Vaughn v. John Morrell & Co.

Decision Date01 March 2000
Docket NumberNo. 21012.,21012.
Citation606 N.W.2d 919,2000 SD 31
CourtSouth Dakota Supreme Court
PartiesAnnie VAUGHN, Claimant and Appellee, v. JOHN MORRELL & CO. Employer/Self-Insurer and Appellant.

Brett A. Lovrien of Parliman and Parliman, Sioux Falls, for claimant and appellee.

Michael S. McKnight and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for employer/self-insurer and appellant.

SABERS, Justice.

[¶ 1.] The Department of Labor (DOL) determined that Annie Vaughn (Vaughn) was not entitled to workers' compensation benefits from John Morrell & Company (Morrell). Vaughn appealed. The circuit court reversed and we granted an intermediate appeal to Morrell. We reverse and remand.

FACTS

[¶ 2.] Vaughn was born August 3, 1935. She completed the 11th grade, but her reading and math skills are equivalent to those of a fourth or fifth grader. She became employed with the Morrell packing plant in 1973 and transferred to the Sioux Falls plant in 1981. Her job duties at Morrell required her to be on her feet continuously throughout the day.

[¶ 3.] On February 1, 1993, Vaughn saw Dr. McGowan because her feet were hurting. She told Dr. McGowan that she believed her standing on concrete all day at work caused her foot pain. Dr. McGowan diagnosed Vaughn with heel spurs and plantar fasciitis and advised her to use a heel insert in her shoes and take over-the-counter medication for the pain. Vaughn testified that while she was at work, she stood on cardboard boxes to relieve some of the pressure from her feet.1 She claims she requested a floor mat from several supervisors, but never received one.

[¶ 4.] While her foot pain initially subsided, Vaughn was transferred to a job in the labeling department that required more walking and standing on concrete floors. Gradually, her foot pain intensified and on October 3, 1994, Vaughn saw Dr. Richard Plummer. After the appointment, Dr. Plummer wrote a note stating Vaughn "should be off work [for] 48 h[ours] because of plantar fasciitis and heel spur." Vaughn testified that she gave this note to Connie Wheeler, a registered nurse operating Morrell's first aid station, and requested sick leave.

[¶ 5.] As of October 3, 1994, Nurse Wheeler was responsible for filling out accident investigation forms and handling worker's compensation claims for Morrell. She testified that she was familiar with plantar fasciitis because she treated it on two occasions prior to Vaughn's injury while she was a nurse with Morrell. She further testified that the nurse determines whether the employee gets an occupational or work-related injury form to fill out. See also Schuck v. John Morrell & Co., 529 N.W.2d 894, 898 (S.D.1995)

(stating a comptroller for Morrell indicated "that it was Morrell and not the employee who made the decision of whether to report an injury as a worker's compensation claim.").

[¶ 6.] Jean Koehler, Morrell's in-house attorney during this time, testified that Vaughn called Nurse Wheeler once her sick leave was exhausted, approximately November 23, 1994. Koehler testified that Vaughn told Nurse Wheeler that she believed her foot problems were related to work. Nurse Wheeler, however, testified that she does not remember having this conversation with either Vaughn or Koehler.

[¶ 7.] On December 22, 1994, Vaughn's first attorney sent a letter to Morrell indicating that he was representing Vaughn in her worker's compensation suit against Morrell. The date of injury was listed as October 3, 1994. Morrell reviewed its file and responded that no notice was provided to them within the statutory time limitation.

[¶ 8.] On July 19, 1995, Vaughn completed and signed a South Dakota Employer's First Report of Injury form. The form reflects that she has suffered from plantar fasciitis and heel spurs on both feet since October 3, 1994. It also provides that "the illness is due to constant standing on cement floors and walking more on [the] job of labeling boxes."

[¶ 9.] Morrell refused to pay Vaughn's medical bills. DOL determined that Morrell did not know that Vaughn's foot problems were work-related until July of 1995. Therefore, DOL concluded that "SDCL 62-7-10 acts to bar [Vaughn's] claim for benefits, and her petition must be denied."

[¶ 10.] Vaughn appealed. The circuit court determined that Morrell did have notice of the possibility of a work-related injury and reversed DOL's determination. We granted Morrell an intermediate appeal.

STANDARD OF REVIEW

[¶ 11.] We review administrative decisions the same as the circuit court. Schuck, 529 N.W.2d at 896. We will not disturb DOL's factual findings unless they are clearly erroneous. Welch v. Automotive Co., 528 N.W.2d 406, 409 (S.D.1995) (citation omitted). Conclusions of law are reviewed de novo. Id. (citation omitted).

