Novak v. CJ Grossenburg and Son

Cf. Hooper in SDCL 9-14-14. system (cid:127)a civil service as set forth Hahn, supra. and 1959 the 1957 extent it holds

To the are in question 3.102 of the ordinance amendments to Section are described above positions and that the eighteen null and void system, civil service municipal employees within the Sioux Falls the extent it holds is reversed. To declaratory judgment auditor, attorney, assistant attorney, of city the positions assessor, treasurer, fire department, chief chief of police, and recrea- superintendent parks airport manager, engineer, tion, are not to the Sioux subject and arena-coliseum manager ordinance, is affirmed. the judgment Falls civil service municipal for such further is remanded to the circuit court The case elect inconsistent pursue as the proceedings parties opinion. with this

All the concur. Justices al., SON, & et

NOVAK, v. GROSSENBURG Appellant Respondents 463) N.W.2d (232 (File 28, 1975) August No. 11521. Winner, Grieves, claimant and appellant. W.

J. Matthews, Pruitt, Matthews & Jorgensen, W. Willy, Acie of Falls, & and Iowa Mut. Ins. Co. for C. Son Grossenburg Sioux J. Smith, Falls, Shultz, Woods, Fuller, & B. Shultz Sioux of J. and Implement & Son and Federated Mut. Grossenburg for C. J. Hardware Ins. Co. Winner, M. & for C. Grossenburg, Day Grossenburg, J. J. & and Deere Ins. Co.

Grossenburg Son John DUNN, Chief Justice. claimant, Novak, The Frank filed a claim on proper June to recover further under the Work- seeking his back which

men’s Act for occurred injury 15, 1969, while in C. January employ Grossenburg J. Winner, and Son’s South Dakota. The Shop (Grossenburg) Commissioner for the South Dakota of Labor and Department denied claim Relations Management (Commissioner) occurred in and on grounds injury January 11, 1969, December the claimant a final and and also of Federated Mutual Grossenburg Implement and Hardware Insurance Company employer’s (Federated), time, which was filed with the insurer at that Commissioner became final under days to SDCL 62-7-5 after 20 pursuant affirmed the and the that statute. circuit court Commissioner claimant has this court. We reverse. appealed to

The claimant his with began employment Grossenburg for a months in 1958 when he except period eight he had been State Highway Department worked for 17, 1972, until March steadily by Grossenburg up employed date of his 29, 1967,

On his back in July loading baler while in the course of his Iowa Mutual employment. Insurance insurer at Company (Iowa Mutual), employer’s time, medical from this paid expenses resulting 2, 1967, with loss September the claimant returned to work on no of pay.

On claimant sustained a further This injury his back while combine. lifting, repair parts resulted in when a hospitalization eventually surgery 6, 1969, February and were done on laminectomy diskectomy Federated, Dr. which had been the insurer employer’s Jackson. 1, 1967, since the medical and paid expenses compen- November sation under the Act for this On December full and release claimant of Federated Commissioner, which filed duly was with the Grossenburg, received from the 1969 accident. injuries January Meanwhile, claimant returned to work on or about June 1969, with the He employer. which experienced great pain worse, became and the progressively claimant was forced to quit work seek in March hospitalization of 1972. During further that could be injury there was no to a period pinpointed time and particular Dr. testified place. that claimant’s Jackson condition awas “[progressive phenomenon operation from the three years previously takes degeneration place gradu- ally.” At this time Dr. fusion performed spinal on Jackson claimant’s back which resulted in a permanent, partial disability of 20% of the back and 10% of the whole man. This present claim time, is for loss of medical expenses for this permanent, partial disability.

Iowa Mutual declined on the payment grounds statute had of limitations run and for the further reason that it was not the insurer at the time of the most recent injury bears a causal relation to the disability. statute of grounds pay refused to

Federated it held a full release- reason that the further and for limitations injury for the from the causal relation bore a injury most recent insurer, Deere Insurance Company, employer’s John until coverage begin July because their did pay declined to has passed to find where South Dakota have been unable We companies insurance of successive question liability Com- cases. 3 Larson’s Workmen’s Workmen’s Law, rules sets out two used various 95.00 pensation jurisdictions: or when disability develops gradually,

