Westergren v. Baptist Hosp. of Winner

• Citation: 1996 SD 69,549 N.W.2d 390
• Decision Date: 05 June 1996
• Docket Number: Nos. 19341,19348 and 19349,s. 19341
• Parties: Geneva M. WESTERGREN, Employee, Claimant and Appellant, v. BAPTIST HOSPITAL OF WINNER, Employer, Defendant and Appellee, and Wausau and Phico Insurance Companies, Its Insurers and Appellees.
• Court: Supreme Court of South Dakota

Page 390

549 N.W.2d 390

1996 SD 69

Geneva M. WESTERGREN, Employee, Claimant and Appellant, v. BAPTIST HOSPITAL OF WINNER, Employer, Defendant and Appellee, and Wausau and Phico Insurance Companies, Its Insurers and Appellees.

Nos. 19341, 19348 and 19349.

Supreme Court of South Dakota.

Argued March 12, 1996.

Decided June 5, 1996.

Jean M. Massa of Jensen and Massa, Winner, for appellant.

Susan Jansa Brunick and Sandra K. Hoglund of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellee Hospital and Phico Ins. Co.

Daniel R. Fritz of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for appellee Wausau Ins.

GILBERTSON, Justice.

¶1 Geneva Westergren, Claimant, appeals from a circuit court's order that her back condition was not caused by a workplace accident and that she failed to prove her carpal tunnel injury arose out of and in the course of her employment. We affirm in part and reverse in part and remand to the circuit court with instructions.

FACTS AND PROCEDURE

¶2 In April 1989, Geneva Westergren (Claimant) was hired by Baptist Hospital of Winner (Employer) as a part-time laundry aide. Claimant earned $3.75 per hour, which was raised to $3.95 per hour in January 1990. She worked approximately 24 hours per week gathering soiled linen and loading it into the hospital's washers and dryers, and pressing and folding the cleaned linen. Her duties also required her to lift five-gallon buckets of chemicals. During this same time period, Claimant was employed sporadically at a motel as a switchboard operator and one night per week at a cafe as a waitress.

¶3 On May 27, 1989, Claimant slipped on some water which had leaked onto the floor from one of the hospital's washing machines. Claimant was able to catch herself and avoid a fall, but in doing so jerked her body. She treated with a chiropractor following this near-fall and continued working approximately twelve more months. Claimant scheduled her treatments twice weekly and later, once per week, so that she did not miss any work due to the injury. In October 1989, on the advice of her chiropractor, Claimant quit her waitressing job at the cafe.

¶4 In January 1990, Claimant was seen by an orthopedic surgeon, Dr. Stout, at the request of Employer's insurer, Wausau Insurance Company. While being treated for her back injury, Claimant reported numbness in her right hand which led to her referral to a neurologist, Dr. Wiggs, and an eventual diagnosis in February 1990 of carpal tunnel syndrome. Dr. Stout performed surgery on Claimant for this condition in June 1990, but the surgery did not completely resolve the problem. Prior to the surgery, on advice of her local physician, Dr. Schramm, Claimant took a leave of absence from her job at the hospital which continues to this day.

¶5 In October 1990, Claimant filed a claim for worker's compensation benefits. The Department of Labor held a hearing in which it found Claimant did not prove her carpal tunnel syndrome was caused by her employment. The Department further found that loss of employability and rehabilitation benefits were not warranted by Claimant's back condition. Claimant appealed the Department's decision to the circuit court. The circuit court affirmed the Department's finding regarding the carpal tunnel syndrome and further ruled that Claimant had failed to meet her burden of proof that her back condition was caused by her May 27, 1989 accident.

¶6 Claimant appeals to this Court raising the following issues:

1) Whether the circuit court had jurisdiction to rule Claimant's back condition was not caused by a workplace accident when this issue was not argued before the Department of Labor and Wausau Insurance Company admitted Claimant's injury?

2) Whether the Department erred in holding the carpal tunnel syndrome did not arise out of and in the course of Claimant's employment?

3) Whether the Department erred in not reaching a temporary total disability issue for the carpal tunnel syndrome?

4) Whether Claimant is entitled to medical expenses for both the back injury and the carpal tunnel syndrome?

5) Claimant requests this Court require remand to the Department issues regarding rehabilitation and Cozine benefits for presentation of new evidence regarding a change in Claimant's employability status.

By notice of review, Employer and Wausau Insurance Company raise the following issue:

1) Whether the circuit court erred in affirming the Department's finding that Westergren had met her burden of proving timely notice of carpal tunnel syndrome to her employer?

