McNeil v. Superior Siding, Inc., 25106.

• Citation: 2009 SD 68,771 N.W.2d 345
• Decision Date: 29 July 2009
• Docket Number: No. 25106.,25106.
• Parties: Terry McNEIL, Claimant and Appellant, v. SUPERIOR SIDING, INC., Employer and Appellee, and Acuity, Insurer and Appellee.
• Court: South Dakota Supreme Court

771 N.W.2d 345

2009 SD 68

Terry McNEIL, Claimant and Appellant, v. SUPERIOR SIDING, INC., Employer and Appellee, and Acuity, Insurer and Appellee.

No. 25106.

Supreme Court of South Dakota.

July 29, 2009.

Rehearing Denied August 14, 2009.

Anthony P. Bolson of Beardsley, Jensen & Von Wald, Prof. LLC, Rapid City, South Dakota Attorneys for appellant.

Michael S. McKnight, Charles A. Larson, of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellees.

SEVERSON, Justice.

[¶ 1.] Terry McNeil appeals the circuit court's ruling that he failed to comply with the statutory notice requirement for reporting his work-related injury. We affirm in part and reverse in part.

FACTS

[¶ 2.] McNeil injured his upper back on August 13, 2005, while working for Superior Siding, Inc. (Employer). He was moving a box of siding from one side of the jobsite to the other. After McNeil picked up the box and placed it on his shoulder, he heard a "pop" and felt numbness from his upper-left arm down to his fingers. The "pop" was in his upper back, between his shoulder blades. Although he described the pain as "intense" and like nothing he had ever experienced before, it did not cause him to drop the box. He continued to work the remainder of the day and did not miss any work due to the injury. The intense pain went away the same day, but McNeil testified that he had a "consistent" pain between his shoulder blades, and intermittent pain and numbness in his left arm. He testified that he was constantly stretching in an effort to "work out" the pain, but he did not believe the injury was serious. He thought he merely pulled or overworked a muscle, and that it would heal itself quickly. McNeil did not immediately report this injury to Employer or complete a first report of injury form.

[¶ 3.] McNeil continued to work full time for Employer. When the recurrent pain and discomfort became more frequent, McNeil realized his symptoms were not abating and he spoke with Employer. On November 8, 2005, McNeil and Employer completed a first report of injury form to submit to Acuity (Insurer). McNeil sought medical treatment from Dr. Ryan Swenson for the upper-back injury for the first time on November 21, 2005. During the examination, Dr. Swenson triggered a nerve under McNeil's left arm, causing a sensation, unlike anything McNeil had ever felt before. After several treatments proved unsuccessful, Dr. Swenson referred McNeil to Dr. Tim Watt, a neurosurgeon. On September 11, 2006, Dr. Watt diagnosed McNeil with a "herniated disk with a calcific spur on the left at C7-T1," and explained that McNeil needed an anterior cervical decompression and fusion at C7-T1. McNeil filed a workers' compensation claim seeking benefits. Insurer denied McNeil's claim, alleging he failed to timely notify Employer of the injury.

[¶ 4.] A bifurcated hearing was held before the Department of Labor (Department) on October 2, 2007, with the sole issue being whether McNeil complied with the notice requirement in SDCL 62-7-10. The Department held that McNeil did not immediately recognize the nature, seriousness and probable compensable character of the injury, and upon that recognition, McNeil made a first report of injury. The Department concluded that McNeil "had good cause for failing to give written notice within the three business day period [required under SDCL 62-7-10]."

[¶ 5.] Employer and Insurer appealed to the circuit court. The circuit court reversed, concluding that the Department erred by using a subjective, rather than objective, standard in determining whether McNeil complied with the statutory notice requirement. Furthermore, the court held that, under an objective standard, a reasonable person of McNeil's education and intelligence would have given timely notice to Employer. Therefore, his claim was denied. McNeil appeals.

STANDARD OF REVIEW

[¶ 6.] "We review appeals from administrative decisions in the same manner as the circuit court[,]" the standard for which is controlled by SDCL 1-26-37. Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (citations omitted). "The Department's factual findings and credibility determinations are reviewed under the clearly erroneous standard." Id. (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83). "We will reverse those findings only if we are definitely and firmly convinced a mistake has been made." Id. (citing Gordon v. St. Mary's Healthcare Ctr., 2000 SD 130, ¶ 16, 617 N.W.2d 151, 157). "Questions of law are reviewed de novo." Id. ¶ 16 (citing Enger, 1997 SD 70, ¶ 10, 565 N.W.2d at 83). Mixed questions of law and fact require further analysis. See Permann v. S.D. Dep't of Labor, 411 N.W.2d 113, 119 (S.D.1987).

