author:
ZINTER, Justice (on reassignment).
      SABERS, Justice

text:
    2007 SD 52
    Pamela McDOWELL, Claimant and Appellant, v. CITIBANK, Employer and Appellee, and Planet Insurance Company, Insurer and Appellee.
    Nos. 23858, 23879.
    Supreme Court of South Dakota.
    Argued May 25, 2006.
    Reassigned Feb. 20, 2007.
    Decided June 6, 2007.

      Brian L. Radke, Radke Law Office, Sioux Falls, South Dakota, Attorney for appellant.
    Kristi Geisler Holm of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellees.
   ZINTER, Justice (on reassignment).

[¶ 1.] Pamela McDowell appeals Department of Labor and circuit court decisions denying a petition to reopen her workers’ compensation settlement. We affirm.

Facts and Procedural History

[¶ 2.] McDowell started working at Citibank in 1984 or 1985. Part of her duties required typing name changes, address changes, credit line increases, and other information in Citibank’s computer system. Between 1989 and 1990, McDowell started to experience pain and tingling in her right arm.

[¶ 3.] In 1991, Dr. Walter Carlson, an orthopedic surgeon, diagnosed bilateral carpal tunnel syndrome. Dr. Carlson subsequently performed bilateral carpal tunnel release surgery. After the surgery, McDowell continued to work at Citibank on a full-time basis.

[¶4.] Thereafter, McDowell began experiencing tingling and pain in both hands. Dr. Carlson referred McDowell to the Mayo Clinic. At Mayo, McDowell was diagnosed with neuropathy of the radial nerve. As a result, she underwent radial nerve release surgery on her right hand. McDowell also continued to receive medical treatment including pain management, lidocaine infusions, physical therapy, and biofeedback. Citibank and its insurer, Planet Insurance Company, paid for McDowell’s medical treatment and temporary workers’ compensation benefits.

[¶ 5.] In 1993, McDowell filed a petition seeking permanent benefits. She alleged that she was permanently and totally disabled. Citibank and McDowell entered into a settlement agreement in March, 1996. The agreement acknowledged that McDowell was an employee of Citibank and suffered an injury arising out of and in the course of her employment. The agreement specifically stated that McDowell believed she was entitled to “all categories of benefits including, but not limited to, benefits for permanent total disability pursuant to the odd lot doctrine.” (Emphasis added.)

[¶ 6.] Notwithstanding her belief, McDowell settled her claim for less than a permanent total disability award. The 1996 settlement agreement noted that there was a dispute between the parties concerning the extent of McDowell’s disability, and it specifically set forth the underlying medical basis for both parties’ respective claims. Section 3 provided:

Claimant ... was assigned an impairment rating of five percent (5%) of the right upper extremity by [employer/insurer’s medical expert,] Dr. Hoversten. A true and correct copy of that rating is attached and incorporated by reference. Dr. Schutt[, McDowell’s medical expert,] later assigned an impairment rating of forty-five percent (45%), a copy of which is attached, and incorporated by reference.

(Emphasis added.)

[¶ 7.] The medical records reflected that Dr. Hoversten, an orthopedic surgeon, had performed an independent medical examination of McDowell. Dr. Hoversten opined that McDowell sustained a five percent impairment rating for the upper right extremity and that she was capable of returning to her former work full time and without specific restrictions. Dr. Schutt was McDowell’s treating physician at the Mayo Clinic. In contrast to Dr. Hover-sten, Dr. Schutt assigned a forty-five percent whole body impairment rating. Dr. Schutt’s records also reflected that McDowell was “[unable to work and] ... certainly not able to do that and mil not be able to do that now.”

[¶ 8.] On February 11, 2003, approximately seven years after settling this disputed claim, McDowell petitioned the Department to reopen. McDowell alleged that she suffered a change in condition and was again entitled to permanent total disability benefits. Citibank contested McDowell’s petition, and the Department conducted a hearing on the matter.

[¶ 9.] The hearing examiner denied McDowell’s petition to reopen. The examiner found that McDowell was, and believed that she was, permanently and totally disabled at the time of the settlement agreement. In making this finding, the examiner noted that Rick Ostrander, McDowell’s own vocational expert, testified that McDowell was permanently and totally disabled at the time of the settlement agreement. Based on this and other evidence, the hearing examiner found that there was no post-settlement change in McDowell’s earning capacity. In fact, the hearing examiner made sixty-seven findings of fact, almost all of which referred to statements by McDowell, her husband, Os-trander, and McDowell’s treating physicians opining that McDowell was permanently and totally disabled both before and after the settlement agreement. The hearing examiner ruled that McDowell was bound by her admissions and the testimony of her vocational expert. The hearing examiner ultimately explained that because McDowell was, and knew that she was permanently and totally disabled at the time of settlement, “[it was] impossible [for McDowell] to be more disabled than permanently and totally disabled” at the time of her petition to reopen the settlement. Because McDowell failed to establish a change in earning capacity, the hearing examiner did not reach the question whether McDowell suffered a change in condition.

[¶ 10.] McDowell appealed to circuit court. The circuit court affirmed the hearing examiner’s findings of fact and conclusions of law. McDowell now appeals the Department’s denial of the petition to reopen the settlement. McDowell also appeals a number of evidentiary rulings in the administrative proceedings.

Decision

[¶ 11.] Our standard of review on the claim of entitlement to additional workers’ compensation is controlled by SDCL 1-26-37. See Kasuske v. Farwell, Ozmun, Kirk & Co., 2006 SD 14, ¶ 9, 710 N.W.2d 451, 454 (citing Kassube v. Dakota Logging, 2005 SD 102, ¶25, 705 N.W.2d 461, 465). “The Department’s factual findings ... are reviewed under the clearly erroneous standard.” Id. (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83) (additional citation omitted). However, the Department receives no deference on its findings and conclusions based on documentary evidence. Id. (citing Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661) (other citation omitted). Legal questions are also fully reviewable. Id. at ¶ 10 (citing Enger, 1997 SD 70, ¶ 10, 565 N.W.2d at 83).

Reopening

[¶ 12.] The requirements for reopening a workers’ compensation settlement under SDCL 62-7-33 are well settled. Three things must be shown:

First, the claimant must prove “a change in condition.” Second, the claimant must prove that the asserted “change in condition” derives from an injury unknown at the time of settlement or from, a known injury with its disabling character unknown. Finally, a claimant must prove that the unknown injury is causally connected to employment, or that the unknown disabling character is causally connected to the original, compensable injury.

Kasuske, 2006 SD 14 at ¶ 17, 710 N.W.2d at 456 (emphasis added). Because the hearing examiner assumed without deciding that McDowell could prove a change in condition, he decided this case on two related questions: whether the alleged change in condition affected McDowell’s earning capacity and whether the disabling character of her upper extremities injury was unknown at the time of settlement. In deciding those issues, “the evidence must bear directly upon [a] comparison between the claimant’s former disability and present disability.” 8 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 131 (2006) (emphasis added).

[¶ 13.] Because the analysis requires a comparison of McDowell’s former and present disabilities, it is important to restate the distinctions between a workplace injury, a worker’s post-injury condition, and an occupational disability. It is also important to note how the occupational disability is determined as well as the role that impairment ratings play in the determination. “ ‘[I]njury’ is the ... act or omission which caused the loss.’ ” Steinberg v. South Dakota Dept. of Military and Veterans Affairs, 2000 SD 36, ¶ 10, 607 N.W.2d 596, 600 (quoting Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186, 190 (1984)). “ ‘Condition,’ in contrast, is the loss produced by [that] injury; i.e., it is the result rather than the cause. The word ‘condition’ means ‘state of being.’ Id. (citing Doyle v. Superior Court, 50 Cal.App.4th 1878, 58 Cal.Rptr.2d 476, 481 (1996)) (emphasis in original). Finally, that “condition” may or may not cause a compensable occupational disability. That type of disability is often determined in part by an impairment rating, but the numeric impairment rating is not determinative. Instead, a workers’ compensation disability is based on the worker’s occupational situation. As this Court has often explained:

The physician who makes a determination about impairment must keep in mind that a permanent impairment rating is not the same as a disability rating. Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands, or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment. ... [A] hearing examiner should [consider] other evidence, such as the testimony of [plaintiffs] vocational expert regarding loss of employability....

Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548, 552 (S.D.1990) (emphasis added).

[¶ 14.] Keeping these distinctions in mind, an injured worker’s occupational ability or capacity is of primary importance in considering a petition to reopen a settlement because “[o]ur [workers’ compensation] act is designed to compensate an employee or his family for the loss of [the employee’s] income-earning ability....” Caldwell v. John Morrell & Co., 489 N.W.2d 353, 362 (S.D.1992). “[W]orkers’ compensation laws were designed to compensate for diminishment of a worker’s earning capacity....” Whitney v. AGSCO Dakota, 453 N.W.2d 847, 851 (S.D.1990). Therefore, “[a]s a general rule, [a change in condition for reopening] must be a change in the physical condition of the employee, affecting [her] earning capacity.” Stender v. City of Miller, 82 S.D. 334, 338, 145 N.W.2d 913, 915 (1966) (citation omitted) (emphasis added) (superseded on other grounds). “This remains the law today.” Whitney, 453 N.W.2d at 852.

