Considered on Briefs Nov. 4, 2013.
Michael J. Simpson, Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys for claimant and appellant.
Charles A. Larson, Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellees.
[¶ 1.] Darin Schuelke suffered work-related injuries in 2000. He filed a first report of injury on February 22, 2000. The employer and insurer (collectively Employer) accepted Schuelke's claim as compensable and paid workers' compensation benefits. Employer's last payment of benefits was on August 4, 2004. Schuelke filed another first report of injury on October 5, 2009, based on the same injuries. Employer denied benefits. Schuelke filed a petition for hearing on December 20, 2010, with the Department of Labor & Regulation, Division of Labor & Management (Department). The Department found that the three-year statute of limitations set forth in SDCL 62-7-35.1 barred Schuelke's claim. The Sixth Circuit Court (circuit court) affirmed. Schuelke appeals, arguing the cumulative trauma doctrine should prevent the application of SDCL 62-7-35.1 to this case. The cumulative trauma doctrine does not change SDCL 62-7-35.1's application to this case because the cumulative trauma doctrine applies to the date of injury, which is irrelevant to SDCL 62-7-35.1. We affirm.
[¶ 2.] Schuelke began working for the Belle Fourche Irrigation District in 1988. He started as a laborer and became a heavy equipment operator in 1991, a position he held as of the date of the hearing before the Department. As a heavy equipment operator, Schuelke dug trenches using an excavator or trackhoe. He used a backhoe when required. Schuelke also performed shovel work from time to time, but estimated that ninety percent of his time was spent operating the trackhoe. The trackhoe used joysticks in both hands to manipulate the machine.
[¶ 3.] Schuelke claimed he had pain whenever he operated the trackhoe. He described the pain as going from the palm of his hand to the nerves in his elbow up into his shoulder. Eventually, he said, the pain turned to numbness. Schuelke first saw Dr. Dale Anderson in March of 1998 complaining of left wrist pain. Schuelke again saw Dr. Anderson on February 3, 2000, for pain and numbness in both upper extremities. Subsequent testing showed bilateral ulnar neuropathies at the elbow of a mild to moderate degree without more distal involvement. Testing also showed a mild left and moderate right median neuropathy at the wrist. Dr. Anderson recommended surgery.
[¶ 4.] Schuelke filed a first report of injury on February 22, 2000. In that report, he listed the injured parts as wrist and elbow, and the date of injury as " accumulative." Schuelke then saw Dr. David Lang, an orthopedic surgeon, on March 7, 2000. Dr. Lang performed an endoscopic carpal tunnel release and ulnar nerve transposition of the left upper extremity on May 15, 2000, and a carpal tunnel release and ulnar nerve decompression of the right extremity on November 13, 2000. In addition to the surgeries, Schuelke received physical therapy and splinting.
[¶ 5.] Over the next three years, Schuelke saw Dr. Anderson and Dr. Lang complaining of various pain, tingling, and numbness in his upper extremities. Schuelke had another surgery by Dr. Richard Little on March 5, 2002. After that surgery, Schuelke continued to have injury symptoms.
[¶ 6.] Employer requested a medical evaluation by Dr. Thomas Brennan. On May 13, 2003, Dr. Brennan diagnosed: (1) bilateral ulnar neuropathies due to entrapment at the elbow; (2) bilateral
carpal tunnel syndrome, status post bilateral endoscopic carpal tunnel release; and (3) status bilateral cubital tunnel releases with subsequent left subcutaneous ulnar nerve transposition. Dr. Brennan recommended medication but was reluctant to refer Schuelke for surgery because the second elbow surgery made his symptoms worse. Dr. Brennan did not recommend any work restrictions but did diagnose a twenty-six percent upper extremity impairment due to his physical findings. Employer treated the claim as compensable and paid for all the medical treatment and the twenty-six percent impairment rating.
[¶ 7.] Schuelke followed up with Dr. Wayne Anderson on March 11, 2004. Dr. Anderson testified that after consulting with Schuelke, they decided to pursue no further treatments because Dr. Anderson did not think there were any good treatments available. On August 4, 2004, Schuelke received his last payment of benefits from Employer. Over the next three years, Schuelke did not receive any medical treatment on his upper extremities. Schuelke did continue to work, despite his symptoms persisting.
[¶ 8.] On November 12, 2007, Schuelke resumed receiving medical attention related to pain and motion restrictions in his upper extremities. Over the next several years, Schuelke saw various doctors for his upper extremities' symptoms. On October 5, 2009, Schuelke filed a second first report of injury form. Schuelke left the date and time blank and described the injury as " an occupational injury from CTS that was filed back in 2001— ongoing problems— DOI: 2-22-00." Employer denied benefits, stating the statute of limitations barred them since Schuelke had not received any workers' compensation benefits for over three years.
[¶ 9.] Despite being denied benefits, Schuelke continued to seek medical attention and even underwent another surgery by Dr. Lang on May 25, 2010. Dr. Lang wrote a letter, saying Schuelke's current care is related to his original claim. On August 5, 2011, Schuelke saw Dr. Christopher Dietrich. Dr. Dietrich noted that Schuelke had a longstanding history of upper extremity symptoms dating back to 2000. Ultimately, Dr. Dietrich diagnosed: (1) carpal tunnel syndrome— status post bilateral carpal tunnel release; (2) ulnar neuropathy— status post bilateral cubital tunnel release/transposition; (3) residual left ulnar nerve paresthesias/ neuritis; and (4) bilateral wrist DJD. Dr. Dietrich stated that Schuelke's symptoms have accumulated over several years of work and are consistent with repetitive use injuries. Schuelke saw Dr. Dietrich ...