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

text:
    2007 SD 18
    Cheryl TEBBEN, Claimant and Appellant, v. GIL HAUGAN CONSTRUCTION, INC., Employer and Appellee, and General Casualty, Insurer and Appellee.
    Nos. 23847, 23848.
    Supreme Court of South Dakota.
    Argued Feb. 14, 2006.
    Reassigned Oct. 11, 2006.
    Decided Feb. 21, 2007.
    Rehearing Denied March 29, 2007.

      James G. Abourezk of Abourezk Law Offices, P.C., Sioux Falls, S.D., for appellant.
    Michael S. McKnight, Lisa Hansen Mar-so of Boyce, Greenfield, Pashby & Welk, L.L.P., Sioux Falls, S.D., for employer, insurer and appellees.
   KONENKAMP, Justice (on reassignment).

[¶ 1.] Cheryl Tebben sought workers’ compensation benefits for the death of her husband. The Department of Labor denied her claim and Ms. Tebben appealed to the circuit court. The court affirmed the Department’s decision and she now appeals to this Court. We reverse in part and affirm in part.

Background

[¶ 2.] Cheryl and Brian Tebben were married on March 1, 1978. Brian Tebben began working for Gil Haugan Construction, Inc. in July of 2000, primarily as an equipment operator. On July 12, 2003, he fell ill with symptoms that included extreme sweating, vomiting, and weakness. He was taken to the emergency room at Avera McKennan Hospital in Sioux Falls, South Dakota. A CT scan revealed no apparent cause for his symptoms. The physician treating Mr. Tebben believed he was suffering from an inner ear infection and sent him home.

[¶ 3.] Mr. Tebben returned to work at Haugan Construction the following Monday. Two days later, on Wednesday, July 16, 2003, he returned to the emergency room with the same symptoms he had before, but he was also experiencing slurred speech. His family physician, Dr. Michael Farritor, sent him to Sioux Valley Hospital for an MRI, which revealed that Mr. Tebben had suffered several small strokes. He was admitted to the hospital and Dr. Farritor ordered a neurological consultation with Dr. Gene Koob, a Sioux Falls neurologist.

[¶ 4.] Dr. Koob examined Mr. Tebben and reviewed the MRI report. In his consultation report of July 16, 2003, he wrote:

Certainly MRI looks like a sub acute stroke, which could extend back to last week. Possibility of vasculitis needs to be considered, certainly embolus and from the heart has to be considered and because of mother’s history of blood clot we should consider the possibility of an inherited coagulation defect. Also, I think the strong thing we should think about in a physically active male such as him, would be the possibility of a vertebral dissection. The basilar artery on the MRI looks pretty good. He has had his cardiac sector scan.

Dr. Koob then ordered an MRA. Dr. Edward J. Czarnecki, a radiologist, reviewed the MRA and reported that “[t]he proximal right vertebral artery is occluded with reconstitution, possibly through an ascending thyroidal branch.”

[¶ 5.] Mr. Tebben was discharged from the hospital on July 18, 2003, with orders from Dr. Koob to not work for one week and then perform only light-duty work after that. On Monday, July 21, Mr. Tebben went to Haugan Construction to file a workers’ compensation claim. Later that day, he again experienced severe sweating, head pain, and dizziness. He returned to see Dr. Koob, who ordered an EKG. Dr. Farritor performed the EKG and concluded that it was normal, but set an appointment for Mr. Tebben to receive another MRI the next day. In the meantime, Mr. Tebben was sent home, but was advised that if he experienced any more symptoms to go to the hospital. That night he had difficulty breathing and collapsed at his home. Ms. Tebben called 911 and Mr. Tebben was rushed by ambulance to the hospital. He was unresponsive. An MRA was performed and Radiologist Dr. Daniel Crosby found that “[t]here is a complete absence of flow seen within the distal right and left vertebral arteries and basilar arteries through to the basilar tip.” Dr. Crosby then concluded that the “[ojccluded distal left and right vertebral arteries and basilar arteries as described [are] consistent with progression of suspected dissection seen on examinations of 7/16/2003.”

