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Kassube v. Dakota Logging10/12/2005
ARGUED February 16, 2005
SRSTKA, Circuit Judge & MEIERHENRY, Justice
[ .] Circuit Judge William J. Srstka, sitting for Justice Richard W. Sabers, disqualified, delivers the majority opinion of the Court on Issue One, which holds that the Department of Labor had subject matter jurisdiction over Estes Brothers' third party petition against Kurtz because of the substantial dispute regarding Kassube's right to benefits.
[ .] Judge Srstka delivers the majority opinion of the Court on Issue Two, which holds that Kassube has a permanent total disability under the odd-lot doctrine.
[ .] Justice Judith K. Meierhenry delivers the majority opinion on Issue Three, which holds that the last injurious exposure rule should be applied in this case because Kassube was not disabled and drawing compensation at the time of his final injury.
[ .] Judge Srstka dissents on Issue Three.
[ .] Justice Meierhenry delivers the majority opinion on Issue Four, which holds that Estes Brothers is responsible for Kassube's medical expenses relating to his upper back, neck and shoulder from 1990 to the date of any subsequent compensable injury and that subsequent liability must be determined under the last injurious exposure rule.
[ .] Judge Srstka dissents on Issue Four.
[ .] SRSTKA, Circuit Judge, writing the majority opinion on Issue One.
FACTS AND PROCEDURE
[ .] As a result of six injuries suffered during employment by four different employers over a course of time, Harlan Kassube (Kassube) commenced a workers' compensation proceeding against these employers and their insurers before the South Dakota Department of Labor (Department). The four employers in the claim were Dakota Logging and its insurer American States Insurance Company (Dakota Logging); Estes Brothers and its insurer Cigna Property & Casualty Company (Estes Brothers); Dean Kurtz Construction and its insurer American States (Kurtz); and Triple R Construction and its insurer United Fire Group (Triple R).
[ .] Kassube spent his working career in heavy logging and construction labor. The first injury occurred in 1986 while he was employed at Dakota Logging. A piece of timber fell on his head and he sustained neck and head injuries.
[ .] In November 1990 Kassube fell on a roof while working for Estes Brothers and sustained a cervical and lumbar sprain/strain. This was his second injury. Kassube initially treated with Dr. Gruba, his chiropractor, and received approximately fifteen treatments from the time of injury until May 1991. He received treatments in the fall of 1991 for complaints of low and mid-back pain. Dr. Gruba treated him once in 1992. He received additional treatments from February to July 1993.
[ .] In July 1993 Kassube felt as though a rib popped out of place and experienced shortness of breath and stabbing pains in his back. This was his third injury. At that time he was employed by Kurtz. He returned to Dr. Gruba for treatment until August 1993. From September 1993 to January 1994 he continued to receive treatment for mid-back pain and rib pain.
[ .] In January 1994, while still employed at Kurtz, Kassube reportedly fell in the snow and experienced pain in his shoulder. This was his fourth injury. Dr. Gruba treated him five times from the date of injury until April 1994. In March 1996 he had a left C5-C6 decompression with arthrodesis done. Because of continued shoulder pain, he later underwent an arthroscopic subacromial decompression and shoulder repair.
[ .] In September 1998 Kassube sustained a fifth injury while working at Triple R. That injury w
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