Welch v. Automotive Co.

Decision Date10 January 1995
Docket NumberNo. 18860,18860
Citation528 N.W.2d 406
PartiesJames D. WELCH, Employee, Claimant, and Appellant, v. AUTOMOTIVE COMPANY, Employer and Appellee, and St. Paul Fire and Marine Insurance Company, Insurer and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Robert M. Nash of Wilson, Olson, Nash & Becker, Rapid City, for appellant.

Dennis H. Hill of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for appellees.

SABERS, Justice.

Worker injured his wrist and shoulder during course of employment. He signed a settlement Memorandum on permanent partial disability. Hearing examiner found that Memorandum was final as to permanent partial disability benefits, and that worker was not entitled to permanent total disability benefits because he was a malingerer. We affirm.

FACTS

On September 30, 1988, James D. Welch fell from a combine while he was installing an auger during the course of his employment as a mechanic with Automotive Co., in Lemmon, South Dakota. He injured his right wrist and dislocated his right shoulder. Employer and Insurer denied benefits. After a hearing, the parties entered into an agreement on December 28, 1989 which was approved by the Department of Labor (Department). The agreement entitled Welch to collect temporary total disability benefits from April 24, 1989 through December 15, 1989, at $261.25 per week, for a total of $8,882.50. Welch's medical expenses were paid and he agreed to have the operation recommended by Dr. Dale Anderson, his physician. Future benefits were set at $261.25 per week until his release to return to work. The agreement further provided that the "case will be held open pending surgery and recovery to determine whether any permanent disability benefits should be payable after [Welch] is released to return to work." The Department kept the case open until Welch recovered from surgery to determine if any permanent disability remained after the operation.

After the surgery, Welch continued to have problems with his wrist, requiring multiple surgeries. He attended a work-hardening program. Dr. Anderson determined that the program improved his condition and lessened his pain, but that he was still experiencing problems with weakness and performing functional activities. Dr. Anderson believed that strength and endurance in his fingers and forearm would return with use and exercise.

On April 8, 1991, Welch signed a "Worker's Compensation Memorandum of Payment for Permanent Partial Impairment." (Memorandum) He received $14,111.82 in permanent partial disability benefits, calculated by multiplying his 27 percent impairment rating by 200 weeks, the number of weeks allowed for the complete and permanent loss of an arm, then multiplying that result, 54, by his weekly compensation rate of $261.33. 1 The last paragraph of the Memorandum provided that "[Welch] is not waiving the right to pursue benefits other than permanent partial disability, to which he/she may be entitled under South Dakota Worker's Compensation laws." (Emphasis added.)

On March 25, 1992, Welch requested a hearing for increased worker's compensation benefits and medical costs on permanent partial disability, and job retraining benefits and vocational disability on permanent total disability. The hearing examiner determined that the Memorandum settled any permanent partial disability claims. The examiner held that Welch must demonstrate a substantial physical change of condition to reopen the claim and found that Welch did not. The examiner found that Welch's testimony relating to change in condition carried "considerably less weight" because three witnesses observed Welch doing mechanical work and using tools on automobiles. After Dr. Anderson removed pins and wires from Welch's right hand and wrist, he increased his physical impairment rating from 27 to 30 percent. Based on medical testimony, the examiner found that the 3 percent increase was due to subjective complaints of pain, not due to any physical impairment increase. The examiner concluded that Welch's increased pain and economic changes, the failure of his automotive repair venture with his son, did not constitute a "substantial change."

The circuit court remanded to the examiner to determine whether Welch was a malingerer in considering his permanent total disability claim. The examiner specifically found that Welch was a malingerer, which he defined as the "feigning or intentional exaggeration of a disability in order to draw compensation benefits." The circuit court affirmed and Welch appeals.

We will not disturb the agency's factual findings unless they are clearly erroneous. Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). Conclusions of law are fully reviewable. Id. (citing Permann v. Dept. of Labor, Unemp. Ins. Div., 411 N.W.2d 113 (S.D.1987)). Whether a claimant is in the odd-lot category and entitled to permanent total disability is a question of fact. Id. (citing Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991)).