[¶ 15.] In Welch v. Automotive Co., 528 N.W.2d 406 (S.D.1995), this Court considered a similar case that involved an alleged post-settlement change in condition. Unlike McDowell (who failed to even plead a change in condition affecting her earning capacity), Welch argued a well stated claim asserting a “3 percent increase in impairment, increased pain, [and] inability to find suitable employment, and inability to recover as expected [.] ” Id. at 409 (emphasis added). However, at the hearing, Welch testified that he could do the same work as he could when he received his initial benefits. Id. at 410. In concluding that Welch “had not experienced [the] substantial change in condition” sufficient to reopen, this Court relied on Welch’s testimony conceding that he suffered no change in his work capacity. This Court noted this concession and held:

Welch admitted that he could do the same work as he could at the time of the [prior settlement]:
Q. Jim, is there anything you can’t do now that you could when you signed the [settlement]?
A. Probably about the same.
“[A] party cannot claim the benefit of a version of the facts more favorable than given in testimony.” Guthmiller v. South Dakota Dept. of Transp., 502 N.W.2d 586, 589 (S.D.1993).

Id.

[¶ 16.] Today’s petition for reopening must be denied for the same reason. Even if her physical condition changed, McDowell did not plead or prove that her employability or earning capacity had changed since the settlement. Moreover, the hearing examiner not only relied on McDowell’s concessions, but he also considered all of the evidence, including the testimony of McDowell’s husband, her vocational expert, and evidence from her physicians. These witnesses also confirmed that the nature and extent of McDowell’s disability was known at the time of settlement and had not changed after the settlement.

[¶ 17.] More specifically, McDowell testified that as early as 1993, when she filed her initial petition for workers’ compensation, she was permanently and totally disabled as a result of the 1991 injury. Then, in April 1995, while receiving weekly workers’ compensation benefits but before the settlement, McDowell applied for Social Security benefits based solely on the 1991 Citibank injury. She stated on her Social Security application that “I became unable to work because of my disabling condition on December 01, 1991.” She specifically contended that the pain from the 1991 injury rendered her completely unemployable: “I can not [sic ] work because of the pain created by the use of my right hand and arm. The use of my left arm must be paced, if not, numbness and pain flairs up.” Based upon her inability to engage in any substantia] gainful employment, she was awarded Social Security benefits retroactive to her last date of employment with Citibank in 1992.

[¶ 18.] McDowell then conceded that her total inability to work continued through 1998. At that time, she was required to recertify entitlement to Social Security disability benefits. In that process, she again confirmed that she remained unable to work solely because of the pain and associated problems in her upper extremities. But most significantly, she specifically denied having “any change (for better or worse) in [her] disabling condition since [she] last reported such information [in April 1995 prior to the settlement.]” She indicated that she remained unable to return to work and incapable of any gainful employment.

[¶ 19.] Notwithstanding this history conclusively establishing that the character of her disability was known and had not changed, she applied to reopen the settlement in February 2000. But, during the 2003 hearing on this petition, she again conceded that at all relevant times her pain remained severe, chronic, and sufficiently debilitating to prevent her from working. She first testified that she had been unable to work before her pre-settlement 1995 application for social security benefits:

A. [T]he reason why I applied for Social Security is because I had the work capacities done and Dr. Schutt said I couldn’t go back to what I was doing.
A. Uh-huh.
Q. And that was why you applied for Social Security?
A. Right.
Q. And [the application] explained to the Social Security Administration the reason you believed your condition prevented you from working at that time?
A. Yes.
Q. And at that time it is fair to state, isn’t it, that you were representing to the Social Security Administration subject to penalty of perjury that you believed your condition made you unable to work, correct?
A. Correct.

[¶ 20.] McDowell then testified that at the time of the March 1996 settlement, the character of her disability was the same as it was when she applied for Social Security in 1995. She testified that she was still unable to work, that she had applied for no other jobs, and that she was still receiving Social Security benefits. She further testified that when she entered into the settlement agreement in March of 1996, her inability to work was caused by the same pain from the same injury. She even conceded that her doctors agreed she could not work.

Q. Okay. You would agree that the pain you were having in March 1996 [at the time of settlement] was severe, wouldn’t you?
A. Yeah, Yeah.
Q. In fact, the pain that you had was so severe that it was debilitating. You weren’t able to go back to work, right?
A. Yes.
Q. And the reason you couldn’t work was because of that pain in your arms from the 1991 injury, right?
A. Right.
Q. Okay. So by your own testimony, at least in March of 1996, the pain in your arms was severe, chronic and debilitating, correct?
A. Correct.
Q. And your doctors supported that, didn’t they?
A. Yes.

[¶ 21.] Thus, over a period of ten years, in four separate disability proceedings, McDowell consistently maintained that: she knew the disabling character of her disability, she believed she was unemployable, she had not looked for employment, and she remained incapable of any employment because of her pain. Reiterating what this Court ruled in Welch: a claimant “ ‘cannot claim the benefit of a version of the facts [regarding the change in condition necessary to reopen] more favorable than given in testimony.’ ” 528 N.W.2d at 410 (citation omitted) (emphasis added).

[¶ 22.] Were McDowell’s own assertions of historical fact not sufficient to affirm the hearing examiner and circuit court, the denial of reopening is independently required by McDowell’s other witnesses. First, at the 2003 hearing, McDowell’s husband corroborated that her pain was severe and unchanged from the time of settlement, that the pain rendered her incapable of working before the settlement, and that she remained unable to work at the time of the hearing.

Q. Okay. And at that point in time in 1996, 1995 and 1996, that this pain that was severe and chronic was preventing her from working?
A. Yes ...
Q. So it remains severe today?
A. Yes
Q. It remains chronic
A. Yes
Q. And it’s preventing her from working?
A. Yes....

[¶ 23.] Second, McDowell’s vocational expert testified that the extent of her occupational disability had not changed over the years. After a December 2000 evaluation, Rick Ostrander reported that based upon McDowell’s complaints of pain, she was “totally disabled from any type of regular gainful employment, even on a part-time basis.” In a second report, dated October 30, 2002, he again opined that she “continues to be totally disabled from any type of employment.” And, these post-settlement disability opinions were predicated on a 1995 pre-settlement functional capacity assessment. Consequently, at the reopening hearing, Ostrander testified that McDowell’s occupational disability had not changed from the time of settlement: “Well, it’s my professional opinion that at the time I saw her and going back to 1995, based on all of the information that was available to me at that time, it’s clear that she was not employable and continues to be not employable.” Ostran-der was unequivocal:

Q. If I’m correct ... it was your opinion today that Pam McDowell is not employable just as Pam McDowell was not employable in 1995 based upon the review of the information [McDowell’s counsel provided] to you; is that correct?
A. That’s correct.
Q. And that remains your opinion today?
A. Yes, it does.
Q. That in terms of Ms. McDowell’s employability, her loss of earning capacity, there has been no change between 1995 and today; is that correct?
A. That’s correct.

Ostrander finally confirmed that even if McDowell had suffered a change in physical condition, that change did not affect her earning capacity:

Q. Okay. Mr. Ostrander, we’re going to talk a little bit of hypotheticals. If you would assume with me that Ms. McDowell’s condition has changed since 1995 physically. Assume that with me, okay? A. Okay.
Q. Would you agree with me based upon what you’ve reviewed and your knowledge and history of the labor market that that change in her physical condition has not affected negatively her earning capacity since 1995?
A. I would agree.

McDowell is independently bound by this testimony because even if she were not bound by her own sworn statements and testimony, she is not entitled to assert a greater disability than that established by her own vocational expert, who determined disability based upon the medical impairment rating. See Tischler v. United Parcel Service, 1996 SD 98, ¶ 56, 552 N.W.2d 597, 606.

[¶ 24.] Third, the medical evidence finally confirmed that McDowell was, and knew that she was, permanently and totally disabled at the time of settlement. In 1993, Dr. Schutt, her primary treating physician at Mayo, imposed temporary work restrictions due to pain in the upper extremities, and reported that “[s]he certainly is not able to return to work.” McDowell was also told she could not return to work. Dr. Cooney’s report of February 1994, stated: “[a]fter a long discussion and review with Ms. McDowell, I reassured her that her condition is one of continued pain dysfunction that is unlikely to improve dramatically at any short time period.” By 1995, Dr. Schutt reported that: “This patient right now is permanently disabled until we can find out whether there is any more definitive therapy that we can give her to give her relief until maximum medical results.” But following the functional capacity assessment in 1995, Dr. Schutt indicated that McDowell’s restrictions permanently precluded her from working as a result of chronic pain. Dr. Schutt rated the injury as: “Class 5 — severe limitation of functional capacity” that rendered her incapable of even minimal sedentary activity. This restriction was never lifted by Dr. Schutt, and McDowell has not been employed — or even attempted reemployment — since Dr. Schutt’s first work restriction was imposed in 1993, prior to the settlement.

[¶ 25.] Thus, McDowell, her husband, her vocational expert, and her treating physician all confirmed that her occupational disability remained unchanged: she was unable to work in any capacity at the time of settlement and at the time reopening was requested. And even if one were to disregard this evidence relating to her actual occupational disability, or even if one misconstrues the meaning of Drs. Schutt’s and Hoversten’s impairment ratings, this record unequivocally established that McDowell knew the disabling character of her disability at the time of settlement. Simply stated, the fact that she testified she was permanently and totally disabled before, at the time of, and after the settlement forecloses her appellate claim that the disabling character of her injury was unknown during those same periods of times. Because McDowell was, and knew that she was, permanently and totally disabled at the time of settlement, the hearing examiner and circuit court correctly concluded her petition for reopening could not have been granted even if she had established a change in physical condition. See Kasuske, 2006 SD 14 at ¶ 17, 710 N.W.2d at 456.

