#25106-aff in pt & rev in pt-GAS 

2009 SD 68

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

TERRY McNEIL, Claimant and Appellant, 

v. 

SUPERIOR SIDING, INC., Employer and Appellee, 

and 

ACUITY, Insurer and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SIXTH JUDICIAL CIRCUIT 

HUGHES COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE LORI S. WILBUR 

Judge 

* * * * 

ANTHONY P. BOLSON of 

Beardsley, Jensen & Von Wald, Prof. LLC 

Rapid City, South Dakota Attorneys for appellant. 

MICHAEL S. McKNIGHT 

CHARLES A. LARSON of 

Boyce, Greenfield, Pashby & Welk, LLP 

Sioux Falls, South Dakota Attorneys for appellees. 

* * * * 

CONSIDERED ON BRIEFS 

ON MAY 26, 2009 

 OPINION FILED 07/29/09
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SEVERSON, Justice. 

[¶1.] Terry McNeil appeals the circuit court’s ruling that he failed to comply 

with the statutory notice requirement for reporting his work-related injury. We 

affirm in part and reverse in part. 

FACTS 

[¶2.] McNeil injured his upper back on August 13, 2005, while working for 

Superior Siding, Inc. (Employer). He was moving a box of siding from one side of 

the jobsite to the other. After McNeil picked up the box and placed it on his 

shoulder, he heard a “pop” and felt numbness from his upper-left arm down to his 

fingers. The “pop” was in his upper back, between his shoulder blades. Although he 

described the pain as “intense” and like nothing he had ever experienced before, it 

did not cause him to drop the box. He continued to work the remainder of the day 

and did not miss any work due to the injury. The intense pain went away the same 

day, but McNeil testified that he had a “consistent” pain between his shoulder 

blades, and intermittent pain and numbness in his left arm. He testified that he 

was constantly stretching in an effort to “work out” the pain, but he did not believe 

the injury was serious. He thought he merely pulled or overworked a muscle, and 

that it would heal itself quickly. McNeil did not immediately report this injury to 

Employer or complete a first report of injury form. 

[¶3.] McNeil continued to work full time for Employer. When the recurrent 

pain and discomfort became more frequent, McNeil realized his symptoms were not 

abating and he spoke with Employer. On November 8, 2005, McNeil and Employer 

completed a first report of injury form to submit to Acuity (Insurer). McNeil sought 
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medical treatment from Dr. Ryan Swenson for the upper-back injury for the first 

time on November 21, 2005. During the examination, Dr. Swenson triggered a 

nerve under McNeil’s left arm, causing a sensation, unlike anything McNeil had 

ever felt before. After several treatments proved unsuccessful, Dr. Swenson 

referred McNeil to Dr. Tim Watt, a neurosurgeon. On September 11, 2006, Dr. 

Watt diagnosed McNeil with a “herniated disk with a calcific spur on the left at C7-

T1,” and explained that McNeil needed an anterior cervical decompression and 

fusion at C7-T1. McNeil filed a workers’ compensation claim seeking benefits. 

Insurer denied McNeil’s claim, alleging he failed to timely notify Employer of the 

injury. 

[¶4.] A bifurcated hearing was held before the Department of Labor 

(Department) on October 2, 2007, with the sole issue being whether McNeil 

complied with the notice requirement in SDCL 62-7-10. The Department held that 

McNeil did not immediately recognize the nature, seriousness and probable 

compensable character of the injury, and upon that recognition, McNeil made a first 

report of injury. The Department concluded that McNeil “had good cause for failing 

to give written notice within the three business day period [required under SDCL 

62-7-10].” 

[¶5.] Employer and Insurer appealed to the circuit court. The circuit court 

reversed, concluding that the Department erred by using a subjective, rather than 

objective, standard in determining whether McNeil complied with the statutory 

notice requirement. Furthermore, the court held that, under an objective standard, 
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a reasonable person of McNeil’s education and intelligence would have given timely 

notice to Employer. Therefore, his claim was denied. McNeil appeals. 

