Tischler v. United Parcel Service

• Decision Date: 22 May 1996
• Docket Number: Nos. 19481,19494,s. 19481
• Parties: Janet K. TISCHLER, Claimant and Appellant, v. UNITED PARCEL SERVICE, Employer, Defendant and Appellee, and Liberty Mutual Insurance Group, Insurer, Defendant and Appellee, and City of Rapid City, South Dakota, Employer, Defendant and Appellee, and South Dakota Municipal League Worker Compensation Fund, Insurer, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 597

552 N.W.2d 597

1996 SD 98

Janet K. TISCHLER, Claimant and Appellant, v. UNITED PARCEL SERVICE, Employer, Defendant and Appellee, and Liberty Mutual Insurance Group, Insurer, Defendant and Appellee,

and

City of Rapid City, South Dakota, Employer, Defendant and Appellee,

and

South Dakota Municipal League Worker Compensation Fund,

Insurer, Defendant and Appellee.

Nos. 19481, 19494.

Supreme Court of South Dakota.

Considered on Briefs May 22, 1996.

Decided July 31, 1996.

Rehearing Denied Sept. 4, 1996.

Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for appellant.

Susan Jansa Brunick and Lori Purcell Fossen of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees UPS and Liberty Mut. Ins.

Curtis S. Jensen of DeMersseman Jensen, Rapid City, for appellees City of Rapid City and S.D. Municipal League.

SABERS, Justice.

¶1 Tischler appeals as inadequate her workers' compensation impairment rating, the chiropractic and medical expenses, and costs. UPS filed notice of review challenging liability, permanent partial disability benefits, prejudgment interest, penalty, and the finding that Tischler's condition was not aggravated during employment with Rapid City (City). We affirm all issues except that we reverse issue 8 (penalty), the second part of issue 5 (permanent partial disability benefits) and remand for recalculation that part of issue 7 on prejudgment interest.

FACTS

¶2 Tischler began her employment as a preloader with UPS on August 25, 1986. On December 8, 1986, Tischler reported an injury to her right hip. UPS sent her to its physician, Dr. Tschetter. She also sought treatment from Dr. Scherr, a chiropractor. Chiropractic expenses were paid by UPS' insurer until October 1987. Tischler continued treatment with Dr. Scherr because she was not satisfied with Dr. Tschetter.

¶3 On December 23, 1988, Tischler was contacted by her supervisors and told she would be assigned to unload the following day due to seniority provisions in the union contract. Tischler thought she was being treated unfairly. She indicated that she could be hurt if she unloaded. One of her supervisors worked beside her during the unload shift and trained her in safe work methods. She claims she was injured and shouted to her supervisor to let him know, but does not know if he heard her. She reported the injury to another supervisor.

¶4 On the next scheduled work day, December 28, 1988, Tischler worked preloading. She complained of back and hip pain and another accident report was filled out. She attended a back clinic and was released to work upon completion of her treatment. Although encouraged not to, Tischler continued to receive chiropractic treatments while attending the back clinic.

¶5 Upon return to work, Tischler complained of back and hip pain. Dr. Tschetter referred her to Dr. James, a neurologist, who diagnosed chronic lumbosacral sprain-strain aggravated by work. He recommended a change of occupation.

¶6 On February 13, 1989, Dr. Tschetter indicated Tischler only had a subjective complaint of chronic pain which he did not think was a "compensatable" problem. He recommended that Tischler either continue with her job and bear the discomfort or find a more suitable job.

¶7 Tischler was sent to Dr. Wessel, a family practice physician, who diagnosed right sacroiliac pain of uncertain origin. Dr. Wessel allowed Tischler to return to work to see how she progressed. After nine days of work in March 1989, Tischler was taken off work because of continuing problems. Tischler has not returned to UPS since that date.

¶8 Tischler obtained temporary employment with City from March 1989 until October 1989. On April 6, 1990, Tischler became permanently employed for City as an ordinance officer.

¶9 In 1989, Dr. Scherr referred Tischler to Dr. Berkebile, an orthopedic surgeon. In August 1990, Dr. Scherr felt Tischler had achieved maximum medical improvement and assigned a 10% impairment rating. Tischler continued to see Dr. Scherr one to two times per week.

¶10 In January 1991, Tischler was involved in an automobile accident in the course of her work for City. She suffered a neck injury and exacerbation of her back problems, which were treated by Dr. Scherr. He later testified that Tischler's back injury returned to its pre-accident condition by August 1991 and that her neck injury achieved maximum medical improvement within twelve to eighteen months after the accident. City's insurer paid Dr. Scherr's bills until January 1992.

