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Formatting provided courtesy of State Bar of South Dakota
and South Dakota Continuing Legal Education, Inc.
222 East Capitol Ave.
Pierre, SD 57501-2596


RAYNITA EVERINGIM,
Claimant and Appellant,
v.

GOOD SAMARITAN CENTER OF NEW UNDERWOOD,
Employer and Appellee, and
Constitutional State Service Co.,
Insurer and Appellee.

South Dakota Supreme Court
Appeal from the Sixth Judicial Circuit, Hughes County, SD
Hon. Steven L. Zinter, Judge
#19389 - Reversed

John J. Delaney, Estes, Porter & Delaney, Rapid City, SD
Attorneys for Claimant and Appellant.

Michael M. Hickey, Bangs, Mccullen, Butler,foye & Simmons, Rapid City, SD
Attorneys for Employer, Insurer and Appellees.

Considered on Briefs Apr 24, 1996, Opinion Filed Aug 14, 1996

SABERS, Justice
[¶1] The Department awarded Everingim worker's compensation benefits based on a mental disability resulting from post-traumatic stress disorder. The circuit court reversed. Everingim appeals. We reverse.


FACTS
[¶2] Everingim comes from a dysfunctional family. She was subjected to sexual and emotional abuse. At age six, an uncle physically and sexually abused her. The abuse, which included intercourse, continued until she was fourteen years old.
[¶3] Everingim experienced additional stresses prior to beginning her employment. These stresses included the discovery that her brother had sexually abused her five-year-old son, the suicide of a friend, and her problem with gambling. The stresses resulted in nightmares, panic attacks, and suicidal tendencies, for which Everingim sought assistance through the Sioux Sanitarium Hospital in Rapid City.
[¶4] Everingim began work with Employer in September 1993 as a nursing assistant. Employer is a nursing home with approximately 50 patients requiring different levels of care. Beginning November 5, 1993, Everingim worked the evening shift. Her duties included getting the patients ready for dinner, feeding them, getting them ready for bed, and doing paperwork and laundry.
[¶5] Everingim spoke to her supervisor, Sarah Ellis, about her personal problems and testified she told Ellis that one of the patients, Andy, was a "nasty old man," but Ellis testified Everingim did not indicate her problems were work-related. Andy, a physically handicapped male, habitually grabbed, fondled, and pinched female personnel in sexual ways and made sexually oriented offensive comments. The nursing home staff and supervisors were aware of Andy's actions and told him his actions were offensive.
[¶6] Regarding the incidents with Andy, Everingim testified:
A: Andy had a real problem with touching people, trying to grab between their legs or their breast. Anyways, not only me, but it was ... almost every other female that would go in, he would do it to[.]
Q: This was actual grabbing?
A: Yes.
Q: Sexually oriented grabbing?
A: Or he'd say ... sexual things. ... He'd say, "You like it. You like it. Why don't you let me feel you a little bit."
Q: Now was this a common occurrence with Andy?
A: Yes[.]
Q: And how often would it occur?
A: Almost every time you would go in there ... if you didn't watch his hands, he would do it.
[¶7] On December 18, 1993, Everingim and another nursing assistant were attempting to move Andy. Generally, Andy helped the nursing assistants by bearing some weight on his feet. However, on this occasion Andy grabbed Everingim between the legs and the other nursing assistant reprimanded him. Andy lifted his feet off the ground, which caused the nursing assistants to bear his full weight.{fn1} Everingim hurt her back.
[¶8] Everingim sought medical treatment for her back injury from Dr. G.C. Abernathie, who diagnosed a lumbosacral strain. He prescribed medication and bed rest. Two days later, she saw Dr. Robert Preston, who concluded she had a low back strain, with gradual improvement. Dr. Preston released her to return to work, with restrictions on lifting and movement until December 28. Everingim did not give a copy of the work release to Employer and did not return for her follow-up appointment on December 28. On January 3, 1994, she returned to Dr. Abernathie, who also issued a release to return to work with the same restrictions. She again did not give a copy of the work release to Employer and did not return for her follow-up appointment on January 10, 1994. Everingim was also treated by Dr. J.D. Sabow and Dr. Dale Berkebile. Everingim did not indicate that she was having mental difficulties.
[¶9] On December 28, 1993, Everingim resigned from her position. Ellis testified she offered Everingim light duty work, which would fit within her work restrictions. Everingim indicated she was resigning because of Andy's conduct.{fn2}
[¶10] On March 30, 1994, and April 11, 1994, Everingim saw Dr. Frank Buzzetta. Buzzetta diagnosed post-traumatic stress disorder and depression, "technically called dysthymia, which is a longer term depression that's lasted for two or more years." Based upon his observations and testing, Buzzetta concluded Everingim was emotionally incapable of returning to work for any employer. Buzzetta stated that Everingim had repressed her prior abuse and problems,
to make her somewhat functional, at least according to her, and ... after the incident at the
Good Samaritan Nursing Home, or incidents, I should say, that this was like a boiler releasing all of the steam that was inside. It was just the last straw, if you will, that caused her to become
much more emotionally agitated.
[¶11] The Department found Everingim's mental illness was caused or contributed to by the December 18, 1993 incident and ordered benefits. The circuit court reversed and remanded to the Department. Everingim appeals.
[¶12] This case involves both factual and legal issues.