STANDARD OF REVIEW 

[¶6.] “We review appeals from administrative decisions in the same manner 

as the circuit court[,]” the standard for which is controlled by SDCL 1-26-37. Kuhle 

v. Lecy Chiropractic, 2006 SD 16, ¶15, 711 NW2d 244, 247 (citations omitted). “The 

Department’s factual findings and credibility determinations are reviewed under 

the clearly erroneous standard.” Id. (citing Enger v. FMC, 1997 SD 70, ¶10, 565 

NW2d 79, 83). “We will reverse those findings only if we are definitely and firmly 

convinced a mistake has been made.” Id. (citing Gordon v. St. Mary’s Healthcare 

Ctr., 2000 SD 130, ¶16, 617 NW2d 151, 157). “Questions of law are reviewed de 

novo.” Id. ¶16 (citing Enger, 1997 SD 70, ¶10, 565 NW2d at 83). Mixed questions of 

law and fact require further analysis. See Permann v. S.D. Dep’t of Labor, 411 

NW2d 113, 119 (SD 1987). 

If application of the rule of law to the facts requires an inquiry 

that is ‘essentially factual’–one that is founded ‘on the 

application of the fact-finding tribunal’s experience with the 

mainsprings of human conduct’–the concerns of judicial 

administration will favor the district court, and the district 

court’s determination should be classified as one of fact 

reviewable under the clearly erroneous standard. If, on the 

other hand, the question requires us to consider legal concepts 

in the mix of fact and law and to exercise judgment about the 

values that animate legal principles, then the concerns of 

judicial administration will favor the appellate court, and the 

question should be classified as one of law and reviewed de novo. 

Id. (quoting United States v. McConney, 728 F2d 1195, 1202 (9thCir 1984)) 

(internal citations omitted). See also In re Dorsey & Whitney Trust Co., LLC, 2001 

SD 35, ¶¶5-6, 623 NW2d 468, 471. Nevertheless, the burden is on the claimant to 
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prove all facts essential to compensation. Kuhle, 2006 SD 16, ¶16, 711 NW2d at 247 

(citation omitted). 

Whether McNeil complied with SDCL 62-7-10’s notice requirements. 

[¶7.] SDCL 62-7-101 requires that an employer be provided written notice of 

a compensable injury within three business days of its occurrence, unless the 

employee can prove the employer had actual notice, or the employee had good cause 

for not providing notice within a three-day period. The “good cause” determination 

“shall be liberally construed in favor of the employee.” SDCL 62-7-10. “‘The 

purpose of the written notice requirement is to give the employer the opportunity to 

investigate the injury while the facts are accessible.’” Shykes v. Rapid City Hilton 

1. This statute provides: 

An employee who claims compensation for an injury shall 

immediately, or as soon thereafter as practical, notify the 

employer of the occurrence of the injury. Written notice of the 

injury shall be provided to the employer no later than three 

business days after its occurrence. The notice need not be in any 

particular form but must advise the employer of when, where, 

and how the injury occurred. Failure to give notice as required 

by this section prohibits a claim for compensation under this 

title unless the employee or the employee’s representative can 

show: 

(1) The employer or the employer’s representative had actual 

knowledge of the injury; or 

(2) The employer was given written notice after the date of the 

injury and the employee had good cause for failing to give 

written notice within the three business-day period, which 

determination shall be liberally construed in favor of the 

employee. 

 SDCL 62-7-10. 
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Inn, 2000 SD 123, ¶24, 616 NW2d 493, 499 (quoting Westergren v. Baptist Hosp. of 

Winner, 1996 SD 69, ¶18, 549 NW2d 390, 395). Notice of an injury to the employer 

is a condition precedent to compensation. Id. 

[¶8.] It is well settled that “‘[t]he time period for notice or claim does not 

begin to run until the claimant, as a reasonable person, should recognize the 

nature, seriousness and probable compensable character of [the] injury or disease.’” 

