*1 possible profession of act is members type action for this that this behav- factor. ior mitigating improper.” is ABA Standards Rule 7.3 cmt. supports findings The record by Light and the Referee the Board that judgment public A censure on he Jungemann failed to advise that could both against violations will be entered if representing not withdraw from her Light, responsi- Charles E. Jr. He will be sign arrangement refused to the fee with ble to reimburse the Sys- Unified Judicial to her. finding terms less favorable tem and the State Bar South Dakota that Light Jungemann did not advise all expenses reasonable costs generat- and independent attorney she could have an ed as a proceeding. result explain changes the effect the in the fee agreement would have her and advise MILLER, Justice, Chief the matter is substantiated AMUNDSON, SABERS, well. Light record as admits both. GILBERTSON, Justices, concur. These in turn conclu- 1.7(b), 1.16(b) 1.8(a),
sion that Rules were Light’s violated. interests in new
fee arrangement contrary were to those of When violation client. involves a
conflict of interest that results because of
attorney’s
negligence
determining,
determine,
failing
or
the client’s
ed these rules. This behavior amounted to
a misrepresentation, and was dam- conduct
aging attorney-client relationship. Light’s actions reflect poorly also legal profession prejudicial and were justice. Bihlmeyer,
administration of See 239. As stated in the Com- 7.3, mentary to ABA Rule Standards reprimand usually appropriate sanc- lawyer’s
tion when a conduct violates duty profession. owed to the a sanc- Such tion public serves inform the “and other acknowledge
does not that his conduct was does not a need for restitution. improper, that he therefore follows *2 Alicia
Michael Abourezk and Garcia Office, Attor- Rapid City, Abourezk Law neys appellant. for claimant and McKnight S. and Lisa Hansen Michael Boyce, Murphy, McDowell Marso Greenfield, Falls, Attorneys em- Sioux ployer, appellee. self-insurer SABERS, Justice. (DOL) The Labor Department
determined that Vu was not entitled compensation to receive worker’s benefits (Morrell) Company from John Morrell <& provide timely she because failed appealed. The circuit af- court remand. firmed. reverse and
FACTS thirty-four-years-old.
[112.] Vu She started work Morrell on janitor. developed problems 1987 as a She position with her wrist and was moved to a weeks, cut.1 pork After two to three operator, ham saw where became a years. she remained for one and one-half operator, Mary [¶ As ham saw cuts, pork responsible positioning large assembly hind on an line. mostly quarters, align She so the cuts legs would saw accurate. tail would com- would be monly get Mary, stuck in rollers and weighing pounds, 5’5” woman would the conveyor pull to reach have over If a jerk the cut on the table. fell, carry pork cut she would it to wash sink or to side of the table. cut, washing pork After average weight return it the table. The thirty thirty-two pounds, of the cut was forty pounds. Mary’s but some were work day ranged to ten hours. eight between 6, 1989, Mary Friday, January [¶ On working line when one of got cuts larger stuck in the corner of over and felt “terri- table. She reached back; it pain” ble signed injury at issue ceived before the back here. testified that she form, pre- benefits worker's unclear whether was for wrist nurses, pared by for an she re- entry She off experienced never before. shut This of one and consists one-half line, but restarted because her co- immediately lines and is followed operating worker the line behind her did and partially one-half lines of erased *3 supervisors not her shut down. Two see words. Nurse Schumacher testified that and a foreman arrived excused her and entry this in her handwriting she but line so could from the she see nurse. Mary could recall whether told her that her was work-related. station, Mary At the nurse’s saw nurse,” Ila Mary “an older Henderson.2 original 3 is [¶ 8.] Exhibit aid first that she told Nurse testified Henderson card, which was maintained Morrell that experiencing pain she a bad employees until offered and received and her if Nurse Henderson asked she this case. is clear that there one are Mary wanted to lie down. laid down for partially and one-half lines erased immedi- approximately forty-five Mary minutes. ately following the above statement. No also that Nurse testified Henderson told entry has been made no writing ap- and appointment make an with pears over the and partially one-half doctor,” Benson, an John Morrell Dr. Gail erased lines. The were erasures not com- orthopedic surgeon with Midwest Orthope- plete and be words still discerned. dics and associated with Plains Central Curiously, are there fourteen on entries reluctance, Despite Clinic. Nurse Mary’s first aid card