McDowell v. Citibank, 23858.

• Decision Date: 06 June 2007
• Docket Number: No. 23858.,No. 23879.,23858.,23879.
• Parties: Pamela McDOWELL, Claimant and Appellant, v. CITIBANK, Employer and Appellee, and Planet Insurance Company, Insurer and Appellee.
• Court: South Dakota Supreme Court

734 N.W.2d 1

2007 SD 52

Pamela McDOWELL, Claimant and Appellant, v. CITIBANK, Employer and Appellee, and Planet Insurance Company, Insurer and Appellee.

No. 23858.

No. 23879.

Supreme Court of South Dakota.

Argued May 25, 2006.

Reassigned February 20, 2007.

Decided June 6, 2007.

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

Kristi Geisler Holm of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellees.

ZINTER, Justice (on reassignment).

[¶ 1.] Pamela McDowell appeals Department of Labor and circuit court decisions denying a petition to reopen her workers' compensation settlement. We affirm.

Facts and Procedural History

[¶ 2.] McDowell started working at Citibank in 1984 or 1985. Part of her duties required typing name changes, address changes, credit line increases, and other information in Citibank's computer system. Between 1989 and 1990, McDowell started to experience pain and tingling in her right arm.

[¶ 3.] In 1991, Dr. Walter Carlson, an orthopedic surgeon, diagnosed bilateral carpal tunnel syndrome. Dr. Carlson subsequently performed bilateral carpal tunnel release surgery. After the surgery, McDowell continued to work at Citibank on a full-time basis.

[¶ 4.] Thereafter, McDowell began experiencing tingling and pain in both hands. Dr. Carlson referred McDowell to the Mayo Clinic. At Mayo, McDowell was diagnosed with neuropathy of the radial nerve. As a result, she underwent radial nerve release surgery on her right hand. McDowell also continued to receive medical treatment including pain management, lidocaine infusions, physical therapy, and biofeedback. Citibank and its insurer, Planet Insurance Company, paid for McDowell's medical treatment and temporary workers' compensation benefits.

[¶ 5.] In 1993, McDowell filed a petition seeking permanent benefits. She alleged that she was permanently and totally disabled. Citibank and McDowell entered into a settlement agreement in March, 1996. The agreement acknowledged that McDowell was an employee of Citibank and suffered an injury arising out of and in the course of her employment. The agreement specifically stated that McDowell believed she was entitled to "all categories of benefits including, but not limited to, benefits for permanent total disability pursuant to the odd lot doctrine." (Emphasis added.)

[¶ 6.] Notwithstanding her belief, McDowell settled her claim for less than a permanent total disability award. The 1996 settlement agreement noted that there was a dispute between the parties concerning the extent of McDowell's disability, and it specifically set forth the underlying medical basis for both parties' respective claims. Section 3 provided:

Claimant . . . was assigned an impairment rating of five percent (5%) of the right upper extremity by [employer/insurer's medical expert,] Dr. Hoversten. A true and correct copy of that rating is attached and incorporated by reference. Dr. Schutt[, McDowell's medical expert,] later assigned an impairment rating of forty-five percent (45%), a copy of which is attached and incorporated by reference.

(Emphasis added.)

[¶ 7.] The medical records reflected that Dr. Hoversten, an orthopedic surgeon, had performed an independent medical examination of McDowell. Dr. Hoversten opined that McDowell sustained a five percent impairment rating for the upper right extremity and that she was capable of returning to her former work full time and without specific restrictions. Dr. Schutt was McDowell's treating physician at the Mayo Clinic. In contrast to Dr. Hoversten, Dr. Schutt assigned a forty-five percent whole body impairment rating. Dr. Schutt's records also reflected that McDowell was "[unable to work and] . . . certainly not able to do that and will not be able to do that now."

[¶ 8.] On February 11, 2003, approximately seven years after settling this disputed claim, McDowell petitioned the Department to reopen. McDowell alleged that she suffered a change in condition and was again entitled to permanent total disability benefits. Citibank contested McDowell's petition, and the Department conducted a hearing on the matter.

