#26717-a-GAS

2013 S.D. 82

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                    ****

DARIN SCHUELKE,                             Claimant and Appellant,

      v.

BELLE FOURCHE
IRRIGATION DISTRICT,                        Employer and Appellee,

      and

FIRST DAKOTA
INDEMNITY COMPANY,                          Insurer and Appellee.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                    HUGHES COUNTY, SOUTH DAKOTA

                                ****
                     THE HONORABLE MARK BARNETT
                                Judge

                                    ****

MICHAEL J. SIMPSON
Julius & Simpson, LLP
Rapid City, South Dakota                    Attorneys for claimant
                                            and appellant.

CHARLES A. LARSON
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota                   Attorneys for employer, insurer
                                            and appellees.
                                    ****

                                            CONSIDERED ON BRIEFS
                                            ON NOVEMBER 4, 2013

                                            OPINION FILED 11/26/13
#26717

SEVERSON, Justice

[¶1.]        Darin Schuelke suffered work-related injuries in 2000. He filed a first

report of injury on February 22, 2000. The employer and insurer (collectively

Employer) accepted Schuelke’s claim as compensable and paid workers’

compensation benefits. Employer’s last payment of benefits was on August 4, 2004.

Schuelke filed another first report of injury on October 5, 2009, based on the same

injuries. Employer denied benefits. Schuelke filed a petition for hearing on

December 20, 2010, with the Department of Labor & Regulation, Division of Labor

& Management (Department). The Department found that the three-year statute of

limitations set forth in SDCL 62-7-35.1 barred Schuelke’s claim. The Sixth Circuit

Court (circuit court) affirmed. Schuelke appeals, arguing the cumulative trauma

doctrine should prevent the application of SDCL 62-7-35.1 to this case. The

cumulative trauma doctrine does not change SDCL 62-7-35.1’s application to this

case because the cumulative trauma doctrine applies to the date of injury, which is

irrelevant to SDCL 62-7-35.1. We affirm.

                                   Background

[¶2.]        Schuelke began working for the Belle Fourche Irrigation District in

1988. He started as a laborer and became a heavy equipment operator in 1991, a

position he held as of the date of the hearing before the Department. As a heavy

equipment operator, Schuelke dug trenches using an excavator or trackhoe. He

used a backhoe when required. Schuelke also performed shovel work from time to

time, but estimated that ninety percent of his time was spent operating the

trackhoe. The trackhoe used joysticks in both hands to manipulate the machine.


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[¶3.]        Schuelke claimed he had pain whenever he operated the trackhoe. He

described the pain as going from the palm of his hand to the nerves in his elbow up

into his shoulder. Eventually, he said, the pain turned to numbness. Schuelke first

saw Dr. Dale Anderson in March of 1998 complaining of left wrist pain. Schuelke

again saw Dr. Anderson on February 3, 2000, for pain and numbness in both upper

extremities. Subsequent testing showed bilateral ulnar neuropathies at the elbow

of a mild to moderate degree without more distal involvement. Testing also showed

a mild left and moderate right median neuropathy at the wrist. Dr. Anderson

recommended surgery.

[¶4.]        Schuelke filed a first report of injury on February 22, 2000. In that

report, he listed the injured parts as wrist and elbow, and the date of injury as

“accumulative.” Schuelke then saw Dr. David Lang, an orthopedic surgeon, on

March 7, 2000. Dr. Lang performed an endoscopic carpal tunnel release and ulnar

nerve transposition of the left upper extremity on May 15, 2000, and a carpal tunnel

release and ulnar nerve decompression of the right extremity on November 13,

2000. In addition to the surgeries, Schuelke received physical therapy and

splinting.

[¶5.]        Over the next three years, Schuelke saw Dr. Anderson and Dr. Lang

complaining of various pain, tingling, and numbness in his upper extremities.

Schuelke had another surgery by Dr. Richard Little on March 5, 2002. After that

surgery, Schuelke continued to have injury symptoms.

[¶6.]        Employer requested a medical evaluation by Dr. Thomas Brennan. On

May 13, 2003, Dr. Brennan diagnosed: (1) bilateral ulnar neuropathies due to


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entrapment at the elbow; (2) bilateral carpal tunnel syndrome, status post bilateral

endoscopic carpal tunnel release; and (3) status bilateral cubital tunnel releases

with subsequent left subcutaneous ulnar nerve transposition. Dr. Brennan

recommended medication but was reluctant to refer Schuelke for surgery because

the second elbow surgery made his symptoms worse. Dr. Brennan did not

recommend any work restrictions but did diagnose a twenty-six percent upper

extremity impairment due to his physical findings. Employer treated the claim as

compensable and paid for all the medical treatment and the twenty-six percent

impairment rating.

