Schuck v. John Morrell & Co.

• Decision Date: 29 November 1994
• Docket Number: No. 18721,18721
• Parties: William C. SCHUCK, Claimant and Appellee, v. JOHN MORRELL & COMPANY, Employer/Self Insurer and Appellant. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 894

529 N.W.2d 894

William C. SCHUCK, Claimant and Appellee, v. JOHN MORRELL & COMPANY, Employer/Self Insurer and Appellant.

No. 18721.

Supreme Court of South Dakota.

Considered on Briefs on Nov. 29, 1994.

Decided March 8, 1995.

Reed Rasmussen of Siegel, Barnett & Schutz, Aberdeen, for claimant/appellee.

David J. Vickers of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for employer/self insurer and appellant.

McKEEVER, Circuit Judge.

William C. Schuck (Schuck) filed a petition with the Department of Labor (Department) seeking worker's compensation benefits for injuries incurred while employed at John Morrell & Co. (Morrell). The Department dismissed Schuck's petition concluding that he failed to prove causation and failed to give the required notice of injury. The circuit court reversed the Department's decision on both the causation and notice issues and remanded the case for a determination of compensation benefits. We affirm.

Facts and Procedural History

Schuck worked for Morrell at its Aberdeen plant for twenty-one years from 1967 to 1988. He primarily worked as a route delivery person which required him to do heavy lifting on a daily basis. The lifting involved loading and unloading boxed beef and beef quarters, which weighed between 125 and 200 pounds, onto trucks. Schuck had no back problems prior to working at Morrell, but experienced back pain shortly after he began work there. He also experienced pain and numbness in his hands while at Morrell. Schuck's back and hand problems continued throughout the course of his Morrell employment and after he left their employ.

Although Schuck did not recall a specific incident which caused his back pain, he did recall several incidents at Morrell where he was injured and received medical care. One occurred in the late 1960's or 1970's where he slipped and fell. Schuck received some shots from a Dr. McGee. Another incident occurred when Schuck was pinned between a hoister. He was seen by a doctor in Fargo for some tests. Another occurred in 1988 when Shuck slipped and fell while delivering meat to Kessler's and injured his chest and ribs. Finally, Schuck recalled a slip and fall in 1988 when he was readying the Morrell plant for closure.

With respect to each incident Morrell paid Schuck's medical expenses. Morrell never filed a worker's compensation claim in regard to those incidents except for the 1988 incident at Kessler's. Although Schuck was never gone from work for seven consecutive days due to injuries he did miss work on occasion, however, and took those days as sick leave.

Morrell employees reported job injuries to George Casanova, the Aberdeen plant Comptroller. Casanova testified that back injuries were common at Morrell. He acknowledged that Schuck reported problems with his back and hands on more than one occasion. However, there were no specific dates because Morrell's employee injury reports were lost when the Aberdeen plant closed. Schuck's medical records referred to back and hand pain during his Morrell employment. Dr. Gerber diagnosed Schuck with "possible carpal tunnel syndrome" in 1980. An x-ray taken in 1982 revealed that Schuck had spur formations on his lumbosacral spine. Spinal x-rays taken in 1990 also revealed additional spurring and a compression fracture of Schuck's spine.

The Aberdeen Morrell plant closed in October 1988, and Schuck started work for Midwest Pump & Tank. Some of his duties there required him to repair small pumps. He related that he suffered from continuous back pain and numb hands while working there. Schuck then worked for Wilbert Vault where he was required to deliver burial vaults and lift sixty to one hundred pounds.

In 1989 Schuck was involved in a non-work related slip and fall and consulted a doctor for back pain. Schuck next consulted Dr. Vidoloff in April 1990 for his back and hand pain which had not subsided since he left Morrell. Dr. Vidoloff diagnosed Schuck with carpal tunnel syndrome and placed a twenty-five pound lifting restriction on Schuck. Dr. Janusz also saw Schuck for back and hand problems in October, 1990. Dr. Janusz performed carpal tunnel surgery on Schuck's right wrist in December, 1990. In February 1992, Dr. Vidoloff gave Schuck a 12% permanent impairment due to his back and arm/wrist injuries.

Due to continued back pain and carpal tunnel problems Schuck filed a claim for workmen's compensation benefits on August 15, 1990. Morrell denied his claim on September 24, 1990 and Schuck filed a petition for disability benefits in April 1991. A hearing was held before the Department on November 19, 1992. The Department denied Schuck's petition. The Department ruled that Schuck failed to establish a causal connection between his employment at Morrell's and his back and carpal tunnel condition. It also ruled that Schuck failed to give timely notice of his injury to Morrell.