[¶ 9.] The hearing examiner denied McDowell's petition to reopen. The examiner found that McDowell was, and believed that she was, permanently and totally disabled at the time of the settlement agreement. In making this finding, the examiner noted that Rick Ostrander, McDowell's own vocational expert, testified that McDowell was permanently and totally disabled at the time of the settlement agreement. Based on this and other evidence, the hearing examiner found that there was no post-settlement change in McDowell's earning capacity. In fact, the hearing examiner made sixty-seven findings of fact, almost all of which referred to statements by McDowell, her husband, Ostrander, and McDowell's treating physicians opining that McDowell was permanently and totally disabled both before and after the settlement agreement. The hearing examiner ruled that McDowell was bound by her admissions and the testimony of her vocational expert. The hearing examiner ultimately explained that because McDowell was, and knew that she was permanently and totally disabled at the time of settlement, "[it was] impossible [for McDowell] to be more disabled than permanently and totally disabled" at the time of her petition to reopen the settlement. Because McDowell failed to establish a change in earning capacity, the hearing examiner did not reach the question whether McDowell suffered a change in condition.

[¶ 10.] McDowell appealed to circuit court. The circuit court affirmed the hearing examiner's findings of fact and conclusions of law. McDowell now appeals the Department's denial of the petition to reopen the settlement. McDowell also appeals a number of evidentiary rulings in the administrative proceedings.

Decision

[¶ 11.] Our 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 factual findings . . . are reviewed under the clearly erroneous standard." Id. (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83) (additional citation omitted). However, the Department receives no deference on its findings and conclusions based on documentary evidence. Id. (citing Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661) (other citation omitted). Legal questions are also fully reviewable. Id. at ¶ 10 (citing Enger, 1997 SD 70, ¶ 10, 565 N.W.2d at 83).

Reopening

[¶ 12.] The requirements for reopening a workers' compensation settlement under SDCL 62-7-33¹ are well settled. Three things must be shown:

First, the claimant must prove "a change in condition." Second, the claimant must prove that the asserted "change in condition" derives from an injury unknown at the time of settlement or from a known injury with its disabling character unknown. Finally, a claimant must prove that the unknown injury is causally connected to employment, or that the unknown disabling character is causally connected to the original, compensable injury.

Kasuske, 2006 SD 14 at ¶ 17, 710 N.W.2d at 456 (emphasis added). Because the hearing examiner assumed without deciding that McDowell could prove a change in condition, he decided this case on two related questions: whether the alleged change in condition affected McDowell's earning capacity and whether the disabling character of her upper extremities injury was unknown at the time of settlement. In deciding those issues, "the evidence must bear directly upon [a] comparison between the claimant's former disability and present disability." 8 Arthur Larson and Lex K. Larson, Larson's Workers' Compensation Law § 131 (2006) (emphasis added).

[¶ 13.] Because the analysis requires a comparison of McDowell's former and present disabilities, it is important to restate the distinctions between a workplace injury, a worker's post-injury condition, and an occupational disability. It is also important to note how the occupational disability is determined as well as the role that impairment ratings play in the determination. "`[I]njury' is the . . . act or omission which caused the loss.'" Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 10, 607 N.W.2d 596, 600 (quoting Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186, 190 (1984)). "`Condition,' in contrast, is the loss produced by [that] injury; i.e., it is the result rather than the cause. The word `condition' means `state of being.'" Id. (citing Doyle v. Superior Court, 50 Cal.App.4th 1878, 58 Cal.Rptr.2d 476, 481 (1996)) (emphasis in original). Finally, that "condition" may or may not cause a compensable occupational disability. That type of disability is often determined in part by an impairment rating, but the numeric impairment rating is not determinative. Instead, a workers' compensation disability is based on the worker's occupational situation. As this Court has often explained:

The physician who makes a determination about impairment must keep in mind that a permanent impairment rating is not the same as a disability rating. Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands, or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment. . . . [A] hearing examiner should [consider] other evidence, such as the testimony of [plaintiff's] vocational expert regarding loss of employability . . . .

Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548, 552 (S.D. 1990) (emphasis added).

[¶ 14.] Keeping these distinctions in mind, an injured worker's occupational ability or capacity is of primary importance...