and these three lines successfully encouraged Henderson her to only entry constitute the written in pencil. day on finish the the line. testimony by [¶ 9.] There no Nurse This [¶ 6.] visit to the nurse’s station was anyone Schumacher or about par- else documented; however, Nurse Sharon erasure, therefore, tial the reason or the Schumacher testified that the nurses did words after remaining partial erasure. “always” if employee’s record an visit briefs, appellate parties their both com- down, they only an needed lie wanted erasure, mented neither party but or a aspirin Band-Aid. Nurse Connie commented on the partially erased words. - Wheeler also testified to effect that partially If these erased being words were they would not document an employee upon, relied we would need to remand to down coming station to lie nurse’s effect, any. the DOL to determine their if employee down unless the home. went However, because we are determining Mary called Dr. Benson’s office provid- issue whether notice was ap- and home the earliest available ed, remaining we review the record de pointment Tuesday, January Be- 10. novo. work, Monday, January Mary fore 10.] On saw Dr. spoke called the station nurse’s with first Dr. Benson time. Benson Nurse Schumacher. testified that diagnosed Mary with disk “degenerative she told nurse that she bent over at His symptomatology.” notes indicate: and was to straighten up home unable due year has old female who been hav- she sustained at work. The pain radiating low back first aid card reflects that “states appointment legs, has Dr. into the buttocks and into [she] Benson down [with] yest[erday] leg primarily past tomforrow] [she] home left over [at] bent straighten over couldn’t up.” [and] months.3 She works at Morrell’s and Mary argues testified that she saw "older told Dr. Benson experienced pain prior in her heels for the thought nurse” However, was Connie Wheeler. standing two months due to her on the con- Wheeler testified did not crete floors at work. She asserts that Dr. Mary and see the "older nurse” would have indicating experi- erred in that she Benson been Henderson. pain during prior enced back two months. yet. deposed been Dr. Benson has not She denies Between of 1989 and Octo-
pushes pulls hogs. 1991, Mary ber relied on Benson’s No She does smoke. history diagnosis attempted to maintain a and she family history problems of back however, program; home exercise she tes- driving. great do a amount does not tified that the to cause exercises seemed today exam shows she orthopedic Her After her visit with Dr. pain. more of lumbar lordosis some loss has Benson, any physicians she did not see range of lumbar motion. mild loss during 1989 because she did not know she No leg raising test. Negative straight thought had a permanent X-rays of her lum- neurologic deficits. La- with exercise. improve my impres- It is spine bar are normal. *4 ter, Rapid City she moved to to live with de- beginning sion she is some parents help caring her to receive for her generative syptomatology. disk four children herself. saw physi- and She (footnote added). Benson advised Dr. cians at Indian Health and went Services a stop smoking implement and to Mary to six Hospital approximately to Sioux San trac- and a home program home exercise Each complaining pain. times of back tion He also advised that she program. time, given variety she was a of medi- program Hospital at McKennan attend cations and sent home. proper techniques to learn the for home 2, 1991, was Mary On October 13.] He anal- prescribed some “mild exercises. Sabow, Dr. an orthopedic referred to neu- that gesics” and stated she could return the rologist, perma- who informed her of accompanying radiology report work. The nent nature of her Dr. Sabow Mary’s alignment that “is spine indicates report Mary injured in his that her noted fracture, good” with “no destructive lesion working back while on the line Morrell abnormality.” Mary’s or other visit to in 1989. Dr. Sabow concluded: paid Mary’s was insurance Benson patient obviously a chronic low has company. syndrome ag- simply and exertion gravates the Because her situation. of Mary did not testified that she age literally fact that she degenerative diagnosis of understand it, having change her life because of disease; un- disk she did not specifically, - CT should be obtained not be- scan pain derstand the of the or how source I cause would recommend laminecto- it. In accordance with Dr. Ben- alleviate because, my large bulg- but if she has a advice, moving thought son’s she that nonherniated, may be fragment, help pain to “work out” the around percutaneous a candidate for nucliecto- working though even she resumed my. . chronic, experiencing “excruciating” was scan, 6, The CT conducted on November in pain. Mary quit job at Morrell 1991, Mary that revealed