[¶7.]         Schuelke followed up with Dr. Wayne Anderson on March 11, 2004.

Dr. Anderson testified that after consulting with Schuelke, they decided to pursue

no further treatments because Dr. Anderson did not think there were any good

treatments available. On August 4, 2004, Schuelke received his last payment of

benefits from Employer. 1 Over the next three years, Schuelke did not receive any

medical treatment on his upper extremities. Schuelke did continue to work, despite

his symptoms persisting.

[¶8.]         On November 12, 2007, Schuelke resumed receiving medical attention

related to pain and motion restrictions in his upper extremities. Over the next




1.      Employer/Appellee lists the date of the last payment of benefits as August 9,
        2004. For support, Employer has an affidavit from Scott Cook, Claims
        Examiner for First Dakota Indemnity Company. Department’s findings of
        facts lists the date of the last payment of benefits as August 4, 2004. Either
        date, in this case, places the time between the date of the last payment of
        benefits and the date of filing a petition for hearing well outside the three
        years allowed by SDCL 62-7-35.1. The parties do not dispute there was more
        than a three-year gap.
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several years, Schuelke saw various doctors for his upper extremities’ symptoms.

On October 5, 2009, Schuelke filed a second first report of injury form. Schuelke

left the date and time blank and described the injury as “an occupational injury

from CTS that was filed back in 2001 – ongoing problems – DOI: 2-22-00.”

Employer denied benefits, stating the statute of limitations barred them since

Schuelke had not received any workers’ compensation benefits for over three years.

[¶9.]         Despite being denied benefits, Schuelke continued to seek medical

attention and even underwent another surgery by Dr. Lang on May 25, 2010. Dr.

Lang wrote a letter, saying Schuelke’s current care is related to his original claim. 2

On August 5, 2011, Schuelke saw Dr. Christopher Dietrich. Dr. Dietrich noted that

Schuelke had a longstanding history of upper extremity symptoms dating back to

2000. Ultimately, Dr. Dietrich diagnosed: (1) carpal tunnel syndrome—status post

bilateral carpal tunnel release; (2) ulnar neuropathy—status post bilateral cubital

tunnel release/transposition; (3) residual left ulnar nerve paresthesias/neuritis; and

(4) bilateral wrist DJD. Dr. Dietrich stated that Schuelke’s symptoms have

accumulated over several years of work and are consistent with repetitive use

injuries. Schuelke saw Dr. Dietrich again on September 15, 2011, for an

impairment rating of his upper extremities. Dr. Dietrich rated a five percent upper




2.      The letter stated:

              I have been asked to document Darin Schuelke’s relatedness
              and need for further treatment with regard to his right and left
              wrist surgery. Mr. Schuelke had bilateral wrist arthritis that
              has been documented to be work comp related as far back as the
              year 2000. His current care and need for further treatment on
              his left hand is related to this original claim.
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extremity impairment of the right wrist and a three percent impairment of the left

wrist. Dr. Dietrich also rated a three percent impairment of the right upper

extremity for the ulnar nerve condition and a three percent impairment of the left

upper extremity.

[¶10.]       Schuelke filed a written petition for hearing on December 20, 2010,

because Employer denied his second claim for workers’ compensation benefits. On

October 16, 2012, the Department found that SDCL 62-7-35.1 barred Schuelke’s

claim. The Department entered findings of fact and conclusions of law on November

5, 2012. The circuit court affirmed the Department’s decision on May 28, 2013.

Schuelke appeals, arguing the cumulative trauma doctrine should prevent the

application of SDCL 62-7-35.1 to this case.

                               Standard of Review

[¶11.]       SDCL 1-26-37 governs this Court’s standard of review in workers’

compensation cases. Here, the material facts are not in dispute and the question is

purely legal, therefore our review is de novo. Thurman v. Zandstra Const., 2010

S.D. 46, ¶ 8, 785 N.W.2d 268, 270.