1. Whether the Memorandum was final as to permanent partial disability benefits?

Employer and Insurer claim that the Memorandum precludes any further involvement by Department as to permanent partial disability benefits. The Memorandum provides that Welch "is not waiving the right to pursue benefits other than permanent partial disability[.]" The Memorandum was found to be final as to permanent partial disability benefits. A stipulation between insurer and employee which is filed and approved by Department may have the effect of a final determination. Larsen v. Sioux Falls School Dist. No. 49-5, 509 N.W.2d 703, 705 (S.D.1993); Whitney v. AGSCO Dakota, 453 N.W.2d 847, 850 (S.D.1990) (citation omitted). In construing Department's Form 111, which was used for Welch's Memorandum, Larsen stated:

[W]orker's compensation awards, whether by agreement of the parties or following an adjudication, are res judicata as to all matters considered unless the [D]epartment has reserved continuing jurisdiction over one or more questions.... A statutory exception to the finality rule is found in SDCL 62-7-33 which gives the Department continuing jurisdiction to adjust payments when there is a physical change in the employee's condition from that of the last award.

509 N.W.2d at 706-07 (citations omitted).

Welch's Memorandum (Form 111) does "not contain language which le[aves] open a pending issue." Whitney, 453 N.W.2d at 850. All matters considered in the Memorandum including the nature and extent of disability are res judicata. 2 Id. Welch must prove a "material and substantial physical change" for Department to change permanent partial disability benefits. Id. at 852 (citation omitted). Therefore, the issue is whether Welch proved the necessary change of condition.

2. Whether Welch proved the necessary change of condition to increase permanent partial disability benefits?

Welch claims his 3 percent increase in impairment, increased pain, inability to find suitable employment, and inability to recover as expected constitute a "change in condition" under SDCL 62-7-33. 3 Worker's compensation statutes are liberally construed in favor of injured employees. Mills v. Spink Elec. Co-op., 442 N.W.2d 243, 246 (S.D.1989). In interpreting "change in condition," we have stated:

The 'change in condition' which justifies reopening and modification is ordinarily a change, for better or worse in claimant's physical condition. This change may take such forms as progression, deterioration, or aggravation of the compensable condition, achievement of disabling character by a previously symptomatic complaint, appearance of new and more serious features, such as discovery of a disc herniation in a back case, failure to recover within the time originally predicted, and superimposition or worsening of a neurotic condition. 3 Larson, The Law of Workmen's Compensation, § 81.31(a) (1988).

Id. (emphasis added) (claimant sought unanticipated medical expenses due to change in physical condition, so Department could reopen).

The examiner found and the circuit court affirmed that reopening was not warranted. Welch admitted that he could do the same work as he could at the time of the Memorandum:

Q. Jim, is there anything you can't do now that you could when you signed the [Memorandum]?

A. Probably about the same.

"[A] party cannot claim the benefit of a version of the facts more favorable than given in testimony." Guthmiller v. South Dakota Dept. of Transp., 502 N.W.2d 586, 589 (S.D.1993) (citations omitted). By his own testimony, Welch had not experienced a substantial change in condition. Medical testimony revealed that the 3 percent increase was due to Welch's complaints and not due to any objective increase in impairment. Medical testimony also indicated that Welch had not experienced a change in physical condition following the 27 percent impairment rating. Dr. Anderson stated that his "actual physical impairment did not change at all" from 1990 to 1992, the year of the hearing. He stated that "the increase in numbers is based primarily on increase in subjective complaints of pain and discomfort." 4 The examiner found that Welch's complaints were purely subjective and did not constitute a material and substantial physical change in condition. See Whitney, 453 N.W.2d at 852; see also Wilson Concrete Co. v. Rork, 216 Neb. 447, 343 N.W.2d 764, 767 (1984) (some additional pain from the injury was insufficient to show "a material and substantial change for the worse in his condition"); but see Shepherd, 467 N.W.2d at 919 (debilitating pain may place claimant in odd-lot category for total disability benefits). As long as there is some substantial evidence in the record to support the examiner's finding, we will affirm it. Shepherd, 467 N.W.2d at 919-920. Welch has not shown this finding to be error.

3. Whether Welch is entitled to permanent total disability benefits under the odd-lot category?

Welch...

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