[¶ 6.] Mr. Tebben was placed on life support in intensive care. He remained there for several days with no improvement. On July 28, 2003, he was declared brain dead. He expired after being removed from life support. He was forty-five years old. Ms. Tebben timely notified Haugan Construction of Mr. Tebben’s death and filed a workers’ compensation claim. Haugan Construction denied that his death arose out of and in the course of his employment or was causally related to his employment or employment related activities.

[¶ 7.] A Department of Labor hearing was held on October 5-6, 2004. See SDCL 62-7-12. Dr. David Sabow, a board certified neurologist, testified at the hearing as an expert witness for Ms. Teb-ben. Haugan Construction’s expert was Dr. Khalafalla Bushara, a clinical neurologist who is on staff at the Minneapolis Veterans Administration Medical Center and an assistant professor of neurology at the University of Minnesota. He testified by deposition.

[¶ 8.] The medical experts for both parties agreed that the right vertebral artery was blocked at the section where the artery leaves the vertebra and enters the brain. However, the two experts disagreed on the cause of the blockage. Dr. Sabow believed that the blockage was caused by a “dissection of the vertebral artery with secondary stroke in the base of the brain.” According to Dr. Sabow, because Mr. Tebben suffered a hangman’s fracture in 1984, he weakened or injured his vertebral artery. Then, he explained that “there was an accumulation of injury, especially with the heavy equipment operating and overhead work, and that eventuated in the more acute disseetion[,] which then went on to be the cause of his death.” Based on reasonable medical probability, Dr. Sabow opined that the cause of Mr. Tebben’s death was a dissection of the vertebral artery.

[¶ 9.] Dr. Bushara, on the other hand, concluded that Mr. Tebben’s death could not have been caused by a dissection of the vertebral artery. He based his conclusion on his belief “that objective radiological evidence of a dissection was specifically looked for and never found.” According to Dr. Bushara, Dr. Koob and Dr. Crosby’s medical reports did not include any specific findings from the MRA or MRI that indicated a dissection, only a suspicion of a dissection. Moreover, he asserted that it was highly uncommon for a hangman’s fracture to result in a vertebral artery dissection nineteen years after the original injury. Rather, if such an injury were to cause a dissection, Dr. Bushara believed that it was more likely to occur within weeks of the original injury. Therefore, he concluded, based on a reasonable medical certainty, Mr. Tebben died from an embolization of a clot that traveled and occluded his right vertebral artery and caused a stroke. When asked where the emboli originated, he stated that it was not possible for him to identify an origin because the tests necessary for such determination were not ordered by the treating physician. However, he asserted that the origin was not determinative of his diagnosis or causation opinions.

[¶ 10.] The Department issued its decision on March 30, 2005. It found that because Dr. Koob, in his December 5, 2003 letter, merely opined that it was “possible” that Mr. Tebben’s death was caused by his work activities, his opinion did not establish that Mr. Tebben’s work activities were a major contributing cause of his death. Further, with respect to Dr. Sabow’s opinion, the Department deemed it without foundation and inconclusive. According to the Department, “[a]t best, the medical opinions are not conclusive” on whether Mr. Tebben suffered a dissection of the vertebral artery, because Dr. Bushara testified that a dissection was specifically looked for but never found and Dr. Sabow opined that a dissection did in fact occur. Moreover, the Department found that the evidence was inconclusive on whether Mr. Tebben suffered arterial damage as a result of the 1984 accident and whether his work activities were a major contributing cause of his illness and death. Thus, the Department denied Ms. Tebben’s claim, concluding that she failed to show by a preponderance of the evidence that there was a causal connection between Mr. Teb-ben’s work and illness and his eventual death.

