*1 brоught and claims could be third-party viable, perforce cannot Carstensen
still be
evidence that all
satisfactory
[law
“furnish
paid,
... have been
dis
obligations
ful]
that,
It follows
ac
charged, or waived.”
contract,
Mid-
cording to the terms
payment
withhold
Carsten-
may
Dakota
M’s
outstanding claims of J &
sen until the
dis
paid,
in fact been
suppliers have
chargеd, or waived.8
Reversed.
GILBERTSON,
Justice,
Chief
Justices,
SABERS,
ZINTER,
and
and
and
Justice,
AMUNDSON, Retired
concur.
Maty KENNEDY, Claimant Beth Appellant. 22223, 22224.
Nos. Dakota. Supreme Court of South May Argued 13, 2002. Decided Nov. work, Mid-Dakota, Carstensen, among sup- in connection with the second-tier la- suppliers may borers and enforce the contrаct carte giving pliers. suppliers We are not party N.W. at 452. as third beneficiaries. blanche they obtain whatever demand. As attorney argued for Mid-Dakota before true, asserts, It as Carstensen court, duty the circuit it was Carstensen's suppli- by & some of the costs claimed J M’s pay "anything [supplies, under 6.1 to legitimately were in- ers as reimbursable not labor, incorporated pro- that was in the etc.] Disagreements curred. over these matters subject ject.” properly of further resolution *2 McKnight
Michael and Lisa Hansen S. Boyce, Murphy, McDowell & Marso Dakota, Falls, Greenfield. Sioux South Attorneys appel- insurer and employer, lees. Fuller, Shultz, Woods,
J.G. Shultz of & Falls, Dakota, Attor- South Smith. Sioux neys appellant. for claimant and WALD, Judge. Circuit VON (Kennedy) Mary Kennedy Beth reversing judgment a circuit court appeals compensation an award workers’ bene- Dakota De- Kennedy by fits to the South (DOL). Avera St. partment of Labor Regional Medical Center Luke’s Midland (St.Luke’s) review. filed a notice of We reverse.
FACTS time initiated At proceedings, she
workers’ Falls Memo- as a nurse with employed was Falls, Minne- in International Hospital rial sota. This casе stems from Minnesota In late moved to Falls, compensation hearing workers’ which International Minnesota with her family. denied benefits because her inabil- Her employer, Hospital, was was ity directly caused an aware of to work her to latex. *3 allergic that occurred while she was em- next suffered January reactions on 22, 21, ployed by St. Luke’s Aberdeen. 1997 and March 1997 followed 31, closely by another on March 1997. Kennedy history allergic has a The January reaction occurred at her pollens reactions to and animal danders home and the two reactions in March oc- a history and of childhood eczema and at curred International Hospital. allergies. diag- various food She was first Kennedy has not returned to work since allergy August nosed with a latex her last reaction in March 1997. After employed while Luke’s. After the St. reactions, sought these the advice»of diagnosis, treating physician her informed allergists who stay away instructed her to Kennedy that she should avoid contact from aerosolized latex and to remаin in a with all products. physician latex latex-free environment. They further ad- advising wrote a letter to St. Luke’s vised that these reactions are so life- Kennedy allergy had a severe latex and threatening that stay she should within prod- should avoid all contact with latex driving distance emergency medical fa- responded giving ucts. St. Luke’s Ken- cilities. nedy gloves. Kennedy non-latex was un- aware severity of her or that It episodes was after these particles may latex Kennedy pursued become airborne. a workers’ claim in Minnesota. The claim was de- Although employed by St. Luke’s Expert nied. testimony from the Minne- nurse, allergic had no reac- sota hearings Kennedy’s on claim placed August tiоns to latex between 1994 and of her allergic cause severe July during 1996. On an obstet- injury. initial According to all of the c-section, ric emergency Kennedy pulled a experts, return,” “point of no injury, glove latex glove over her non-latex occurred at the time of Kennedy’s first avoid contact. opening blood While anaphylactic in July reaction 1996 at St. gloves, Kennedy latex came into contact point, Luke’s. At reactivity her with a large amount of airborne latex dust permanently threshold was lowered mean- particles that partially were caused ing that a smaller pro- dose of latex will powder that the used inside manufacturers response. duce a It was after the denial gloves. Shortly taking after the e- claim by her the Minnesota Workers’ room, baby delivery section out of the Board that decid- anaphylactic1 suffered an acute ed to a claim against make St. Luke’s for reaction, required emergency and permanent and