“When a accidents, in- of a result succession comes risk at time the most covering carrier surance a causal relation to exposure bearing recent or usually compensation. liable for entire has been worked jurisdictions apportionment In some decision, for by express by judicial provided out statute, of suc- coverage periods when events within the dis- to the final insurers contribute causally cessive ability.” rule) provides rule majority (Massachusetts-Michigan upon full the insurance liability placed cases

successive that risk at the time of the most recent covering carrier 1948, Case, disability. Rock’s bears a causal relation 616, 428, Vegetable Mass. 82 N.E.2d and Brinkert Kalamazoo 611, Co., 1941, N.W. 301. 297 Mich. Parchment in apportion view difficulties that are inherent In of the a carrier holding partially involved ment and the inequity risk, this rule seems not on the majority liable when it was type method of this handling and logical practical most we would in South Dakota. adopt case and that it was the for the moment Assuming and injuries all of the successive accident that caused claimant, full liability would bear Federated disability under this rule. There was never a clear finding by Commissioner the present was caused disability by accident, there although testimony, medical especially testimony from Dr. Jackson, the 1969 accident and resulting surgery caused the 1972. The Commissioner did not make a either finding on this way point, presumably because his decision turned on the finality December 1969 release.

We now turn to what seems to be the major issue in this case, and that is the validity of the final release of Federated and of Grossenburg, was executed claimant on December as it applies to the present release, Actually, valid, this if would bar from any carrier as it extends to the employer Grossenburg his heirs and assigns.

Even though Commissioner relied almost entirely on the decision, release in his and made the statement the validity of the release was for the decide, circuit court the court did not pass on this question. This may have been because claimant did not challenge the validity the release as is indicated by his brief and argument this court.

The question of whether a later discovered disability for a compensable injury could the claim reopen in spite of a full release given on the basis of known injuries time of the signing release has not been decided clearly in this state. Does the release cover only injuries disabilities discover- able on December when release, does it extend to disability which is later discovered causally connected to the January 1969 accident?

There is South Dakota authority on both sides of question of the validity of a release in Workmen’s Compensation cases. SDCL 62-3-18 provides as follows:

“Obligation created title not waived by con- tract. —No contract or agreement, express or implied, no rule, regulation, device, or other shall in any manner operate to relieve any employer in whole or in part any obligation created title as herein except pro- vided.” Trojan

This statute the case of v. interpreted Vodopich' Co., 1921, 180 N.W. 965. There the Mining an while claimant ankle for his He sprained working employer. received under the Act from his employer complete a release further claims as a subsequently signed from Later, however, result of such complications developed a result and further medical sprain of attention was needed. Claimant moved to have release set aside. This ruled court aside, the release should be set even though no could show fraud or of misrepresentation procurement the release. court the above quoted statute from the Code of 1919 and stated: then

“We are of the it is the opinion plain intent that, of the Workmen’s Compensation law while fraud or misrepresentation in the release be obtaining would aside, ground yet setting employee required to establish the fact that an agreement for release of further liability was entered into by reason fraud or misrepresentation employer before he can have the reopened. cause Where such an agree- ment is by the Industrial Commis- approved under the sioner provisions section Rev.Code 1919, equitable aside the grounds setting must be established before the cause can be reopened. v. Detroit United 190 Mich. Foley Ry., 157 N.W. 45. If this case employee believed the results release, were at ended the time he sprain signed' but it afterwards developed that further pain suf- were fering sprain, attributable that would justify reopening the case. Workmen’s Bradbury, Com- 545-546, pensation (3d S.D. Ed.) 1137-1149.” 43 pp. N.W, at In the present claimant Novak not only had further pain suffering, but there is evidence that he suffered from degeneration vertebrae his as a back 'of his result accident. This resulted in the 1972 operation fused his vertebrae and caused at least a partial On the strength Co., Vodopich Trojan Mining supra, case should since reopened consequences total of the 1969 accident the release was signed the time

were not discoverable 11, 1969. December however, in the case of distinguished Vodopich,

This court Jarvis, N.W. 787. There the Chittenden v. an was and agreement signed approved was and $12.69 the claimant to by entitling the Industrial Commissioner and release. receipt then a final signed week. The claimant per the case reopen have the Commissioner sought Claimant later to made oral the had employer promises on the grounds was agreement at the time the written additional compensation the he had carried out. The court distinguished which not signed in this had been It the release case Vodopich. case from said in had while the release Vodopich filed the Commissioner with the Commissioner been filed. The court refused allow not 64.0509 heavily upon review case. The relied SDC court which reads as same as SDCL 62-7-5 which is the follows: as com- compensation Approval by “Agreement — reach an employee the employer

missioner. —If under regard to the agreement compensation filed title, a memorandum thereof shall be with and unless commissioner the employer employee, shall, twenty days, notify within commissioner his employee disapproval agree- employer sent to their ad- or certified letter by registered ment filed, in the memorandum given agree- dresses stand as and be enforceable approved ment shall all under this title.” provisions purposes a release is the court made then major distinction with Industrial Commissioner (now valid if filed Management Relations), Labor and but Department seems distinction. specious if it is not filed. This to be set aside did’ and releases for Workmen’s Agreements by' caused treatment contemplate subsequent case one not be because differently should treated the\ was important release filed and in the second case it not. The consequences directly,, fact cases was that there were both which were not contemplated from the initial resulting release was and were when the parties agreement signed until sometime not discoverable later.