suffered April of 1989 because of her degen- two and did not have bulging disks supervisors received from harassment she erative disk disease. much when she claimed she was too Despite pain, Mary “constant” For to work. filed “Notice of Claim try Compensation” to work at was received she continued different on Oc- 31, jobs of tober 1991 de- until end 1992.4 DOL.5'Morrell 27, 1989, July through Mary applied 4. unem- The amount due from 1993 On ployment She denied subject insurance benefits. was was reduction due after DOL that she Supplemental Security benefits found volun- receipt In- of good tarily quit without cause. come. On June was informed Sep- Although of Notice Claim dated monthly to receive disabili- entitled refers to the results of the tember it ty Security in the benefits from Social July CT scan administered in October of 1991. $641.00 of effective of 1993. amount ¶ (citing worker’s claim Id. 13 v. Hyman Freight nied Loewen ¶ proper Inc., 2, 9, did not ways, on the basis receive 557 N.W.2d (citations omitted)). notice. “The time for notice of claim not begin does to run 19, 1998, On November the DOL claimant, until the as a reasonable person, Mary.6 denied benefits to It found that nature, should seriousness written within provide did character thirty days further [the] disease.” Id. (quoting Mil found that failed to show that Mor- ler v. Lake Area Hospital, 1996 SD rell had actual or knowledge constructive ¶ (citation omit ex- ted)). The reasonableness of the claim cused from providing ant’s conduct is determined “in light The circuit court affirmed the own education intelligence, [her] not in However, decision. DOL’s it found that light standard some hypothet concluding DOL erroneous ical person kind familiar Mary “cannot claim on one hand that she Loewen, to tort Id. (quoting law.” reported immediately after *5 ¶2, (citation SD 557 at 768 on occurred claim the other [hand] omitted)). comprehend did not the nature of injury required the was thus to Mary injury sustained an to report it.” with agree the circuit court 6,1989. her back on She testified However, to this extent. the circuit court supervisors she notified her re result, claimed that the this does affect ported to the nurse’s station. The nurse which that Mary give timely was failed to on duty forty-five had her lie down and, testified, minutes as Mary if asked Mary appeals raising issue. one doctor,” to wanted see “John Morrell’s Dr. Benson. This visit nurse’s sta
STANDARD OF REVIEW tion was not recorded on first aid [¶ 18.] Administrative decisions card. At time the of their none testimony, are at they reviewed this level the same as of supervisors the injuring recalled are reviewed at the circuit court level. her back on line. Co., v. Vaughn John Morrell & diagnosed Mary Dr. Benson with (citation 31, ¶11, 922 degenerative disk disease and it was not omitted). subject The factual are until October 1991 that she was advised clearly to a erroneous standard while con disease, that she did not have a but instead of law clusions are reviewed novo. Id. de bulging suffered from two disks related to (citations omitted). indicated, the January As “[t]he time or claim does DOL IN DE- [¶ 19.] WHETHER ERRED claimant, run begin until the as a THAT TERMINING MARY DID NOT person, should PROVIDE TIMELY OF NOTICE nature, probable compen- seriousness and THE WORK-RELATED NATURE OF injury sable of character or disease.” [the] HER INJURY. added). Id. (emphasis well [¶20.] established that in injury presented “[t]he law effect when oc This court was a governs rights parties.” curred similar in Pirrung situation American seeking delay compensa- report 6. Some in worker's suffered delu- indicates may explained by tion benefits also be the fact sional behavior and it was recommended that experiencing psycho- that logical was "extreme undergo psychiatric evaluation and man- difficulties.” was examined agement. neuropsychologist March 1994. The See also M.M. Sundt Const. S.D. 67 N.W.2d Id. Company, 75 News Ariz., 124 Co. v. Industrial Comm’n (1954). Pirrung, expe- claimant In (award- (1979) 475, 476 Ariz. 602 P.2d lower burning sensation in her rienced a worker’s benefits to magazines. bundles of lifting back while after he was advised construction worker thereafter, pain spread Shortly ears, he ringing expe- that the area and down her left abdominal through years, fifteen immutable rienced for misdiagnosed the physicians leg. one Her work-related). pancreatitis. How- problem as sub-acute argues that Loewen v. [¶ 25.] Morrell occurred, ever, days after the forty Inc., SD 557 Hyman Freightways, due to that the was discovered applicable is more to this case N.W.2d 764 lifting from her resulting lower strain Pirrung than or Bearshield. In late affirming bundles. magazine early tripped June Loewen benefits, this court circuit award