total benefits anaphylactic attention. This was her first upon in July 1996. reаction allergy. from her latex Luke’s St. paid the related Kennedy’s medical bills and workers’ compensa- workers’ compensation claims and the file was against tion case brought St. Luke’s was 5,1996. closed on November before hearing DOL. A was held on De- ' sudden, "[A]naphylactic 1. foreign shock. A [allergen] pre- severe to a substance after а and sometimes fatal reaction marked liminary exposure.” Heritage The American urticaria, by sharp drop pressure, in blood (3d 1997). College Dictionary, 48 ed breathing and by exposure difficulties caused the actions of a decision issue is a DOL issued cember fully agency reviewable.” Id. of fact on June Hyman Freightways, law on June 2000. DOL Loewen v. conclusions Inc., total disabil- Kennedy permanent awarded 62-1-1(7). 766). findings, reviewing agency St. When benefits under SDCL
ity reverse, if, only decision to the circuit we “will after careful appealed that record, issued on October review of the entire we are defi- court. A nitely firmly the fact that convinced mistake It affirmed (citation omitted). disease, has been mаde.” Id. condition was by ruling reversed DOL however it Center, Healthcare Mary’s Gordon v. St. caused disease was not *4 the ¶ 130, 16, 2000 SD 617 N.W.2d by ruling decision It also reversed DOL’s in notice SDCL that the statutes ONE ISSUE general the applied and 13 over 62-8-29 Kennedy’s allergic Was reac- 62-7-10, thereby pre- statutes in notice inju- compensable a tion compensa- award of workers’ cluding the 62-1-K7)?2 ry under SDCL Kennedy appeals that Kennedy. tion to by Luke’s raises two issues decision. St. Determining whether of review. notice compensable injury reaction is a impression a matter of first for this Court. REVIEW
STANDARD OF a concluded that in standard of review work- 8.] Our injury under 62-1- compensable compensation cases is well settled. ers’ l(7)(b), preexisting holding she had which, cаses, with latex allergies this when combined compensation In workers’ work, produced anaphylactic the shock and gives great weight to Court consequences factual the thereof. DOL decided inferences made DOL on ongoing was and was Wagaman v. Sioux questions. Const., ina ¶12, major Kennedy’s present the cause of SD 576 N.W.2d a matter of the bility R to work. As (citing Sopko C & Transfer Co., Inc., circuit court reversed DOL’s 225). 1-26-37, holding the had an when “Under SDCL properly failed to then the clear- disease for which she issue is a of fact and that she could not recover applied give standard is to the notice ly erroneous however, benefits. when the workers’ agency’s findings; 62-1-1(7) disability, impairment, or need for treаt- provides: 2. SDCL ment, complained com- the of is condition (7) "personal injury,” only inju- "Injury” or employment employment pensable if the or arising ry out of and in the course of injury major con- related is and remains employment, and does not include a disease disability, tributing impair- cause of except any form as it results from ment, or need for treatment. injury. injury compensable only if it An (c)If preex- injury with a combines evidence, subject is established medical compensable injury, isting related work following to the conditions: subsequent disability, impairment, or (a) compensable em- injury is unless the No subsequent injury compensable if the employment activities ployment or related subsequent employment employment or contributing major cause of the condi- independent- of; related activities contributed complained tion ly disability, impairment, or need (b) to the preexist- injury combines with a If prolong ing for treatment. disease or condition to cause allergists In that who testified the claimant was faced with July 1996 agreed exposure that the was symptomology increased associated with no return” for “point workplace. latex in the Her doctors ad- major was the contrib that this permanently partially vised she was disability. of her Since that uting cause workplace disabled because her could not major to latex is now a point, any exposure be made latex-free. Kеnnedy. Is life or death situation Although Kennedy in South Dakota? this reaction was, predisposed her allergy to no in compares this to back Claimant doubt, suffering from the disease of latex
juries
disease where the cause
or heart
allergy,
injury may
preex
occur when a
occasion,
linked to one
but a
cannot be
isting
employee
disease makes an
more
leading up to
of occasions
the disabl
series
susceptible
to a work-related
As
history
Dakota has a
ing injury. South
stated in
Court
Elmstrand v. G. & G.