Moreover, SDCL on its face not preclude 62-7-5 does a release if later are discovered. It setting consequences aside “an regard in terms speaks agreement under This not include a final .may this title.” or may Further, says employee. is enforceable if but is not for all agreement approved, binding time This be true fact by very on the has to the parties. SDCL 62-7-33 states: Any pay- “Review payment by of commissioner. — by

ment to made under title be reviewed may be this the commissioner at the or of request employer ended, on such review it 'be employee diminished, or increased to the maximum or subject title, in minimum amounts this if the com- provided warrants missioner finds condition employee such (emphasis action.” supplied) Chittenden, In the court in the above act stated: discussing

“This statute does not confer a jurisdiction to Commissioner and review an reopen award on the same or substantially same facts as those appearing correct original hearing errors made in the amount fixing award. It has refer original ence to conditions different from that when award made; the modification dependent upon change in the condition of the since employee the last award. Estate Beckwith v. Spooner, 183 Mich. 971, Ann.Cas.1916E, 886; N.W. Bell v. Compen State Commissioner, 571; sation 113 W.Va. 169 S.E. 162 (additional citations 68 S.D. omitted).” 297 N.W. at 789.

However, after which is based language, on sound logic precedent, the court concluded that the statute

“contemplates existence An continuing payments. award based either on an or an adjudication agreement, cannot thereafter by payment,

which has been satisfied condi- change and reviewed because of be reopened at 789. 297 N.W. tion.” 68 S.D. at case the facts in the Chittenden apply does not language This condition, but rather for a claim there was not change as the original compensation of law figuring mistake This dicta which a final release. he bar for a would seem to also Chittenden from an for which a claimant disability discovered later filed with the receipt duly a final release and had signed Commissioner, there is no is overruled. We would hold that since aside a release where conse- mandate statutory against setting until sometime of an were discoverable quences Commissioner the award there can a review future Vodopich Trojan discovered newly in view of the Co., N.W. Mining in accord with the public policy This is also holding Act. The exhibited the Workmen’s is a permanent, partial in 1972 the claimant discovered and release made no mention or disability. The settlement a partial disability. for compensation permanent, for provision states: Compensation Workmen’s C.J.S. “The rule is that where accepted compensa- generally award and the approved tion has been paid closed, it be a grounds case still reopened condition, where the in the change employee’s question was not considered permanency injuries settlement; a a will not receipt final even, has a review on such not preclude grounds; held, the disability been where the recites that receipt has ceased.” final and release in problem

Once the this with, case is dealt is whether claimant’s question next be statute At would barred of limitations. the. a time SDCL 62-7-35 had of limitations for one-year .statute claims The' Novak under the Act. record shows that claimant a made claim his immediate as a result of the timely injuries claim tolled this being accident. This January claimant’s most The limitations for statute of claim seeking original a review of his simply claim was recent accident. the 1969 caused disability more employer, been already reported had accident Manage- of Labor and the Department company insurance did Therefore, of limitations the statute Relations ment reason for the stated the has previously This court expire. “The cases: in Workmen’s limitations statute of be filed by a claim for compensation requiring purpose employers is to protect of injury, like notice employee, investigated.” which cannot promptly claims stale against Co., 1965, v. Western Chevrolet Tegels the insurance nor employer 283. Neither N.W.2d claim. stale from in this case suffered company and an must investigation in 1969 claim was reported Novak’s insurance its employer because the have been conducted liability. assumed company above,

As indicated this release and the statute of limitations were not considered the trial court in its decision and the cause must be remanded to the circuit court for decision on questions these accordance with the guidelines set out herein. Also, the Commissioner did not make a on whether the finding present disability resulted from the 1969 injúry. Federated has had clear no to brief and opportunity either argue Therefore, of these questions present record. this case is reversed and remanded to the circuit court for appropriate proceedings not inconsistent with this opinion. DOYLE,

WINANS and JJ., concur. COLER, WOLLMAN and dissent. JJ., WOLLMAN, (dissenting). Justice

