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Vu v. John Morrell & Co.8/9/2000
Appeal from the Second Judicial Circuit, Minnehaha County, SD
Hon. Judith K. Meierhenry, Judge
Reversed
Argued Jun 1, 2000; Opinion Filed Aug 9, 2000
[ ] The Department of Labor (DOL) determined that Mary Vu was not entitled to receive worker 's compensation benefits from John Morrell & Company (Morrell) because she failed to provide timely notice. Mary appealed. The circuit court affirmed. We reverse and remand.
FACTS
[ ] Mary Vu is thirty-four-years-old. She started work at Morrell on May 5, 1987 as a janitor. She developed problems with her wrist and was moved to a position in pork cut. After two to three weeks, she became a ham saw operator, where she remained for one and one-half years.
[ ] As a ham saw operator, Mary was responsible for positioning large pork cuts, mostly hind quarters, on an assembly line. She would align the legs so the saw cuts would be accurate. The tail would commonly get stuck in the rollers and Mary, a 5'5" woman weighing 130 pounds, would have to reach over the conveyor and pull or jerk the cut back on the table. If a pork cut fell, she would carry it to the wash sink or to the side of the table. After washing the pork cut, she would return it to the table. The average weight of the cut was thirty to thirty-two pounds, but some were forty pounds. Mary's work day ranged between eight to ten hours.
[ ] On Friday, January 6, 1989, Mary was working the line when one of the larger cuts got stuck in the corner of her table. She reached over and felt a "terrible pain" in her back; it was pain she had never experienced before. She shut off her line, but restarted it because her co-worker operating the line behind her did not see her shut down. Two supervisors and a foreman arrived and excused her from the line so she could see the nurse.
[ ] At the nurse's station, Mary saw "an older nurse," Ila Henderson. Mary testified that she told Nurse Henderson that she was experiencing a bad back pain and Nurse Henderson asked her if she wanted to lie down. Mary laid down for approximately forty-five minutes. Mary also testified that Nurse Henderson told her to make an appointment with "the John Morrell doctor," Dr. Gail Benson, an orthopedic surgeon with Midwest Orthopedics and associated with Central Plains Clinic. Despite Mary's reluctance, Nurse Henderson successfully encouraged her to finish the day on the line.
[ ] This visit to the nurse's station was not documented; however, Nurse Sharon Schumacher testified that the nurses did not "always" record an employee's visit if they only needed to lie down, wanted an aspirin or a Band-Aid. Nurse Connie Wheeler also testified to this effect -- that they would not document an employee coming down to the nurse's station to lie down unless the employee went home.
[ ] Mary called Dr. Benson's office from home and the earliest available appointment was Tuesday, January 10. Before work, on Monday, January 9, Mary called the nurse's station and spoke with Nurse Schumacher. Mary testified that she told the nurse that she bent over at home and was unable to straighten up due to the injury she sustained at work. The first aid card reflects that Mary "states has appointment [with] Dr. Benson tom[orrow] as yest[erday] home bent over couldn't straighten up." This entry consists of one and one-half lines and is immediately followed by one and one-half lines of partially erased words. Nurse Schumacher testified that this entry was in her handwriting but she could not recall whether Mary told her that her injury was work-related.
[ ] Exhibit 3 is the original first aid card, which was mainta
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