South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, No. 20531

CourtSupreme Court of South Dakota
Writing for the CourtAMUNDSON
Citation1999 SD 2,589 N.W.2d 206
PartiesSOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellant, v. CASUALTY RECIPROCAL EXCHANGE and Dakota Truck Underwriters, Appellees. . Considered on Briefs
Decision Date03 December 1998
Docket NumberNo. 20531

Page 206

589 N.W.2d 206
1999 SD 2
SOUTH DAKOTA SUBSEQUENT INJURY FUND, Appellant,
v.
CASUALTY RECIPROCAL EXCHANGE and Dakota Truck Underwriters, Appellees.
No. 20531.
Supreme Court of South Dakota.
Considered on Briefs Dec. 3, 1998.
Decided Jan. 6, 1999.

Timothy E. Reilly, Assistant Attorney General and Division Counsel South Dakota Division of Insurance, Pierre, for appellant.

Susan Jansa Brunick and Dana M. Van Beek of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees.

AMUNDSON, Justice.

¶1 Subsequent Injury Fund (SIF) appeals the circuit court's decision affirming Department of Labor's (Department) determination that both Casualty Reciprocal Exchange (CRE) and Dakota Truck Underwriters (DTU) established claims for reimbursement from SIF. We affirm.

FACTS

¶2 Two cases were combined for consideration because they involve similar facts and present the same legal issue.

Casualty Reciprocal Exchange/Niederman

¶3 Darlene Niederman was employed as a cook for Employer, Lumberyard Restaurant, Inc. On July 21, 1986, Niederman reported a work-related back injury. During the treatment of her back injury, Niederman was diagnosed with a somatoform pain disorder 1 in addition to the mechanical back pain disorder. Niederman had sustained a number of physical, mental and substance abuses during the years preceding her back injury, which resulted in a preexisting psychological condition. This preexisting psychological condition increased her chances of developing somatoform pain disorder.

¶4 The claim for workers' compensation benefits was ultimately settled through a Compromise Agreement approved by Department. The agreement provided that Niederman's disability was the result of the low-back injury combined with the aggravation of a preexisting psychological condition, resulting in somatoform pain disorder. The agreement provided for a lump-sum payment of $100,000. This payment was in addition to disability benefits of $28,657.56, and medical expenses of $20,701.30 paid to Niederman prior to settlement.

¶5 On April 10, 1996, CRE filed a claim for reimbursement from the SIF. CRE claimed Niederman suffered from a preexisting psychological condition and her subsequent injury was the low-back injury in July 1986. On November 19, 1996, the SIF denied

Page 208

CRE's claim, stating there was no disability or impairment rating attributable to the employee's alleged preexisting psychological condition. Therefore, no subsequent injury to employee.

Dakota Truck Underwriters/Bush

¶6 Everett Bush was employed as a truck driver by Midwest Coast Transport, L.P. On August 28, 1995, Bush reported a work-related injury to his back. Bush was examined and treated by several doctors, but his condition did not improve. Subsequent X-rays revealed Bush had a compression fracture, as well as significant osteopenia. 2 Bone density testing revealed marked osteoporosis. 3 With regard to Bush's condition, Dr. Robert Suga stated, "the fracture, in my opinion, would have to be considered a pathologic 4 fracture related to his osteopenia which was documented on bone densitometry. The fracture was however, incurred as a result of his work related activity."

¶7 Bush's workers' compensation claim was settled. The compromise agreement, approved by Department, paid a lump sum of $23,000 in addition to the disability already paid. The lump sum also includes $1,400 as an advance toward future medical expenses. Total indemnity benefits paid to Bush over the course of the claim were $33,616.64 and total medical expenses were $2,810.99.

¶8 DTU filed a claim for reimbursement from SIF. SIF denied DTU's claim under the rationale that no disability or impairment rating existed that was attributable to the preexisting condition of osteopenia and, as a result, there had been no subsequent injury to the employee.

¶9 CRE and DTU filed a petition for hearing with Department on December 5, 1996. 5 Department determined that, under the 1995 amendment to SDCL 62-4-34, a preexisting injury need not have resulted in a disability to obtain reimbursement from the SIF. Therefore, Department approved CRE and DTU's claims for reimbursement. The circuit court affirmed. SIF now appeals, raising the following issues for review:

¶10 1. Whether an eligible claim for reimbursement from the Subsequent Injury Fund must show that a prior injury or preexisting condition be of a disabling quality.

¶11 2. Whether claimants have demonstrated that their respective employees have received subsequent injuries within the meaning of the Subsequent Injury Fund.

