Shykes v. Rapid City Hilton Inn

• Decision Date: 06 September 2000
• Docket Number: No. 21109., No. 21108
• Citation: 2000 SD 123,616 N.W.2d 493
• Parties: Chong C. SHYKES, Claimant and Appellant, v. RAPID CITY HILTON INN, Employer and Appellee, and Traveler's Insurance Co., Insurer and Appellee, and Custom Packaging Systems, Inc., Employer and Appellee, and Traveler's Insurance Co., Insurer and Appellee.
• Court: South Dakota Supreme Court

616 N.W.2d 493

2000 SD 123

Chong C. SHYKES, Claimant and Appellant, v. RAPID CITY HILTON INN, Employer and Appellee, and Traveler's Insurance Co., Insurer and Appellee, and Custom Packaging Systems, Inc., Employer and Appellee, and Traveler's Insurance Co., Insurer and Appellee.

Nos. 21108, 21109.

Supreme Court of South Dakota.

Considered on Briefs February 14, 2000.

Decided September 6, 2000.

Mark S. Falk, Falk Law Office, Rapid City, Attorney for claimant and appellant.

Michael M. Hickey of Bangs, McCullen, Butler, Foye and Simmons, Rapid City, Attorneys for appellees Rapid City Hilton and Traveler's Insurance.

Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, Attorneys for appellees Custom Packaging and Traveler's Insurance.

SABERS, Justice.

[¶ 1.] Chong Shykes brought a workers' compensation claim against Custom Packaging Systems, Inc. (Custom). The Department of Labor (DOL) determined that Chong provided timely notice to Custom and awarded her benefits. The circuit court reversed DOL and concluded that Chong was barred from recovering any benefits because she did not provide adequate notice to Custom. We affirm.

FACTS

[¶ 2.] Chong was born March 5, 1947 in Seoul, South Korea. She attended grade school in Korea and completed the United States equivalent of the third grade. In 1991, she came to the United States with her American husband, Greg Shykes. She speaks very limited English and cannot read or write in English. Therefore, Greg assists Chong with her daily English correspondence and communications. For example, he goes with her to her doctor appointments to complete paperwork and converse with the physician, he meets with her employers and he reads and explains the contents of her mail to her.

[¶ 3.] In January 1993, Chong obtained a job at the Rapid City Hilton Inn (Hilton) as a maid. During this employment, Chong experienced a significant amount of discomfort in her arms, primarily the right arm.¹ She thought this was from hard work and expected it to get better as she got accustomed to the work. Greg feared that the pain was related to Chong's prior surgery. Therefore, during Chong's routine doctor visit in June, he discussed the problem with Dr. Overmiller. Dr. Overmiller suggested that Chong use anti-inflammatory medication coupled with certain soaks to the chest wall to alleviate the pain and to determine whether the pain was due to muscle soreness or due to a residual effect of the surgery.

[¶ 4.] Chong quit her job with Hilton on June 30, 1993. In a letter written by Chong's supervisor, Chong reported that "she couldn't work anymore because her arm was hurting her."

[¶ 5.] After her employment ended, Chong's hands and arms began to feel better. She sought a less strenuous job and applied with Custom to work in its sewing department. Greg filled out the application for Chong. Custom directed Chong to report to Dr. Waltman for a pre-employment physical. Greg completed the doctor's questionnaire for Chong. None of the tests administered by Dr. Waltman caused pain to Chong and he ultimately determined that Chong was "suitable for any employment" at Custom.

[¶ 6.] Chong was hired to work for Custom on August 2, 1993 as a seamstress. After a couple of weeks, her arms began to hurt. A co-worker told her that new employees always experienced some pain and that it would go away. Greg still feared that the pain was related to the cancer surgery. So, instead of waiting to see if it would improve, she reported to a physician practicing at Ellsworth Air Force Base, Dr. Wicks, on August 20, 1993 complaining of pain in her hands, wrists, elbows and shoulders for about two months. Dr. Wicks did not diagnose Chong, but prescribed a medication for her. He saw her again on September 3, 1993 and noted that the medication did not help alleviate the pain. He then noted: "[t]his is a chronic problem for this patient who probably does not yet understand that she must change [her] lifestyle and/or work habits and must follow through with instructions." Dr. Wicks referred Chong to Dr. Walker, an orthopedic specialist whose office is also located at Ellsworth Air Force Base.

[¶ 7.] On September 30, 1993, Chong saw Dr. Simmons, a neurologist. He reported that the cause of her problems was somewhat uncertain, and encouraged her to follow through with her appointment with Dr. Walker.

