Kurtenbach v. Frito-Lay, FRITO-LA

Decision Date03 December 1996
Docket Number19582,E,FRITO-LA,Nos. 19579,s. 19579
Citation563 N.W.2d 869,1997 SD 66
PartiesRoger KURTENBACH, Employee, Claimant and Appellee, v.mployer, Defendant and Appellant, and Planet Insurance, Insurer, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Thomas E. Simmons of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for Employee, Claimant and Appellee.

Lori Purcell Fossen and Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for Appellants.

MILLER, Chief Justice (on reassignment).

¶1 Employer appeals Department of Labor's award of rehabilitation benefits to Claimant for a five and one-half year collegiate metallurgical engineering program. By notice of review, Claimant appeals the circuit court's denial of benefits during the time prior to petitioning the Department of Labor for rehabilitation benefits as well as the denial of Cozine benefits. We reverse in part and remand in part.

FACTS

¶2 Roger Kurtenbach was employed as a route salesperson with Frito-Lay (Employer) for approximately thirteen years when he suffered a work-related back injury in August of 1991. At the time of the injury, he was earning nearly $40,000 per year. Following surgery and physical therapy, he attempted to return to work but was unable to perform his normal duties. The parties do not dispute that Kurtenbach's injury prevented him from returning to his position as a route salesperson for Employer.

¶3 On January 13, 1993, Kurtenbach enrolled in a civil engineering program at South Dakota School of Mines & Technology (SDSM & T). He later changed his major to metallurgical engineering. 1 He did not contact Employer about receiving rehabilitation benefits until January 23, 1993, after his enrollment in the program. Kurtenbach's claim was denied by Employer, prompting Kurtenbach to petition the Department of Labor (Department) for rehabilitation benefits.

¶4 Following a February 9, 1995, hearing, Department concluded that the five and one-half year metallurgical engineering program was a necessary and reasonable means of restoring Kurtenbach to suitable employment and that he was entitled to rehabilitation benefits for the duration of the program. Department also held that his petition for rehabilitation benefits was timely filed, but denied his request for Cozine benefits.

¶5 Employer appealed to the circuit court. Department's decision was affirmed in its entirety except the circuit court reversed the award of benefits for the period between Kurtenbach's enrollment at SDSM & T in January, 1993, and his petition to Department in August, 1993. This appeal followed.

STANDARD OF REVIEW

¶6 Our review of administrative appeals is well-settled:

We will overrule an agency's findings of fact only when they are clearly erroneous. The question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding. In other words, even if there is evidence in the record which tends to contradict the Department's factual determination, so long as there is some substantial evidence in the record which supports the Department's determination, this court will affirm. Great weight is given to the findings made and inferences drawn by an agency on questions of fact. Conclusions of law are given no deference and are fully reviewable. When reviewing evidence presented by deposition, we do not apply the clearly erroneous standard but review that testimony as though presented here for the first time.

Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 (S.D.1994) (citations and internal quotations omitted). We review an administrative agency's decision without any presumption that the circuit court's decision was correct. Nilson v. Clay County, 534 N.W.2d 598, 600 (S.D.1995).

¶7 I. Whether the award of rehabilitation benefits was clearly erroneous.

¶8 The workers' compensation statutes allow a claimant to receive compensation during rehabilitation:

If an employee suffers disablement as defined by subdivision 62-8-1(3) or an injury and is unable to return to his usual and customary line of employment, the employee shall receive compensation at the rate provided by § 62-4-3 up to sixty days from the finding of an ascertainable loss if the employee is actively preparing to engage in a program of rehabilitation. Moreover, once such employee is engaged in a program of rehabilitation which is reasonably necessary to restore the employee to suitable, substantial and gainful employment, the employee shall receive compensation at the rate provided by § 62-4-3 during the entire period that he is engaged in such program. The employee shall file a claim with his employer requesting such compensation and the employer shall follow the procedure specified in chapter 62-6 for the reporting of injuries when handling such claim. If the claim is denied, the employee may petition for a hearing before the department.

SDCL 62-4-5.1. 2

¶9 We have interpreted this statute on numerous occasions and established a five-part test for awarding rehabilitation benefits:

1. The employee must be unable to return to his usual and customary line of employment 2. Rehabilitation must be necessary to restore the employee to suitable, substantial, and gainful employment;

3. The program of rehabilitation must be a reasonable means of restoring the employee to employment;

4. The employee must file a claim with his employer requesting the benefits; and

5. The employee must actually pursue the reasonable program of rehabilitation.

Hendrix, 520 N.W.2d at 883; Chiolis v. Lage Dev. Co., 512 N.W.2d 158, 160 (S.D.1994); Beckman v. John Morrell & Co., 462 N.W.2d 505, 507 (S.D.1990); Cozine v. Midwest Coast Transp., Inc., 454 N.W.2d 548, 553 (S.D.1990).