                                     Analysis

[¶12.]       Employer argues that SDCL 62-7-35.1 bars Schuelke’s second claim

because more than three years passed between the date of the last payment of

benefits and the date Schuelke filed a written petition for a hearing. Schuelke

argues SDCL 62-7-35.1 should not apply to this case because his injuries are from

cumulative trauma. The issue, then, is whether the cumulative trauma doctrine




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prevents the application of SDCL 62-7-35.1. To address this issue, we start with

the plain language of the statute. SDCL 62-7-35.1 provides:

             In any case in which any benefits have been tendered pursuant
             to this title on account of an injury, any claim for additional
             compensation shall be barred, unless the claimant files a written
             petition for hearing pursuant to § 62-7-12 with the department
             within three years from the date of the last payment of benefits.
             The provisions of this section do not apply to review and revision
             of payments or other benefits under § 62-7-33.

[¶13.]       In interpreting statutes, we have consistently stated that the “[w]ords

and phrases in a statute must be given their plain meaning and effect. When the

language of a statute is clear, certain and unambiguous, there is no reason for

construction, and the Court’s only function is to declare the meaning of the statute

as clearly expressed.” State v. Moss, 2008 S.D. 64, ¶ 15, 754 N.W.2d 626, 631

(citations omitted).

[¶14.]       We previously addressed SDCL 62-7-35.1’s language in Faircloth v.

Raven Industries, Inc., 2000 S.D. 158, 620 N.W.2d 198. We stated: “SDCL 62-7-35.1

furnishes the limitations period when the employer provides the employee with

benefits for a period of time, gives no denial notice, and then the matter lies inactive

. . . . [T]he longer three-year period is warranted because the triggering event

under SDCL 62-7-35.1 is simply a cessation of benefits without notice of a dispute.”

Id. ¶ 8. We again addressed SDCL 62-7-35.1’s language in Thurman, 2010 S.D. 46,

785 N.W.2d 268. We reiterated its purpose as described in Faircloth and

emphasized that “[t]he expiration of the three-year period is dispositive.” Id. ¶ 12.

[¶15.]       Applying the language of SDCL 62-7-35.1 to this case, we note that

Employer provided benefits to Schuelke starting in February 2000. Employer paid


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the last payment of benefits on August 4, 2004. No denial letter was sent at that

time. The matter then went inactive and Schuelke did not receive any benefit

payments from Employer. On November 17, 2007, Schuelke resumed receiving

medical attention. Schuelke filed his second first report of injury form on October 5,

2009, describing the injury as ongoing problems from his first reported injury. He

petitioned for a hearing on December 20, 2010. Most importantly, the time between

the date of the last payment of benefits and the filing of a written petition for

hearing was over six years, well past the three years SDCL 62-7-35.1 allows.

Accordingly, SDCL 62-7-35.1 bars Schuelke’s second claim for workers’

compensation benefits.

[¶16.]       Nonetheless, Schuelke maintains that applying SDCL 62-7-35.1 to his

case would be “nonsensical” because his injuries are from cumulative trauma. The

cumulative trauma doctrine applies when no singular identifiable event causing the

injury exists and the time of injury is gradual and therefore indeterminable. The

doctrine merely recognizes “that an injury to be compensable under the Act is not

required to have resulted from any sudden occurrence or accident but may be due to

daily trauma or a daily aggravation of a pre-existing injury.” Firestone Tire &

Rubber Co. v. Workmen’s Comp. Appeal Bd., 396 A.2d 902, 904 (Pa. Commw. Ct.

1979) (citing Hinkle v. H.J. Heinz Co., 337 A.2d 907 (Pa. 1975)) (additional citation

omitted).

[¶17.]       With cumulative trauma, the date of injury is problematic. A definite

time, however, must be determined. Professor Larson aptly explains why:

             Probably the underlying practical reason for insisting on a
             definite date [of injury] is that a number of important questions

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             cannot be answered unless a date of injury or accident is fixed,
             such as which employer and carrier is on the risk, whether
             notice of injury and claim are within the statutory period,
             whether statutory amendments were in effect, which wage base
             applies, and many others.