Evidentiary Issues

[¶ 26.] McDowell argues that the Department erred on a number of evidentiary rulings. Evidentiary issues are subject to the abuse of discretion standard of review. Behrens v. Wedmore, 2005 SD 79, ¶ 63, 698 N.W.2d 555, 579. Furthermore, “[a]n evidentiary ruling will not be overturned unless error is ‘demonstrated ... [and] shown to be prejudicial error.’ ” Novak v. McEldowney, 2002 SD 162, ¶ 7, 655 N.W.2d 909, 912 (quoting State v. Smith, 1999 SD 83, ¶39, 599 N.W.2d 344, 353). “Error is prejudicial when, ‘in all probability ... [it] produced some effect upon the final result and affected [some] rights of the party assigning it.’ ” Id. (citation omitted).

[¶ 27.] McDowell first claims error because Citibank’s former attorney was allowed to testify without producing a letter she had used to refresh her recollection before testifying. Citibank, however, correctly points out that the testimony at issue did not relate to McDowell’s claimed change in condition. Further, the letter and the testimony were cumulative. Therefore, even assuming error, McDowell failed to establish that the failure to produce this irrelevant and cumulative evidence was prejudicial.

[¶ 28.] McDowell next alleges error in not allowing her to question a witness about a letter between the pre-settlement attorneys that would have supplied a term allegedly omitted from the settlement agreement. Citibank, however, points out that because the hearing examiner found the agreement unambiguous, parol evidence was inadmissible to add new terms. The hearing examiner was correct. See Wessington Springs Educ. Assoc. v. Wessington Springs Sch. Dist., 467 N.W.2d 101, 104 (S.D.1991) (noting that extrinsic evidence is unnecessary “[w]hen the terms of [an] agreement are clear and unambiguous, and the agreement actually addresses the subjects that it is expected to covert.]”).

[¶ 29.] McDowell next alleges error in refusing to allow evidence of awards and bonuses she received from Citibank while employed. Those awards did not, however, have any relevancy to reopening the settlement because they occurred during her employment. Therefore, the ruling was not prejudicial.

[¶ 80.] McDowell next alleges error in the refusal to admit a calculation of the present value of the future permanent total disability benefits that she would have received had she successfully reopened the settlement. However, Citibank correctly points out that there was absolutely no foundation established for the present value calculation she offered. McDowell has not shown error.

[¶31.] McDowell finally alleges error in the denial of her motion to supplement the record of the administrative proceeding. After the hearing examiner issued his decision, McDowell moved to supplement the administrative record with additional evidence to bolster a point that her expert (Rick Ostrander) had made but was rejected by the hearing examiner. McDowell appealed the hearing examiner’s denial of that request. McDowell then pursued the matter by making two motions under SDCL 1-26-34 in circuit court. The circuit court denied both motions finding that McDowell failed to establish that there were good reasons for having failed to offer the evidence at the administrative hearing.

[¶ 32.] We agree that McDowell failed to demonstrate good cause for her failure to present the evidence at the administrative hearing. McDowell’s brief to this Court only states that “[d]uring cross-examination [at the hearing before the hearing examiner, counsel for Citibank], challenged the truthfulness of this testimony.... Because the line of questioning came as a surprise, Counsel for Ostrander couldn’t make sure Ostrander had the documents with him which would have proven his point.” However, there is no question that Ostrander’s occupational disability opinion was going to be the central point of McDowell’s proof at the hearing. Because McDowell is deemed to be aware of this essential element of her required showing at the administrative hearing, her belated claim of surprise cannot be sustained. See Cavender v. Bodily, Inc., 1996 SD 74, ¶ 15, 550 N.W.2d 85, 88. Moreover, a party may not wait to submit evidence at an administrative hearing until after the party learns how the hearing examiner will rule. Therefore, neither the hearing examiner nor the circuit court erred in denying McDowell’s motion to supplement the administrative record.

[¶ 33.] For the foregoing reasons, there is no need to reach Citibank’s Notice of Review alleging that McDowell failed to establish a change in her “physical condition.”

[¶ 34.] Affirmed.

[¶ 35.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 36.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

The ALJ erred when it concluded McDowell was bound by her claims and testimony and the testimony of her vocational expert in determining her condition at the time of the agreement and in ignoring all contrary evidence expressly incorporated therein.

[¶ 37.] SDCL 62-7-33 provides an exception to the finality rule in workers’ compensation cases and provides in part:

Any payment, including medical payments under § 62-4-1, and disability payments under § 62-4-3 if the earnings have substantially changed since the date of injury, made or to be made under this title may be reviewed by the Department of Labor pursuant to § 62-7-12 at the written request of the employer or of the employee and on such review payments may be ended, diminished, increased, or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition of the employee warrants such action....

See Kasuske v. Farwell, 2006 SD 14, ¶ 11, 710 N.W.2d 451, 454-55. We have set forth three elements a claimant must prove to reopen: (1) a change in condition, (2) that the asserted change in condition derives from an injury unknown at the time of the settlement or from a known injury with its disabling character unknown, and (3) the unknown injury is causally connected to the employment, or that the unknown disabling character is causally connected to the original, compensable injury. Id. ¶ 17. We have defined a change in condition as:

[A] condition different from that which existed when the award was made. It must be a material and substantial change. As a general rule, it must be a change in the physical condition of the employee, affecting his [or her] earning capacity,

Stender v. City of Miller, 82 S.D. 334, 339, 145 N.W.2d 913, 915 (1996) (emphasis added) (additional citations omitted). In this case, the ALJ held that any alleged change of condition suffered by McDowell was immaterial because it did not affect her earning capacity.

[¶ 38.] Professor Larson commented on what issues are relevant in reopening hearings:

[N]o matter who brings the reopening proceeding, neither party can raise original issues such as work connection, employee or employer status, occurrence of the compensable accident, and degree of disability at the time of the first award.

Arthur Larson, Larson’s Workers’ Compensation Law § 131.03(2)(b) (2005). In short, “the issue before the Board is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based.” Id. Our cases are consistent with that principle. As we noted in Kermmoade v. Quality Inn:

A settlement of a compensation claim which is properly approved per SDCL 62-7-5 operates as an adjudication of the facts agreed upon in the settlement including the employer’s obligation to pay compensation. [Citation omitted.] Thus, a matter may not be later reopened absent an express reservation of jurisdiction by Department or a change in the employee’s physical condition which change is a result of his working injury.

2000 SD 81, ¶ 19, 612 N.W.2d 583, 589 (quoting Larsen v. Sioux Falls Sch. Dist., 509 N.W.2d 703, 708 (S.D.1993)) (emphasis added). See also Stender, 82 S.D. at 389, 145 N.W.2d at 915 (1996) (“On review of an award the inquiry then is limited as to whether disability resulting from the injury may have increased or diminished beyond what the award contemplated.”). In some cases, the award or agreement will state the claimant’s degree of disability. However, in cases such as this where there was no finding or agreement, the condition at the time of the settlement must be determined before it can be established the claimant has suffered a change in condition.

[¶ 39.] The agreement between the parties in this case acknowledges that McDowell was an employee of Citibank and that she suffered a compensable injury. The parties could not agree as to the degree of McDowell’s disability. Instead, the agreement set forth the range of impairment suffered by McDowell. According to Dr. Hoversten, McDowell had only a five percent impairment of her upper right extremity and was capable of returning to work on a full-time basis. McDowell’s treating physician, Dr. Schutt, gave McDowell a forty-five percent disability rating over her entire body and indicated she was not ready to return to work. Both opinions were incorporated into the agreement. Thus, the ALJ was required to examine all of the evidence and determine McDowell’s degree of disability at the time she entered into the agreement before determining her present degree of disability.

[¶40.] This was a compromise settlement agreement. Citibank’s position was that Claimant’s disability was limited to five percent and that the Claimant was able to return to work. The settlement was based more on that position than on Claimant’s and now Citibank wants to take advantage of Claimant’s allegation of permanent and total disability, which Citibank disputed and refused to accept. This is totally unfair and as suggested by Charles Dickens in Oliver Twist, if the law permits it, the “law is an ass....”

[¶ 41.] Rather than focus on all of the evidence, including the opinions and impairment ratings set forth in the agreement, the ALJ made its ruling based on the testimony of McDowell and Ostrander, the vocational specialist. Both McDowell and Ostrander testified that she was unable to work prior to the settlement agreement. The ALJ concluded that McDowell’s testimony in this regard constituted admissions. Additionally, the ALJ held that McDowell was bound by her expert’s opinion. Thus, the ALJ concluded McDowell was not entitled to any additional disability benefits because she was totally and permanently disabled at the time she entered into the agreement.

[¶42.] Although we have held that a party is entitled to no better version of the facts than their own testimony, Frey v. Kouf, 484 N.W.2d 864, 869 (S.D.1992), the Supreme Court of Texas recognized:

An opinion that would conclusively admit that a[n][] injury has resulted in a total temporary, total permanent, or merely partial inability to work requires medical knowledge beyond that of the average lay person.

Mendoza v. Fid. & Guar. Ins., 606 S.W.2d 692, 695 (Tex.1980). Generally, this Court requires expert testimony before an ALJ may establish a disability rating. Caldivell v. John Morrell & Co., 489 N.W.2d 353, 362-63 (S.D.1992).

[¶ 43.] Therefore, the ALJ’s determination that McDowell’s claims and testimony and testimony of her vocational expert were dispositive or conclusive of this issue is one sided and flawed. Likewise, it would be improper for the ALJ to be overly persuaded by the position taken by the employer and insurer at the time of the agreement, and thereby limit McDowell’s disability on that basis to a five percent impairment and that she was capable of returning to work on a full-time basis. Obviously, Claimant’s condition at the time of the contested agreement was somewhere between five percent and forty-five percent impairment.

