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Kassube v. Dakota Logging10/12/2005
thers in 1990. We review such documentary evidence de novo. Haynes v. Ford, 2004 SD 99, 14, 686 NW2d 657, 661.
[ .] Kassube sought treatment from Dr. Gruba after the 1990 Estes Brothers injury . Dr. Gruba treated claimant on an ongoing basis, primarily for cervical and thoracic treatments. His records reveal at least two complaints concerning his neck during the course of these treatments. Then in January 1995 Dr. Gruba's records reflect that Kassube had a significant amount of left shoulder pain that could have been associated with a disc. Dr. Caughfield's April 1995 records reflect that Kassube had a long standing history of neck problems. Throughout that year and into 1996 Kassube continued to treat with Dr. Caughfield for neck pain and headaches. Dr. Finley's notes similarly reflect that in March 1995 Kassube complained of neck pain radiating to the left upper extremity and shoulder.
[ .] Kassube underwent a C5-C6 cervical compression and arthrodesis in March 1996 for cervical disc disease. He then underwent a suprascapular nerve decompression and subacrominal decompression of the left shoulder in September 1996 by Dr. Fromm. There is no mention of causation in Dr. Fromm's records except for a cryptic note stating "these injuries could easily have been caused by his originally working condition." Dr. Lawlor's consultation report of October 1999 reflects that Kassube sustained a work-related injury in 1990 when he slipped and landed on his left shoulder, suffering an injury to his left shoulder and neck. It further states that after the neck surgery Kassube had continued pain in his neck that radiated into his shoulder.
[ .] Dr. Bert examined Kassube for an independent medical examination in June 1996. As a result of that examination, he gave an opinion that the injury Kassube suffered while employed at Estes Brothers is the injury that caused his shoulder pain. There is sufficient evidence in the record to support Department's findings that Estes Brothers is responsible for upper back, neck and shoulder treatments after 1990.
[ .] A subsequent compensable injury , however, would limit that liability. The law as stated in SDCL 62-1-18 shifts the risk and responsibility of payment to the employer responsible for the subsequent compensable injury. The plain meaning of the statute requires that "the current employer shall pay all medical and hospital expenses and compensation provided by this title" in cases where "an employee who has previously sustained an injury, or suffers from a preexisting condition, receives a subsequent compensable injury." SDCL 62-1-18 (emphasis added). Department, however, did not apply this rule. See supra Issue Three. Therefore, we remand for a determination of liability under the last injurious exposure rule.
CONCLUSION
[ .] Consequently, we remand this case to the circuit court for the application of, and determination of, liability under the last injurious exposure rule. [ .] GILBERTSON, Chief Justice, and ZINTER, Justice, and MILLER, Retired Justice, concur.
[ .] SRSTKA, Circuit Judge, dissents.
SRSTKA, Circuit Judge, dissenting on Issue Three and Four.
[ .] I must dissent to the majority's decision on Issue Three and Four. The issue here is which of two statutes applies. The majority uses the last injurious exposure rule found in SDCL 62-1-18 and Department applied the apportionment statute found in SDCL 62-4-29. I think that the rationale for using the apportionment statute is well founded in fact and law and should determine these issues.
[ .] SDCL 62-4-29 states:
As to an employee who before the accident for which he claims compen
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