[¶ 1.] Fоllowing his 1974 injury, claimant suffered intermittent seizures, but his doctor was unsure of their origin. Consequently, he settled his workers’ compensation case with an agreement approved by the Department of Labor, specifically conceding he sustained no permanent disabling injury. In 1994, he petitioned to reopen his case after surgery revealed his seizures resulted from the original injury. Is he entitled to reopen despite having waived all future claims arising from his accident? Because our workers’ compensation laws are designed to ensure injured workers receive their statutory benefits, we conclude settlement agreements cannot foreclose reopening in the event of a change in condition resulting from an undiscovered injury or an unforeseen consequence of a known injury. We affirm the decision to reopen.
Facts
[¶ 2.] On August 25, 1974, while employed by C & R Transfer Company, Inc., Jeffrey Sopko was struck on the head by a bursting split-rim from a truck tire. The explosion perforated both his tympanic membranes and caused severe cranial injuries, requiring restorative treatment. He also experienced seizures. To control them, his doctors prescribed Dilantin, which he was to take “indefinitely.” The insurer paid Sopko’s medical expenses and temporary total disability benefits for six months while he was unemployed. The final medical bills for the original injury were paid on December 2,1976.
[¶ 3.] Although he was unable to return to C & R because his position had been filled, Sopko worked for other employers for the next few years. In April 1979, he was diagnosed with bacterial spinal meningitis, resulting from cerebrospinal fluid leakagе caused by the cranial fractures he incurred in the 1974 injury. In the next few months, he underwent a series of medical procedures to repair the leak. Throughout this time he *227 continued to work, missing only a few days. Sopko’s seizures persisted intermittently through 1980. His treating physician, Dr. Harlan Payne, concluded “it is unclear whether the seizures resulted from that accident or actually antedated it ... I could not really say what the exact etiology of his seizures may have been.” By April 1981, however, his seizures had ended.
[¶ 4.] Sopko petitioned thе Department of Labor for additional workers’ compensation benefits, including $13,600 in medical bills he incurred from the meningitis episode. The insurer initially denied the claim on the ground the statute of limitations had expired. After hearings commenced, but before a final decision, the parties signed an agreement dated August 18, 1981, compromising all claims. The Stipulation for Settlement, which is the focal point of this appeal, stated in part:
According to all of the medical documentation submitted in connection with claimant’s petition, none of plaintiffs physicians could assign a percentage of permanent disability to claimant’s skull or to claimant’s entire person as a result of the injury. Therefore, it is hereby stipulated and agreed that claimant, for purposes of this settlement, did not sustain a permanent disabling injury as the result of the accident which occurred on employer’s premises in August, 1974. The Worker’s Compensation Commission should not be entitled to enter a finding of permanent disability or to reserve the question pending future prоblems claimant may sustain. Claimant hereby waives any right he may have to a stay of further proceedings pending the need for possible future treatment. Claimant hereby waives and releases all claim [sic] he may have against defendants for any additional medical assistance or any additional compensation.
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Claimant hereby releases defendants and waives any claim for payment for any permanent disabling injury, permanent physical disability, or payment for any medical payments that may be incurrеd in the future due to the skull and ear injuries sustained by claimant in said industrial accident. This waiver is given based on the fact heretofore outlined in this petition together with the fact that a significant question about the timeliness of claimant’s claim exists. Specifically, claimant understands that defendants have a valid defense based on the statute of limitation, but defendants have waived that claim to the extent that they have agreed to compromise this claim.
⅜ ⅜ ⅜ # ⅜ ‡
Upon approval of this compromise agreement by the South Dakota Worker’s Compensation Commission, or by its hearing examiner, and payment in accordance with the provisions hereof, said claimant releases and forever discharges his employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury, including any and all liability of said employer and said insurance carrier, and each of them, to the defendants, heirs, executors, administrators, or assigns of said claimant.
The Department formally approved the settlement on August 19,1981.