[¶ 44.] The proper focus should be to examine all of the evidence, including the reports of Dr. Hoversten and Dr. Schutt, which were expressly incorporated into the agreement. A proper determination must be made, based on all those opinions and impairment ratings, as to McDowell’s degree of disability at the time she entered into the settlement agreement before determining whether she has suffered a change in condition. Whether her condition has diminished since then will be the next question. If McDowell can show a change in condition, the ALJ should then proceed under the final two factors in Ka-suske, 2006 SD 14, ¶17, 710 N.W.2d at 456. We should reverse and remand for the Department to make those findings.

      . SDCL 62-7-33 provides:
      Any payment, including medical payments under § 62-4-1, and disability payments under § 62-4-3 if the earnings have substantially changed since the date of injury, made or to be made under this title may be reviewed by the Department of Labor pursuant to § 62-7-12 at the written request of the employer or of the employee and on such review payments may be ended, diminished, increased, or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition of the employee warrants such action. Any case in which there has been a determination of permanent total disability may be reviewed by the department not less than every five years.

      . The dissent is simply mistaken in assuming that this matter was decided without considering all of the record evidence, including that of the medical providers. See infra, 161 39, 41, 44. On the contrary, in his findings of fact and conclusions. of law, the hearing examiner expressly stated that:

        The testimony of Claimant, her husband, her vocational expert and her medical providers establishes that even if there had been a change in physical condition, Claimant’s ability to work, disability and earning capacity have not been affected since the Compromise Agreement as she was then and is now permanently and totally disabled.
      (Emphasis added.)

      . Although there was a disparity between the five percent impairment rating assigned by Dr. Hoversten, and the forty-five percent rating of Dr. Schutt, the physician reports were incorporated into the settlement agreement. Because Dr. Schutt's more detailed report indicated that she was unable to work, McDowell cannot now argue that she did not know her doctor's opinions concerning the disabling character of her injury at the time of settlement. Having had that knowledge at that time, and having specifically released her claim of permanent total disability under that evidence, there is no reason to remand. All of the evidence was already considered, and McDowell must be deemed, as a matter of law, to have had knowledge of her own testimony concerning the extent of her disability at the time of the settlement.

      . SDCL 1-26-34 provides:
      If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

      . A change in condition that does not affect earning capacity but requires additional medical treatment may also be grounds for reopening a previous award. Larsen v. Sioux Falls School District, 509 N.W.2d 703, 708 (S.D.1993).

      . Charles Dickens, Oliver Twist, 489 (1970) (First published serially 1837-1839).


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2007 SD 53
    Pamela McDOWELL, Plaintiff and Appellant, v. CITICORP U.S.A.; Citibank of South Dakota, N.A.; Crawford & Company, Defendants and Appellees, and Wayne Kinonen, Defendant.
    No. 23925.
    Supreme Court of South Dakota.
    Argued on Oct. 4, 2006.
    Decided June 6, 2007.

      Chet Grosclose, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
    Lon J. Kouri, Scott R. Swier, of May & Johnson, P.C., Sioux Falls, South Dakota, Attorneys for appellees, Citicorp, USA & Citibank of SD, N.A.
    Steven W. Sanford, Michael A. Henderson, of Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, Attorneys for appellee, Crawford & Company.
   KONENKAMP, Justice.

[¶ 1.] Pamela McDowell suffered a work-related injury while employed at Citibank of South Dakota. She was paid workers’ compensation benefits and eventually entered into a settlement agreement. The agreement required Citibank’s insurer to pay all future necessary and reasonable medical expenses causally related to her injury. McDowell later brought suit against Citibank and other defendants alleging that they acted in bad faith by unreasonably delaying payment of her medical bills. Defendants moved for summary judgment. After two hearings, the circuit court granted defendants’ motion. McDowell .appeals, and we affirm.

Background

[¶ 2.] In 1991, McDowell suffered a work-related injury while employed at Citibank of South Dakota, a subsidiary of Citigroup, Inc. Her job required her to use her hands in a repetitive manner, and, after some time, she began to experience shooting pains up both her arms. When the pain increased, she visited Dr. Walter Carlson, an orthopedic surgeon. He performed carpal tunnel surgery on both her wrists. After the surgery, her pain did not subside, and Dr. Carlson referred her to the Mayo Clinic in Minnesota. There, doctors diagnosed her as having a dorsal sensory neuropathy condition of the radial nerve. They recommended that she obtain treatment and not return to work at that time.

[¶ 3.] Citibank’s workers’ compensation insurance carrier at the time of McDowell’s injury was Planet Insurance Company, a division of Reliance Insurance Company. After McDowell was injured, Planet paid the medical bills related to her injury. In January 1993, McDowell filed a petition with the Department of Labor (Department), alleging that as a result of her injury she had become permanently and totally disabled and was entitled to workers’ compensation benefits. In 1995, the parties began discussing the possibility of a settlement, and, on March 14, 1996, McDowell, Citibank, and Planet entered into a “Compromise Agreement.” McDowell accepted a lump sum payment and released all past, existing, and future claims against Citibank and Planet. They, in return, agreed to pay her future necessary and reasonable medical expenses connected to her work injury. The Department later approved the settlement.

[¶ 4.] Under a contractual agreement with Planet, Crawford & Company was responsible for administering all the workers’ compensation claims for Citibank. Thus, Crawford was responsible for managing McDowell’s workers’ compensation file and processing and paying claims submitted by her medical care providers. According to McDowell, before the settlement agreement, defendants Crawford and Citibank unreasonably delayed payment of her medical bills. She recognized, however, that because of the settlement agreement she had waived any potential bad faith claims relating to pre-settlement conduct. Nonetheless, she alleged that after the settlement defendants continued to unreasonably delay payment of her medical bills. She maintained that because defendants were not paying her bills, her medical care providers started demanding payment from her personally. She also claimed that she received letters from a collection agency demanding payment, and because of the unreasonable delays, the Mayo Clinic refused to continue treating her until she resolved her delinquent bills.

[¶ 5.] On February 11, 2000, McDowell petitioned the Department to reopen her settlement agreement. One allegation in her petition was that defendants “exhibited a pattern of consistently paying outstanding medical bills in an untimely fashion or not paying them at all.” She sought to “compel Employer/Insurer to pay all outstanding medical bills.” In March 2000, McDowell’s attorney sent a letter to defendants informing them that because McDowell’s bills remained unpaid “we are looking at a potential bad faith action for failure to pay.”

[¶ 6.] In March 2003, McDowell brought suit in circuit court against Citi-corp USA, Inc., Citibank of South Dakota, N.A., Crawford & Company, and Wayne Kinonen (a Crawford representative) averring bad faith refusal to pay her bills for necessary health care, negligence, negligent infliction of emotional distress, vexatious denial of claim, and entitlement to punitive damages. In her complaint, she alleged that defendants delayed payment on bills from Avera McKennan Hospital and Anesthesiology Associates for care on August 23, 1999, and on a bill from the Mayo Clinic years earlier. She amended her complaint in August 2004, to include causes of action for fraud and deceit, intentional infliction of emotional distress, and intentional interference with business relations.

[¶ 7.] After discovery was conducted, defendants jointly moved for summary judgment. Following the hearing, but while the motion for summary judgment was still pending, defendants learned that when McDowell and her husband filed for voluntary Chapter 7 Bankruptcy in October 2000, they did not list the present lawsuit on their schedule of potential assets. Nor did they list the healthcare providers as creditors. As a result, defendants filed a supplemental appendix in support of their motion for summary judgment and argued that McDowell should be judicially estopped from now using the pre-bankruptcy conduct in support of her claims. Defendants requested that the circuit court take judicial notice of the bankruptcy proceeding and related filings. At the hearing, McDowell conceded that there could be no cause of action founded on the bills preceding the bankruptcy filing. However, she argued that the bills should nevertheless be admissible as evidence.

[¶ 8.] McDowell served her second amended complaint in May 2005. She again alleged the defendants’ pre-bankruptcy bad faith. However, she acknowledged that such conduct was “not now actionable by [her].” Thus, she asserted that “[a]fter October 1, 2000 the defendants persisted in the prior practice of delaying unreasonably the payment for necessary medical services.... ” She identified specific bills that she believed supported her claim for bad faith. She also asserted additional causes of action for both intentional and negligent infliction of emotional distress, and entitlement to punitive damages.

[¶ 9.] In June 2005, the circuit court granted partial summary judgment, specifically precluding McDowell from pursuing her bad faith claim based on the pre-bankruptcy events. The court ruled that because she filed a petition to reopen her settlement agreement in February 2000, in part because of defendants’ failure to timely pay bills, and because in March 2000, her counsel sent correspondence to defendants warning of the possibility of a bad faith claim, she was aware of her potential lawsuit when she filed for bankruptcy in October 2000. The court found that she failed to list the present lawsuit as a potential asset on her bankruptcy schedule and “did not bring any claim to the attention of the trustee, nor did she attempt to amend the schedules.” Therefore, it ruled that the doctrine of judicial estoppel precluded her “from asserting any claims against these defendants for events prior to January 17, 2001.” Moreover, the circuit court held that because she was judicially es-topped from pursuing a claim based on pre-bankruptcy conduct, it was as though the facts occurring pre-bankruptcy legally did not exist. Consequently, McDowell was also barred from using pre-bankrupt-cy facts as evidence in support of her present claim.