Clausen v. N. Plains Recycling, 2003 SD 63, ¶13, 663 NW2d 685, 689 (quoting 

Miller v. Lake Area Hosp., 1996 SD 89, ¶14, 551 NW2d 817, 820 (quoting 2B Arthur 

Larson, Larson’s Workmen’s Compensation Law, § 78.41(a) at 15-185-86 (1995))). 

This is an objective standard based on a reasonable person of the claimant’s 

education and intelligence. Shykes, 2000 SD 123, ¶42, 616 NW2d at 502 (stating 

that “[w]hether the claimant’s conduct is reasonable is determined ‘in the light of 

[her] own education and intelligence, not in the light of the standard of some 

hypothetical reasonable person of the kind familiar to tort law’” (citation omitted)). 

[¶9.] Based on the testimony presented at the hearing, the Department 

found in pertinent part: 

12. Employer does not require employees to report every injury 

that occurs on the jobsite, despite the language in the 

handbook. 

15. If the minor injury becomes serious or is found later to be a 

serious injury, i.e. an infected scratch, then Employer will 

report the injury to their insurer. 

17. Many employees complain daily about aches and pains due 

to sore muscles or overworked joints. These employees do 

not report the minor aches to employer as work-related 

injuries if the pain is not recurrent and the employee does 

not seek medical treatment for the pain. 
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19. Claimant injured his upper-back on August 13, 2005. 

Claimant was carrying a box of siding from one side of the 

jobsite to the other. 

23. The pain was “intense” at that time; however, Claimant 

continued to work and finished the job. 

24. Claimant neither dropped the box of siding nor stopped 

working when the upper-back pain started. 

25. The intense pain went away the same day. 

26. The next day Claimant still felt some pain between his 

shoulder blades. Claimant had pulled or overworked 

muscles in the past and assumed this injury was a minor 

pulled muscle. 

27. Claimant believed that his upper-back ache would heal 

itself quickly and that it was not a serious injury. 

31. Claimant did not think the upper-back injury was serious 

until his symptoms did not go away. 

33. When the recurrent pain and discomfort became more 

frequent, Claimant realized the injury was serious and he 

spoke with Employer. 

These findings are substantiated by the record, and there is no showing they are 

clearly erroneous. The Department concluded in part: 

9. Claimant does not have the education or experience to know which 

of his aches and pains are serious injuries or are just muscle 

strains. 

16. Claimant had made a prior injury report to Employer in December 

of 2003 for his lower-back injury. Similarly, Claimant reported an 

injury in January 2005 when he picked up a piece of equipment 

and fell to his knees in pain. Unlike either of those injuries, 

Claimant did not recognize the seriousness of the upper-back 

injury that occurred in August 2005. 

17. Claimant’s testimony was both plausible and credible. 

22. Claimant complied with the notice requirement of SDCL 62-7-10. 
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23. Claimant “had good cause for failing to give written notice within 

the three business-day period.” 

24. Claimant notified Employer immediately after “recogniz[ing] the 

nature, seriousness and probable compensable character of [the] 

injury [or] disease.” 

In its memorandum opinion, the Department correctly indicated that the facts must 

be considered under an objective standard; however, it then failed to apply that 

standard, and instead employed a subjective standard. Therefore, we agree with 

the circuit court’s holding that the Department erred by not employing an objective 

standard. That does not end the inquiry, however. 

[¶10.] We must determine at what point a reasonable person of McNeil’s 

education and intelligence should have recognized the nature, seriousness and 

probable compensable character of the injury. This is a mixed question of law and 

fact under the standards set forth in Permann, 411 NW2d at 119, and Dorsey & 

Whitney Trust Co., 2001 SD 35, ¶6, 623 NW2d at 471. We determine the analysis of 

this issue requires us to primarily exercise judgment about legal principles and the 

question will be considered as one of law. Therefore, we review it de novo. 

Permann, 411 NW2d at 119. 

[¶11.] Our case law provides guidance. In Bearshield v. City of Gregory, 278 

NW2d 164 (SD 1979), the claimant received some glass splinters in his left eye after 

a brick was hurled through a window at the police station on December 13, 1972. 