¶11 The Department of Labor (Department) ruled that Tischler's car accident did not independently contribute to the final disability of her back and that City's insurer was not liable for the back injury, except temporary treatment.

¶12 City referred Tischler to Dr. Tschida, a neurologist, in March 1992. Dr. Tschida felt Tischler had achieved maximum medical improvement. He indicated that continued chiropractic therapy on such a frequent basis for so many years was excessive. Dr. Tschida assigned a 7% impairment rating to Tischler's back.

¶13 Dr. Scherr referred Tischler to Dr. Blume, a neurologist, Dr. Goff, a physiatrist, and Dr. Sabow, a neurologist, and Tischler continued to see Dr. Scherr two times per week through the date of the hearing. Dr. Scherr's treatment was reviewed by the Chiropractic Peer Review Committee of the South Dakota Board of Chiropractic Examiners (Committee). The Committee found that Dr. Scherr's records lacked objective findings to support Scherr's excessive treatments and that such frequent treatment promoted dependency. ¹

¶14 William Peniston, a vocational rehabilitation counselor, determined Tischler suffered a 77% loss of access to the job market and no loss of earning ability. He purported to give each factor equal weight and averaged the two for a "vocational" disability of 39%.

¶15 The Department determined that Tischler suffered an injury in the course of her employment with UPS on December 24, 1988, and was entitled to temporary total disability benefits while medically released from work through March 9, 1989.

¶16 The Department determined Tischler was entitled to permanent partial disability benefits based on a 7% impairment rating by Dr. Tschida. The Department also determined Tischler suffered a 39% loss of use. The Department added the two percentages and awarded permanent partial disability benefits of 46%.

¶17 The Department adopted the Committee's recommendations for payment of the chiropractic expenses. The Department held City's insurer fully met its obligation for payment of chiropractic charges and stated that "[b]ased upon the findings of the Peer Review Committee all [unpaid] charges are excessive."

¶18 Tischler requested prejudgment interest, penalty, and costs. The Department awarded prejudgment interest for permanent partial disability beginning April 4, 1992, the date Dr. Tschida assigned the 7% permanent partial disability rating. The Department awarded prejudgment interest for loss of use from March 3, 1993, the date of the 39% rating. The Department denied penalty and costs.

¶19 The circuit court affirmed the Department's findings of fact, but remanded to the Department to determine whether payment was required for the medical bills from Dr. Berkebile, Dr. Blume and Dr. Sabow. The circuit court reversed the Department's denial of a penalty under SDCL 62-4-10.1.

¶20 Tischler and UPS appeal.

Standard of Review

¶21 Tischler claims a different standard of review applies when the administrative law judge who heard the case and wrote the memorandum decision did not write the findings of fact and conclusions of law. The memorandum decision was written September 23, 1994, by Administrative Law Judge (ALJ) Jean Koehler. The findings of fact and conclusions of law were written October 21, 1994, by ALJ Ryan Darling. Tischler urges this court to review all issues de novo, claiming we are in the same position as the administrative law judge who wrote the findings of fact and conclusions of law.

¶22 Tischler claims Koehler's memorandum decision is not binding on the parties. In this case, the findings of fact and conclusions of law state: "The Memorandum Decision of the Department of Labor is incorporated herein as if set forth in full. If there is a conflict between the Memorandum Decision [and] the Findings of Fact and Conclusions of Law, the Memorandum Decision controls." Tischler has not pointed to any conflicts between the memorandum decision and the findings of fact and conclusions of law. Therefore, we decline to adopt Tischler's suggested de novo standard of review for all issues.

¶23 The circuit court's review and our review of the agency's actions are controlled by SDCL 1-26-36. Under this statute our standard of review will vary depending on whether the issue is one of fact or one of law. When the issue is a question of fact, then the actions of the agency are judged by the clearly erroneous standard; and when the issue is a question of law, then the actions of the agency are fully reviewable. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987); Egemo v. Flores, 470 N.W.2d 817 (S.D.1991). However, when the evidence on an issue of fact is submitted to the agency entirely by deposition, then our review of that evidence is unhampered by the clearly erroneous rule. Lien v. Miracle Span Corp., 456 N.W.2d 563 (S.D.1990); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); Harden v. South Dakota Credit Union League, Inc., 87 S.D. 433, 209 N.W.2d 665 (1973). This means that we will decide for ourselves the credibility of the deponents and the weight and value to be attached to their testimony.

Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). We review to determine whether the record contains substantial evidence to support the agency's determination. Helms v. Lynn's, Inc., 1996 SD 8, p 10, 542 N.W.2d 764, 766 (citations omitted).

¶24 1. Whether...