I do not believe that we can reach question release, validity of the 1969 given procedural posture of this case. Claimant at no time has to attack the attempted validity the release. There is in his his nothing petition, proposed findings law, errors, of fact and conclusions of his his brief assignment or his oral argument before this court that in any way indicates that claimant relief Indeed, seeks from the 1969 release. himself acknowledges that he has not challenged validity of 15, 1969 release with respect Brief for claimant My at 5. notes taken at oral argument indicate that claimant’s counsel stated his during rebuttal argument release is irrelevant under claimant’s theory of Small recovery. wonder then that Federated Mutual filed a brief stating that because no issue had been raised as to liability on its part because no record had been made on that would appeal justify make possible responsive brief on its it was part, not an interested party to appeal.

Issues not be presented for the first time on In appeal, Grimes, 187, Re Estate 812; 87 S.D. 204 N.W.2d Chipperfield Woessner, 13, v. 727; 84 S.D. 166 N.W.2d Fales v. Kaupp, 83 S.D. 855; 161 N.W.2d cf. Co., v. Kolberg Mfg. Kraft 215 N.W.2d 844. A fortiori, issues presented neither to the lower court nor to this court should not be decided on our own motion. it,

As 1 understand claimant’s theory of he from a diseased back suffering as a result of the 1969 that this disease first manifested itself in which during period Deere Insurance Company provided with the coverage, John result Deere Insurance should be held Company liable John for workmen’s compensation benefits. Given the record made by claimant, I would affirm the circuit court’s decision that affirmed the deputy commissioner’s conclusion that claimant had failed to sustain his burden of proof that his present condition is a disease resulting from in accordance with SDCL Had claimant 62-1-1(2). proceeded on the he theory that had suffered an injury by accident during period subsequent July the date Deere Insurance Company’s John effective, became coverage I would have been inclined to take a close Co., look at our holding Tegels Western Chevrolet S.D. 139 N.W.2d perhaps adopt more liberal rule espoused by in that case. I dissenting opinion note that the Legislature has deleted the “by words accident” from SDCL Ch. 62-1-1(2). Láws of 1975. us,

On the record before I would affirm.

COLER, (dissenting). Justice I with Wollman that we should affirm. The agree Justice release was the evidence validity of the not raised no pleading; such a claim and it was neither briefed produced support nor argued. page appellant’s On brief this statement claimant appears: validity “The has not the of this challenged * * future,

It that in “by with the accident” words removed from SDCL that have a 62-1-1(2), would Further, out, valid claim. as Wollman’s dissent points Justice sustain claimant’s in theory this case would court to require this give retroactive effect to the amendment to SDCL 62-1-1(2). believe,

Of I significance, is that in equal opinion, Jarvis, 1941, 5, dicta in v. Chittenden S.D. overruling 787, desirable, N.W. which may be does not far but go enough merely commissioner should have aside the implies set release or empowered to do so. If this is to be sua sponte, done why not all go way commissioner grant equity release, powers to set aside the laa dissent of Hayes Judge Builders, 1948, 239, v. Carlson S.D. 31 N.W.2d Pulcifer Chittenden, and thereby overrule v. Pulcifer, Krueger, Nilsson 297 N.W. and any other decision prior the exercise implies equity powers solely rests with court and is not impliedly vested As it commissioner? commissioner, stands now the he found in this cannot and, delve into question validity of a release as Judge Pulcifer, Hayes necessitated, out points separate lawsuit both waste and constituting risk loss of jurisdiction by commissioner.1

Further, I do we are in agree any justified way adopting the so-called Massachusetts-Michigan rule on successive injury. We look to law I should our own think subject. rule, adopting the so-called majority is not the majority rule but the subject statutory from state provisions varying holding disposition This would not be an unreasonable extension of the Co., Vodopich Mining Trojan 180 N.W. p. court'in 43 S.D. at p. following 967. See 62-7-33. annotations SDCL 62-4-29. It