court’s helping fell at while was fellow work he notify employer duty found that a trailer door. He did not worker shut attention, the date when the com- but self-treated did not arise until seek medical heating pad. with rest and a He missed her, and. known pensable day early of work and left several courts agreed “with those stated days other due his back. On duty employee which hold the 5, 1993, August after Loewen sustained a occurrence of an notify employer vacation, went second fall while he does not arise until she accident pain and physician with lower back learned a compensable sustained learns she has surgery. that he have to On (citations omitted). Id. at injury.” date, that same he notified his *6 problems that the cause of his back was City in v. Additionally, Bearshield fall in of he sustained or June (S.D.1979), N.W.2d 164 Gregory, 278 employer 1993. His could not recall Loew- misdiagnosis this that a court determined injury, reporting en a work-related nor do Bearshield, injury. In a the date of tolled in- employer’s records reflect such an injured on Decem- police eye officer’s was jury. 13, a was thrown ber brick when provided that the suffer- 26.] Loewen police the window of the station. through by employee harm an is economic incident, he expe- Six months after the was event that com- precipitating and blurred riencing frequent headaches ... in a mences the notice worker’s 20, 1974, However, on vision. November under Dakota case South eye. in he that he was blind learned ¶ law,” 14, Id. and affirmed DOL’s deter- compen- He failed to inform the worker’s testimony mination that Loewen’s was the blindness sation insurance carrier of and that he did not provide credible within statute of limitation. two-year affirming In court’s determina- the circuit Here, the facts differ substantial- provided timely tion that no- Bearshield in ly Mary argues from those Loewen. tice, this court stated: diagnosis that Dr. Benson’s was either a misdiagnosis misleading diagnosis. or a from fact that suffered [T]he [claimant] it a misdiag- cannot conclude that was symptoms is not the de- other testimony no was received nosis because terminative factor and will not However, Dr. Benson or Dr. Sabow. respondent determination question, diag- in relation to notice or
knowledge of the existence extent misleading Mary, to which is nosis was injury. expect- A claimant cannot be case. In the time instrumental this and, ed to be a while he or diagnostician diagnosis, Dr. Benson’s period between he problem, be aware of a until 1989, January diagnosis later problem or is aware that the Sabow, 2, 1991, Mary by Dr. on October limi- injury, the statute of compensable sought medi- experienced chronic the pain. to alleviate begin does to run. cal attention six times tations However, Flores, functioning Egemo she was under 819-20 (S.D.1991) (citations omitted). We have which perception that she had a disease stated, often by performing could be recom- improved we are not circuit by the court’s bound Ben- mended Because of Dr. exercises. “The Supreme decision. Court [re- that her diagnosis, son’s she was not aware agency’s administrative views] deci- was related ... any by presumption sion unaided 2, 1991. incident at Morrell'until October circuit that the court’s decision was cor- important note that respect, it Similarly, no give rect.” we deference neither nor the court the DOL circuit Director’s decision since is based credibility. found to lack entirely upon his review same time [¶ 28.] The statute effect at the record which we have before us. We 62-7-10, Mary’s required SDCL injury, capable reading are as record provide that an the Director. employee written notice ¶ thirty days within of work- SCI, Kurtz v. (citations omitted). related The majority opinion concludes of Dr. diagno- [¶ 29.] Because Benson’s diagnosis Vu’s was “misleading” to sis, in re- misleading excuse failure to provide notice to notice, she spect to was not aware of the statutorily John Morrell within pre “nature, compen- seriousness and Further, period. majori time scribed of her injury sable character” until Octo- ty specifically stated that cannot “[w]e con Therefore, ber for Worker’s clude that it was a misdiagnosis because no Compensation purposes, the date of testimony was received from Benson recognition of first or Dr. Sabow.” testimony, Without such 1991. Mary provid- was October say how can we misleading inju- ed written of her work-related A either? review of the record reflects no ry, which was received DOL on October Depart either conclusions days thirty 1991. This within in regards ment or Circuit Court 2, 1991, recognized October when she first diagnosis misdiagnosis whether the was a *7 misleading. or How this Court compensable that she had a make injury. can finding such without any supporting evi [¶ 30.] Reversed remanded. that issue? I we dence on submit cannot conclusory not and should make such find [¶ KONENKAMP and 31.] ings ample supporting without evidence in Justices, GILBERTSON, n concur. Instead, the record. our review should ample focus on whether evidence exists in MILLER, Justice, Chief 32.] to support Department’s the record find AMUNDSON, Justice, dissent. Egemo, at ings. See 470 N.W.2d 819-20. AMUNDSON, Justice (dissenting). 