Later the same day, a doctor removed the glass and washed the eye. The claimant 

continued to visit the doctor, however, because the eye continued to be irritated and 

red. In July of 1973, the claimant began suffering from frequent headaches and 

blurred vision. Not until the following year on November 20, 1974, did the claimant 
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learn from a doctor’s examination that his left eye was damaged and blindness in 

that eye caused his headaches. After this diagnosis was confirmed in the coming 

months by two eye specialists, claimant notified the workers’ compensation carrier 

of the injury. The Department determined that the claimant knew or should have 

known that he had a compensable injury in July of 1973, when he began suffering 

from blurred vision and headaches. The circuit court reversed and held that the 

claimant did not have knowledge of his compensable injury until he was diagnosed 

as being blind in the injured eye on November 20, 1974. We affirmed on appeal, 

and stated: “[T]he fact that [the claimant] suffered from pain and other symptoms 

is not the determinative factor and will not support a determination that [the 

claimant] had knowledge of the existence or extent of his injury.” Id. at 166. “A 

claimant cannot be expected to be a diagnostician and, while he or she may be 

aware of a problem, until he or she is aware that the problem is a compensable 

injury, the statute of limitations does not begin to run.” Id. 

[¶12.] The instant case is distinguishable from two of our previous cases: 

Clausen v. Northern Plains Recycling, 2003 SD 63, 663 NW2d 685, and Loewen v. 

Hyman Freightways, Inc., 1997 SD 2, 557 NW2d 764. The claimant in Clausen

experienced discomfort in his back while shoveling concrete shards on a job site. He 

informed a co-worker of the discomfort, and did not show up for work the following 

day. Despite the claimant’s testimony otherwise, the Department found that the 

employer was not provided notice of the injury for eight days. We concluded that 

this finding was not clearly erroneous, and affirmed the conclusion of untimely 

notice. Clausen, 2003 SD 63, ¶23, 663 NW2d at 690-91. Notably, unlike the facts of 
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the instant case, the claimant in Clausen never alleged that the delayed notice to 

his employer was caused by his failure to recognize the serious nature of his back 

injury. 

[¶13.] In Loewen, we recognized that the claimant suffered an abrupt, acute 

injury in late May or early June of 1993, when he fell at work and hit his tailbone 

and left buttocks. He did not immediately seek medical treatment, and instead selftreated with rest and application of a heating pad. He testified he missed work due 

to the back problems incurred in the fall, but he never filed an injury report. 

Several weeks later, however, claimant fell again, this time while on vacation. 

After this fall, he sought medical treatment in August of 1993, and it was 

discovered that surgery was required for a disk extrusion. He informed his 

employer. Alleging the injury was due to his work-related fall, the claimant 

requested benefits. The Department denied benefits holding that the claimant 

failed to provide timely notice of the injury to his employer, and further held the 

claimant failed to prove causation. The circuit court reversed on the notice issue 

and affirmed on the causation issue. On appeal, we reversed the circuit court and 

reinstated the Department’s determination that the claimant failed to provide 

timely notice because the claimant suffered “an abrupt, acute injury at the 

workplace,” and, more importantly, according to the claimant’s own testimony, “he 

was aware he had sustained a compensable injury immediately after it occurred in 

late May or early June.” Loewen, 1997 SD 2, ¶16, 557 NW2d at 768. In the instant 

case, McNeil insists, and the Department found him credible, that, until November 
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2005, he was unaware of the nature, seriousness and probable compensable 

character of the injury. This was also supported by Employer’s testimony. 

[¶14.] This Court has determined that the date of injury tolls when the 

claimant is either misdiagnosed or the diagnosis is misleading to the claimant with 

respect to notice, and that the duty to notify the employer does not arise until the 

date when the compensable injury is known to the claimant. See Vu v. John Morrell 

& Co., 2000 SD 105, ¶29, 615 NW2d 171, 177; Pirrung v. Am. News Co., 75 SD 444, 

447-48, 67 NW2d 748, 749-50 (1954) (stating that the duty to notify the employer 

does not arise until the date when the claimant learns she has sustained a 

compensable injury). Until today, this Court has not had the occasion to determine 

if this rule applies when the claimant himself fails to appreciate the seriousness of 

the injury. In doing so, we must apply the requisite objective standard. 