[¶5.] In 1984, his seizures began to steadily recur. To relieve the problem, in 1992, Dr. John R. Gates of Minneapolis, Minnesota, performed a right temporal lo-bectomy. He found an accumulation of scar tissue originating from earlier surgery necessitated by the 1974 injury. In Dr. Gates’ opinion, the seizures beginning in 1984 were directly attributable to this scar tissue. He also concluded the seizures constituted a change in Sopko’s condition requiring further medicаl treatment. On March 2,1994, Sopko again petitioned the Department for compensation. The parties agreed to bifurcate the case so that C & R’s statute of limitations and release defenses could be considered first. After a hearing, the Department concluded the 1981 agreement should be set aside and the case reopened because Sopko demonstrated a substantial, and unforeseen, post-release, physical change of condition. In his findings, Director Marsh wrote, “the underlying claim from 1974 has always been *228 compensable and the Department retains continuing jurisdiction over compensable claims pursuant to SDCL 62-7-38 when there has been a substantial, material worsening of the physical condition of the employee.” To the extent the employer urged the settlement agreement foreclosed any reopening, Marsh declared it “invalid as a matter of law.” On appeal, pursuant to SDCL 62-7-19, the circuit court affirmed, concluding that although there were facts to the contrary, “substantial evidence” supported the Department’s findings. 1 In this appeal, C & R offers essentially one question: Is Sopko’s current petition barred by the 1981 settlement agreement?
Standard of Review
[¶ 6.] Our standard of review, delineated in SDCL 1-26-36, requires us to give great weight to the findings and inferences made by the Department on factual questions.
Helms v. Lynn’s, Inc.,
[¶7.] Relying on our precedent, the circuit court partially applied a substantial evidence analysis to review the Department’s findings. To allay future confusion over the proper standard of review in administrative appeals, we will no longer employ “substantial evidence” terminology. In the past, we have regularly combined clearly erroneous and substantial evidence principles, but the latter is not the proper test. SDCL 1-26-36 was amended effective July 1,1978, changing the standard of review for sufficiency of the evidence from “unsupported by substantial evidence on the whole record” to “clearly erroneous.” (For reasons unknown the definition remains unrepealed. SDCL 1-26-1(9)). The difference between the two standards should not be obscured: It is simply inaccurate to conclude, findings supported by substantial evidence are not clearly erroneous.
2
1 S. Childress & M. Davis,
Federal
*229
Standards of Review
§ 2.07 at 2-44 (2d ed. 1992)(citing eases from every fеderal circuit). Even when substantial evidence supports a finding, reviewing courts must consider the evidence as a whole and set it aside if they are definitely and firmly convinced a mistake has been made.
See W.R.B. Corp. v. Geer,
Analysis and Decision
[¶ 8.] We begin with our accustomed understanding that workers’ compensation statutes should be construed liberally in favor of injured employees.
Mills v. Spink Elec. Coop.,
1. Effect of Agreement Reciting No Permanent Injury Oсcurred
[¶ 9.] Ordinarily, workers’ compensation awards whether by agreement or adjudication are final unless the Department reserves jurisdiction.
Call v. Benevolent. & Protec. Order of Elks,
If the employer and employee reach an agreement in regard to the compensation under this title, a memorandum of the agreement shall be filed with the department by the employer or employee. Unless the department within twenty days notifies the employer and employee of its disapproval of the agreement by letter sent to their addresses as given in the memorandum filed, the agreement shall stand as approved and is enforceable for all purposes under the provisions of this title.
(emphasis added). C & R asserts the release language in the 1981 settlement agreement deprived the Department of jurisdiction to adjudicate any future requests to end, increase, or diminish the previous workers’ compensation award. Although we have never addressed terminology similar to that in the present agreement, we have recognized in various circumstances an abiding exception to the general rule of finality.
Cf. Larsen v. Sioux Falls Sch. Dist. No. 49-5,
[¶ 10.] Unlike the common law precepts on the finality of releases, the provisions governing such documents in workers’ compensation cases are more forbearing.
3
As early as 1921 this Court held that besides fraud and misrepresentation, “equitable grounds” may be sufficient to set aside a release.
