Loewen v. Hyman Freightways, Inc.

• Decision Date: 03 December 1996
• Docket Number: 19644,Nos. 19643,s. 19643
• Citation: 1997 SD 2,557 N.W.2d 764
• Parties: William S. LOEWEN, Claimant and Appellant, v. HYMAN FREIGHTWAYS, INC., Employer and Appellee, and Liberty Mutual Insurance Company, Insurer and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 764

557 N.W.2d 764

1997 SD 2

William S. LOEWEN, Claimant and Appellant, v. HYMAN FREIGHTWAYS, INC., Employer and Appellee, and Liberty Mutual Insurance Company, Insurer and Appellee.

Nos. 19643, 19644.

Supreme Court of South Dakota.

Considered on Briefs Dec. 3, 1996.

Decided Jan. 8, 1997.

Thomas W. Parliman, P.C., Sioux Falls, for claimant and appellant.

Comet Haraldson of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellees.

GILBERTSON, Justice.

¶1 William Loewen (Loewen) appeals from a denial of his petition for worker's compensation benefits. We reverse on the issue of notice and reinstate the decision of the Department of Labor.

FACTS & PROCEDURE

¶2 Loewen was employed as a dock worker for Hyman Freightways (Employer). In late May or early June of 1993, ¹ Loewen helped a fellow worker shut a trailer door. When the door shut, Loewen stepped backwards and tripped and fell onto a dock plate, hitting his tailbone and left buttock. The worker whom Loewen was assisting witnessed the fall. Loewen did not seek medical treatment immediately after this fall and self-treated with rest and application of a heating pad. He did however testify that he missed one day of work and left work one hour early several other days due to back problems incurred in this fall.

¶3 On July 28, Loewen was on vacation when he slipped on some mud and fell. After this fall, the pain in his back was such that he sought treatment from a chiropractor, Dr. Johnson. Loewen called Dale James (James), Employer's operations manager, to request an additional week of vacation because his back was still bothering him. He thought another week with the heating pad applied to his back would resolve the problem. After several visits to the chiropractor, however, Loewen was referred to a neurosurgeon, Dr. Estes. Loewen saw Dr. Estes on August 5, 1993, and on this same date, called James to tell him he might have to have surgery. When James inquired as to what caused his back problems, Loewen responded, "You remember when I tripped over the dock plate and fell on my tailbone a couple months ago. I'm sure I told you or I told Larry [Marsh, dock supervisor]." Neither James nor Marsh recalled Loewen's reporting the fall or any subsequent injury to them. Employer's injury report records also did not reflect Loewen reported an injury. ²

¶4 On August 11, 1993, Dr. Estes performed a lumbar laminectomy on Loewen for a disk extrusion. Loewen applied for worker's compensation benefits. The Department of Labor, following a hearing, denied the petition for benefits, holding Loewen had failed to provide Employer with notice pursuant to SDCL 62-7-10 and that he had failed to establish a causal connection between his injury and his employment. Loewen appealed to the circuit court which reversed the Department on the notice issue and affirmed on the issue of causation.

¶5 Loewen appeals to this Court raising the following issue:

Whether Loewen suffered an injury arising out of and in the course of his employment?

Employer and its insurer raise the following issue by notice of review:

Whether Loewen provided Employer with notice of his injury pursuant to SDCL 62-7-10?

STANDARD OF REVIEW

¶6 Our standard of review of a worker's compensation claim 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).

¶7 On appeal, "[t]he issue we must determine is whether the record contains substantial evidence to support the agency's determination." Helms v. Lynn's, Inc., 1996 SD 8, p 10, 542 N.W.2d 764, 766 (citing In re Establishing Certain Territorial Elec. Boundaries, 318 N.W.2d 118, 121 (S.D.1982); Nehlich v. SD 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)). "We will reverse only if we are definitely and firmly convinced that a mistake has been made." Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)).

ANALYSIS & DECISION

Whether Loewen provided Employer with notice of his injury pursuant to SDCL 62-7-10?