Standard of Review

This Court makes the same review of the agency's action as the circuit court in an administrative appeal. Lee v. South Dakota Dept. of Health, 411 N.W.2d 108 (S.D.1987). Our standard of review is well established. We will overrule an agency's factual determinations only if we find them to be "clearly erroneous" in light of the entire evidence. Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). We will not overturn the Department's finding unless we are left with a definite and firm conviction that a mistake has been made. Id. The question is not whether there is substantial evidence contrary to the Department's finding, but whether there is substantial evidence to support the finding of the Department. Id. (citations omitted). However, conclusions of law are fully reviewable. Permann v. Department of Labor, Unemp. Ins. D., 411 N.W.2d 113, 116 (S.D.1987). Likewise, mixed questions of fact and law which require the application of a legal standard are fully reviewable. Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991); Permann, 411 N.W.2d at 119.

WHETHER SCHUCK'S CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS?

Morrell raised the statute of limitations in response to Schuck's petition for hearing with the Department. The Department did not, however, address that issue in its decision and ruled on other grounds. ¹ Morrell, however, did not file a notice of review with the circuit court on the statute of limitations issue pursuant to SDCL 1-26-36.1. Consequently, the circuit court also did not address that issue in its decision.

An issue is not properly preserved for appeal when a party fails to file a notice of review with either the circuit court (pursuant to SDCL 1-26-36.1) or the Supreme Court (pursuant to SDCL 15-26A-22) and, therefore, the issue is waived. Matter of Midwest Motor Exp., Inc., Bismarck, 431 N.W.2d 160, 162 (S.D.1988); Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992) (issue of Morrell's liability waived for failure to file notice of review).

Morrell asserts, however, that it need not have filed a notice of review pursuant to SDCL 1-26-36.1 since the Department's decision was not adverse to it. Morrell argues the Department's ruling was not adverse because it did not rule on the statute of limitations. However, here, just like in Midwest, supra, the fact that the agency's ruling was not adverse does not except a party from complying with the notice of review.

In Midwest, the PUC ruled in favor Midwest Motor Express (MME) and the intervenor, Rude, appealed. MME argued that Rude lacked standing to appeal because of its failure to object to the findings and conclusions entered by the PUC. The circuit court heard the appeal despite the standing arguments of MME and affirmed the agency's decision. We held that MME failed to preserve the standing issue for appeal, although it had merit, due to its failure to file notice of review. Even though the PUC did not rule on the standing issue it was waived when MME failed to file a notice of review. Midwest, 431 N.W.2d at 162.

Therefore, because Morrell failed to file a notice of review on the statute of limitations issue it is waived for purposes of this appeal.

WHETHER SCHUCK COMPLIED WITH THE NOTICE REQUIREMENT OF SDCL 62-7-10?

Morrell contended and the Department concluded that Schuck did not comply with the notice requirement of SDCL 62-7-10. The resolution of this issue is a mixed question of law and fact. Mixed questions of law and fact are where the historical facts are admitted or established, the rule of law undisputed, and the issue is whether the facts satisfy the statutory standard. Permann, 411 N.W.2d at 118 (citation omitted). When reviewing the agency's interpretation of the legal effect of the evidence we are presented with a mixed question of law and fact which is fully reviewable. Fiegen v. North Star, Ltd., 467 N.W.2d 748, 750 (S.D.1991).

The notice requirement of SDCL 62-7-10 as it existed prior to 1994 ² provided in part:

Every injured employee ... shall immediately upon the occurrence of an injury ... give or cause to be given to the employer written notice of the injury ... unless it can be shown that the employer, his agent, or his representative had knowledge of the injury ... 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.

Id.

The intention of the Workmen's Compensation Act is that an employer be fairly apprised of an injury so that there may be an opportunity to investigate its cause and nature. Streyle v. Steiner Corp., 345 N.W.2d 865, 867 (S.D.1984). The purpose behind the written notice requirement is to give the employer an opportunity for investigation of the accident and injury while the facts are accessible. Schindler v. Manchester Biscuit Co., 71 S.D. 336, 24 N.W.2d 76 (1946). The requirement of notice of injury is designed to protect the employer by making sure he is alerted to the...