Wendel v. Domestic Seed & Supply

• Citation: 446 N.W.2d 265
• Decision Date: 23 May 1989
• Docket Number: No. 16504,16504
• Parties: Glen WENDEL, Claimant and Appellee, v. DOMESTIC SEED & SUPPLY, Employer and Appellant, and Continental Western Insurance Co., Insurer and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 265

446 N.W.2d 265

Glen WENDEL, Claimant and Appellee, v. DOMESTIC SEED & SUPPLY, Employer and Appellant and Continental Western Insurance Co., Insurer and Appellant.

No. 16504.

Supreme Court of South Dakota.

Considered on Briefs May 23, 1989.

Decided Sept. 6, 1989.

Thomas M. Frankman of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for employer, insurer and appellant.

Richard J. Helsper of Erickson, Helsper & O'Brien, P.C., (Terry D. Wieczorek, on brief), Brookings, for claimant and appellee.

SABERS, Justice.

Domestic Seed & Supply (Domestic) appeals a circuit court judgment affirming the South Dakota Department of Labor's (DL) decision awarding Glen Wendel (Wendel) workmen's compensation benefits based on a finding of permanent and total disability.

Facts

On September 22, 1981, Wendel suffered a severe back injury while working for Domestic. Domestic's workmen's compensation carrier, Continental Western Insurance Company (Continental), paid benefits for a twenty percent permanent, partial disability. On January 22, 1985, Wendel requested a hearing with DL for a determination that he be found permanently and totally disabled.

A hearing was held on June 16, 1986. Evidence at the hearing showed that following his injury, Wendel had two discs surgically removed from his spinal column. Wendel suffered from immense pain before and after the surgery. He received physical therapy and a nerve block, but neither improved his condition or relieved the pain. Wendel testified that severe pain limited most of his activities, and those he could perform were only for short periods of time. He testified that he slept only two to three hours per night because of the pain resulting from being in one position too long. He also testified that he could sit for only ten to fifteen minutes at a time or walk for fifteen to twenty minutes at a time.

Dr. Frank Alvine (Dr. Alvine), Wendel's treating physician, testified by deposition. Dr. Alvine rated Wendel as having a thirty-five percent permanent, partial disability of the whole person. He testified that Wendel complained of immense pain and numerous pain killers prescribed for Wendel did not seem to help. Dr. Alvine eventually limited Wendel to lifting no more than fifteen pounds. He testified that he believed there may be jobs available which Wendel could perform, but he did not know of any specific ones. Dr. Alvine sent Wendel to numerous physicians for other opinions, but these attempts were unsuccessful in improving Wendel's condition. Dr. Kelly from the Mayo Clinic in Rochester, gave Wendel a fifteen percent permanent, partial disability of the whole person.

Paul Irwin (Irwin), a vocational rehabilitation counselor with the South Dakota Department of Vocational Rehabilitation (DVR), also testified at the hearing. Beginning in May 1985, Irwin met with Wendel several times, met with Wendel's doctors, and reviewed Wendel's medical records. Irwin testified that he believed Wendel could not be rehabilitated or become employable because of his disability and pain. He also testified that he did not believe Wendel could be assisted by any vocational rehabilitation program. Based on Wendel's physical condition, education, work experience and training, Irwin did not believe there were employment opportunities available in Madison, where Wendel lived. Irwin placed Wendel on an extended evaluation period so vocational rehabilitation would be attempted if Wendel's pain subsided within eighteen months.

Dave Knudson (Knudson), a former counselor with DVR, testified at the hearing on behalf of Domestic and Continental. He believed there were jobs available in Madison which Wendel could perform. He provided a list of several jobs such as a store clerk, security guard, and gas station attendant.

The hearing examiner decided Wendel was not totally disabled. He further found that Continental had paid benefits equal to a thirty-five percent disability rating, which he considered to be payment in full. Finally, the hearing examiner found that Wendel was a candidate for rehabilitation and a program of rehabilitation should be undertaken to secure full-time employment for Wendel. The hearing examiner's order was entered on October 16, 1986. Wendel's attorney received a notice of entry of order which was sent on October 21, but did not receive the order until October 27 because it was improperly addressed.