[¶15.] McNeil is a knowledgeable, intelligent man. He graduated from high 

school and attended one semester of college. Furthermore, after beginning to work 

for Employer, McNeil quickly moved up within the business and became the owner’s 

“right-hand man.” Notably, however, McNeil had previous experience filing workrelated injury reports. On two prior occasions, he filed reports for lower-back 

injuries. He testified that in both of those instances, the pain was so intense that it 

prevented him from continuing to work and he immediately went to the doctor. 

These injuries caused McNeil to miss additional days of work. 

[¶16.] This Court cannot ignore the nature of work in which McNeil was 

involved. Employer and McNeil explained that due to the nature of the physical 

construction work being performed, not every little cut, bump, or muscle strain was 
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reported or examined by a doctor if the employee and supervisor determined it was 

not serious. McNeil testified that complaints regarding muscle aches were common. 

[¶17.] With regard to the injury at issue, McNeil testified that he “heard a 

pop, got some tingling go through [his] arm, [and] felt some uncomfortableness 

[sic].” He described the “pop” like the sound made when “you crack your knuckles 

or you crack your back,” and the tingling was described as feeling “like [his] arm fell 

asleep.” He indicated that the sensation was like nothing he had ever felt before, 

but it did not cause him to drop the box of siding. Although not determinative of the 

issue, claimant continued to work that same day and did not miss any work in the 

coming days. See Miller, 1996 SD 89, ¶17, 551 NW2d at 821. McNeil testified that 

at the time of the injury, he did not think it was serious, and believed it was merely 

a pulled muscle. 

[¶18.] McNeil mentioned the incident on two occasions to the physical 

therapist from whom he was seeking therapy for a different back injury. The 

medical record from August 15, 2005, provided, “Patient states he’s feeling really 

good. Says his left upper extremity went tingly numb last week when he lifted 

some siding.” The second entry dated August 30, 2005, provided in part: “[Patient] 

did indicate some increased upper back pain over the past couple weeks secondary 

to lifting at work.” However, the therapist did not treat McNeil for this injury. 

McNeil stated that he would have requested treatment had he thought it was 

necessary. 

[¶19.] McNeil testified that at the time he notified Employer on November 8, 

2005, the discomfort and tingling sensation had become more frequent and he 
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realized that the symptoms were not abating even though he was constantly 

stretching. He sought medical treatment from Dr. Swenson on November 21, 2005. 

At this examination, Dr. Swenson triggered a nerve causing a sensation indicative 

of the seriousness of McNeil’s injury. However, not until September 11, 2006 did 

McNeil learn he had a herniated disc. 

[¶20.] Based on all of these facts, a reasonable person of McNeil’s education 

and intelligence would not have realized the nature, seriousness and probable 

compensable character of the injury prior to the date he informed Employer.2 We 

must remember that the fact that the claimant “suffered from pain and other 

symptoms is not the determinative factor and will not support a determination that 

[the claimant] had knowledge of the existence or extent of his injury.” Bearshield, 

278 NW2d at 166. Claimants are not expected to be diagnosticians. Id. 

Furthermore, the “good cause” determination under the statute must be liberally 

construed in favor of the employee. SDCL 62-7-10. Therefore, we conclude McNeil 

had good cause for not reporting the injury within three days of its occurrence. The 

circuit court is reversed in this regard. 

[¶21.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, concur. 

2. It is not necessary, however, “for the claimant to know the exact diagnosis or 

medical name for the condition if he or she knows enough about its nature to 

realize that it is both serious and work-connected.” 7 Arthur Larson, 

Larson’s Workmen’s Compensation Law, § 126.05[4] at 126-22 (2008).