#23736-a-RWS

2006 SD 16

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

KAMI KUHLE, Claimant and Appellant,

 v.

LECY CHIROPRACTIC, Employer and Appellee,

 and

ACUITY, Insurer and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE MAX GORS

Judge

* * * *

MICHAEL J. SIMPSON of

Julius & Simpson, LLP

Rapid City, South Dakota Attorneys appellant.

MICHAEL S. McKNIGHT

LISA HANSEN MARSO of

Boyce, Greenfield, Pashby & Welk, LLP

Sioux Falls, South Dakota Attorneys for appellees.

* * * *

CONSIDERED ON BRIEFS 

ON JANUARY 9, 2006

 OPINION FILED 03/01/06
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SABERS, Justice

[¶1.] The South Dakota Department of Labor (Department) determined that 

Kami Kuhle (Kuhle) was not entitled to workers’ compensation benefits from Lecy 

Chiropractic Clinic (Clinic) because she failed to provide timely notice. We affirm.

FACTS

[¶2.] Kuhle was thirty-three years old at the time of this hearing. She 

attended high school, but only completed the tenth grade. Kuhle received her 

general equivalency diploma in 1987 or 1988. Later, she studied biology at Black 

Hills State University and phlebotomy at Western Dakota Technical Institute. 

Kuhle also obtained a degree as a medical secretary. She has worked in sales, at a

veterinary clinic, and as a floral designer. 

[¶3.] Kuhle began working at the Clinic as a chiropractic assistant in April, 

2002. Her primary duties included gathering patient histories, data entry, and 

using a massager and ultrasound on patients. The massager resembles a belt 

sander and weighs between three and five pounds. Kuhle used the massager for 

about two minutes on each patient. She was forced to lean over the patient during 

the procedure while the patient was lying on the examination table. After Kuhle 

finished with one patient, she would perform the procedure on another patient. She 

performed up to twenty of these procedures per day. 

[¶4.] Kuhle began to experience a burning pain in the middle portion of her 

back, between her shoulder blades, as a result of performing these procedures. The 

pain would usually subside in the evening and would be gone by morning. Kuhle’s 
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husband, Daryn, testified that she complained about the pain associated with the 

massaging procedure about once a week. 

[¶5.] Doctors Dan and Robin Lecy periodically performed adjustments on 

Kuhle’s back. Both Doctors offered the adjustments free of charge for employees, a 

service that was usually performed during breaks or at the end of the business day. 

Kuhle testified that she received adjustments once or twice per month between 

April and November 2002. However, the medical records only document four 

treatments of Kuhle during that time period. Although the records contain 

information that Kuhle was experiencing upper back pain, there is no mention of 

the massager or that the pain was related to her employment.1 

[¶6.] On October 25, 2002, Kuhle awoke stiff and sore. She scheduled an 

appointment with Dr. Dan Lecy that same afternoon. During the treatment, Kuhle

felt a pop in her back that was like “nothing that [she] [had] ever felt before.” The 

Clinic record from this date does not indicate that Kuhle informed Dr. Lecy that her 

pain and discomfort was the result of her employment. However, Dr. Lecy testified 

that Kuhle mentioned she had been doing landscaping work that month.2

[¶7.] Sometime during the drive home, Kuhle’s pain became so intense that 

she was unable to move. Her husband took her to the hospital where she received 

an injection to relieve the pain. There is no mention of the massager or any workrelated injury in the hospital records generated from this visit. Instead, it is noted 

 

1. One record indicates the treatment was for pain that Kuhle had been 

experiencing after walking down the stairs at Mt. Rushmore. 

2. On cross-examination, Kuhle testified that she had helped to install a 

sprinkler system for her property. 
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that Kuhle’s pain started while she had been moving a large television earlier that 

month. 

[¶8.] The following day, Kuhle received another adjustment from Dr. Dan 

Lecy.3 He believed Kuhle’s condition was deteriorating so he sent her to her family 

physician, Dr. Kevin Weiland. An MRI revealed that Kuhle suffered a herniated 

disc. 

[¶9.] Kuhle underwent a diskectomy on November 25, 2002. She returned 

to work in January, 2003. However, she was only able to work on a limited basis, 

performing primarily office work. 

[¶10.] By February, Kuhle started to consider taking legal action against the 

Clinic. She testified that Dr. Seljeskog, who had performed her surgery, implied 

that her injury may be related to the October 25th adjustment performed by Dr.

Dan Lecy. She also had numerous conversations with her husband about possible 

claims she may have against the Clinic. Consequently, Kuhle decided to schedule a 

visit with Mike Abourezk, a Rapid City attorney. The meeting took place sometime 

in mid-February. 

[¶11.] After discussing the potential for a medical malpractice claim, 

Abourezk advised Kuhle to file a workers’ compensation claim. Thereafter, Kuhle 

discussed the possibility of a workers’ compensation claim with Dr. Robin Lecy. Dr. 

 

3. The record does not indicate that Kuhle mentioned anything about her injury 

being work related at this appointment. 
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Lecy informed her that he did not believe she had a workers’ compensation claim 

because her injury was not work related.4

[¶12.] Kuhle completed her first report of injury on March 13, 2005. In the 

report, she listed October 1, 2002, as her date of injury. The Clinic denied her 

request for benefits, alleging that sufficient notice of injury had not been given in 

accordance with SDCL 62-7-10. 