[¶ 10.] In October 2005, the court issued a letter decision granting defendants’ motion for summary judgment on McDowell’s claims for bad faith, intentional and negligent infliction of emotional distress, and punitive damages. It noted that McDowell “continues to urge that she was denied prompt payment of her medical bills thereby supporting her claim of damages.” The court reiterated that the doctrine of judicial estoppel precluded it from considering conduct before the bankruptcy, and therefore, it only examined the specific instances of unreasonable post-bankruptcy delay alleged by McDowell in her second amended complaint.

[¶ 11.] According to the court, even assuming, as alleged by McDowell, that “defendants had a duty to perform a reasonable investigation into [her] health care needs and to provide for the health care by promptly paying reasonable charges of health care providers,” she failed to show that the payments made by defendants were untimely or unreasonably delayed. Defendants, the court found, while admitting that medical services were provided to McDowell, denied the length of delay with “specific factual references[.]” McDowell, on the other hand, failed to contradict defendants’ responses, and instead relied on her pleadings and conclusions. As a result, the court granted defendants’ motion for summary judgment on McDowell’s claim for bad faith.

[¶ 12.] The court also granted defendant’s motion for summary judgment on McDowell’s claims of fraud and deceit and interference with business relations. McDowell does not challenge those rulings on appeal. The claims for intentional and negligent infliction of emotional distress were dismissed because the court found that there was no showing that the “defendants were engaged in extreme and outrageous conduct.” Further, the court dismissed her claim for punitive damages, because such damages are dependent on an award of compensatory damages.

[¶ 13.] McDowell appeals claiming that material issues of fact exist on whether defendants’ conduct in delaying payment of her medical services constitutes bad faith, intentional and negligent infliction of emotional distress, and entitlement to punitive damages.

Standard of Review

[¶ 14.] “When reviewing a grant of summary judgment, we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15 — 6—56(c); Keystone Plaza Condominiums Ass’n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846). “We view the evidence in a light most favorable to the nonmoving party.” Toben v. Jeske, 2006 SD 57, ¶ 9, 718 N.W.2d 32, 35 (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). The moving party has the burden of proving “the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD 108, ¶ 15, 669 N.W.2d 487, 493 (citing Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989)).

Analysis and Decision

[¶ 15.] In Champion v. U.S. Fidelity & Guar. Co., 399 N.W.2d 320, 324 (S.D.1987), we recognized a cause of action for bad faith arising out of a workers’ compensation claim. To prevail, a claimant must demonstrate that the claim was denied with knowledge of the absence of a reasonable basis for the denial or in reckless disregard of whether a reasonable basis existed. Id. In this case, McDowell’s claim for bad faith is not based on a denial of benefits. Rather, she contends that defendants acted in bad faith by unreasonably delaying payment for her necessary medical care.

[¶ 16.] While this case does not involve a per se denial of benefits, the Eighth Circuit Court of Appeals has recognized that a “[d]enial of benefits may be inferred from the insurer’s failure to process or pay a claim....” See Kirekoff v. Am. Cas. Co., Reading Pennsylvania, 997 F.2d 401, 405 (8thCir.1993). Here, deféndants had a duty to pay McDowell’s “future reasonable and necessary medical benefits directly and causally related to her injuries” in accordance with the terms of the parties’ settlement agreement and in compliance with the applicable workers’ compensation laws. Therefore, if defendants unreasonably delayed payment of her necessary medical bills with an absence of a reasonable basis for the delay, and McDowell suffered a compensable loss as a result, then such conduct might support a claim for bad faith. See id However, the mere existence of a delay between the date she received medical care and the date the bill was finally paid cannot in and of itself give rise to a bad faith cause of action. Rather, McDowell must demonstrate that there was an absence of a reasonable basis for the delay and defendants’ knowledge, or reckless disregard, of the absence of a reasonable basis. See Champion, 399 N.W.2d at 324.

[¶ 17.] In support of her bad faith claim, McDowell identifies three delayed payments that she contends create a question of fact on whether defendants’ conduct constitutes bad faith. The first delayed payment was for care received at Avera McKennan Hospital by Anesthesiology Associates on March 20, 2003. According to McDowell, defendants did not pay this bill until November 13, 2003, 226 days later. The second delayed payment, on a bill from Avera McKennan, was for care provided June 9 through June 12, 2003. She claims the bill was not finally paid until November 13, 2003, 145 days later. The third delayed payment, also on a bill from Avera McKennan, was for care provided on April 6, 2004, and she asserts that it was not paid by defendants until September 17, 2004,161 days later.

[¶ 18.] Defendants do not challenge the existence of McDowell’s bills or their obligation to pay them; they dispute the delay lengths McDowell averred. Defendants provided specific and supported responses that explain and lessen the length of delay for each bill. In regard to the first bill, which McDowell asserts that 226 days passed before it was paid, defendants indicate that the bill was received by them on March 29, 2003, submitted to audit thereafter, with a check issued on July 22, 2003, for $147.36, and a final payment on November 13, 2003, for $68.58. The second bill, from November 6, 2003, which McDowell asserts was not paid until 145 days later, was, according to defendants, actually paid on December 4, 2003. Finally, defendants claim that the last bill from April 6, 2004, was not paid on September 17, 2004, as McDowell alleges, but on May 21, 2004.

[¶ 19.] McDowell does not attempt by affidavit or other evidence to contradict defendants’ itemized responses on payment of these bills. Instead, she maintains that defendants have a duty to promptly and expeditiously pay her medical bills and whether they acted in bad faith should be a question for the finder of fact. She further asserts that defendants’ bad faith conduct is more evident when their actions are viewed in light of what occurred before her bankruptcy. Although she agrees that the doctrine of judicial estoppel precludes her from using the pre-bankruptcy conduct as the basis of her claim, she contends that what happened before her bankruptcy is admissible as “other acts” evidence. She seeks to use this pre-bankruptcy evidence of delayed payments to prove defendants’ continuing failure to timely pay her bills extending from before her bankruptcy. See SDCL 19-12-5 (Rule 404(b)); see also State v. Wright, 1999 SD 50,-¶ 14, 593 N.W.2d 792, 798-99.

[¶ 20.] Rule 404(b) permits admission of other acts evidence to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” SDCL 19-12-5 (Rule 404(b)). Generally, the process of deciding the admissibility of Rule 404(b) evidence can be broken down into steps. Initially, the proponent must show the relevance of the “other acts” evidence. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d at 798. Then, if the evidence is relevant, the court must weigh the probative value against the danger of unfair prejudice. Id. The opponent has the burden of establishing that the danger of unfair prejudice substantially outweighs the probative value. Id. ¶ 16 (citations omitted). Last, if the evidence is admitted, the court should instruct the jury on the limited purpose for which the jury may consider the evidence. SDCL 19-9-12; Wright, 1999 SD 50, ¶17, 593 N.W.2d at 800 n. 6.

[¶ 21.] Even if we were to declare the pre-bankruptcy acts admissible under Rule 404(b) as evidence of “intent,” “knowledge,” “identity,” or “absence of mistake or accident,” as McDowell argues, she must still have sufficient evidence of defendants’ post-bankruptcy conduct to support her post-bankruptcy bad faith claim. Indeed, McDowell’s counsel conceded in oral argument that if her post-bankruptcy delay claims are insufficient in themselves to establish bad faith, then the pre-bankrupt-cy “other acts” evidence “may very well be” irrelevant. We agree. Although “other acts” under Rule 404(b) can constitute substantive evidence of “intent,” “knowledge,” “identity,” or “absence of mistake or accident,” they are not substantive evidence of bad faith conduct itself. United States v. Abboud, 438 F.3d 554, 583 n. 8 (6thCir2006) (404(b) other acts can be substantive evidence of intent, lack of mistake, and motive). McDowell must have evidence of bad faith conduct to support her present cause of action. Only then could the other acts evidence become relevant. As McDowell herself asserts, the present case does not deal -with her cause of action for defendants’ alleged bad faith occurring before January 17, 2001.

[¶22.] “The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.” Estate of Elliott, 1999 SD 57, ¶15, 594 N.W.2d 707, 710 (citing Wilson, 83 S.D. at 212, 157 N.W.2d at 21). On the other hand, “[t]he party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.” Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 223 (S.D.1988) (citing Hughes-Johnson Co., Inc. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972)). See also State Auto Ins. Companies v. B.N.C., 2005 SD 89, ¶ 6, 702 N.W.2d 379, 382. “[T]he nonmoving party ‘must substantiate [her] allegations with sufficient probative evidence that would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy.’ ” Elliott, 1999 SD 57, ¶ 16, 594 N.W.2d at 710 (quoting Himrich v. Carpenter, 1997 SD 116, ¶ 18, 569 N.W.2d 568, 573 (quoting Moody v. St. Charles County, 23 F.3d 1410, 1412 (8thCir.1994))).

[¶ 23.] Although McDowell identifies three specific bills mentioned above in support of her claim, she has failed to substantiate her allegation that defendants delayed payment without a reasonable basis and with knowledge of or in reckless disregard of the absence of a reasonable basis. She has not contradicted defendants’ responses that lessen and explain the length of the delays. And she makes no claim that during the time these three bills were unpaid her medical providers refused to continue treating her.

[¶ 24.] Based on our review of the record, we conclude that McDowell’s bad faith claim is premised on the fact that a certain number of days passed from the date she received treatment and the date the bill was finally paid. This, however, does not alone create a genuine issue of material fact on whether defendants unreasonably delayed payment of her medical bills, or that they did so with an absence of a reasonable basis for the delay. Thus, summary judgment was properly granted.