Vodopich v. Trojan Mining Co.,
[¶ 11.] South Dakota’s statutory exception to the finality rule is found in SDCL 62-7-33:
Any payment, including medical payments under 62-4-1, made or to be made under this title may be reviewed by the department of labor pursuant to 62-7-12 at the written request of the employer or of the employee and on such review payments may be ended, diminished, increased or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition of the employee warrants such action.
(emphasis added). Under this statute, the Department has continuing jurisdiction to review “any payment” when there has been a physical change in the employee’s condition from that of the last award.
4
See Middleton v. City of Watertown,
By the provisions of this statute the filing of the agreement conferred continuing jurisdiction upon the Industrial Commissioner for the determination of all questions of future liability due to the original injury and based on changes in the condition of thе employee occurring subsequent to the original award, notwithstanding the statute of limitations....
Id.
At the time the agreement was made the condition of permanent disability was not ascertainable. This is shown by the fact that two operations were performed on the left knee after the date of the agreement, for the purpose of restoring the full use of the leg. The record shows that after the operations and at the time of the hearing on this claim the injury to the left knee had become permanent....
Id.
[¶ 12.] Nоt intending to diminish the finality of workers’ compensation settlements and awards, the Legislature imposed the requirement of showing a change in the employee’s condition:
The “change in condition” which justifies reopening and modification is ordinarily a change, for better or worse in the 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 сomplaint, appearance of new and more serious features, such as discovery of a disc
*231 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).
Mills,
[¶ 13.] Agreements purporting to forego benefits for undiscovered injuries are ineffective.
No agreement, express or implied, ... shall in any manner operate to relieve any employer in whole or in part of any obligation created by this title except as herein provided.
SDCL 62-3-18 (emphasis added). Acknowledging this statute is “very broad in its terms and effects,” in
Caldwell,
to ensure that an employer, does not, because of ruse, artifice, inequality of bargaining power, or by other means, cheat any employee out of either coverage or those benefits an employee would be entitled to under our worker’s [sic] compensation act.
Yet the core intent underlying this provision is to ensure injured employees obtain their statutory benefits.
See Sugrue v. Champion,
[¶ 14.] Other courts have decided similarly when examining their own workers’ compensation statutes. “[Settlement agreements remain subject to the reopening provisions of the statute in the same manner as claims resolved by the granting of an award, and ... parties may not by private agreement modify this strong legislative policy.”
Padilla v. Indus. Com’n of Colorado,
2. Undiscovered or Unanticipated Consequence
[¶ 15.] When an injured worker seeks to reopen a settlement which includes a waiver of future rights, the focus is on whether the asserted change in condition derives from an injury unknown at the time of the settlement or from a known injury with its disabling character unknown. No-vak, Mills, supra. C & R contends imminent problems resulting from Sopko’s seizure activity were “clearly contemplated, anticipated, and foreseeable at the time of the settlement agreement.” The Department, however, concluded Sopko had not foreseen a permanent disability at the time of the settlement in August, 1981: “the first time the Employee discovered that the seizure activity ... might be related to the 1974 accident was when Dr. Gates rendered his opinion, following the right temporal lobectomy, that he believed the seizure activity was related to the scar tissue he had observed during the lobectomy....”
[¶ 16.] The Department also found that Sopko had met his burden of showing a change in condition. Unanticipated development of scar tissue had worsened Sopko’s condition giving the Department jurisdiction to reopen the initial claim. Additionally, and in line with this Court’s reasoning in
Mills,
“the resulting consequences of [the] initial injury were not discoverable until sometime in the future.”
[¶ 17.] When deposed, Sopko’s attorney at the time of the 1981 settlement conceded he could not have proved the seizures were related to the 1974 injury. Thus C & R contends the Department was without jurisdiction to hear the petition to reopen as the seizure condition was unrelated to the 1974 injury and, as such, a noncompensable condition. First, it has never been disputed that the 1974 injury was compensablе. The only question was the extent of injury and disability. Second, nowhere in the settlement agreement does it state the seizures were unrelated to the work accident. The settlement agreement speaks for itself.