If application of the rule of law to the facts requires an inquiry that is `essentially factual'—one that is founded `on the application of the fact-finding tribunal's experience with the mainsprings of human conduct'—the concerns of judicial administration will favor the district court, and the district court's determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.

Id. (quoting United States v. McConney, 728 F.2d 1195, 1202 (9thCir.1984)) (internal citations omitted). See also In re Dorsey & Whitney Trust Co., LLC, 2001 SD 35, ¶¶ 5-6, 623 N.W.2d 468, 471. Nevertheless, the burden is on the claimant to prove all facts essential to compensation. Kuhle, 2006 SD 16, ¶ 16, 711 N.W.2d at 247 (citation omitted).

Whether McNeil complied with SDCL 62-7-10's notice requirements.

[¶ 7.] SDCL 62-7-10¹ requires that an employer be provided written notice of a compensable injury within three business days of its occurrence, unless the employee can prove the employer had actual notice, or the employee had good cause for not providing notice within a three-day period. The "good cause" determination "shall be liberally construed in favor of the employee." SDCL 62-7-10. "`The purpose of the written notice requirement is to give the employer the opportunity to investigate the injury while the facts are accessible.'" Shykes v. Rapid City Hilton Inn, 2000 SD 123, ¶ 24, 616 N.W.2d 493, 499 (quoting Westergren v. Baptist Hosp. of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395). Notice of an injury to the employer is a condition precedent to compensation. Id.

[¶ 8.] It is well settled that "`[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of [the] injury or disease.'" Clausen v. N. Plains Recycling, 2003 SD 63, ¶ 13, 663 N.W.2d 685, 689 (quoting Miller v. Lake Area Hosp., 1996 SD 89, ¶ 14, 551 N.W.2d 817, 820 (quoting 2B Arthur Larson, Larson's Workmen's Compensation Law, § 78.41(a) at 15-185-86 (1995))). This is an objective standard based on a reasonable person of the claimant's education and intelligence. Shykes, 2000 SD 123, ¶ 42, 616 N.W.2d at 502 (stating that "[w]hether the claimant's conduct is reasonable is determined `in the light of [her] own education and intelligence, not in the light of the standard of some hypothetical reasonable person of the kind familiar to tort law'" (citation omitted)).

[¶ 9.] Based on the testimony presented at the hearing, the Department found in pertinent part:

12. Employer does not require employees to report every injury that occurs on the jobsite, despite the language in the handbook.

15. If the minor injury becomes serious or is found later to be a serious injury, i.e. an infected scratch, then Employer will report the injury to their insurer.

17. Many employees complain daily about aches and pains due to sore muscles or overworked joints. These employees do not report the minor aches to employer as work-related injuries if the pain is not recurrent and the employee does not seek medical treatment for the pain.

19. Claimant injured his upper-back on August 13, 2005. Claimant was carrying a box of siding from one side of the jobsite to the other.

23. The pain was "intense" at that time; however, Claimant continued to work and finished the job.

24. Claimant neither dropped the box of siding nor stopped working when the upper-back pain started.

25. The intense pain went away the same day.

26. The next day Claimant still felt some pain between his shoulder blades. Claimant had pulled or overworked muscles in the past and assumed this injury was a minor pulled muscle.

27. Claimant believed that his upper-back ache would heal itself quickly and that it was not a serious injury.

31. Claimant did not think the upper-back injury was serious until his symptoms did not go away.

33. When the recurrent pain and discomfort became more frequent, Claimant realized the injury was serious and he spoke with Employer.

These findings are substantiated by the record, and there is no showing they are clearly erroneous. The Department concluded in part:

9. Claimant does not have the education or experience to know which of his aches and pains are serious injuries or are just muscle strains.

16. Claimant had made a prior injury report to Employer in December of 2003 for his lower-back injury. Similarly, Claimant reported an injury in January 2005 when he picked up a piece of equipment and fell to his knees in pain. Unlike either of those injuries, Claimant did not recognize the seriousness of the upper-back injury that occurred in August 2005.

17. Claimant's testimony was both plausible and credible.

22. Claimant complied with the notice requirement of SDCL 62-7-10.

23. Claimant "had good cause for failing to give written notice within the...