 9, 2006. Decided March 1, 2006.

Page 245

Michael J. Simpson of Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys appellant.

Michael S. McKnight, Lisa Hansen Marso of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellees.

SABERS, Justice.

[¶ 1.] The South Dakota Department of Labor (Department) determined that Kami Kuhle (Kuhle) was not entitled to workers' compensation benefits from Lecy Chiropractic Clinic (Clinic) because she failed to provide timely notice. We affirm.

FACTS

[¶ 2.] Kuhle was thirty-three years old at the time of this hearing. She attended high school, but only completed the tenth grade. Kuhle received her general equivalency diploma in 1987 or 1988. Later, she studied biology at Black Hills State University and phlebotomy at Western Dakota Technical Institute. Kuhle also obtained a degree as a medical secretary. She has worked in sales, at a veterinary clinic, and as a floral designer.

[¶ 3.] Kuhle began working at the Clinic as a chiropractic assistant in April, 2002. Her primary duties included gathering patient histories, data entry, and using a massager and ultrasound on patients. The massager resembles a belt sander and weighs between three and five pounds. Kuhle used the massager for about two minutes on each patient. She was forced to lean over the patient during the procedure while the patient was lying on the examination table. After Kuhle finished with one patient, she would perform the procedure on another patient. She performed up to twenty of these procedures per day.

[¶ 4.] Kuhle began to experience a burning pain in the middle portion of her back, between her shoulder blades, as a result of performing these procedures. The pain would usually subside in the evening and would be gone by morning. Kuhle's husband, Daryn, testified that she complained about the pain associated with the massaging procedure about once a week.

[¶ 5.] Doctors Dan and Robin Lecy periodically performed adjustments on Kuhle's back. Both Doctors offered the adjustments free of charge for employees, a service that was usually performed during breaks or at the end of the business day. Kuhle testified that she received adjustments once or twice per month between April and November 2002. However, the medical records only document four treatments of Kuhle during that time period. Although the records contain information that Kuhle was experiencing upper back pain, there is no mention of the massager or that the pain was related to her employment.¹

[¶ 6.] On October 25, 2002, Kuhle awoke stiff and sore. She scheduled an appointment with Dr. Dan Lecy that same

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afternoon. During the treatment, Kuhle felt a pop in her back that was like "nothing that [she][had] ever felt before." The Clinic record from this date does not indicate that Kuhle informed Dr. Lecy that her pain and discomfort was the result of her employment. However, Dr. Lecy testified that Kuhle mentioned she had been doing landscaping work that month.²

[¶ 7.] Sometime during the drive home, Kuhle's pain became so intense that she was unable to move. Her husband took her to the hospital where she received an injection to relieve the pain. There is no mention of the massager or any work-related injury in the hospital records generated from this visit. Instead, it is noted that Kuhle's pain started while she had been moving a large television earlier that month.

[¶ 8.] The following day, Kuhle received another adjustment from Dr. Dan Lecy.³ He believed Kuhle's condition was deteriorating so he sent her to her family physician, Dr. Kevin Weiland. An MRI revealed that Kuhle suffered a herniated disc.

[¶ 9.] Kuhle underwent a diskectomy on November 25, 2002. She returned to work in January, 2003. However, she was only able to work on a limited basis, performing primarily office work.

[¶ 10.] By February, Kuhle started to consider taking legal action against the Clinic. She testified that Dr. Seljeskog, who had performed her surgery, implied that her injury may be related to the October 25th adjustment performed by Dr. Dan Lecy. She also had numerous conversations with her husband about possible claims she may have against the Clinic. Consequently, Kuhle decided to schedule a visit with Mike Abourezk, a Rapid City attorney. The meeting took place sometime in mid-February.

[¶ 11.] After discussing the potential for a medical malpractice claim, Abourezk advised Kuhle to file a workers' compensation claim. Thereafter, Kuhle discussed the possibility of a workers' compensation claim with Dr. Robin Lecy. Dr. Lecy informed her that he did not believe she had a workers' compensation claim because her injury was not work related.⁴

[¶ 12.] Kuhle completed her first report of injury on March 13, 2005. In the report, she listed October 1, 2002, as her date of injury. The Clinic denied her request for benefits, alleging that sufficient notice of injury had not been given in accordance with SDCL 62-7-10.

[¶ 13.] After a hearing, the Department issued a decision in favor of the Clinic. The administrative law judge (ALJ) found that:

Given Claimant's age and intelligence, Claimant, as a reasonable person, should have recognized the nature, seriousness and...