¶8 We address Employer's notice of review issue first as it is a threshold issue. Westergren v. Baptist Hospital of Winner, 1996 SD 69, p 17, 549 N.W.2d 390, 395. "Notice to the employer of an injury is a condition precedent to compensation." Id. (citing Schuck v. John Morrell & Co., 529 N.W.2d 894, 897-98 (S.D.1995)).

¶9 "The law in effect when the injury occurred governs the rights of the parties." Westergren, 1996 SD 69, p 18, 549 N.W.2d at 395 (citing Helms, 1996 SD 8, p 11, 542 N.W.2d at 766). In 1993, when Loewen's injury occurred, SDCL 62-7-10, requiring notice to the employer of the injury, provided: ³

Every injured employee or his representative shall immediately upon the occurrence of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employee shall not be entitled to a physician's fee nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative had knowledge of the injury or death, or that the person required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person or other equally good reason; but no compensation shall be payable unless written notice is given within thirty days after the occurrence of the injury or death unless reasonable excuse is made to the satisfaction of the department for not giving such notice.

¶10 We discussed the notice requirement in Westergren, stating its purpose is "to give the employer the opportunity to investigate the injury while the facts are accessible. The notice requirement protects the employer by assuring he is alerted to the possibility of a claim so that a prompt investigation can be performed." 1996 SD 69, p 18, 549 N.W.2d at 395 (citations omitted).

¶11 At the outset, we must acknowledge that the Department of Labor made a factual finding that Loewen was not credible on the issue of notice. The circuit court agreed. We have long held the Department is in the best position to assess the credibility of the witnesses and the weight to be accorded their testimony, and we give due regard to its opportunity to observe the witnesses and the evidence first hand. Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D.1994); Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 271 (S.D.1989). We will not substitute our judgment for the agency's on an issue of credibility unless we are "left with a definite and firm conviction that a mistake has been made." Lien v. Miracle Span Corp., 456 N.W.2d 563, 565 (S.D.1990).

¶12 We are not left with such a conviction in this case, and we find substantial evidence to affirm the Department's holding on the notice issue. Nevertheless, the circuit court, as a matter of law, held Loewen "was not required to give Employer notice of his injury until he suffered economic harm," and concluded that "[u]ntil a Claimant suffers economic harm, he is not aware that he has suffered a compensable injury." According to the Memorandum Decision of the circuit court, incorporated by reference into its Findings of Fact and Conclusions of Law, it relied solely on our decision in Tieszen v. John Morrell & Co., 528 N.W.2d 401 (S.D.1995) in reaching this conclusion.

¶13 In its Memorandum Decision, the circuit court quoted a holding from the Supreme Court of Arizona cited in Tieszen and attributed it to the Tieszen holding. In Tieszen, this Court examined a number of cases in other jurisdictions. We did not, however, adopt the Arizona court's holding. The full quote from Tieszen to which the circuit court referred states:

Finally, the Supreme Court of Arizona held that the notice period did not begin to run where an employee had suffered an injury where the injury did not require him to miss work or cause him an economic loss. That court held that the notice period did not begin to run until the severity of the injury was medically diagnosed.

Id. at 405 (citing M.M. Sundt Constr. Co. v. Industrial Comm'n of Ariz., 124 Ariz. 94, 602 P.2d 475, 477 (1979)).

¶14 This Court has stated "[t]he question of whether an employee had sufficient knowledge of a compensable injury to start the running of the notice period is a question of law." Id. at 404 (citing Bearshield v. City of Gregory, 278 N.W.2d 164, 165 (S.D.1979)). However, we do not agree that suffering economic harm is the precipitating event that commences the notice period to run in a worker's compensation case under South Dakota law. Such language is too restrictive when examined in light of this Court's precedent. See Pirrung v. American News Co., 75 S.D. 444, 448, 67 N.W.2d 748, 750 (1954) (holding the duty to notify employer of occurrence of injury arises when employee learns he or she has sustained a compensable injury); Bearshield, 278 N.W.2d at 166 (holding two-year statute of limitations to bring worker's compensation claim runs from the time employee is aware a compensable injury has been sustained). Further, such language does not comport with SDCL 62-7-10 which sets the notice period running at the "occurrence of the injury" rather than an injured employee's suffering any economic harm.

¶15 In Miller...