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St. Luke's Midland Regional Medical Center v. Kennedy11/13/2002
l just a condition that was aggravated by events at the workplace. The findings of DOL are not clearly erroneous and this injury is not barred because of the occupational disease statutes, SDCL ch 62-8.
ISSUE THREE
Does Kennedy's subsequent exposure at the Minnesota hospital bar her claim against St. Luke's?
The last issue we address is St. Luke's question in its notice of review. The answer is predicated on South Dakota's last injurious exposure rule. South Dakota has adopted this rule when dealing with successive injuries. Under the rule, "' hen a disability develops gradually, or when it comes as a result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation ."' Enger v. FMC, 1997 SD 70, , 565 NW2d 79, 83 (quoting Schuck v. John Morrell & Co., 529 NW2d 894, 900 (SD 1995) (citing Novak v. C.J. Grossenburg & Son, 89 SD 308, 311, 232 NW2d 463, 464-65 (1975)).
In the recent case of Truck Ins. Exchange v. CNA, 2001 SD 46, -18, 624 NW2d 705, 709, we reiterated the criteria for determining whether the last known injury is a successive injury or a recurrence of the original injury:
The application of the last injurious exposure rule to a particular claim is based on a factual determination: whether the successive injury is a mere recurrence or an independent aggravation of the first injury.
In successive injury cases, the original employer/insurer remains liable if the second injury is a mere recurrence of the first. If the second injury is an aggravation that contributes independently to the final disability then the subsequent employer/insurer is liable. Schuck, 529 NW2d at 900.
The distinction between the meaning of these two concepts is gray. Enger v. FMC, 1997 SD 70, , 565 NW2d 79, 84. "'If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second."' Id. (quoting 9 Arthur Larson, Larson's Workmen's Compensation Law ยง 95.23.)
In this case, Kennedy was unaware after the first injury that she would be prone to more allergic reactions. Medical testimony indicated that the cause of the subsequent reactions in Minnesota was directly linked to the reaction at St. Luke's. To make such a determination, this court has set out guidelines:
To determine that an injury was an aggravation of a prior episode, the evidence must show: 1) a second injury as that term is used in this jurisdiction; and 2) that this second injury contributed independently to the final disability. Paulson v. Black Hills Packing Co., 1996 SD 118, , 554 NW2d 194, 196. To determine that the second episode was a recurrence of the prior injury the evidence must show: 1) there have been persistent symptoms of the injury; and 2) no specific incident that can independently explain the second onset of symptoms. Id. Because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident or injury and disability. Day v. John Morrell & Co., 490 NW2d 720, 724 (SD 1992). Truck Ins. Exchange, 2001 SD 46 at , 624 NW2d at 709.
According to the guidelines set by this Court, DOL was not clearly erroneous in its factual determination that the reactions in the Minnesota Hospital did not contribute independently to the final disability suffered by Kennedy. Instead, these reactions were caused by the injury
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