St. Luke's Midland Regional v. Kennedy

• Citation: 653 N.W.2d 880,2002 SD 137
• Decision Date: 13 November 2002
• Docket Number: No. 22223, No. 22224.
• Parties: ST. LUKE'S MIDLAND REGIONAL MEDICAL CENTER, n/k/a Avera St. Luke's and Presentation Sisters Workers' Compensation Trust, Employer, Insurer and Appellees, v. Mary Beth KENNEDY, Claimant and Appellant.
• Court: Supreme Court of South Dakota

653 N.W.2d 880

2002 SD 137

ST. LUKE'S MIDLAND REGIONAL MEDICAL CENTER, n/k/a Avera St. Luke's and Presentation Sisters Workers' Compensation Trust, Employer, Insurer and Appellees, v. Mary Beth KENNEDY, Claimant and Appellant.

Nos. 22223, 22224.

Supreme Court of South Dakota.

Argued May 29, 2002.

Decided November 13, 2002.

Michael S. McKnight and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield. Sioux Falls, South Dakota, Attorneys for employer, insurer and appellees.

J.G. Shultz of Woods, Fuller, Shultz, & Smith. Sioux Falls, South Dakota, Attorneys for claimant and appellant.

VON WALD, Circuit Judge.

[¶ 1.] Mary Beth Kennedy (Kennedy) appeals a circuit court judgment reversing an award of workers' compensation benefits to Kennedy by the South Dakota Department of Labor (DOL). Avera St. Luke's Midland Regional Medical Center (St.Luke's) has filed a notice of review. We reverse.

FACTS

[¶ 2.] At the time Kennedy initiated workers' compensation proceedings, she was employed as a nurse with Falls Memorial Hospital in International Falls, Minnesota. This case stems from a Minnesota workers' compensation hearing in which she was denied benefits because her inability to work was directly caused by an injury that occurred while she was employed by St. Luke's in Aberdeen.

[¶ 3.] Kennedy has a history of allergic reactions to pollens and animal danders and a history of childhood eczema and various food allergies. She was first diagnosed with a latex allergy in August 1994 while employed at St. Luke's. After the diagnosis, her treating physician informed Kennedy that she should avoid contact with all latex products. The physician wrote a letter to St. Luke's advising that Kennedy had a severe latex allergy and should avoid all contact with latex products. St. Luke's responded by giving Kennedy non-latex gloves. Kennedy was unaware of the severity of her allergy or that latex particles may become airborne.

[¶ 4.] Although employed by St. Luke's as a nurse, Kennedy had no allergic reactions to latex between August 1994 and July 8, 1996. On July 8, during an obstetric emergency c-section, Kennedy pulled a latex glove over her non-latex glove to avoid blood contact. While opening the latex gloves, Kennedy came into contact with a large amount of airborne latex dust particles that were partially caused by the powder that the manufacturers used inside the gloves. Shortly after taking the c-section baby out of the delivery room, Kennedy suffered an acute anaphylactic¹ reaction, and required emergency medical attention. This was her first anaphylactic reaction from her latex allergy. St. Luke's paid the related medical bills and workers' compensation claims and the file was closed on November 5, 1996.

[¶ 5.] In late 1996, Kennedy moved to International Falls, Minnesota with her family. Her employer, Falls Hospital, was aware of her allergy to latex. Kennedy next suffered allergic reactions on January 22, 1997 and March 21, 1997 followed closely by another on March 31, 1997. The January reaction occurred at her home and the two reactions in March occurred at International Falls Hospital. Kennedy has not returned to work since her last reaction in March 1997. After these reactions, she sought the advice of allergists who instructed her to stay away from aerosolized latex and to remain in a latex-free environment. They further advised that these reactions are so life-threatening that she should stay within driving distance of emergency medical facilities.

[¶ 6.] It was after these episodes that Kennedy pursued a workers' compensation claim in Minnesota. The claim was denied. Expert testimony from the Minnesota hearings on Kennedy's claim placed the cause of her severe allergic reactions on an initial injury. According to all of the experts, the "point of no return," or injury, occurred at the time of Kennedy's first anaphylactic reaction in July 1996 at St. Luke's. At that point, her reactivity threshold was permanently lowered meaning that a smaller dose of latex will produce a response. It was after the denial of her claim by the Minnesota Workers' Compensation Board that Kennedy decided to make a claim against St. Luke's for permanent and total disability benefits based upon the injury in July 1996.