STANDARDS OF REVIEW

¶7 Our standard of review from decisions of administrative agencies is governed by SDCL 1-26-37. This statute provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

However, when the issue is a question of law, the agency's actions are fully reviewable. Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991). Further, we review findings based on deposition testimony and documentary evidence de novo. Caldwell, 489 N.W.2d at 357. As such, we "decide for ourselves the credibility of the deponents and the weight and value to be attached to their testimony." Id.

ANALYSIS AND DECISION

¶8 1. Whether the circuit court had jurisdiction to rule Claimant's back condition was not caused by a workplace accident when this issue was not argued before the Department of Labor and Wausau Insurance Company admitted Claimant's injury?

¶9 In its answer to subparagraph two of Claimant's October 1990 Petition for Hearing for worker's compensation benefits, Wausau Insurance Company stated:

Denies the existence of any injury that arose out of and in the course of her employment with Baptist Hospital of Winner during the period the Employer was insured by this Insurer, other than a slip and fall injury which occurred May 27, 1989, for which all benefits have been paid. (emphasis added).

In its answer to subparagraph three of Claimant's December 1990 Amended Petition for Hearing for worker's compensation benefits, Employer and its insurer, Phico Insurance Company, stated:

Admits that the Employer was insured under the worker's compensation laws of the State of South Dakota with Phico Insurance Company on and after December 29, 1989. Employer admits that on or about the 27th day of May, 1989 Claimant sustained an injury arising out of and in the course of her employment and, further asserts that worker's compensation benefits were paid by Employer's then insurer Wausau Insurance Company. (emphasis added).

As such, whether Claimant's May 27, 1989 back injury was caused by her employment with Baptist Hospital was not argued before the Department of Labor. Causation was assumed by the Department. It made findings of fact and conclusions of law that Wausau was responsible for paying certain of Claimant's medical bills and travel expenses due to her back injury, as well as awarding compensation for disability. These findings and conclusions were reversed by the circuit court which found Claimant failed to meet her burden of proving that her back injury was caused or contributed to by her near-fall in Baptist Hospital's laundry room.

¶10 In a worker's compensation case, the claimant has the burden of proving all the facts essential to compensation. Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992); King v. Johnson Bros. Construction Co., 83 S.D. 69, 155 N.W.2d 183 (1967); Mehlum v. Nunda Cooperative Ass'n., 74 S.D. 545, 56 N.W.2d 282 (1952). Whether the injury arose out of and in the course of the employment is a threshold question. Aadland v. St. Luke's Midland Regional Medical Center, 537 N.W.2d 666, 669 (S.D.1995).

¶11 In Kirnan v. Dakota Midland Hosp., 331 N.W.2d 72, 74 (S.D.1983), we stated "the relevant test of causation [is] whether the injury was one arising out of and in the course of the employment." (citing 1B Larson, Workmen's Compensation Law, § 38.30). "To be compensable, a claimant's injury must arise out of a risk inherent to employment. The words 'in the course of' refer to the time place and circumstances under which the accident took place...." Aadland, 537 N.W.2d at 669 (quoting Roberts v. Stell, 367 N.W.2d 198, 199 (S.D.1985)). "The phrase 'arising out of' expresses a factor of contribution. In other words, did the work contribute to causing the injury?" Zacher v. Homestake Min. Co. of Cal., 514 N.W.2d 394, 395 (S.D.1994)(citing Krier v. Dick's Linoleum Shop, 78 S.D. 116, 119, 98 N.W.2d 486, 487 (1959)). See also Guthmiller v. SD Dep't of Transp., 502 N.W.2d 586, 588 (SD 1993) ("injuries arising out of and in the course of employment are compensable")(citing SDCL 62-1-1(2)). By admitting that Claimant's May 27, 1989 injury arose out of and in the course of her employment, Employer admitted causation which Claimant would otherwise have been required to prove. See Zacher, 514 N.W.2d at 395 (back injury occurred at work but Claimant failed to prove his injury arose out of his employment).

¶12 SDCL 15-6-36(b) provides in relevant part that "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission...." Nothing in the record indicates such a motion or amendment was requested of the Department or the circuit court. As SDCL 1-26-32.1 provides that the rules under SDCL Ch. 15 governing practice and procedure in the circuit courts shall apply to administrative appeals unless specifically otherwise noted, we find this threshold issue to be admitted by Employer.

¶13 Although application of these two statutes...