[¶ 12.] WHETHER DOL WAS CLEARLY ERRONEOUS IN DETERMINING THAT VAUGHN DID NOT PROVIDE TIMELY NOTICE OF THE WORK-RELATED NATURE OF HER INJURY.

[¶ 13.] "The law in effect when the injury occurred governs the rights of the parties." Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 9, 557 N.W.2d 764, 766 (citations omitted). "The time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of [the] injury or disease." Miller v. Lake Area Hospital, 1996 SD 89, ¶ 14, 551 N.W.2d 817, 820 (citation omitted). Whether the claimant's conduct is reasonable is determined "in the light of [her] own education and intelligence, not in the light of the standard of some hypothetical reasonable person of the kind familiar to tort law." Loewen, 1997 SD 2, ¶ 15, 557 N.W.2d at 768 (citation omitted).

[¶ 14.] Vaughn testified that she told her doctor in February of 1993 that she thought her standing on concrete floors at work caused her foot problems. However, she treated the plantar fasciitis with heel pads and over-the-counter medications for over 20 months. Considering that her verbal and math skills are limited and that this disability is "gradual and progressive in nature," it is reasonable to conclude that Vaughn did not recognize the nature and seriousness of this injury until October 3, 1994. See Tieszen v. John Morrell & Co., 528 N.W.2d 401, 404 (S.D. 1995)

(stating that when an injury is "gradual and progressive in nature, the date of the injury is the date when pain prevents the employee from continuing to work."). Therefore, the date of injury in this case is October 3, 1994.

[¶ 15.] SDCL 62-7-10 requires that an employee provide written notice to her employer if she sustains a work-related injury:

An employee who claims compensation for an injury shall immediately, or as soon thereafter as practical, notify the employer of the occurrence of the injury. Written notice of the injury shall be provided to the employer no later than three business days after its occurrence.
The notice need not be in any particular form but must advise the employer of when, where, and how the injury occurred. Failure to give notice as required by this section prohibits a claim for compensation under this title unless the employee or the employee's representative can show:
(1) The employer or the employer's representative had actual knowledge of the injury; or
(2) The employer was given written notice after the date of the injury and the employee had good cause for failing to give written notice within the three business-day period, which determination shall be liberally construed in favor of the employee.

[¶ 16.] The purpose of the notice requirement is to provide the employer an opportunity to investigate the cause and nature of an employee's injury while the facts are readily accessible. Schuck, 529 N.W.2d at 897 (citation omitted). Therefore, "[n]otice to the employer of an injury is a condition precedent to compensation." Loewen, 1997 SD 2, ¶ 8, 557 N.W.2d at 766 (citations omitted). However, the failure to provide written notification to the employer may be excused if the employer had actual knowledge of the injury. SDCL 62-7-10. Additionally, if written notification is delayed, strict compliance with the statute is excused if the employee has good cause justifying the delay.

[¶ 17.] A. Was written notification provided to Morrell within the statutory time limitation?

[¶ 18.] Morrell claims it received insufficient notice that the injury was work-related. Morrell insists that it did not receive written notice that Vaughn's foot problems were work-related until July of 1995, nine months after the date of injury. Due to this insufficient notice, Morrell claims it was prejudiced because (1) it was unable to determine whether the injury was work-related while the facts were accessible and (2) it was denied the opportunity to minimize the seriousness of any work-related injury.

[¶ 19.] On the other hand, Vaughn argues that she complied with the notice provision when she gave Nurse Wheeler the note from Dr. Plummer providing that Vaughn "should be off work [for] 48 h[ours] because of plantar fasciitis and heel spur." She argues that an employee need only provide notice of the possibility that the injury is work-related and relies heavily on the following South Dakota cases.

[¶ 20.] In Loewen, 1997 SD 2, ¶ 18, 557 N.W.2d at 768, we stated:

We note the facts of this case illustrate the purpose of the notice requirement and that is `to give the employer opportunity to investigate the injury while the facts are accessible. The notice requirement protects the employer by assuring he is alerted to the possibility of a claim so that a prompt investigation can be performed.'

(quoting Westergren v. Baptist Hospital of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395) (citation omitted) (emphasis added). Loewen and Westergren both apply this quote in the context of defining the purpose of the notice requirement, rather than what the notification must contain.

[¶ 21.] In Schuck, ...

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