[¶ 25.] McDowell also argues that a genuine issue of material fact exists precluding summary judgment on her claim of intentional infliction of emotional distress. To prove the tort of intentional infliction of emotional distress, McDowell must establish “that the defendant (1) by extreme and outrageous conduct, (2) acted intentionally or recklessly to cause the plaintiff severe emotional distress, (3) which conduct in fact caused the plaintiff severe distress, and (4) the plaintiff suffered an extreme, disabling emotional response to the defendant’s conduct.” See Harris v. Jefferson Partners, L.P., 2002 SD 132, ¶ 11, 653 N.W.2d 496, 500 (citing Henry v. Henry, 2000 SD 4, ¶ 6, 604 N.W.2d 285, 288); see also Gilchrist v. Trail King Ind., Inc., 2000 SD 67, ¶ 26, 612 N.W.2d 10, 17 (citation omitted). Whether the defendants’ conduct was extreme and outrageous is initially a question for the circuit court. Harris, 2002 SD 132, ¶ 11, 653 N.W.2d at 500 (citing Richardson v. East River Elec. Power Coop., 531 N.W.2d 23, 27 (S.D.1995)).

[¶ 26.] McDowell contends that because defendants were aware of her “susceptibility to emotional distress” and knew that their reckless conduct would likely result in emotional distress, there is a genuine issue of material fact supporting her claim that by unreasonably delaying payment of her medical bills defendants’ conduct was extreme and outrageous. However, even taking into account her particular susceptibility to emotional distress, we cannot say that the manner in which defendants processed and paid her medical bills was “ ‘so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’ ” Trail King, 2000 SD 67, ¶ 26, 612 N.W.2d at 17 (citations omitted). Therefore, summary judgment was properly granted. Also, because no causes of action remain, McDowell’s issue regarding punitive damages is moot.

[¶ 27.] Affirmed.

[¶ 28.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

      . Her petition to reopen was denied by the Department. The circuit court affirmed the Department’s decision, and McDowell appealed to this Court. Today we also affirm that decision, in a separate opinion.

      . Her complaint mistakenly dated her August 23, 1999 bill as August 23, 2000. In her brief to this Court, however, she noted that the proper date is August 23, 1999.

      . Her second amended complaint alleged that defendants unreasonably delayed payment for "services provided by Avera McKennan Hospital and Anesthesiology Associates on October 6, 2000, May 23-26, 2001, October 17-20, 2001, January 25-28, 2002, May 15-18, 2002, November 22-25, 2002, March 20-23, 2003, June 9-12, 2003, August 18-21, 2003, November 6-9, 2003, January 30-February 2, 2004, April 6-9, 2004 and July 30, 2005[.]”

      . After she filed her second amended complaint, Wayne Kinonen was no longer a named defendant.

      . The circuit court noted that in "an apparent attempt to show causation," McDowell submitted the affidavit of Dr. Susan Eleeson. Dr. Eleeson had been treating McDowell since January 18, 2000, for clinical depression. Dr. Eleeson asserted that the defendants’ "patterns of delay and denial of workers' compensation benefits, engender in [McDowell] feelings of abject hopelessness.” According to Dr. Eleeson, because of the "irresponsible and abusive way [she] has been and is being treated by the defendants in this case" her depression has been difficult to manage. In its ruling, the circuit court held that Dr. Elee-son's “affidavit is conclusory in content” and "contains no facts which are [at] all germane to this proceeding.” Further, it found that "[p]hrases appear throughout the affidavit which are only opinions and are not facts,” and therefore, it "is wholly lacking in providing or supplying insights for the court's benefit.”

      . The circuit court noted that on October 3, 2001, Reliance Insurance Company, Planet's parent company, was declared insolvent and placed in liquidation and the South Dakota Guaranty Association assumed responsibility for processing McDowell's workers' compensation claims. Therefore, defendants, including Crawford, were relieved of responsibility for processing and paying of McDowell’s claims from October 2, 2001, until the Guaranty Association transferred the claim back to defendants. In October 2002, Citibank became self insured under SDCL 58-29A-71(l) and Crawford resumed its role as the administrator for McDowell's claims.

      . As support for their responses to McDowell’s request for admissions, defendants cite certain "Bates” numbers and "Navigator Reports.” This information was not provided in the record on appeal. Nonetheless, as the circuit court recognized, McDowell never challenged or contradicted defendants' contentions or information.

      . The circuit court concluded that “with specific checks and audit references” defendants disputed the length of delays alleged by McDowell. Then, as the court noted,
      McDowell never contradicts the response, but instead relies upon her pleadings and conclusions. Simply stated, the allegations of excessive delays in payment have been denied by these defendants and supported with specific factual references. McDowell has not produced any evidence to contradict the responses.

      . McDowell did not appeal the court’s decision regarding judicial estoppel.

      . Because the issue is not before us in this appeal, we make no determination on McDowell’s pre-bankruptcy bad faith claim, which she is now attempting to revive in circuit court.

      . Although in her issue statement to this Court she contends that summary judgment was improper on her claim of negligent infliction of emotional distress, she makes no argument in support of this contention. Thus, it is waived.


author: TERNUS, Chief Justice.

text:
    Jeff SOUTHARD, Trish Southard, Jeffrey Stickel, Heather Stickel, Mel Lint, Keith Goodyk, and Greg Dana, On Behalf of Themselves and All Others Similarly Situated in the State of Iowa, Appellants, v. VISA U.S.A. INC. and MasterCard International Inc., Appellees.
    No. 04-1972.
    Supreme Court of Iowa.
    June 22, 2007.

      Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines, for appellants.
    Edward W. Remsburg of Ahlers & Coo-ney, P.C., Des Moines; Robert C. Mason of Arnold & Porter LLP, New York, New York; and Stephen V. Bomse and David M. Goldstein of Heller Ehrman LLP, San Francisco, California, for appellee Visa U.S.A. Inc.
    Kim J. Walker of Faegre & Benson LLP, Des Moines; Kenneth A. Gallo of Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, D.C.; and Gary R. Carney of Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for appellee MasterCard International Inc.
   TERNUS, Chief Justice.

The plaintiffs, Jeff Southard, Trish Southard, Jeffrey Stickel, Heather Stickel, Mel Lint, Keith Goodyk, and Greg Dana, filed this class action on September 18, 2003, alleging the defendants, Visa U.S.A. Inc. and MasterCard International Inc., violated Iowa’s competition law, Iowa Code chapter 553 (2003). They also sought relief against the defendants on the common-law ground of unjust enrichment.

The defendants filed a motion to dismiss the pjaintiffs’ action on the basis that under well-established, common-law principles the plaintiffs could not recover for derivative or remote injuries. The district court granted the defendants’ motion and dismissed the plaintiffs’ petition in its entirety.

The plaintiffs appealed. We affirm.

I. Standard of Review.

We review a ruling on a motion to dismiss for the correction of errors at law. Comes v. Microsoft Corp., 646 N.W.2d 440, 442 (Iowa 2002). A dismissal will be affirmed “only if the petition shows no right of recovery under any state of the facts.” Id.

A motion to dismiss tests the legal sufficiency of the challenged pleading. Haupt v. Miller, 514 N.W.2d 905, 907 (Iowa 1994). Thus, the motion must stand or fall on the contents of the petition and matters of which the court can take judicial notice. See Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861 (Iowa 1990). Wellpled facts in the pleading assailed are deemed admitted. Haupt, 514 N.W.2d at 907. In addition, the petition is assessed in the light most favorable to the plaintiffs, and all doubts and ambiguities are resolved in the plaintiffs’ favor. State ex rel. Miller v. Philip Morris Inc., 577 N.W.2d 401, 403 (Iowa 1998).

“If the viability of a claim is at all debatable, courts should not sustain a motion to dismiss.” Muzingo v. St. Luke’s Hosp., 518 N.W.2d 776, 777 (Iowa 1994). Although motions to dismiss are not favored, they continue to be used, particularly when the issue is standing or the capacity to sue. See, e.g., Philip Morris Inc., 577 N.W.2d at 406-07 (affirming dismissal of State’s claims against tobacco manufacturers as too remote and derivative).

II. Background Proceedings.

The plaintiffs filed a detailed, forty-eight-page petition. In their petition, they allege they are and they represent consumers who purchased goods for cash or used Visa or MasterCard debit cards to make purchases from merchants who accept Visa or MasterCard credit cards as a form of payment. The plaintiffs contend the defendants required merchants who accepted Visa and MasterCard credit cards to also accept Visa and MasterCard debit cards. Due to this tying arrangement, the plaintiffs allege, merchants were forced to pay inflated fees for processing debit transactions over the Visa and MasterCard networks. The plaintiffs assert these magnified costs were passed along to all consumers in the form of higher prices for the goods sold by the merchants.

The plaintiffs allege the tying arrangement orchestrated by the defendants was a violation of Iowa’s competition law. See Iowa Code §§ 553.4, .5. They claim they and others in the class were injured by the defendants’ illegal conduct because all consumers paid merchants artificially inflated prices for all merchandise. See id. § 553.12(2) (“[A] person who is injured ... by conduct prohibited under this chapter may bring suit to ... [r]ecover actual damages resulting from conduct prohibited under this chapter.”).

The plaintiffs also allege the same conduct of the defendants resulted in the defendants’ unjust enrichment at the expense of the plaintiffs and other class members. The plaintiffs seek restitution of the monies received by the defendants as a result of the defendants’ conduct.

The defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted. See Iowa R. Civ. P. 1.421(1). They asserted the plaintiffs could not recover because the plaintiffs’ injuries were derivative and remote. See Philip Morris Inc., 577 N.W.2d at 406-07 (explaining and applying the remoteness doctrine). They further contended the plaintiffs were not “indirect purchasers” who may sue under Iowa’s antitrust law. See Comes, 646 N.W.2d at 451 (allowing suit by indirect purchasers under Iowa’s competition law). Finally, the defendants argued the plaintiffs’ unjust enrichment claim was unsupported by the facts alleged in the petition.

The district court granted the defendants’ motion to dismiss. Employing the test set forth in Associated General Contractors v. California Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), the district court held the plaintiffs’ injuries were too remote to support a claim under chapter 553. The court agreed with the defendants that the plaintiffs in this action were not indirect purchasers like the plaintiffs permitted to sue Microsoft in the Comes suit.

The district court also rejected the plaintiffs’ claim of unjust enrichment. It concluded the same obstacles to recovery that existed with respect to the plaintiffs’ statutory claim precluded their recovery under an unjust enrichment theory. The court further held that as a result of the merchants’ previous recovery from the defendants for injuries the merchants sustained as a result of the defendants’ illegal tying arrangement, the defendants had been stripped of their ill-gotten gains and no unjust enrichment remained. See In re Visa Check/MasterMoney Antitrust Litig., 297 F.Supp.2d 503, 506-09 (E.D.N.Y.2003), aff'd sub nom. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir.2005).

III. Issues on Appeal.

The plaintiffs claim the district court’s dismissal of their antitrust claims due to the remoteness of their injuries was error. They maintain this court rejected such a limitation when we held in Comes that indirect purchasers could sue under Iowa’s competition law. The plaintiffs argue that if we do not find Comes dispositive, we should use the “target area” test to analyze whether they can bring suit under the Iowa competition law, rather than the -Associated General Contractors test employed by the district court.

The plaintiffs also claim the dismissal of their unjust enrichment claim constitutes error. They assert any deficiency in their antitrust claims should not impact the viability of their unjust enrichment theory. The plaintiffs further argue they have sufficiently alleged the required elements for this common-law claim.

IV. Applicability of Comes.

We begin our analysis by addressing the plaintiffs’ assertion that our decision in Comes — that indirect purchasers may bring suit under chapter 553 — is disposi-tive of the present appeal. The premise underlying the plaintiffs’ position is that this court in Comes held common-law rules barring recovery for remote and derivative injuries do not apply to actions brought under chapter 553.

Admittedly, our Comes decision contains some expansive statements with respect to the reach of Iowa’s antitrust statute. See, e.g., Comes, 646 N.W.2d at 445 (“Given the clear, broad language of the state antitrust law, we conclude the Iowa Competition Law creates a cause of action for all consumers, regardless of one’s technical status as a direct or indirect purchaser.”), at 451 (“We conclude our antitrust law contemplates all injured consumers are authorized to bring suit to enforce our antitrust laws.”)- Nonetheless, these statements must be interpreted -within the context in which they were made. As we stated in Comes: “The only issue on appeal is whether the United States Supreme Court case, Illinois Brick [Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977) ], should be followed in interpreting the Iowa Competition Law.” Id. at 442. It is appropriate, therefore, to briefly examine the holding in Illinois Brick.

In Illinois Brick, the Supreme Court held that “the overcharged direct purchaser, and not others in the chain of manufacture or distribution, is the party ‘injured in his business or property’ within the meaning of [the federal antitrust law.]” 431 U.S. at 729, 97 S.Ct. at 2066, 52 L.Ed.2d at 714. The Court pointed out that this issue was “analytically distinct from the question of which persons have sustained injuries too remote to give them standing to sue for damages” under federal law. Id. at 728 n. 7, 97 S.Ct. at 2065 n. 7, 52 L.Ed.2d at 714 n. 7.

In Comes, this court decided the Illinois Brick rule prohibiting indirect-purchaser suits should not be followed in interpreting Iowa’s competition law. 646 N.W.2d at 450. Accordingly, we held “indirect purchasers may maintain an antitrust action in state court.” Id. at 441. Because the plaintiffs in Comes qualified as indirect purchasers who had standing under state law, we had no need in that case to determine whether persons who were not indirect purchasers and who suffered injuries even more remote than those sustained by indirect purchasers had standing.

Thus, with respect to setting the outer limits of what injuries are compensable under Iowa’s competition law, our decision in Comes is narrow. We simply rejected the federal rule barring claims by indirect purchasers. We certainly did not, as suggested by the plaintiffs, determine there were no limits on who could sue under chapter 553. Cf. Kanne v. Visa U.S.A Inc., 272 Neb. 489, 723 N.W.2d 293, 299-301 (2006) (holding Nebraska decision rejecting Illinois Brick indirect-purchaser rule in antitrust suit against Microsoft did not reject all standing requirements).

Before discussing what limits exist with respect to who may sue under Iowa antitrust law due to the common-law remoteness doctrine, we address the plaintiffs’ argument that they are indirect purchasers in the same position as the Comes plaintiffs. The plaintiffs in Comes had purchased computers that came with the Windows 98 operating system preinstalled. Comes, 646 N.W.2d at 441. As a precondition to the use of this operating system, the plaintiffs became end-user licensees of Microsoft. Id. at 441-42. The plaintiffs alleged in the class action filed on behalf of all end-user licensees of Windows 98 living in Iowa that “Microsoft maintained or used a monopoly in conjunction with its Windows 98 operating system for the purpose of excluding competition or controlling, fixing, or maintaining prices in violation of the Iowa Competition Law.” Id. at 442. As a result of this illegal conduct, alleged the plaintiffs, Microsoft charged a higher price for its Windows 98 system than what it would have been able to charge in a competitive market. Id.

The plaintiffs bringing suit in Comes were indirect purchasers of the Windows 98 operating system because “Microsoft did not directly sell its products [to the plaintiffs, but the plaintiffs] ultimately obtained the products through the stream of commerce.” Comes v. Microsoft Corp., 696 N.W.2d 318, 320 (Iowa 2005). The plaintiffs in the present action are not in a comparable position because they did not purchase, directly or indirectly, the product that is the subject of anticompetitive activity by Visa and MasterCard — debit processing services. It is clear from the petition that the plaintiffs are nonpurchas-ers; they simply bought merchandise from businesses that used the defendants’ debit processing services. Kanne, 723 N.W.2d at 301 (holding consumer plaintiffs in identical Nebraska antitrust suit were not indirect purchasers of Visa and MasterCard services). Consequently, our decision in Comes is not dispositive of the issue presented by the present appeal: can a non-purchaser suffering a derivative injury recover under Iowa’s competition statute?

V. Recovery by Person Having a Derivative or Remote Injury.

Iowa law bars recovery of derivative and remote injuries in a variety of situations. See, e.g., Philip Morris Inc., 577 N.W.2d at 406-07 (suit by state against tobacco manufacturers for state’s payment of medical expenses for citizens’ tobacco-related illnesses); Anderson Plasterers v. Meinecke, 543 N.W.2d 612, 613 (Iowa 1996) (suit by employer for its losses due to third-party’s negligent injury of employee). As we explained in Philip Morris Inc., “The remoteness doctrine ‘is not based upon a factual inquiry to determine whether the damages claimed were foreseeable or whether they were a proximate cause; rather, it is a legal doctrine incorporating public policy considerations.’ ” 577 N.W.2d at 406 (quoting Kraft Chem. Co. v. Ill. Bell Tel. Co., 240 Ill.App.3d 192, 181 Ill.Dec. 170, 608 N.E.2d 243, 245 (1993)).

In determining whether this doctrine precludes the plaintiffs’ antitrust claims, we first examine whether recovery for derivative or remote injuries is permitted under Iowa’s competition law. As we noted in Comes, the Iowa statute authorizes recovery by a very broad category of persons: “[A] person who is injured ... by conduct prohibited under this chapter may bring suit to: ... [rjecover actual damages resulting from conduct prohibited under this chapter.” 646 N.W.2d at 443 (quoting Iowa Code § 533.12(2)). In part due to the broad language of the statute, this court in Comes rejected application of the federal rule barring suits by indirect purchasers. Id. at 445. Our decision was also based on the fact that although Iowa’s competition law “took its cues from federal law,” the indirect-purchaser rule was not a part of federal antitrust law at the time the Iowa general assembly enacted its statute. Id. at 447 (noting “six of the seven federal courts of appeals that considered this issue [had] held indirect purchasers could recover damages for antitrust violations”). We concluded, therefore, that “it was impossible for the legislature to have adopted a judicial construction which did not exist at that time.” Id.

Obviously, in considering the application of the remoteness doctrine in the present case, we are dealing with the same broad statutory language interpreted in Comes. The history of federal antitrust law is, however, quite different with respect to the remoteness doctrine than it was with respect to the indirect-purchaser rule. Prior to the enactment of the Iowa competition law in 1976, see 1976 Iowa Acts ch. 1224, the United States Supreme Court observed, “The lower courts have been virtually unanimous in concluding that Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation.” Hawaii v. Standard Oil Co., 405 U.S. 251, 264 n. 14, 92 S.Ct. 885, 892 n. 14, 31 L.Ed.2d 184, 193 n. 14 (1972).

As we determined in Comes, the interpretation given to the federal antitrust law at the time the Iowa competition law was adopted informs our search for legislative intent. Therefore, we conclude the Iowa legislature did not intend to allow every person tangentially affected by a violation of the statute to have a remedy in damages. This conclusion leads us to consider whether the plaintiffs’ injuries are too remote to be recoverable under chapter 553.