STANDARD OF REVIEW

¶12 The issue on appeal is a statutory interpretation of the 1995 amendment to SDCL 62-4-34. On issues of statutory interpretation, this Court reviews Department's decision de novo. Dahn v. Trownsell, 1998 SD 36, p 14, 576 N.W.2d 535, 539.

DECISION

¶13 1. Whether an eligible claim for reimbursement from the Subsequent Injury Fund must show that a prior injury or preexisting condition be of a disabling quality.

¶14 The Subsequent Injury Fund was set up to assist workers with some type of preexisting disability, condition or handicap, to obtain employment notwithstanding the liability exposure of an employer who would hire such worker in the event of a second injury. See 5 Larson, Worker's Compensation Law, § 59.30 (1998). SIF reimburses

Page 209

an employer for two-thirds of compensation paid due to a subsequent injury had there been no preexisting injury or condition. SDCL 62-4-34.

¶15 In 1995, the statute governing reimbursement to employers was amended. SDCL 62-4-34, as amended, provides in relevant part:

If an employee who has previously sustained an injury or suffers from a preexisting condition, receives a subsequent compensable injury resulting in additional permanent partial or permanent total disability so that the degree or percentage of disability caused by the combination of the subsequent injury and the preexisting injury or condition is substantially greater than that which resulted from the last injury, considered alone; and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer shall pay all medical and hospital expenses and compensation provided by this title. The employer shall be reimbursed from the "subsequent injury fund" for two-thirds of all compensation, medical and hospital expenses paid to or on behalf of the injured employee due to the subsequent injury. ... (Emphasis added.)

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32 practice notes
  • Peterson, ex rel. Peterson v. Burns, No. 21689.
    • United States
    • South Dakota Supreme Court
    • October 24, 2001
    ...including both personal injury and death.14 We are also mindful of the rule against supplying omitted language. South Dakota SIF v. CRE, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209. However, the term "an action" is broad enough to encompass both personal injury and death without additional languag......
  • South Dakota Farm Bureau, Inc. v. Hazeltine, No. CIV. 99-3018.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 17, 2002
    ...Institute v. Barnett, 64 F.Supp.2d 906, 915 (D.S.D.1999), (quoting South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209 (1999)), (quoting Delano v. Petteys, 94 SDO 700, 520 N.W.2d 606, 608), (quoting in turn Petition of Famous Brands Inc.......
  • Moeller v. Weber, No. 22510.
    • United States
    • Supreme Court of South Dakota
    • October 6, 2004
    ...circumstances." [¶ 49.] We assume that statutes mean what they say. South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exch., 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209. Quite clearly, § 23A-27A-2 means that the jury is to hear all relevant evidence that either side wishes to present. Acc......
  • Hanig v. City of Winner, No. 23208.
    • United States
    • Supreme Court of South Dakota
    • January 19, 2005
    ...repeatedly that the Legislature said what it meant and meant what it said. S.D. Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 22, 589 N.W.2d 206, 210. Nevertheless, based upon case law from other states with their own liquor statutes, the Court today expands the clear......
  • Request a trial to view additional results
32 cases
  • Peterson, ex rel. Peterson v. Burns, No. 21689.
    • United States
    • South Dakota Supreme Court
    • October 24, 2001
    ...including both personal injury and death.14 We are also mindful of the rule against supplying omitted language. South Dakota SIF v. CRE, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209. However, the term "an action" is broad enough to encompass both personal injury and death without addition......
  • South Dakota Farm Bureau, Inc. v. Hazeltine, No. CIV. 99-3018.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 17, 2002
    ...Institute v. Barnett, 64 F.Supp.2d 906, 915 (D.S.D.1999), (quoting South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209 (1999)), (quoting Delano v. Petteys, 94 SDO 700, 520 N.W.2d 606, 608), (quoting in turn Petition of Famous Brands Inc.......
  • Moeller v. Weber, No. 22510.
    • United States
    • Supreme Court of South Dakota
    • October 6, 2004
    ...circumstances." [¶ 49.] We assume that statutes mean what they say. South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exch., 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209. Quite clearly, § 23A-27A-2 means that the jury is to hear all relevant evidence that either side wishes to present......
  • Hanig v. City of Winner, No. 23208.
    • United States
    • Supreme Court of South Dakota
    • January 19, 2005
    ...repeatedly that the Legislature said what it meant and meant what it said. S.D. Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 22, 589 N.W.2d 206, 210. Nevertheless, based upon case law from other states with their own liquor statutes, the Court today expands the clear......
  • Request a trial to view additional results

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