[¶ 8.] On October 20, 1993, Dr. Walker assessed Chong's problem as: "(1) lateral epicondylitis, right worse than left; (2) probable overuse tendonitis; and (3) probable dependent edema secondary to bilateral mastectomy and radical lymph node dissection of the axila." Dr. Walker felt Chong needed to slow down and placed a cast on her right arm to force her to do so. He also restricted her work activities: "No lifting, pulling, pushing with right arm. Avoid rapid, repetitive activities with left hand. Continue these [restrictions] for 2 weeks." With these restrictions, Dr. Walker indicated Chong could "safely return to work but with light duty."

[¶ 9.] When Chong reported to work at Custom with a cast on her arm, the personnel director, Bobbi Lundgren, had a difficult time communicating with her. Therefore, Lundgren contacted Dr. Walker to determine Chong's restrictions. Meanwhile, the plant manager, Gloria Mikula, decided to take Chong off work for three weeks while Chong's arm was in a cast. On October 20, 1993, Mikula filled out Chong's leave of absence form: "I request a leave of absence for the following date: 10-20 - 11-9-93 — Tennis elbow."

[¶ 10.] Because Chong did not want to take any time off, she and Greg met with Mikula. Mikula stated that they did not have any light work available for Chong, so Chong would have to take time off. Greg signed the leave of absence form for Chong.

[¶ 11.] Chong saw Dr. Walker on November 5, 1993 and he noted that there was "still quite a bit of tenderness around the lateral epicondyle of her right elbow despite the casting." Chong then began physical therapy.

[¶ 12.] On December 9, 1993, Chong saw Dr. Goff, a physical medicine and rehabilitation specialist, who assessed cumulative trauma disorder "with the right lateral epicondylitis being the most apparent diagnosis." It was at this appointment that Chong and Greg first learned that Chong's injury was probably work-related and not related to the cancer surgery. He noted that Chong "need[s] to alter [her] work activity if she is going to control these symptoms." Dr. Goff reported: "[i]f her history is accurate, then this would be a work related injury related to the initial repetitive activities at her maid job." As a result of Dr. Goff's recommendation, Greg notified Hilton that Chong had a work-related injury. On Chong's behalf, he also completed an Employer's First Report of Injury, dated December 23, 1993.

[¶ 13.] In a letter to Dr. Walker dated December 9, 1993, Dr. Goff indicated that Chong was "reluctant to modify [her] job activity" because of her family's financial situation.

[¶ 14.] Chong received an injection in her right elbow from Dr. Goff on December 30, 1993. During a follow-up appointment on February 2, 1994, Dr. Goff reported:

There appear[s] to be two separate issues here. One is an epicondylitis [that] she apparently developed in the course of her first employment at the Hilton. She then went to work for [C]ustom [P]ackaging and developed symptoms on the left. Right symptoms have continued almost unchanged. Thus, it would appear that the initial work activity at the Hilton, according to the history, was responsible for her right upper extremity pain. The contribution of the second job to the right upper extremity symptoms is uncertain. It is possible that her work activity there presents just enough aggravation to keep it from resolving, though was not the etiology for that pain. It does, however, appear to be the etiology for her left wrist area pain.

[¶ 15.] Travelers, the workers' compensation insurance carrier for both Hilton and Custom, was investigating the claim Chong filed against Hilton on December 23, 1993. Travelers sent a letter to Chong, dated March 1, 1994:

We represent Travelers, the workers' compensation carrier for Rapid City Hilton Inn.

We have completed a review of your above captioned file. It appears from medical records that your subsequent employment with the sewing company aggravated your medical condition to the point where medical treatment was required.

As such, we must deny payment of compensation and/or medical benefits. It is our suggestion a claim be submitted through your current employer for their consideration.

Greg admitted that he read this letter, but did not file a claim with Custom because, based on what the doctors were reporting, he did not feel Custom caused Chong's injury.

[¶ 16.] On April 7, 1994, Chong signed a "Request for Medical Records" form. On this form, she authorized the hospital at Ellsworth Air Force Base (Dr. Wicks and Dr. Walker) to release her medical records associated with this injury to Custom. Lungren completed the request for Chong and also signed the form as a witness.

[¶ 17.] Chong continued to sew for Custom until May 1994. At that time, there was not enough sewing work available, so Custom required Chong to fold canvas bags. This new work involved heavier lifting and hurt Chong's arms so much that she immediately reported extreme pain to her supervisor. Chong was allowed to go home that day, May 9, 1994. On May 12, 1994, Chong was discharged "[u]ntil full Dr. release from Dr. due to [workers' compensation] problems with previous employer." Her leave of absence form stated: "While working at Hilton[,] Chong [acquired] tennis elbow, [and it] is still giving her problems."² Greg and Chong discussed the situation with Lungren on May 13 and tried to persuade her to let Chong continue sewing. Lungren testified that this was the first time that Chong and Greg told her that Chong's doctor advised her...