Vu v. John Morrell & Co.

Decision Date09 August 2000
Docket NumberNo. 21315.,21315.
Citation615 N.W.2d 171,2000 SD 105
CourtSouth Dakota Supreme Court
PartiesMary VU, Claimant and Appellant, v. JOHN MORRELL & CO., Employer, Self-Insurer and Appellee.

Michael Abourezk and Alicia Garcia of Abourezk Law Office, Rapid City, Attorneys for claimant and appellant.

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

SABERS, Justice.

[¶ 1.] The Department of Labor (DOL) determined that Mary Vu was not entitled to receive worker's compensation benefits from John Morrell & Company (Morrell) because she failed to provide timely notice. Mary appealed. The circuit court affirmed. We reverse and remand.

FACTS

[¶ 2.] Mary Vu is thirty-four-years-old. She started work at Morrell on May 5, 1987 as a janitor. She developed problems with her wrist and was moved to a position in pork cut.1 After two to three weeks, she became a ham saw operator, where she remained for one and one-half years.

[¶ 3.] As a ham saw operator, Mary was responsible for positioning large pork cuts, mostly hind quarters, on an assembly line. She would align the legs so the saw cuts would be accurate. The tail would commonly get stuck in the rollers and Mary, a 5'5" woman weighing 130 pounds, would have to reach over the conveyor and pull or jerk the cut back on the table. If a pork cut fell, she would carry it to the wash sink or to the side of the table. After washing the pork cut, she would return it to the table. The average weight of the cut was thirty to thirty-two pounds, but some were forty pounds. Mary's work day ranged between eight to ten hours.

[¶ 4.] On Friday, January 6, 1989, Mary was working the line when one of the larger cuts got stuck in the corner of her table. She reached over and felt a "terrible pain" in her back; it was pain she had never experienced before. She shut off her line, but restarted it because her co-worker operating the line behind her did not see her shut down. Two supervisors and a foreman arrived and excused her from the line so she could see the nurse.

[¶ 5.] At the nurse's station, Mary saw "an older nurse," Ila Henderson.2 Mary testified that she told Nurse Henderson that she was experiencing a bad back pain and Nurse Henderson asked her if she wanted to lie down. Mary laid down for approximately forty-five minutes. Mary also testified that Nurse Henderson told her to make an appointment with "the John Morrell doctor," Dr. Gail Benson, an orthopedic surgeon with Midwest Orthopedics and associated with Central Plains Clinic. Despite Mary's reluctance, Nurse Henderson successfully encouraged her to finish the day on the line.

[¶ 6.] This visit to the nurse's station was not documented; however, Nurse Sharon Schumacher testified that the nurses did not "always" record an employee's visit if they only needed to lie down, wanted an aspirin or a Band-Aid. Nurse Connie Wheeler also testified to this effect — that they would not document an employee coming down to the nurse's station to lie down unless the employee went home.

[¶ 7.] Mary called Dr. Benson's office from home and the earliest available appointment was Tuesday, January 10. Before work, on Monday, January 9, Mary called the nurse's station and spoke with Nurse Schumacher. Mary testified that she told the nurse that she bent over at home and was unable to straighten up due to the injury she sustained at work. The first aid card reflects that Mary "states [she] has appointment [with] Dr. Benson tom[orrow] as yest[erday] [at] home [she] bent over [and] couldn't straighten up." This entry consists of one and one-half lines and is immediately followed by one and one-half lines of partially erased words. Nurse Schumacher testified that this entry was in her handwriting but she could not recall whether Mary told her that her injury was work-related.

[¶ 8.] Exhibit 3 is the original first aid card, which was maintained by Morrell employees until offered and received in this case. It is clear that there are one and one-half partially erased lines immediately following the above statement. No entry has been made and no writing appears over the one and one-half partially erased lines. The erasures were not complete and words may still be discerned. Curiously, there are fourteen entries on Mary's first aid card and these three lines constitute the only entry written in pencil.

[¶ 9.] There is no testimony by Nurse Schumacher or anyone else about the partial erasure, the reason therefore, or the words remaining after the partial erasure. In their appellate briefs, both parties commented on the erasure, but neither party commented on the partially erased words. If these partially erased words were being relied upon, we would need to remand to the DOL to determine their effect, if any. However, because we are determining the issue of whether timely notice was provided, we review the remaining record de novo.

