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Owens v. F.E.M. Electric Association3/9/2005
wens' final two arguments challenge the sufficiency of the notice of denial of his claim because Federated was denying disability and not coverage and because Federated continued to pay benefits relating to the shoulder injury after its denial of the back injury claim. A review of the June letters and the transcript of the Sewell deposition reveals the distinction in the treatment of the two injuries by Federated. As of June 25, 1999, Federated was denying disability for the shoulder injury but was honoring its commitment to pay medical expenses related to rehabilitation of the injury. The fact that $271 was paid after June 25, 1999 does not operate as a waiver of the two year limitations period, but rather shows Federated's commitment to paying claims it had approved. As of June 25, 1999, Federated was reiterating its position of June 1 that it was denying any coverage relating to the back injury because that portion of the claim had not been deemed compensable. Federated was denying further disability for the shoulder injury and denying coverage for the back injury.
ISSUE TWO
[ .] Whether Owens suffered a change of condition under SDCL 62-7-33 entitling him to reopen his workers compensation claim.
[ .] SDCL 62-7-33 allows DOL to re-open and modify a workers compensation award "if the department finds that a change in the condition of the employee warrants such action." (emphasis added). This Court has interpreted a "change in condition" as ordinarily a change, for better or worse in claimant's physical condition. This change may take such forms as progression, deterioration, or aggravation of the compensable condition, achievement of disabling character by a previously symptomatic complaint, appearance of new and more serious features, such as discovery of a disc herniation in a back case, failure to recover within the time originally predicted, and superimposition or worsening of a neurotic condition.
Mills v. Spink Elec. Co-Op, 442 NW2d 243, 246 (SD 1989) (quoting 3 Larson, The Law of Workmens Compensation , ยง 81.31(a) (1988)). "Only after a party asserting a 'change in condition' has met the required burden may the Department reopen a previous award." Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 12, 575 NW2d 225, 231. "Where a claimant, however, fails to show a change in condition, a final compensation award is res judicata with regard to the condition of the injured employee at the time the award was entered." Id.
[ .] While application of SDCL 62-7-33 usually arises where a change in condition occurs after a settlement and release to forego benefits, such a release is not a prerequisite to re-opening a claim. Furthermore, discovery of a herniated disc has been recognized as a change in condition. See Mills, 442 NW2d at 246. However, Owens did not satisfy the statutory requirement of demonstrating a change in condition pursuant to SDCL 62-7-33.
[ .] Assuming, arguendo, that Owens could prove causation, there is no doubt that the herniated disc which manifested itself on May 5, 1999 would have been a change in condition had it occurred after the limitations period had run on his claim for injuries from the October 1998 accident. The proper procedure for Owens would have been to request a hearing for review of Federated's denial of the portion of his claim relating to his back injury. Allowing application of SDCL 62-7-33 before the two year time limitations period expired would strip the effectiveness of the two year limit on requesting a hearing to review a claim. Because Owens, by his own admission and by the post-surgical reports of Dr. Rak, did not experience a change in condition after June 25, 2001, he did not experience a ch
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