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Shykes v. Rapid City Hilton Inn9/6/2000
Appeal from the Sixth Judicial Circuit, Hughes County, SD Hon. Steven L. Zinter, Judge
Affirmed
Considered on Briefs Feb 14, 2000
[ ] Chong Shykes brought a workers' compensation claim against Custom Packaging Systems, Inc. (Custom). The Department of Labor (DOL) determined that Chong provided timely notice to Custom and awarded her benefits. The circuit court reversed DOL and concluded that Chong was barred from recovering any benefits because she did not provide adequate notice to Custom. We affirm.
FACTS
[ ] Chong was born March 5, 1947 in Seoul, South Korea. She attended grade school in Korea and completed the United States equivalent of the third grade. In 1991, she came to the United States with her American husband, Greg Shykes. She speaks very limited English and cannot read or write in English. Therefore, Greg assists Chong with her daily English correspondence and communications. For example, he goes with her to her doctor appointments to complete paperwork and converse with the physician, he meets with her employers and he reads and explains the contents of her mail to her.
[ ] In January 1993, Chong obtained a job at the Rapid City Hilton Inn (Hilton) as a maid. During this employment, Chong experienced a significant amount of discomfort in her arms, primarily the right arm. She thought this was from hard work and expected it to get better as she got accustomed to the work. Greg feared that the pain was related to Chong's prior surgery. Therefore, during Chong's routine doctor visit in June, he discussed the problem with Dr. Overmiller. Dr. Overmiller suggested that Chong use anti-inflammatory medication coupled with certain soaks to the chest wall to alleviate the pain and to determine whether the pain was due to muscle soreness or due to a residual effect of the surgery.
[ ] Chong quit her job with Hilton on June 30, 1993. In a letter written by Chong's supervisor, Chong reported that "she couldn't work anymore because her arm was hurting her."
[ ] After her employment ended, Chong's hands and arms began to feel better. She sought a less strenuous job and applied with Custom to work in its sewing department. Greg filled out the application for Chong. Custom directed Chong to report to Dr. Waltman for a pre-employment physical. Greg completed the doctor's questionnaire for Chong. None of the tests administered by Dr. Waltman caused pain to Chong and he ultimately determined that Chong was "suitable for any employment" at Custom.
[ ] Chong was hired to work for Custom on August 2, 1993 as a seamstress. After a couple of weeks, her arms began to hurt. A co-worker told her that new employees always experienced some pain and that it would go away. Greg still feared that the pain was related to the cancer surgery. So, instead of waiting to see if it would improve, she reported to a physician practicing at Ellsworth Air Force Base, Dr. Wicks, on August 20, 1993 complaining of pain in her hands, wrists, elbows and shoulders for about two months. Dr. Wicks did not diagnose Chong, but prescribed a medication for her. He saw her again on September 3, 1993 and noted that the medication did not help alleviate the pain. He then noted: " his is a chronic problem for this patient who probably does not yet understand that she must change lifestyle and/or work habits and must follow through with instructions." Dr. Wicks referred Chong to Dr. Walker, an orthopedic specialist whose office is also located at Ellsworth Air Force Base.
[ ] On September 30, 1993, Chong saw Dr. Simmons, a neurologist. He reported that the cause of her problems was somewhat uncertain, and encouraged her t
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