[¶ 7.] Kennedy's workers' compensation case against St. Luke's was brought before DOL. A hearing was held on December 22, 1999. DOL issued a decision on June 6, 2000 and findings of fact and conclusions of law on June 30, 2000. DOL awarded Kennedy permanent total disability benefits under SDCL 62-1-1(7). St. Luke's appealed that decision to the circuit court. A ruling was issued on October 19, 2001. It affirmed the fact that Kennedy's condition was an occupational disease, however it reversed DOL by ruling that the disease was not caused by an injury. It also reversed DOL's decision by ruling that the specific notice statutes in SDCL 62-8-29 and 13 applied over the general notice statutes in 62-7-10, thereby precluding the award of workers' compensation to Kennedy. Kennedy appeals that decision. St. Luke's raises two issues by notice of review.

STANDARD OF REVIEW

[¶ 8.] Our standard of review in workers' compensation cases is well settled.

In workers' compensation cases, this Court gives great weight to the findings and inferences made by DOL on factual questions. Wagaman v. Sioux Falls Const., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225). "Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency's findings; however, when the issue is a question of law, the actions of the agency are fully reviewable." Id. (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766). When reviewing agency findings, we "will reverse, only if, after careful review of the entire record, we are definitely and firmly convinced a mistake has been made." Id. (citation omitted).

Gordon v. St. Mary's Healthcare Center, 2000 SD 130, ¶ 16, 617 N.W.2d 151, 156.

ISSUE ONE

[¶ 9.] Was Kennedy's allergic reaction on July 8, 1996 a compensable injury under SDCL 62-1-1(7)?²

[¶ 10.] Determining whether an allergic reaction is a compensable injury is a matter of first impression for this Court. DOL concluded that Kennedy suffered a compensable injury under SDCL 62-1-1(7)(b), holding that she had preexisting allergies which, when combined with latex at work, produced anaphylactic shock and the consequences thereof. DOL decided that this disability was ongoing and was the major cause of Kennedy's present inability to work. As a matter of law, the circuit court reversed DOL's ruling by holding that Kennedy had an occupational disease for which she failed to properly give notice and that she could not recover workers' compensation benefits. [¶ 11.] The allergists who testified agreed that the July 1996 exposure was the "point of no return" for Kennedy and that this exposure was the major contributing cause of her disability. Since that point, any exposure to latex is now a major life or death situation for Kennedy. Is this reaction an injury in South Dakota? Claimant compares this injury to back injuries or heart disease where the cause cannot be linked to one occasion, but a series of occasions leading up to the disabling injury. South Dakota has a history of awarding compensation to claimants, even though they cannot prove any specific trauma, if they prove a history of injury to the body that occurs in the normal course of employment. See e.g. Caldwell v. John Morrell & Co., 489 N.W.2d 353 (S.D.1992)

(man compensated for back condition without a specific work incident); Sudrla v. Commercial Asphalt & Materials, 465 N.W.2d 620 (S.D.1991).³ In Kirnan v. Dakota Midland Hosp., 331 N.W.2d 72 (S.D. 1983), this Court compensated a man who suffered a heart attack at work. See also Westergren v. Baptist Hosp. of Winner, 1996 SD 69, 549 N.W.2d 390 (carpal tunnel syndrome).

[¶ 12.] This Court may also look to other state courts for guidance on the issue of classifying an allergic reaction as an injury. Recently, in St. Luke's Hosp. v. Gray, 604 N.W.2d 646 (Iowa 2000), the Iowa Supreme Court ruled that a nurse suffering from a latex allergy was entitled to coverage for a work-related injury rather than an occupational disease. Id. at 650. In that case, the claimant was faced with increased symptomology associated with latex in the workplace. Her doctors advised that she was permanently partially disabled because her workplace could not be made latex-free.

[¶ 13.] Although Kennedy was predisposed to her allergy and was, no doubt, suffering from the disease of latex allergy, an injury may occur when a preexisting disease makes an employee more susceptible to a work-related injury. As this Court stated in Elmstrand v. G. & G. Rug & Furniture Company, 77 S.D. 152, 155, 87 N.W.2d 606, 608 (1958):

In so far as the pre-existing condition is concerned we must take the employee as we find him. If a compensable event contributed to the final disability, recovery may not be denied because of the pre-existing condition, even though such condition was the immediate cause of the disability.

Again, in Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 (S.D.1994), this Court determined that preexisting conditions are not an automatic disqualification for workers' compensation. However, an injury is always a question of fact to be determined by the Department based upon evidence and testimony.

A pre-existing medical condition or infirmity does not disqualify a claim under the "arising out of employment" requirement if the employment aggravated, accelerated, or combined with the condition or infirmity to produce the disability for which compensation is sought. Guthmiller v. Dept. of Transportation, 502 N.W.2d 586, 590 (S.D.1993) (Sabers, J., dissenting) (citing 1 Larson, Workmen's Comp. § 12.25.) "`Whether the

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