[¶13.] After a hearing, the Department issued a decision in favor of the 

Clinic. The administrative law judge (ALJ) found that:

Given Claimant’s age and intelligence, Claimant, as a

reasonable person, should have recognized the nature, 

seriousness and probable compensable character of her

injury by October 2002. At the very latest, Claimant should

have provided written notice in mid February 2003 when she

believed that her back problems were all related to her work

activities of using the massager. 

The ALJ also found Doctors Dan and Robin Lecy more credible than Kuhle. 

[¶14.] Kuhle appealed the Department’s decision to the circuit court. After 

oral argument, the court affirmed the Department’s decision and adopted it in its 

entirety. Kuhle raises the following issue on appeal:

Whether the Department’s determination that Kuhle failed to 

give timely notice is clearly erroneous or affected by error of 

law.

 

 

4. The date on which Dr. Lecy was informed of Kuhle’s claim is disputed. 

According, to Kuhle, she contacted Dr. Lecy sometime in late February, only 

a day or two after speaking with Abourezk. Dr. Lecy recalls the conversation 

taking place in early March. The Department apparently found Dr. Lecy’s 

testimony more credible and adopted the early March time period. 
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Standard of Review

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

as the circuit court. Clausen v. Northern Plains Recycling, 2003 SD 63, ¶7, 663 

NW2d 685, 687 (citing Schuck v. John Morrell & Co., 462 NW2d 894, 896 (SD 

1995)). “Our standard of review is controlled by SDCL 1-26-37.” Kassube v. Dakota 

Logging, 2005 SD 102, ¶25, 705 NW2d 461, 465. The Department’s factual findings 

and credibility determinations are reviewed under the clearly erroneous standard. 

Enger v. FMC, 1997 SD 70, ¶10, 565 NW2d 79, 83 (citing Tieszen v. John Morrell & 

Co., 528 NW2d 401, 403-04 (SD 1995)). We will reverse those findings only if we are 

definitely and firmly convinced a mistake has been made. Gordon v. St. Mary’s 

Healthcare Center, 2000 SD 130, ¶16, 617 NW2d 151, 157. 

[¶16.] Questions of law are reviewed de novo. Enger, 1997 SD 70, ¶10, 565 

NW2d at 83 (additional citations omitted). Mixed questions of law and fact are also 

fully reviewable. Id. Ultimately, the claimant retains the burden of proving all 

facts essential to compensation. Clausen, 2003 SD 63, ¶7, 663 NW2d at 687 (citing 

Day v. John Morrell & Co., 490 NW2d 720, 724 (SD 1992)). 

Decision

[¶17.] SDCL 62-7-10 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:
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(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.

 

“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 Inn, 2000 SD 123, ¶24, 616 NW2d 493, 499. SDCL 62-7-10 

mandates that notice to the employer of an injury is a condition precedent to 

compensation. Id. 

[¶18.] Claimant carries the burden of proving that he or she provided timely 

notice to the employer, or that either (1) the employer had actual notice,

5 or (2) that 

good cause exists 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; Clausen, 2003 SD 63, ¶8, 663 NW2d at 687 (citing Miller v. Lake 

Area Hospital, 1996 SD 89, ¶11, 551 NW2d 817, 819). However, it is well settled 

that “the 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.”6 Clausen, 2003 SD 63, ¶13, 663 

 

5. Kuhle originally claimed that the Clinic had actual notice of her injury. 

However, it appears she abandoned that argument on appeal. 

6. We have held that misdiagnosis or a misleading diagnosis can toll the date of 

an injury. See Vu v. John Morrell & Co., 2000 SD 105, ¶29, 615 NW2d 171, 

177; Bearshield v. City of Gregory, 278 NW2d 164, 166 (SD 1979); Pirrung v. 

American News Company, 75 SD 44, 67 NW2d 748 (1954). 
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NW2d at 689 (quoting 2B Arthur Larson, Larson’s Workmen’s Compensation Law, 

§ 78.41(a) at 15-185-6 (1995)). Whether the conduct in question was reasonable is 

based on the claimant’s education and intelligence, not on the hypothetical 

reasonable person familiar to tort law. Shykes, 2000 SD 123, ¶42, 616 NW2d 493, 

502. However, the standard creates an objective, not subjective test. Id. ¶43 (“The

standard is based on an objective reasonable person with the same education and 

intelligence as the claimant’s”). 

[¶19.] In the present case, the Department found that Kuhle, given her 

education and intelligence, should have realized the compensable nature of her 

injury by October of 2002 or, at the very latest, February of 2003. Kuhle testified 

that she complained to her husband of work related pain and discussed possible 

legal claims for months. She underwent back surgery and missed a substantial 

amount of work. However, she did not notify the Clinic of her claim until late 

February or early March of 2003. During cross-examination, Kuhle admitted that 

she had known even before February of 2003 that her injury was related to the 

massager at work. Kuhle’s admission is dispositive of this issue.7 Therefore, she 

has failed to show where the Department erred.

[¶20.] Affirmed. 

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

MEIERHENRY, Justices, concur.

 

7. Kuhle argues she could not have known whether she had a malpractice or 

workers’ compensation claim. Even if we were to accept that argument, it 

misses the point because the test depends on the information available to 

her, not what she did or did not do with that information.