claimants,
awarding compensation
Rug
Company,
& Furniture
77 S.D.
though they
prove any specific
cannot
(1958):
trauma,
they prove history
if
In so far as the pre-existing condition is
body
that occurs
the normal course
*5
employee
concerned must take the
as
employment.
e.g.
See
Caldwell v. John
we find him.
If a compensable event
(S.D.1992)
Co.,
Morrell &
The
of the last
ex-
incident that can
posure
dently explain
rule
a particular
claim is based
the second onset of
on a
symptoms.
factual detеrmination: whether the
Id.
injury
Because an
is a
condition,
injury
subjective
successive
is mere
expert
recurrence
opinion is
or an independent aggravation
required
to establish a causal connection
first
between the incident
injury
and dis
ability. Day
cases,
v. John
injury
In
Morrell &
original
successive
the
(S.D.1992).
N.W.2d
employer/insurer
if
remains liable
injury
second
is a mere recurrence of
¶
Track
Exchange,
Ins.
(quoting 9 Arthur Larson’s 95.23.) Workmen’s Law [¶ 23.] Because essentially this case turns on determination, a factual DOL’s was un- ruling will stand unless clearly erroneous. aware after the first she would *7 Nothing in the record indicates that is the prone to more allergic reactions. Medi- Therefore, case. the findings and conclu- cal testimony indicated the cause of sions of DOL are affirmed judg- and the the subsequent reactions in Minnesota was ment of the circuit court is reversed. directly linked to the reaction at St. determination, Luke’s. To make such a
this court guidelines: has set out GILBERTSON, Justice, Chief KONENKAMP, Justice,
To determine that an ag MILLER, Justice, gravation of Retired prior episode, concur. the evi 1) dence must show: second AMUNDSON, Justice, Retired jurisdiction; term is used in this dissents. 2) this second contribut ed independently to the final disability. WALD, VON [¶26.] Circuit Judge, for Paulson v. Packing Black Hills SABERS, Justice, disqualified. To determine that episode MILLER, second Retired for Justice was a ZINTER, of the prior injury Justice, recurrence disqualified. (dissent- ap- for AMUNDSON, meaningful In order Retired Justice review, Findings the circuit court’s ing). pellate must be Fact and Conclusions of Law we appeals, In administrative 28.] [¶ our deci- record before can render be a in order for there to held that have Therefore, I case would remand this sion. the tri where meaningful appellate review Fact Findings that the circuit court’s so reversed the administrative has al court decision, Law incorporat- Fact and can be Findings of and Conclusions agency’s Law must be entered Find- into the record. the event no Conclusions ed Dep’t Schroeder v. Soc. trial court. Fact and of Lаw ings of Conclusions have (S.D.1995). Serv., 529 N.W.2d necessary it is that such be prepared been meaningful that this review completed so reveals A review of this record be made this Court. signed Order Nov. circuit court circuit court which states Findings of Fact and Conclu- its
entered setting forth its rationale of Law sions Department’s Findings of reversal June signed of Law Fact and Conclusions The record does not contain Law Fact and Findings of Conclusions in the circuit court’s Order. as mentioned