[¶ 11.] Ms. Tebben timely appealed the Department’s decision. Before the hearing in circuit court, she moved under SDCL 1-26-34 to present additional testimony. At the hearing on this motion, Ms. Tebben argued that good cause existed to allow additional evidence in the form of Dr. Koob’s opinion. According to Ms. Tebben, Dr. Koob’s deposition could not be taken in advance of the Department’s hearing because of his impending heart surgery. Dr. Koob was unable to testify live at the hearing because he was on a ventilator at that time. When asked why the hearing was not continued to allow Dr. Koob’s deposition to be taken, Ms. Tebben’s counsel noted that it was impossible at that time to predict when Dr. Koob would recover sufficiently to be available for a deposition due to his age and serious medical condition. In addition, counsel noted that Ms. Tebben wanted to complete the hearing as soon - as possible as she was suffering serious financial difficulties from her own disability, which precluded her from working. She was also about to file for bankruptcy in order to save her family home. Ultimately, the circuit court denied Ms. Tebben’s motion to present Dr. Koob’s testimony.

[¶ 12.] Ms. Tebben also moved to present additional testimony from Dr. Crosby. At a second hearing, Ms. Tebben argued that the second page of Dr. Crosby’s report indicated that a vertebral artery dissection had been found, and therefore, Dr. Bushara’s testimony was clearly erroneous as it was based exclusively on Dr. Crosby not finding a dissection. Haugan Construction opposed the motion, arguing that the second page of the report did not specifically state that a dissection had been found, only that it was suspected. In addition, Haugan Construction noted that Dr. Bushara’s opinion was not exclusively based on the fact that Dr. Crosby did not find a vertebral artery dissection. Dr. Bushara also testified that neither of the MRA reports included findings of the type of abnormalities that would ordinarily be associated with a dissection. In addition, he stated that even if he were to assume a dissection had occurred, it was his opinion, within a reasonable degree of medical certainty, that it would not have been caused by Mr. Tebben’s work at Haugan Construction.

[¶ 13.] An offer of proof was made, which included an affidavit by Dr. Koob stating that in his opinion, based on a reasonable medical probability, a dissection of the vertebral artery was the cause of Mr. Tebben’s death and was the result of his work activities. An affidavit from Dr. Crosby was also included, which stated that his two-page radiology report, dated July 16, 2003, contained his impression from his reading of the MRA and was consistent with a vertebral dissection. Thus, Dr. Crosby stated that in his opinion, based on a reasonable medical probability, Mr. Tebben suffered from a dissection of his vertebral artery. The circuit court denied Ms. Tebben’s second motion.

[¶ 14.] Thereafter, the circuit court affirmed the Department’s ruling denying Ms. Tebben workers’ compensation benefits. On appeal to this Court, Ms. Tebben asserts that (1) the Department erred when it held that Mr. Tebben did not die from a dissection of his vertebral artery, and (2) the circuit court erred when it denied her motion to re-open the Department’s hearing to provide additional evidence from Dr. Koob and Dr. Crosby. By notice of review, Haugan Construction contends the Department erred when it denied its motion to compel discovery related to Dr. Koob.

Standard of Review

[¶ 15.] “Under SDCL 1-26-36, we must ‘give great weight to the findings made and inferences drawn by an agency on questions of fact.’ However, when an agency’s decision is ‘[c]learly erroneous in light of the entire evidence in the record’ a reviewing court should reverse.” Wells v. Howe Heating & Plumbing, Inc., 2004 SD 37, ¶ 9, 677 N.W.2d 586, 590 (quoting SDCL 1-26-36). Questions of law are reviewed de novo. Id. (citations omitted). We also examine, de novo, the documentary evidence contained in the record. Kasuske v. Farwell, Ozmun, Kirk & Co., 2006 SD 14, ¶ 9, 710 N.W.2d 451, 453 (citations omitted). A reviewing court must consider the evidence in its totality and set the Department’s findings aside if the court is definitely and firmly convinced a mistake has been made. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 7, 575 N.W.2d 225, 228-29.

Analysis and Decision

[¶ 16.] Ms. Tebben contends that the Department’s decision is clearly erroneous. Dr. Sabow and Dr. Koob both opined, based on a reasonable medical probability, that Mr. Tebben suffered a dissection of the vertebral artery and that his work activities were a major contributing cause of the dissection. The only evidence in the record offered to contradict their opinions was the deposition testimony of Dr. Bushara. While Dr. Bushara stated that Mr. Tebben did not suffer a dissection, he explained that his opinion was “[b]ased on the report from the radiologist.” Moreover, when asked whether it was possible that Mr. Tebben died of a dissection of the vertebral artery, Dr. Bushara stated, “Only if it is missed by the radiologist, yes.”

