Tieszen v. John Morrell & Co., No. 18544

• Court: Supreme Court of South Dakota
• Writing for the Court: VON WALD; MILLER; AMUNDSON; VON WALD, Circuit Judge, for WUEST; AMUNDSON
• Citation: 528 N.W.2d 401
• Parties: Randy L. TIESZEN, Employee, Claimant and Appellant, v. JOHN MORRELL & CO., Employer, Self Insurer and Appellee. . Considered on Briefs
• Docket Number: No. 18544
• Decision Date: 13 September 1994

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528 N.W.2d 401 Randy L. TIESZEN, Employee, Claimant and Appellant,
v.
JOHN MORRELL & CO., Employer, Self Insurer and Appellee. No. 18544. Supreme Court of South Dakota. Considered on Briefs Sept. 13, 1994.
Decided March 8, 1995.

Robert M. Nash of Wilson, Olson, Nash, Becker & Smoot, P.C., Rapid City, for claimant and appellant.

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

VON WALD, Circuit Judge.

Randy L. Tieszen (Tieszen) appeals adverse determination of worker's compensation benefits. We reverse and remand.

FACTS

Tieszen first became employed for John Morell & Company (Morrell) in May 1987 as a strike replacement worker. He left Morrell in July 1987 because of threats made on his life by striking workers. Tieszen was rehired by Morrell on August 12, 1987, and he was assigned to the pork kill area of the plant as a hog splitter, which was the same type of work that he had performed at Morrell during his previous employment by them.

In September of 1987, Tieszen first began experiencing problems with his left hand and wrist. On September 18, 1987, he reported to the first aid station at Morrell complaining of numbness in his left hand and wrist. According to Tieszen's testimony, he also mentioned

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to the nurse that he was having soreness in his neck, shoulder, and back, but the records of the first aid department do not reflect any report of those injuries.

After the nurse at the first aid station examined Tieszen, he was given a splint to wear for his hand, and he was assigned to light duty work, including janitorial and cleaning responsibilities, for a period of time. It is not clear how long Tieszen's light duty work lasted, although he had returned to hog splitting shortly thereafter. On Saturday, November 28, 1987, while at work, Tieszen informed a Morrell supervisor that he needed to take some time off to "heal up." That was the last day Tieszen worked for Morrell.

On the following Wednesday, December 2, 1987, Tieszen reported to the first aid station at Morrell. He testified that he complained of his left hand and wrist and his neck, shoulder, and back. However, the written records of the first aid department show only that he complained of pain and numbness in his left hand and wrist. At this visit, Morrell's first aid station personnel instructed Tieszen to go to Central Plains Clinic for examination. Tieszen saw Gary Wurgler, Dr. Guy Tam's physician assistant, on that same day. Wurgler's notes indicate possible early "trigger finger", and instructed Tieszen to return to the clinic in one week.

Tieszen saw Dr. Tam himself on December 9, 1987, for his scheduled appointment. Dr. Tam's notes indicate that Tieszen, "comes in today for follow up on tendinitis of his left wrist and hand and this is markedly improved. However, he has not been working since last Thursday because of pain in the left shoulder and neck. Has been to a chiropractor." Dr. Tam's notes also indicate that he felt Tieszen was suffering from a muscle strain in his neck and left shoulder, probably as a result of using the splitter saw. Dr. Tam subsequently made a report to Morrell which contained the findings of his December 9 visit with Tieszen. The doctor's reports to Morrell also instructed them to take Tieszen off the splitting saw, and he ordered physical therapy for Tieszen.

PROCEDURAL HISTORY

Tieszen filed a petition for hearing with the South Dakota Department of Labor, Division of Labor and Management, claiming worker's compensation benefits due him as a result of injuries sustained arising out of employment with Morrell. At the conclusion of the hearing, the Department ruled that all claims relating to Tieszen's neck, back, and shoulder were barred by his failure to comply with the notice requirements of SDCL 62-7-10. The Department then dismissed Tieszen's petition for hearing at the conclusion of the hearing.

Tieszen appealed to the Butte County Circuit Court where the case was considered on briefs and without oral argument by the Honorable Robert L. Tschetter. Judge Tschetter issued his letter decision on August 25, 1993, affirming the Department's order of dismissal. An order of affirmance was entered, nunc pro tunc, on September 14, 1993. Tieszen's appeal to this Court from that order of affirmance followed with the filing of his notice of appeal on November 16, 1993.

ISSUE

DID THE DOCTORS REPORT SENT TO MORRELL ON DECEMBER 9, 1987, CONSTITUTE TIMELY NOTICE OF TIESZEN'S BACK, NECK AND SHOULDER INJURY AS REQUIRED BY SDCL 62-7-10?

STANDARD OF REVIEW

The standard of review applicable to the Supreme Court is controlled by SDCL 1-26-36. The Supreme Court makes the same review of the administrative agency's decision as did the circuit court, unaided by any presumption that the circuit court's decision was correct. Appeal of Templeton, 403 N.W.2d 398 (S.D.1987). When the issue is a question of fact, the actions of the agency are judged by the clearly erroneous standard. Application of Northwestern Bell Telephone Co., 382 N.W.2d 413 (S.D.1986). When the issue is a question of law, the actions of the agency are fully reviewable. Matter of State & City Sales Tax Liability, 437 N.W.2d 209 (S.D.1989). Mixed questions of law and fact

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are also fully reviewable. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987). DECISION

The Department held that Tieszen failed to give notice of his injury as required by SDCL 62-7-10, and Tieszen's claim was dismissed. SDCL 62-7-10 provides:

Every injured employee or his representative shall immediately upon the occurrence of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employee shall not be entitled to a physician's fee nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative had knowledge of the injury or death, or that the person required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person or other equally good reason; 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.

The purpose of the...