VI. Test to Determine Antitrust Standing.

Although lower courts had unanimously rejected claims for remote injuries prior to Iowa’s adoption of its antitrust law in 1976, the United States Supreme Court did not directly address this issue until its 1983 decision in Associated General Contractors. In that case, the Court noted the federal antitrust statute was “broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation,” but concluded “Congress intended the Act to be construed in the light of its common-law background.” Associated Gen. Contractors, 459 U.S. at 529, 531, 103 S.Ct. at 904-05, 74 L.Ed.2d at 733. This common-law background encompassed constraints on who could recover, including limitations on recovery for remote injuries. Id. at 532 n. 25, 103 S.Ct. at 905 n. 25, 74 L.Ed.2d at 734-35 n. 25. In determining who could recover under the federal act, i.e., who has “antitrust standing,” the Court focused on “the plaintiffs harm, the alleged wrongdoing by the defendants, and the relationship between them.” Id. at 535, 103 S.Ct. at 907, 74 L.Ed.2d at 736.

The plaintiffs urge us to reject the Associated General Contractors (AGC) test and employ the “target area” test to analyze standing. Under the latter test, a plaintiff must simply be in the “target area” of the antitrust conspiracy, that is, “the area of the economy which is endangered by a breakdown of competitive conditions in a particular industry.” Id. at 537 n. 33, 103 S.Ct. at 908 n. 33, 74 L.Ed.2d at 737 n. 33. The United States Supreme Court rejected this test in Associated General Contractors, instructing courts to consider the multiple factors set forth in that decision. Id. Moreover, contrary to the plaintiffs’ claim the “target area” test is more widely accepted, it appears federal and state courts have uniformly applied the AGC test.

The “target area” test, which is in essence an analysis of foreseeability, is inconsistent with Iowa’s common-law limitation on recovery for remote injuries, which is not based on the foreseeability of the plaintiffs damages. See Philip Morris Inc., 577 N.W.2d at 406 (“The remoteness doctrine ‘is not based upon a factual inquiry to determine whether the damages claimed were foreseeable ....’” (quoting Kraft Chem. Co., 181 Ill.Dec. 170, 608 N.E.2d at 245)). We think the AGC test is more reflective of the legal context within which the Iowa legislature enacted Iowa’s competition law. Therefore, we apply the AGC factors to determine whether the plaintiffs may recover under Iowa law.

VII. Application of the AGC Test.

To determine standing under our antitrust law, we will examine “the plaintiffs harm, the alleged wrongdoing by the defendants, and the relationship between them.” Associated Gen. Contractors, 459 U.S. at 535, 103 S.Ct. at 907, 74 L.Ed.2d at 736. In Associated General Contractors, the Court focused on five factors to guide its examination: (1) whether the claim alleges a causal connection between the antitrust violation and the plaintiffs alleged harm; (2) whether the plaintiffs alleged injury is of a type sought to be redressed by the antitrust laws; (3) the directness or indirectness of the asserted injury; (4) whether denying a remedy is likely to leave a significant antitrust violation undetected or unremedied; and (5) whether the damages claimed are highly speculative or abstract. Id. at 536^45, 103 S.Ct. at 908-12, 74 L.Ed.2d at 737-43. We think the district court properly applied these factors in deciding the plaintiffs had no standing under Iowa’s competition law.

It is not disputed the plaintiffs have alleged a causal connection between the defendants’ illegal conduct and the plaintiffs’ alleged injuries. On the other hand, the plaintiffs are neither consumers of the defendants’ products nor competitors of the defendants. Therefore, the plaintiffs are not “participants in the relevant market,” and their injuries are not of the type sought to be compensated by antitrust laws. Id. at 538, 103 S.Ct. at 908-09, 74 L.Ed.2d at 738. Clearly, the injuries alleged by the plaintiffs are not even indirect, as the plaintiffs are not in the chain of distribution. Their injuries are better described as derivative. Denying a remedy will not leave the alleged antitrust violation undetected or unreme-died. Indeed, the action brought by merchants against Visa and MasterCard was settled by the defendants’ payment of more than three billion dollars into a settlement fund and an agreement to abandon the alleged tying arrangements. See In re Visa Check/MasterMoney Antitrust Litig., 297 F.Supp.2d at 506-09. Finally, a determination of the plaintiffs’ damages would be a complex process at best and speculative at worst because many factors impact a retailer’s decision-making process when setting prices on products sold to consumers. Considering the AGC factors, we hold the district court properly determined the plaintiffs’ injuries were too remote to be compensable under Iowa’s competition law. See Kanne, 723 N.W.2d at 298-99 (affirming dismissal of identical action brought under Nebraska antitrust law, holding consumers’ injuries were too remote under AGC test); Ho v. Visa U.S.A., Inc., 16 A.D.3d 256, 793 N.Y.S.2d 8, 9 (2005) (same).

VIII. Unjust Enrichment Claim.

The plaintiffs alleged in their petition that the defendants’ illegal tying arrangements unjustly enriched the defendants at the plaintiffs’ expense because the merchants who paid artificially high prices for the defendants’ debit processing services passed those costs along to the plaintiff consumers. The district court dismissed this claim, concluding it suffered from the same remoteness-of-injury problem as the plaintiffs’ antitrust claims and that there was no enrichment due to the defendants’ settlement of the antitrust action brought by merchants.

Plaintiffs rely on the broad and open-ended nature of the equitable doctrine of unjust enrichment to support their claim. See State ex rel. Palmer v. Unisys Corp., 637 N.W.2d 142, 150 (Iowa 2001) (stating that unjust enrichment “can stand on its own as an open-ended, broad theory of restitution”). Plaintiffs overlook that this common-law theory is subject to the common-law rule that bars recovery for remote injuries. Relying on the remoteness doctrine, this court, in Philip Morris Inc., concluded the district court had correctly dismissed the State’s claim for indemnity, a form of unjust enrichment. 577 N.W.2d at 406. See generally Unisys Corp., 637 N.W.2d at 149-50 (noting the theory of unjust enrichment has “given rise to specific derivative theories, such as contribution and indemnity”). We held the State’s injury — payment of citizens’ medical expenses made necessary by the defendants’ conduct — was too remote to recover. Philip Morris Inc., 577 N.W.2d at 406-07.

The same conclusion must logically be reached here. Therefore, the district court did not err in dismissing the plaintiffs’ unjust enrichment claim on the basis the plaintiffs’ injuries were too remote.

IX. Summary.

Iowa’s competition law does not provide a remedy to every person who can trace an injury to a defendant’s anticompetitive conduct. Injuries that are remote under the analysis used in the Associated General Contractors case may not be recovered under chapter 553.

In the present case, the plaintiff consumers’ injuries are remote, and therefore, the plaintiffs lack antitrust standing. Moreover, the plaintiffs are not indirect purchasers of the defendants’ services; they are nonpurchasers. Consequently, they cannot benefit from our decision in Comes to allow indirect purchasers to bring suit under Iowa’s competition law.

Finally, the plaintiffs cannot recover under a theory of unjust enrichment because their injuries are too remote.

The district court correctly granted the defendants’ motion to dismiss the plaintiffs’ claims. Accordingly, we affirm.

AFFIRMED.

All justices concur except HECHT and APPEL, JJ., who take no part.

      . The plaintiffs also allege a claim for "money had and received.” This claim was ultimately dismissed by the district court, who concluded this theory was indistinguishable from the plaintiffs’ unjust enrichment claim. On appeal, the plaintiffs state the district court erred in dismissing their claim for money had and received, but make no argument with respect to this theory and cite no authorities to support this statement distinct from their briefing of the unjust enrichment claim. We therefore do not separately consider or discuss the plaintiffs’ theory of money had and received.


author: /s/ Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST John T. ANDERSON, Jr., a Minnesota Attorney, Registration No. 2549.
    No. A05-335.
    Supreme Court of Minnesota.
    June 27, 2007.
   ORDER

By order filed on November 28, 2005, we reinstated respondent John T. Anderson to the practice of law following suspension and placed him on supervised probation for a period of two years. The Director of the Office of Lawyers Professional Responsibility has filed a petition for invocation of probation and for further disciplinary action alleging that respondent committed professional misconduct warranting public discipline, namely, failing to comply with the terms of his probation and the Director’s efforts to monitor respondent’s compliance with the terms of his probation, in violation of Rules 8.1(b) and 8.4(d), Minnesota Rules of Professional Conduct and our order placing respondent on supervised probation.

Respondent admits his conduct violated the Rules of Professional Conduct and our August 11, 2005, order, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is an extension of respondent’s current supervised probation for two years from the date that a supervisor signs a consent to supervise.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the supervised probation of respondent John T. Anderson is extended for two years from the date a supervisor signs a consent to supervise respondent under the terms of this order, subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation. Respondent shall promptly respond to the Director’s correspondence by its due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct that come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.

b. Respondent shall abide by the Minnesota Rules of Professional Conduct.

c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Within two weeks from the date this order is filed, respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with the inventory of active client files described in paragraph d below. Respondent shall make active client files available to the Director upon request.

d. Respondent shall cooperate fully with the supervisor in his or her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active client file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.

e. Respondent shall initiate and maintain office procedures that ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters that respondent is handling, and that will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.

f.Respondent shall maintain law office and trust account books and records in compliance with Minn. R. Prof. Conduct 1.15, and Appendix 1. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips, bank reports of interest, service charges, and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the approval of this stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.

BY THE COURT:

/s/ Helen M. Meyer Associate Justice