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KELLY CLAUSEN
Claimant and Appellant,
v.
NORTHERN PLAINS RECYCLING,

Employer,
FIREMAN'S FUND,
Insurer,

ABLE CONSTRUCTION CO., Employer,
MILWAUKEE CASUALTY INSURANCE CO.,
Insurer,

GIL HAUGAN CONSTRUCTION CO., Employer and Appellee,
REGENT INSURANCE COMPANY, Insurer and Appellee

[2003 SD 63]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Minnehaha County, South Dakota

Hon. Gene Paul Kean, Judge

BRIAN L. RADKE of
Radke Law Office
Sioux Falls, South Dakota
Attorneys for claimant and appellant.

MICHAEL S. McKNIGHT and
LISA HANSEN MARSO of
Boyce, Murphy, McDowell & Greenfield
Sioux Falls, South Dakota
Attorneys for employer, insurer and appellees.

Considered on Briefs February 11, 2003
Opinion Filed 5/28/2003

#22544
VON WALD, Circuit Judge
[¶1.] Kelly Clausen appeals a circuit court order affirming a decision by the South Dakota Department of Labor denying his claim for workers' compensation benefits. We affirm.
FACTS AND PROCEDURAL HISTORY
[¶2.] In January 1994, Clausen suffered the first in a series of work-related injuries to his back. Clausen
was working for Northern Plains Recycling and he filed a claim with Northern's insurer, Fireman's Fund Insurance. Clausen received workers' compensation benefits for his injury. In August 1998, while working for Able Construction Company, Clausen suffered a flare-up of his old injury. This time, he filed a workers' compensation claim with Able's insurer, Milwaukee Insurance. Milwaukee paid for Clausen's medical bills resulting from the injury and Clausen received no further benefits.
[¶3.] In May 2000, Clausen began work for Gil Haugan Construction Company.[1] Gil Haugan is insured by Regent Insurance Company. On August 8, 2000, Clausen experienced some discomfort in his back while shoveling concrete shards on a job site. He told co -employee Dave Beckman that he was experiencing a sore back. The next morning, Clausen did not show up for work. Clausen claimed that he attempted to call his supervisor, Jim Sammons, on Jim's cell phone sometime before 8:00 a.m. that morning. He also claimed that, after telling Sammons of the pain in his back, he was cut-off before Sammons could respond. Clausen did not try to call Sammons back and Sammons had no recollection of receiving a phone call from Clausen on that occasion.[2]
[¶ 4.] Clausen testified that, on August 10, he called Gil Haugan's office and spoke to Chris Biren, an engineer with no supervisory capacity. Clausen further testified that he told Biren that his back was still painful and that he would not be coming to work that day. Biren has no recollection of the conversation. Clausen also claimed that he called Gil Haugan on August 14 and spoke to the bookkeeper, Sue Peterson, telling her that he had a flare-up of his back condition. Peterson did not remember speaking to Clausen on that occasion.[3]
[¶ 5.] On August 16, 2000, Clausen called Sammons, told him about his back and that it was possible that it had been injured while he was on the job. Gil Haugan contended that this was the first point at which it had any notice of the injury. Clausen then began to get treatment for his back and eventually brought a claim for workers' compensation benefits against Gil Haugan and it's insurer, Regent.[4]
[¶6.] At the administrative hearing, Department found that Clausen failed to show that Gil Haugan or any of its representatives had notice of his injury within the three business-day period required under SDCL 62

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