On October 27, Wendel filed a petition, pursuant to SDCL 62-7-16, seeking review of the Hearing Examiner's decision. Wendel's attorney also sent a letter to the Secretary of DL, Julie Johnson (Johnson), requesting that the petition for review be granted. This letter stated in part that Wendel wished to retake the deposition of Dr. Alvine who had reached the conclusion that Wendel was not employable. Domestic filed a motion to deny the petition for review claiming that it was untimely. ¹ Even though Johnson had not yet ruled on the petition for review, Wendel filed a notice of appeal to the circuit court on November 14, apparently to avoid a claim that an appeal to the court had not been made within thirty days, as required by SDCL 1-26-31.

On November 24, Johnson granted Wendel's petition for review and ordered a hearing limited to the issues of Wendel's disability status and his ability to benefit from vocational rehabilitation. On December 8, Wendel moved to hold the court appeal in abeyance pending the outcome of the rehearing. The circuit court subsequently dismissed Wendel's appeal for lack of jurisdiction on the basis that the petition for review prevented DL's decision from being final.

A hearing was held before a different hearing examiner on September 18, 1987. Irwin testified that at the end of the eighteen-month evaluation period, his opinion that Wendel was not a candidate for vocational rehabilitation had not changed nor was he aware of any jobs in Madison which Wendel could perform given his disability, education, training, and skills. Irwin testified that in his meetings with Wendel after the initial decision by DL he covered the points stressed by DL for rehabilitation. His efforts were unsuccessful and Wendel's pain appeared to have worsened. Consequently, Wendel's file was closed after the eighteen-month evaluation period.

James Carroll (Carroll), assistant supervisor at the Sioux Falls office of DVR, also testified at the rehearing. He stated that he became involved in the case at Irwin's request. Carroll reviewed Wendel's file and met with him on May 27, 1987. He testified to his opinion that Wendel was not capable of benefitting from a vocational rehabilitation program because of the disability and severe pain. He believed Wendel was totally disabled and did not know of any job which Wendel could perform. Carroll also testified that, prior to his interview with Wendel and without Wendel's knowledge, he observed Wendel attempting to get a drink of water. Carroll stated that Wendel was in obvious pain while attempting to bend over a water fountain and it took Wendel approximately two to three minutes to obtain a drink.

Wendel testified at the hearing that the pain continued and his condition had not improved, although he continued physical therapy. He stated that since the original hearing, Dr. Alvine advised him he would not benefit from a pain clinic. He said he applied with the Career Learning Center in Madison, but they would not accept him into their program because they did not believe he could be helped or that anyone would hire him.

Knudson again testified at the hearing. He believed Wendel would benefit from a pain clinic and that over time his condition would improve so he would be employable. This belief was based on Knudson's conversation with a doctor from the University of South Dakota who was involved with a pain clinic. This doctor had not examined Wendel.

The hearing examiner reversed the original decision of DL and found Wendel to be totally and permanently disabled. He also found that Wendel was not a candidate for vocational rehabilitation.

Domestic and Continental appealed DL's decision to the circuit court. The circuit court affirmed DL's decision on several issues, but remanded the decision to DL because Johnson did not enter findings and conclusions in support of her order for a review hearing. Johnson was no longer Secretary of DL, however, so a hearing was held before the circuit court in which Johnson testified as to the reasons she granted Wendel's petition for review and ordered a second hearing. Following the circuit court hearing, the court affirmed DL's decision. Domestic and Continental appeal. ² We affirm.

1. Whether DL retained jurisdiction of the petition for review after the filing of a notice of appeal to the circuit court.

Domestic claims that DL's jurisdiction over this matter terminated when Wendel filed a notice of appeal to the circuit court. Accordingly, Domestic claims DL was without authority to conduct a second hearing.

Domestic cites several cases which hold that an administrative agency's or trial court's jurisdiction to reconsider or change an order or judgment ceases after a valid appeal is made. E.g., Stearns-Hotzfield v. Farmers Ins. Exchange, 360 N.W.2d 384 (Minn.Ct.App.1985); In re Petition of City of Shawnee, 236 Kan. 1, 687 P.2d 603 (1984); In re Appeal of Bidlack, 3 Ohio App.3d 351, 445 N.E.2d 722 (1982); Harwood v. Harwood, 283 N.W.2d 144 (N.D.1979). ³ These cases are distinguishable, however, in that they require a valid appeal before an agency's or trial court's jurisdiction ceases. In this case there was no valid appeal because the appeal was not from a final order of DL. SDCL 62-7-19 provides:

Any employer or employee may appeal to the circuit court pursuant to chapter 1-26 from any final order or decision of the department of labor which arises under the provisions of this title.

(emphasis added). In other words, no appeal may be had until DL enters a final order or decision...