3 Larson’s Workers’ Compensation Law, § 50.01 (2010). In Kuck v. Miller

Structures, Hughes Co. Civ. 00-80 (S.D. 6th Cir. Jan. 10, 2001), then-Judge Zinter

with the circuit court reviewed several theories as to what the date of injury should

be for cumulative trauma injuries. One theory sets the date of injury as the date on

which the injury “manifests itself.” See 3 Larson’s Workers’ Compensation Law, §

50.05 (2010); Peoria Cnty. Belwood Nursing Home v. Indus. Comm’n, 505 N.E.2d

1026, 1028-29 (Ill. 1987). Another theory sets the date of injury at “the onset of

pain occasioning medical attention.” See 3 Larson’s Workers’ Compensation Law, §

50.05 (2010). Both of those approaches, however, were criticized by the Kansas

Supreme Court in Treaster v. Dillon Co., 987 P.2d 325 (Kan. 1999):

             If we were to adopt either the date on which the injury
             “manifests itself” or the date on which the injury is “diagnosed,”
             we would set a potential trap for the individual who, despite
             pain and discomfort, continues to work long after his or her
             carpal tunnel is “diagnosed” or has “manifested itself.” Those
             individuals would find their claims for compensation barred by
             the statute of limitations.

Id. at 330. So instead, the Treaster Court adopted a third theory that sets the date

of injury as the last day worked: “It seems to us that we should adopt the rule that

causes the least potential prejudice and upholds the spirit of our Workers

Compensation Act. We believe use of the last day of work accomplishes both of

those purposes.” Id. (citing Berry v. Boeing Military Airplanes, 885 P.2d 1261, 1267-

68 (Kan. Ct. App. 1994)). See Bodily v. John Jump Trucking, Inc., 819 P.2d 1262,


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1267-68 (Mont. 1991) (holding the date of injury for notice requirements was the

date claimant could no longer work due to his physical condition); Lawson v. Lear

Seating Corp., 944 S.W.2d 340, 343 (Tenn. 1997) (holding that because no

identifiable event existed and claimant suffered new trauma every day she worked

that the date of injury was the last day she was able to work). Then-Judge Zinter

agreed with the Treaster Court and applied to his case at hand the bright line rule

“that sets the date of injury as the date a claimant is no longer able to work.” Kuck,

Hughes Co. Civ. 00-80, at 15. Schuelke argues that because in a cumulative trauma

case the date of injury is legally deemed to be the last day worked, the statute of

limitation set forth in SDCL 62-7-35.1 should not apply.

[¶18.]       For support of his argument, Schuelke cites Thiewes v. South Dakota

Unified Judicial System, HF No. 160, 2007/08, 2009 WL 1946484 (S.D. Dept. Lab.

June 29, 2009). But in Thiewes, the only issue was the claimant’s date of injury for

purposes of determining his workers’ compensation rate. Id. at *1. The issue did

not address SDCL 62-7-35.1 or the application of any statute of limitations.

Schuelke also cites Kuck for support. Kuck, Hughes Co. Civ. 00-80. But in Kuck,

the only issue was determining which employer would be liable for the claimant’s

current surgical need based on the claimant’s date of injury. Id. at 7-8. The issue

did not address SDCL 62-7-35.1 or the application of any statute of limitations.

Schuelke also cites Treaster, 987 P.2d 325. But the issue in Treaster was the date of

accident or occurrence and whether the employer was entitled to offset the workers’

compensation award with the claimant’s retirement benefits. Id. at 329. The issue




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did not address the cumulative trauma doctrine’s applicability to any statute of

limitations.

[¶19.]         As Professor Larson, Thiewes, Kuck, and Treaster demonstrate, the

date of injury is relevant in many situations. But the date of injury is not relevant

to SDCL 62-7-35.1. Instead, the “date of the last payment of benefits” triggers the

running of the statute of limitations under SDCL 62-7-35.1. And under SDCL 62-7-

35.1, a claimant has three years from the date of the last payment of benefits to

“file[ ] a written petition for hearing.”

[¶20.]         Schuelke, however, attempts to make the date of injury relevant to

SDCL 62-7-35.1. 3 He maintains that according to the bright-line rule in Kuck, his

cumulative injuries have not yet occurred and benefits have therefore not yet been

tendered on account of any injury. But this position is contrary to the reality of the

situation—benefits have already been paid on account of an injury, whether it’s

cumulative or not. When those benefits ceased, Schuelke had three years from that

point to file a written petition for hearing. When he did not, SDCL 62-7-35.1 barred

his claim for additional compensation.

[¶21.]         Thurman demonstrates SDCL 62-7-35.1’s application. 2010 S.D. 46,

785 N.W.2d 268. There, the employer stopped paying benefits and Thurman’s case



3.       Schuelke has not provided authority holding that the cumulative trauma
         doctrine should be applied to SDCL 62-7-35.1. Thus, Employer argues that
         Schuelke waived the issue. SDCL 15-26A-60(6); State v. Mattson, 2005 S.D.
         71, ¶ 49, 698 N.W.2d 538, 553 (citing State v. Pellegrino, 1998 S.D. 39, ¶ 22,
         577 N.W.2d 590, 599). Schuelke has provided authority, though, as to the
         cumulative trauma doctrine. Since Schuelke is asking this Court to apply
         that doctrine to SDCL 62-7-35.1 as a matter of first impression, we address
         his argument.