state, appears mandate of SDCL we ignore plain to department prorate authorizes me this statute to I would not as the one' at bar. carriers in cases such among loss direct barring challenge. further use foreclose its great difficulty apportioning states have found no Other 23, Workmen’s Note 3 Larson’s insurers among (See the loss SDCL Law, and the application 95.31) Compensation § of our application be no more than agonizing should 62-4-29 Further, statute, SDCL 20-9-2. negligence comparative the second fund cover- has materially changed legislature an and insurers in employers SDCL 62-4-34 to protect under age such as those created consequences reduce harsh to attempt Ch. S.L.1975. majority opinion. § that the Massachu- majority opinion The statement in the rule,” Compensation “harsh 3 Larson’s Workmen’s setts-Michigan rule, Law, 95.31, that the by implication, is the majority § force of decision is incorrect. those states is established rule of from 3 Larson’s Workmen’s Compen- I submit that the quotation “restatement,” Law, 95.00, which is an oversimplified sation § As nor does his text. subsequent does not support proposition rule stemmed from a decision of Michigan matter the practical in Brinkert v. Parch- Vegetable court Kalamazoo Michigan 611, 301, Co., 1941, and is cited by 297 Mich. 298 N.W. ment relied Massachusetts as his That case authority. Larson Case, 435, decisions, 13 N.E.2d Evans 299 Mass. 27 namely, Case, 433, The Michigan 305 Mass. 26 N.E.2d 308. Falcione’s Case, 1948, 428, Mass. 82 Rock’s court did not on the rely 616, case which Larson cites in Note 64 N.E.2d the Massachusetts 95.11, liable, contrary the first insurer under as holding § The Rock’sCase hinged statement in the majority opinion. which became operative force independent intervening issue of as did the case Michigan relation to the previous injury without within test the employer cited. Under circumstances falling this line liable. last in reacted to this harsh rule Michigan legislature 417.9, statute, C.L.1948, Mich..

enacting apportionment § Stats.Ann. 1960 Rev. 17.228. After the statute was declared § Ind. v. unconstitutional in Benton Harbor Malleable General 281, and Mich. 101 N.W.2d Corp., Motors Enterprise Foundry, Co. v. & Foundry Stamping Trellsite attempted legislature N.W.2d Mich. objections apparent meet the court’s provision amend Law, so. 3 Larson’s Workmen’s had done See ly however, gave 95.32, legislature 508.162. It p. appears, somewhat parallels statute2 and their fight up statute, however, which now controls rule. is the court It prior 62-4-29 in case. as should SDCL Michigan Case, Massachusetts, Rock’s on the other subsequent hand, subsequent relative to provisions enacted were employ.3 whether in the same they injuries from other states is lost I feel the decisions significance whether the upon depending in this case when consider that you 17.237(301) part in reads as follows: Michigan Annotated Statutes § case of a injury in this act in the injury as used “Time of or date shall injury single event to in the not attributable or case of disease employee was last day employment which the in last of work in the be the disability resulting or death.” subjected the in conditions Subsequent Injuries. Compensation Payments c. 35B. 3. M.G.L.A. § for chapter receiving compensation under this employee An has been who period not less two months has work for a than and who returned to shall, compensation, paid such be subsequently if he is and receives injury subsequent in effect time of the compensation at rate at the the subsequent injury to be a recurrence or not is determined whether such injury injury; if provided, compensation for the old former sum, compensation the subse- lump not receive unless paid in quent claim determined to he shall Supp. be a new 4—C Mass. 1974 case, Case, 1974, Mass.App., 308 In a recent In Re Sutherland’s reviewing de- portion board’s sustained that N.E.2d termination I read as consistent with court injury which relating back to the first that allowed Massachu- Massachu- Rock’s Case but inconsistent with the by Michigan support in decision. The cases used of their setts setts court ratified the effect that: review board member’s decision to the “ chargeability to which the em- ‘[T]he whole ployee covering be . . . insurer entitled rests on the injury risk at the to the land’s his most recent that bears causal relation time of (emphasis original).” claimed' Re Suther- In Case, 1974, Mass.App., 308 N.E.2d 775. Case, They support an earlier cite of that statement Trombetta’s 1973, Mass.App., 294 N.E.2d 484. back or is be an injury relates found to injury or, alternative, nonrelated independent injury, be a the law progressing governs, found to continuing some The not decisions of this or other court. concern under law determine date commissioner our must award the amount of claimant’s for compensation injury, different if the occurred after July would be S.L.1969, Ch. under SDCL enacted by 62-4-6(21), than would have been under SDCL 62-4-5. previously consider- majority opinion guidance offers no to the commissioner theory advanced claimant. ing If are have equity we commissioner willing power I set aside the release we should so hold. Absent such a holding would affirm.

ARBACH, Appellant GRUBA, ma., et Respondents N.W.2d

(232 842) (File 5, 1975) Opinion September No. 11422. filed rehearing

Petition for denied October

Case Details

Case Name: Novak v. CJ Grossenburg and Son

Court Name: South Dakota Supreme Court

Date Published: Aug 28, 1975

Citation: 232 N.W.2d 463

Docket Number: File 11521

Court Abbreviation: S.D.