We will overrule an agency's findings of fact only when they are clearly erroneous. Day v.
John Morrell & Co., 490 NW2d 720, 723 (SD 1992) (citation omitted). "The question is not
whether there is substantial evidence contrary to the agency finding, but whether there is
substantial evidence to support the agency finding." Id. at 723-24 (citing Lawler v. Windmill
Restaurant, 435 NW2d 708 (SD 1989)). ... Great weight is given to the findings made and
inferences drawn by an agency on questions of fact. Kennedy v. Hubbard Milling Co., 465
NW2d 792, 794 (SD 1991) (citation omitted).
Hendrix v. Graham Tire Co., 520 NW2d 876, 879 (SD 1994).
[¶13] 1. Whether there was sexual touching.
[¶14] This is a question of fact, best determined by the Department. The question hinges on Everingim's testimony, which was live before the Department. The Department found: "On October 18, 1993, while attempting to move [Andy] with the assistance of another aide, Claimant was grabbed between her legs by [Andy]." The circuit court held that finding of fact was clearly erroneous and found that: "[Andy] attempted to grab Claimant between the legs while she was attempting to move him [and that] there was no physical injury as a result of that attempted grab." (Emphasis added.)
[¶15] Everingim's testimony, quoted above, establishes that Andy touched her between her legs. She stated: "[H]e was trying to grab in between my legs ... he had his good arm right between my legs ... he had his hand between my legs." Everingim was never asked whether Andy made physical contact with her leg or with any part of her body. However, from her testimony, there is substantial evidence to support the Department's finding that Andy grabbed her between the legs. The circuit court therefore erred in concluding the Department's finding was clearly erroneous.
[¶16] 2. Whether Everingim's mental illness was caused or contributed to by the sexual touching.
[¶17] "'Issues of causation in worker's compensation cases are factual issues that are best determined bythe Department.'" Therkildsen v. Fisher Beverage, 1996 SD 39, ¶8, 545 NW2d 834 (quoting Lawler v. Windmill Restaurant, 435 NW2d 708 (SD 1989) (other citations omitted)).
[¶18] The Department stated: "Both [Everingim's] back injury and her subsequent mental deterioration as a result of that injury are compensable with the worker's compensation statutes;" and, "As a consequence of her physical injury complicated by the ensuing mental injury[,] Claimant is temporarily and totally disabled and has been since March 30, 1994."
[¶19] The circuit court's findings of fact stated: "[T]he medical testimony of Dr. Buzzetta established that Claimant's mental problems did not arise out of or stem from the back injury sustained by the Claimant." The Department apparently concluded Everingim's mental illness resulted from her back injury. This is contradicted by Buzzetta, who testified that the mental problems did not stem from the back injury, but from the incidents with Andy and Everingim's history. The back injury and the injury Everingim suffered from Andy's repeated attempts to touch her are two separate injuries.
[¶20] Buzzetta testified that Everingim "indicated that about a week after she started working on the floor she began to experience more nightmares than she had in the past," and that she had panic attacks and couldn't repress memories as she had in the past. When asked about the significance of the "episodes" to which she was exposed at Employer's place of business, Buzzetta stated that, "after all the incidents ... this was like a boiler releasing all of the steam that was inside. It was just the last straw[.]"
[¶21] Buzzetta was asked whether other factors, including discovery of her son's abuse and the suicide of her friend, played a role in her symptoms. He stated that they were all contributory and continued: "It's kind of like stress. People can handle an awful lot of stress until all of the sudden the last straw ... and then they seem to fall apart." He noted that Everingim appeared functional in September, but "started decompensating over time," and "more and more, got fearful of going to work for fear of having to deal with this patient."{fn3}
[¶22] Employer points out that Everingim had prior mental problems and that other factors in her life contributed to this mental illness. This is supported by Buzzetta's testimony. However, Buzzetta also testified that Everingim was "functional" prior to the incidents at Employer's place of business and that the incidents were the "last straw," leading to her emotional agitation. Everingim was able to perform the duties of her job until the sexual touching began. Following the touching, Everingim "started decompensating over time."
[¶23] Everingim gave sufficient testimony on which to base her claim that sexual touching by Andy caused or contributed to her mental illness. However, because the Department found her mental disability resulted from her back injury, we remand for appropriate findings of fact.
[¶24] 3. Whether the mental illness caused by the sexual touching is compensable.
[¶25] Professor Larson identifies three categories of mental and nervous injury:
1.
Mental - physical: "The first category is that in which a mental ... impact or stimulus results in a distinct physical injury. Here the decisions uniformly find compensability."

2.
Physical - mental: "[W]hen there has been a physical accident or trauma, and claimant's disability is increased or prolonged by traumatic neurosis, conversion hysteria, or hysterical paralysis, it is now uniformly held that the full disability including the effects of the neurosis is compensable."

3.
Mental - mental: "In each of the two above categories, there is something to satisfy the old

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