West v. John Morrell & Co., 16932

• Court: Supreme Court of South Dakota
• Citation: 460 N.W.2d 745
• Decision Date: 24 May 1990
• Docket Number: No. 16932,16932
• Parties: Roy WEST, Claimant and Appellant, v. JOHN MORRELL & COMPANY and The State of South Dakota, Department of Labor, Division of Labor and Management, Respondents and Appellees. . Considered on Briefs

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460 N.W.2d 745 Roy WEST, Claimant and Appellant,
v.
JOHN MORRELL & COMPANY and The State of South Dakota,
Department of Labor, Division of Labor and
Management, Respondents and Appellees. No. 16932. Supreme Court of South Dakota. Considered on Briefs May 24, 1990.
Decided Sept. 19, 1990.

Bradley G. Bonynge, Sioux Falls, for claimant and appellant.

David J. Vickers and Michael S. McKnight of Boyce, Murphy, McDowell and Greenfield, Sioux Falls, for respondents and appellees.

TSCHETTER, Circuit Judge.

Department of Labor, Division of Labor and Management (Department), denied the petition of claimant Roy West (West) for worker's compensation benefits. The circuit court affirmed Department's decision. We affirm.

FACTS

West sustained a wrist injury on October 10, 1978. The injury was surgically repaired on January 4, 1979. West returned to work on March 26, 1979. On April 10, 1979, the treating physician, Dr. Alvine, sent a medical report to self-insurer John Morrell & Company (Morrell), which stated:

Patient is doing fine now. He has been back at work and has no discomfort. I don't think there will be any permanent disability. See him back prn.

Morrell paid all medical bills and temporary disability benefits for the time West was off work. Morrell's last worker's compensation payment to West was made April 19, 1979.

Shortly before September 18, 1984, West requested that Dr. Alvine make a permanent partial disability evaluation of West's wrists. On September 18, 1984, Dr. Alvine sent a copy of his medical report to West's counsel. Dr. Alvine did not send a copy to Morrell. West filed a petition for hearing with Department on January 17, 1986. West, through his counsel, sent a copy of Dr. Alvine's September, 1984, report to Morrell on February 20, 1986.

West did not ask Morrell to have a permanent partial disability examination performed at any time between October 10, 1978 (the date of the injury) and January 17, 1986 (the date West filed the petition for hearing).

SCOPE OF REVIEW

Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987), articulates this court's scope of review. On questions of fact, this court must determine whether the circuit court was clearly erroneous. On questions of law, the decision of the circuit court is fully reviewable. West's case turns on the applicability of the statute of limitations regarding this claim. Therefore, we are considering a question of law which is fully reviewable.

DECISION

This appeal centers on which of two statutes of limitation governs. West contends that the applicable statute of limitations is that which was in effect at the time of filing his petition (January 17, 1986). Morrell contends that the statute in effect at the time West was injured (October 10, 1978) governs.

On the date West was injured, SDCL 62-7-35 provided:

The right to compensation under this title shall be forever barred unless within two years after an injury, or if death results therefrom, within two years after the death, a claim for compensation thereunder is filed with the department. However, if either payment of compensation or reimbursement or payment of medical and hospital expenses under Sec. 62-4-1 has been made on account of an injury or death, a claim may be filed within two years from the date of the last payment.

SDCL 62-7-35 was amended during the 1980 legislative session. S.D.Sess.L. ch. 365, Sec. 3. The following provision became effective July 1, 1980.

The right to compensation under this title shall be forever barred unless a written request for hearing pursuant to Sec. 62-7-12 is filed by the claimant with

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the department within two years after the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part under this title. If the denial is in part, the bar shall only apply to such part.

Under the version of SDCL 62-7-35 which was in effect in 1978, West's claim would be clearly barred. The triggering date of the two-year statute is "the date of the injury" (October 10, 1978), or if payment was made on the injury, "the date of the last payment" (April 19, 1979). Under either triggering date, the claim would be tardy.

However, the statute of limitations was amended in 1980. Under this amendment, the statute of limitations is triggered by notification in writing to claimant from self-insurer that self-insurer intends to deny coverage....