Sutherland v. Queen of Peace Hosp., 20060

CourtSupreme Court of South Dakota
Citation1998 SD 26,576 N.W.2d 21
Docket NumberNo. 20060,20060
PartiesLana SUTHERLAND, Employee and Appellee, v. QUEEN OF PEACE HOSPITAL, Employer and Appellant, and Presentation Sisters Worker's Compensation Trust, Self-Insurer and Appellant. . Considered on Briefs
Decision Date03 December 1997

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576 N.W.2d 21
1998 SD 26
Lana SUTHERLAND, Employee and Appellee,
QUEEN OF PEACE HOSPITAL, Employer and Appellant,
Presentation Sisters Worker's Compensation Trust,
Self-Insurer and Appellant.
No. 20060.
Supreme Court of South Dakota.
Considered on Briefs Dec. 3, 1997.
Decided March 18, 1998.
Rehearing Denied April 22, 1998.

N. Dean Nasser, Jr. and James R. Even of Nasser Law Offices, Sioux Falls, for appellee.

Michael S. McKnight and Lisa Hansen Marso of Boyce, Murphy, McDowell and Greenfield, Sioux Falls, for appellants.

MOSES, Circuit Judge.

¶1 Queen of Peace Hospital (Hospital) appeals the circuit court's order reversing a Department of Labor (Department) decision that denied Lana Sutherland's (Sutherland) claim for vocational rehabilitation benefits and granted her loss of use benefits. We affirm, in part, and reverse, in part.


¶2 On January 23, 1991, Sutherland sustained a work related injury to her back while employed as an operating room technician/circulating registered nurse at Hospital. After the injury and physical rehabilitation, Hospital offered and Sutherland accepted, employment as a Central Registration Registered Nurse (CRN) at Hospital.

¶3 It is undisputed and stipulated by Sutherland that she was physically able to fulfill all the duties of the CRN position. It is further undisputed and stipulated by Sutherland that she was paid more per hour in the CRN position when she began ($11.48) than she was paid in her previous RN position ($11.04). In addition, the hours per week were the same in both the RN and CRN job and both jobs received the same pay raises.

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¶4 The CRN department at Hospital consisted of three employees. In an effort to accommodate Sutherland, and to fill an existing need, Hospital offered and Sutherland accepted the new CRN position. The CRN position involved utilizing nursing judgment, maintaining direct contact with patients, obtaining and reviewing admission orders, taking orders from doctors for procedures, educating patients, verifying physician orders, taking patients' health histories, giving testing instructions, scheduling patient testing, and telephone and typing work.

¶5 Sutherland contends she suffered from discomfort and pain while performing her CRN duties, despite the fact that the job description was within her restrictions and limitations prescribed by her treating physician. In addition to the physical discomfort of the CRN job, Sutherland became depressed as a result of her dissatisfaction with the CRN job. Sutherland contended that she is a "people person" and preferred to be more directly involved in patient care. Sutherland sought other jobs that involved direct patient care, but claims neither she nor the hospital found any she could physically perform. Hospital disputes this, claiming there were jobs available within her physical limitations, but Sutherland chose not to apply. Sutherland asserts she was also concerned about the job insecurity of the CRN job and the lack of transferable skills (loss of job access), fearing that if she lost her job at the hospital, she would be unemployable.

¶6 On December 31, 1992, Sutherland resigned her CRN position at the hospital, and elected to pursue further education as a physician's assistant. This decision was not based on the recommendation of her rehabilitation expert, nor was it due to Sutherland's inability to work as a registered nurse. Instead, Sutherland's decision to leave the CRN position was primarily due to her dissatisfaction with the extent of her direct patient contact in the CRN position. However, during Sutherland's physician's assistant schooling, she chose to remain with Hospital in a temporary "on call" basis.

¶7 In January 1994, Sutherland completed her physician's assistant program and started her job as a physician's assistant with Dr. Sorrels in Mitchell, South Dakota, earning $30,000 per year for forty hours per week.

¶8 Hospital paid Sutherland medical costs and temporary total, temporary partial, and permanent partial disability following her injury. In addition, it has been stipulated that Sutherland timely requested and petitioned for loss of use and rehabilitation benefits under SDCL 62-4-5.1. Department awarded benefits of twelve percent for loss of use, but twice denied rehabilitation benefits, determining Sutherland could return to her usual and customary line of employment and that she did not need retraining to obtain suitable, substantial and gainful employment.