¶10. 1. Whether Kurtenbach was unable to return to his usual and

customary line of employment.

¶11 The first requirement, Kurtenbach's inability to return to "his usual and customary line of employment," is unquestioned. His duties with employer included lifting and repetitive motion, tasks he was no longer capable of performing.

¶12. 2. Whether rehabilitation is necessary to restore

Kurtenbach to suitable, substantial, and gainful

employment.

¶13 The second requirement, whether rehabilitation is necessary, is disputed by Employer. It argues that Kurtenbach's position was primarily a "sales" job, and that retraining is unnecessary because there are sales jobs available which would restore him to "suitable, substantial, and gainful employment." Kurtenbach maintains that his personality is not suited for the type of sales jobs Employer suggests, and that his job with Employer was not primarily sales-oriented, but limited to servicing and maintaining existing accounts. His vocational expert, William Peniston, agreed that sales only accounted for a minor percentage of Kurtenbach's daily duties and further noted that he was "financially unsuccessful" in previous straight-commission sales positions.

¶14 The jobs suggested by Employer's vocational expert, Ronald Ochs, were straight-commission positions involving the sale of automobiles, vacuum cleaners, and insurance. Ochs conceded at the Department hearing, and in his "Labor Market Survey," that these positions had a high turnover rate and a dismal success rate. He also testified that only "good" salespeople could be expected to earn at a level comparable to Kurtenbach's earnings with Employer.

¶15 " 'The statute requires more than mere restoration to employment. The new employment must be suitable when compared to the employee's former job.' " Chiolis, 512 N.W.2d at 160 (quoting Cozine, 454 N.W.2d at 554). We agree with Department that commission sales positions would not return Kurtenbach to suitable, substantial, or gainful employment:

We must distinguish between Claimant's position with Frito-Lay and the employment suggested by Employer/Insurer. As a Frito-Lay route salesman, Claimant did not have to establish his customer base, but rather, he took over an existing route. It is true that the driver on these routes must service the customers on his route. This consists of being sure the customer's shelves and displays are well stocked, and that the customer is prepared for his sales. While it is true that the driver encourages the customer to add special displays, this cannot be compared to salesmanship required of a successful auto dealer. One has a captive audience and the other captures. One knows the product and wants to have it available to his consumer. The other must convince the ultimate buyer of the value of the product.

Kurtenbach v. Frito-Lay, SD Dep't of Labor, Div. of Labor & Management, HF No. 36, 1993/94 (June 1995).

¶16 Department also pointed out that Peniston did not find Kurtenbach to be suited for commission sales and that his presentation at the hearing proved that he simply did not have the personality traits of an aggressive salesperson. " '[T]he agency, after holding a hearing and listening to witnesses, is in a much better position to find facts than are we on appeal.' " Cox v. Sioux Falls Sch. Dist. No. 49-5, 514 N.W.2d 868, 873 (S.D.1994) (quoting Permann v. South Dakota Dep't of Labor, 411 N.W.2d 113, 117 (S.D.1987)); accord Abild v. Gateway 2000, Inc., 1996 SD 50, p 9, 547 N.W.2d 556, 559.

¶17 According to Cozine, before the burden of establishing the existence of suitable employment shifts to the employer, the employee must make a prima facie showing that he is unable to find suitable employment. 454 N.W.2d at 554. Employer claims that one day of telephone calls to inquire about the commission sales jobs, after enrolling at SDSM & T, does not constitute a valid job search. Department stated that ordinarily a job search is critical to establishing a right to rehabilitation benefits, but it is not necessary where a search would be fruitless because the proposed employment "is...

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3 cases
  • Belhassen v. John Morrell & Co.
    • United States
    • South Dakota Supreme Court
    • June 21, 2000
    ...[¶ 22.] "Cozine benefits are those which are paid to a claimant for the loss of a part of the body or its loss of use." Kurtenbach v. Frito-Lay, 1997 SD 66, ¶ 29, 563 N.W.2d 869, 876 (citing Cozine v. Midwest Coast Transp., Inc., 454 N.W.2d 548, 551-52 (S.D.1990); SDCL 62-4-6). In Cozine, w......
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    ...suitable, substantial, and gainful employment); see also Chiolis, 512 N.W.2d at 160. ¶23 Sutherland relies on Kurtenbach v. Frito Lay, 1997 SD 66, 563 N.W.2d 869, to support her position that the CRN job was not "suitable" employment. Kurtenbach, whose main duty was to service and maintain ......
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    • South Dakota Supreme Court
    • May 1, 1997
    ...do not apply the clearly erroneous standard but review that testimony as though presented here for the first time. Kurtenbach v. Frito-Lay, 1997 SD 66 p 6, 563 N.W.2d 869, 872 (quoting Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 ¶8 The Board retains jurisdiction to revoke the suspended ......

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