Quick v. Bakke, Kopp, Ballou, & McFarlin, Inc.,
[¶ 18.] Citing Professor Larson’s treatise, C & R argues that had the parties proceeded with a full adjudication of the facts instead of settling the claim in 1981, there would have been a formal determination by the Department that Sopko’s seizure condition was not compensable. Perhaps, but we cannot decide this matter based on what might have happened. The cited portion from Larson states:
If the original award held that there was no connection between the accident and *233 claimant’s permanent disability, there is nothing to reopen, and claimant cannot retry the issue of work-connection through the device of a reopening petition.
8 Larson’s Workers’ Compensation Law § 81.32(a). Nothing in the release suggests lack of work connection, only lack of any permanent disability. C & R’s quote from Larson’s comes from the section dealing with what issues are relevant to “change of condition” reopenings. In the very next section, Larson states “[b]ut if [the claimant] does not know of the other injuries at the time of the original claim, [claimant] is not barred from asserting them in [a] reopening peti-tion_ The case is the same if the claimant knew of thе existence of the trouble but not of its disabling character.” Id. § 81.32(b).
[¶ 19.] As the Department correctly held, the settlement agreement cannot deprive it of jurisdiction otherwise conferred by statute in these circumstances. The Department found Sopko’s physical condition substantially changed from the time the 1981 settlement was executed and C & R has failed to establish such findings of fact were clearly erroneous.
[¶ 20.] Affirmed.
Notes
. The circuit court relied upon
Bearshield v. City of Gregory,
In. cases such as this, where the existence and extent of injury is unknown at the time of the accident, it would be unfair to begin the running of the statute of limitations at the time of the accident. Accordingly, ... the statute of limitations runs from the time it became apparent that a compensable injury has been sustained. This rule applies where it later becomes apparent that a much more serious injury resulted from the accident than was at first supposed, and the plaintiff had no knowledge that such was the situation....
Id.
at 165. On appeal before this Court, C & R did not brief the statute of limitations question. Accordingly, under the authority of SDCL 15-26A-60(6) "such a failure constitutes a wаiver of that issue.”
Tjeerdsma v. Global Steel Bldgs., Inc.,
. As Justice Wollman recognized, "The question of the applicable scope of review is of more than academic interest, for the 'clearly erroneous’ standard of review gives a reviewing court greater latitude in reviewing a lower court’s findings than does the ‘substantial evidence’ test.”
Huffman v. Board of Educ.,
*229 In most federal agency appeals, the preferred standard is the substantial evidence test. Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D.L.Rev. 469, 476 (1988)("Fact finding of juries and administrative agencies receive reasonableness or substantial evidence review, not clearly erroneous review.”). See, e.g., 5 U.S.C. § 706(2)(E). "On the deference spectrum, clearly erroneous fits somewhere between de novo (no deference) review and substantial evidence (considerable deference) review.” 1 S. Childress & M. Davis, Federal Standards of Review § 15.03 at 15-17 (2d ed. 1992).
. Compare the common law rule as exemplified in
Petersen v. Kemper,
. An earlier version of this statute provided in part: "Any payment
to be made
under this ti-tle_” SDC 64.0609 (emphasis added). For this reason, in
Stender v. City of Miller,
.
But see Herring v. Welltech, Inc.,
. Reopening a settled workers' compensation case can create unique difficulties. In this instance, the parties' agreement acknowledged that a "significant question about the timeliness of claimant's claim exists” and that the employer had "a valid defense based on the statute of limitation, but ... waived that claim to the extent that they have agreed to compromise...." In fairness, in reopened cases employers should be able to revive any defenses they could have originally interposed. However, here, the Department stated "[w]hether a valid statute of limitations defense existed [before the 1981 agreement] is of no consequence to the 1992 claim, and if it is, the defense, being based on the *232 effect of the agreement should be relinquished based on [Sopko's] physical change of condition.” We mаke no comment on this reasoning as the issue was waived on appeal. See supra note 2.
. C & R further maintains Sopko’s current claim stems from chronic pre-injury seizure condition, rather than from the 1974 accident. Yet the Department in its fact findings determined that Sopko's seizure condition was caused by the unanticipated and unforeseen development of scar tissue stemming from the 1974 work related injury. We accord deference to the findings made and inferences drawn by an agency on questions of fact.
Hendrix, v. Graham Tire Co.,