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went inactive for more than three years. The employer then sent a denial letter.

Thurman then filed a petition with the Department more than three years after the

last payment of benefits. Claimant argued that the denial letter extended his time

to file a petition for two years, citing SDCL 62-7-35. We disagreed, stating “the

three-year period to file a petition under SDCL 62-7-35.1 had already expired when

Employer sent its denial letter. The expiration of the three-year period is

dispositive.” Id. ¶ 12 (emphasis added). Ultimately, we held that “[b]ecause

Thurman did not petition for the additional benefits within SDCL 62-7-35.1’s three-

year period of limitations, his claim was barred.” Id. ¶ 15.

[¶22.]       Like in Thurman, Schuelke did not petition for additional benefits

within SDCL 62-7-35.1’s three-year statute of limitations, therefore SDCL 62-7-35.1

bars his claim for additional compensation. Though Thurman did not address a

cumulative injury, “expiration of the three-year period is dispositive.” Id.

[¶23.]       In Thurman, we also recognized that Thurman’s argument would

repeal SDCL 62-7-35.1 by implication. Id. ¶ 13. We stated that if a claimant

received a denial letter after the three-year statute has expired, under Thurman’s

interpretation, there would be no statute of limitations because that letter would

revive the already barred claim no matter how many years have passed. Id. We

stated that Thurman’s interpretation “cannot be reconciled with the cardinal rule of

statutory construction: repeal by implication is strongly disfavored.” Id. (quoting

Faircloth, 2000 S.D. 158, ¶ 10, 620 N.W.2d at 202).

[¶24.]       Likewise, Schuelke’s argument would repeal SDCL 62-7-35.1 by

implication. Under Schuelke’s interpretation, though three years passed since the


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date of the last payment of benefits, there would be no statute of limitations if the

worker continues employment because the injury has not yet occurred. Schuelke’s

interpretation would repeal SDCL 62-7-35.1 by implication and leave it meaningless

against cumulative trauma injuries when employment is continued. This Court

“should not adopt an interpretation of a statute that renders the statute

meaningless when the Legislature obviously passed it for a reason.” Zubke v.

Melrose Twp., 2007 S.D. 43, ¶ 14, 731 N.W.2d 918, 922 (citing Peterson, ex rel.

Peterson v. Burns, 2001 S.D. 126, ¶ 30, 635 N.W.2d 556, 567-68).

[¶25.]       Instead, we give “words and phrases in a statute . . . their plain

meaning and effect.” Moss, 2008 S.D. 64, ¶ 15, 754 N.W.2d at 631 (citations

omitted). SDCL 62-7-35.1’s language explicitly applies to “any case[,]” “any

benefits[,]” and “any claim[.]” (Emphasis added.) If the Legislature intended

otherwise, it would have included an exclusion for cumulative trauma injuries. But

it did not. And we will not “add language that simply is not there.” West v. Dooley,

2010 S.D. 102, ¶ 14, 792 N.W.2d 925, 928 (citations omitted). The duty was upon

Schuelke to “file[ ] a written petition for hearing . . . within three years from the

date of the last payment of benefits.” SDCL 62-7-35.1. Because he did not, SDCL

62-7-35.1 bars his claim.

[¶26.]       SDCL 62-7-35.1 does contain an exception: “The provisions of this

section do not apply to review and revision of payments or other benefits under §

62-7-33.” Schuelke, however, has not sought a review and revision of benefits under

SDCL 62-7-33. The exception, therefore, does not apply here.




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                                    Conclusion

[¶27.]         The cumulative trauma doctrine does not change SDCL 62-7-35.1’s

application because the cumulative trauma doctrine applies to the date of injury,

which is irrelevant to SDCL 62-7-35.1. SDCL 62-7-35.1 bars Schuelke’s second

claim for workers’ compensation benefits because more than three years passed

between the date of the last payment of benefits and when Schuelke filed a written

petition for a hearing. Affirmed.

[¶28.]         KONENKAMP, ZINTER, and WILBUR, Justices, concur.

[¶29.]         GILBERTSON, Chief Justice, deeming himself disqualified, did not

participate.




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