[¶ 10.] On January 10, Mary saw Dr. Benson for the first time. Dr. Benson diagnosed Mary with "degenerative disk symptomatology." His notes indicate:

23 year old female who has been having low back pain with pain radiating into the buttocks and down into the legs, primarily left leg over the past 2 months.3 She works at Morrell's and pushes and pulls hogs. She denies a history of injury. She does smoke. No family history of back problems and she does not do a great amount of driving. Her orthopedic exam today shows she has some loss of lumbar lordosis and mild loss of lumbar range of motion. Negative straight leg raising test. No neurologic deficits. X-rays of her lumbar spine are normal. It is my impression she is beginning to have some degenerative disk syptomatology.

(footnote added). Dr. Benson advised Mary to stop smoking and to implement a home exercise program and a home traction program. He also advised that she attend a program at McKennan Hospital to learn the proper techniques for home exercises. He prescribed some "mild analgesics" and stated that she could return to work. The accompanying radiology report indicates that Mary's spine alignment "is good" with "no fracture, destructive lesion or other abnormality." Mary's visit to Dr. Benson was paid for by Mary's insurance company.

[¶ 11.] Mary testified that she did not understand the diagnosis of degenerative disk disease; specifically, she did not understand the source of the pain or how to alleviate it. In accordance with Dr. Benson's advice, she thought that moving around would help to "work out" the pain and she resumed working even though she was experiencing chronic, "excruciating" pain. Mary quit her job at Morrell in April of 1989 because of her pain and the harassment she received from supervisors when she claimed she was in too much pain to work. Despite the "constant" pain, she continued to try to work at different jobs until the end of 1992.4

[¶ 12.] Between April of 1989 and October 1991, Mary relied on Dr. Benson's diagnosis and attempted to maintain a home exercise program; however, she testified that the exercises seemed to cause her more pain. After her visit with Dr. Benson, she did not see any physicians during 1989 because she did not know she had a permanent injury and thought that the pain would improve with exercise. Later, she moved to Rapid City to live with her parents to receive help caring for her four children and herself. She saw physicians at Indian Health Services and went to Sioux San Hospital approximately six times complaining of back pain. Each time, she was given a variety of medications and sent home.

[¶ 13.] On October 2, 1991, Mary was referred to Dr. Sabow, an orthopedic neurologist, who informed her of the permanent nature of her injury. Dr. Sabow noted in his report that Mary injured her back while working on the line at Morrell in 1989. Dr. Sabow concluded:

The patient obviously has a chronic low back syndrome and exertion simply aggravates the situation. Because of her age and the fact that she literally is having her life change because of it, a CT scan should be obtained — not because I would recommend a laminectomy but because, if she has a large bulging fragment, nonherniated, she may be a candidate for percutaneous nucliectomy.

The CT scan, conducted on November 6, 1991, revealed that Mary suffered from two bulging disks and did not have degenerative disk disease.

[¶ 14.] Mary filed a "Notice of Claim For Compensation" which was received on October 31, 1991 by the DOL.5 Morrell denied Mary's worker's compensation claim on the basis that it did not receive proper notice.

[¶ 15.] On November 19, 1998, the DOL denied benefits to Mary.6 It found that Mary did not provide written notice within thirty days of January 6, 1989. It further found that Mary failed to show that Morrell had actual or constructive knowledge of her injury and that Mary was not excused from providing timely notice.

[¶ 16.] The circuit court affirmed the DOL's decision. However, it found that the DOL was erroneous in concluding that Mary "cannot claim on one hand that she reported the injury immediately after it occurred and claim on the other [hand] that she did not comprehend the nature of the injury and thus was not required to report it." We agree with the circuit court to this extent. However, the circuit court claimed that this does not affect the result, which was that Mary failed to give timely notice.

[¶ 17.] Mary appeals raising one issue.

STANDARD OF REVIEW

[¶ 18.] Administrative decisions are reviewed at this level the same as they are reviewed at the circuit court level. Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 11, 606 N.W.2d 919, 922 (citation omitted). The factual findings are subject to a clearly erroneous standard while conclusions of law are reviewed de novo. Id. (citations omitted).

[¶ 19.] WHETHER DOL ERRED IN DETERMINING THAT MARY DID NOT PROVIDE TIMELY NOTICE OF THE WORK-RELATED...

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