¶9 The circuit court held the Department's decisions on these issues were clearly erroneous or an abuse of discretion. The circuit court awarded fifty-two weeks of rehabilitation benefits plus prejudgment interest and denied an additional twenty-eight percent loss of use benefits. Hospital appeals the awarding of the vocational rehabilitation benefits. Sutherland appeals in notice of review that she should be awarded twenty-eight percent for loss of use benefits.


¶10 Our standard of review, as stated in SDCL 1-26-36, requires us to give great weight to the findings and inferences made by the Department on factual questions. Sopko v. C & R Transfer Company, Inc., 1998 SD 8, p 6, 575 N.W.2d 225; Helms v. Lynn's, Inc., 1996 SD 8, pp 9-10, 542 N.W.2d 764, 766; Finck v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988). We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986). "We will reverse only if we are definitely and firmly convinced that a mistake has been made." Loewen v. Hyman Freightways, Inc., 1997 SD 2, p 7, 557 N.W.2d 764, 766 (quoting Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)). Questions of law are fully reviewable. Sopko, 1998 SD 8, p 6, 575 N.W.2d 225; Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991).

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¶11 In Sopko, 1998 SD 8, p 7, 575 N.W.2d 225, we held the proper standard of review in administrative appeals is "clearly erroneous," rather than the "substantial evidence" analysis. We concluded:

To allay future confusion over the proper standard of review in administrative appeals, we will no longer employ 'substantial evidence' terminology. In the past, we have regularly combined clearly erroneous and substantial evidence principles, but the latter is not the proper test. SDCL 1-26-36 was amended effective July 1, 1978, changing the standard of review for sufficiency of the evidence from 'unsupported by substantial evidence on the whole record' to 'clearly erroneous.' (For reasons unknown the definition remains unrepealed. SDCL 1-26-1(9)). The difference between the two standards should not be obscured: It is simply inaccurate to conclude, findings supported by substantial evidence are not clearly erroneous. 1 S. Childress & M. Davis, Federal Standards of Review § 2.07 at 2-44 (2d ed. 1992) (citing cases from every federal circuit). Even when substantial evidence supports a finding, reviewing courts must consider the evidence as a whole and set it aside if they are definitely and firmly convinced that a mistake has been made. See W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir.1963); cert. denied, 379 U.S. 841, 85 S.Ct. 78, 13 L.Ed.2d 47 (1964).

(footnote omitted).


¶12.] I. Whether the denial of rehabilitation benefits was clearly erroneous?

¶13 An injured employee's entitlement to rehabilitation benefits is governed by SDCL 62-4-5.1. 1 We have interpreted this statute on numerous occasions and have established a five-part test for awarding rehabilitation benefits:

1. The employee must be unable to return to his usual and customary line of employment;

2. Rehabilitation must be necessary to restore the employee to suitable, substantial, and gainful employment;

3. The program of rehabilitation must be a reasonable means of restoring the employee to employment;

4. The employee must file a claim with his employer requesting the benefits; and

5. The employee must actually pursue the reasonable program of rehabilitation.

Hendrix v. Graham Tire Co., 520 N.W.2d 876, 883 (S.D.1994); Chiolis v. Lage Dev. Co., 512 N.W.2d 158, 160 (S.D.1994); Beckman v. John Morrell & Co., 462 N.W.2d 505, 507 (S.D.1990); Cozine v. Midwest Coast Transp., Inc., 454 N.W.2d 548, 553 (S.D.1990).

1. Whether Department's determination that Sutherland was

able to return to her usual and customary line of

employment is clearly erroneous?

¶14 In regard to the first requirement, Sutherland must show that she cannot return to her usual and customary line of employment. Cozine, 454 N.W.2d at 553. A person's usual and customary line of employment may be determined by many factors, such as, the skills or abilities of the person, the length of time the person has

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spent in the type of work, the proportion of time the person has spent in the type of work when compared to the worker's entire working career, and the duties and responsibilities of the person at the workplace. Beckman, 462 N.W.2d 505.

¶15 Sutherland argues her "usual and customary line of employment" is in direct patient care nursing, primarily as a circulating nurse/operating room technician, and her injury prohibits her from continuing that line of work. Because Sutherland cannot return to her circulating nurse/operating room technician position, she contends that she can no longer take part in her "usual and customary line of employment" of direct patient care nursing, and should be awarded rehabilitation benefits.

¶16 Hospital argues Sutherland's "usual and customary line of employment" was that of a registered nurse, and therefore, the CRN position was...

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