62-7-10, Under an em SDCL I respectfully dissent. who for an ployee claims injury provide employ must notice to the fact, reviewing questions [¶ 34.] “ er. This ‘time or claim court this must determine whether the claimant, the begin does to run until not agency’s findings are clearly erroneous. person, a reasonable the should Further, question is not whether nature, compen- seriousness and probable contrary there ” is substantial evidence to injury or disease.’ [the] sable character agency finding, the but whether there is Co., Vaughn John Morrell & 2000 SD substantial to the evidence ¶ 919, 31, 922 (quoting 606 N.W.2d agency finding.... shall [T]he court Lake Area 1996 SD Hosp., Miller v. weight give great findings to made and ¶ (citation omit ques- agency ted)). inferences drawn an on the claimant’s conduct is “Whether ‘in light tions of fact.” the determined intelligence, help in her down the education and whether she “needed own [her] stairs,” go to the but she able to hypothet the of some light standard during nurse’s herself. stated office Vu the kind person of familiar ical reasonable ” deposition that she con- January her on Hy Loewen v. (quoting tort law.’ Id. to tacted the nurse’s station and told ¶2, Inc., Freightways, man home and nurse that she had bent over at omitted)). (citation straighten up due to was unable also injury The in the record con- sustained work. She [¶ 37.] supervisor she told her stated that other testimony sup- cluded “Vu’s appointment an for her back she had a whole” and Vu by the evidence as ported I was the other working because “[w]hen by a prove preponderance “failed to day something happened[.]” Vu ulti- ... had [John Morrell] evidence that actual Benson, mately went to see Gail alleged knowledge of an work constructive doctor, January 10 about John Morrell held, also injury[.]” The circuit court pain job back. her quit in her Vu matter of ALJ found as a law [t]he three later in months 1989 because Vu should known at time she have pain in her back. She continued quit employment her Morrell years suffer back over two finally suffering sought from a further treatment on Octo- 2,1991. ber or, latest, injury very work at the should nature, recognized seriousness The facts reflect that Vu reason- compensable nature of her had her ably knowledge should have at the her affected time injury. back Vu felt “work-related” ability perform job tasks when over her for other in her back she reached reported office table and the nurse’s employers. Department’s Conclu- lie Vu claims to have told down. not in sion is error. phone nurse over the that she could case, present In the straighten her back because of Vu reached over table to ultimately she sustained at work. Vu went large when grab pork cut of she felt regarding doctor this back pain” As a “terrible in her back. result of Also, leaving with Mor- employment after before,” pain, “never had rell, doctor the record reveals numerous line to go she was excused from her continuing visits where she claimed Vu problems.7 Finally, record shows supervisor nurse’s station. Her had asked following Vu submitted the timeline in Manage- of Labor and brief to Division *8 ment:
179 injuries prior experience The record supports that Vu Depart- 41.] findings and I would ment’s affirm. involving compensation workers’ while at A review of all facts shows Morrell. MILLER, Justice, joins Chief Vu, in light of her education and this dissent. clearly recognized should have intelligence, nature, seriousness and com- “the character” of her Mil-
pensable ler, work- we addressed situation where repeated
ers’
claimant' had
elbow,
visits for an
but
doctor
Claimant acute injury at the back its occurrence. We held employ- that no given id., upon this er based fact. See SD ¶2, 16, 557 present N.W.2d at 768. In the
case, knowledge Vu’s of the at acute history the time of her and her doctor visits she had fact that knowledge nature of injury long it. reporting before previously Vaughn, noted in ... purpose of the notice requirement give opportunity ‘to
investigate are while the facts ¶ 20,
accessible.’” 2000 SD Loewen, (quoting ¶ 18, 768). approxi N.W.2d at For *9 months, mately thirty-two had back Vu employer never advised pain, but her condition. With this of time lapse filing
between and the claim, I submit that has been meaningful thwarted totally having opportunity investigate Vu’s claim.