[¶ 17.] Nonetheless, Haugan Construction insists that Dr. Bushara’s opinion is based on more than his reading of the radiologist’s report. It asserts that Dr. Bushara also considered the fact that Mr. Tebben was a heavy smoker, and that, according to Dr. Bushara, the 1984 hangman’s fracture and Mr. Tebben’s work activities do not necessarily lead to the conclusion that a dissection occurred. Dr. Sabow, however, testified that because Mr. Tebben, at age forty-five, was trim and in good health, the smoking alone was not a significant risk factor and would not have caused the stroke. Moreover, Dr. Koob, in his consultation report from July 16, 2003, remarked that “the strong thing we should think about in a physically active male such as him, would be the possibility of a vertebral dissection.”

[¶ 18.] Although there certainly is a dispute over what extent Mr. Tebben’s smoking contributed to his death, the Department did not base its decision to deny benefits because it believed Mr. Tebben’s smoking was the major contributing cause. Rather, the Department denied Ms. Teb-ben benefits because it accepted Dr. Bush-ara’s opinion that the radiology report did not indicate that Mr. Tebben suffered a dissection of the vertebral artery. Further, the Department concluded that

[a]t best the medical opinions are not conclusive as to whether [Mr.] Tebben suffered a dissection of the vertebral artery, whether [he] suffered arterial damage in the 1984 accident that combined with his work activities, whether his work activities caused an injury to his vertebral artery, and whether his work activities were a major contributing cause of his illness and death.

Because the Department found the medical evidence to be inconclusive, it held that Ms. Tebben “has not met the burden of showing causation by a preponderance of the evidence” and denied her claim for benefits.

[¶ 19.] In a worker’s compensation case, the “ ‘claimant has the burden of proving all facts essential to compensation[.]’ ” Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D.1992) (quoting King v. Johnson Bros. Constr. Co., 83 S.D. 69, 73, 155 N.W.2d 183, 185 (1967)). To prevail, a claimant “must establish, among other things, that there is a causal connection between [the] injury and [the] employment. That is, the injury must have its origin in the hazard to which the employment exposed the employee while doing [the] work.” Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357-58 (S.D.1992) (internal citations and quotations omitted); see also Hanten v. Palace Builders, Inc., 1997 SD 3, ¶ 9, 558 N.W.2d 76, 78 (citations omitted). “No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of[.]” SDCL 62-l-l(7)(a).

[¶ 20.] On the first page of Dr. Crosby’s MRA report, he remarked,

FINDINGS:
There is a complete absence of flow seen with the distal right and left vertebral arteries and basilar arteries through to the basilar tip. Flow is present within both the posterior cerebral arteries supplying the patent posterior communicating arteries from the internal carotid arteries. Likewise, there is also flow seen within the left posterior inferior cerebellar artery.
The left and right internal carotid, anterior and middle cerebral arteries are patent with no areas of high grade sten-osis or distal flow delay. No findings supportive for a dissection.

(Emphasis added). On the second page under the heading of “IMPRESSION” Dr. Crosby reported,

1. Occluded distal right and left vertebral arteries and basilar arteries as described consistent with progression of suspected dissection seen on examinations of 07/16/2003.
2. Patent posterior cerebral arteries supplied by the internal carotid arteries as described.
3. Patent left posterior inferior cerebellar artery consistent with a patent more proximal left vertebral artery.

(Emphasis added).

[¶ 21.] Contrary to Dr. Bushara’s conclusion that a dissection was “not confirmed,” this report in fact does confirm that the “suspected” dissection was consistent with Dr. Crosby’s findings in the MRA films. The word “suspected” does not refer to Dr. Crosby’s opinion, but rather refers to Neurologist Dr. Koob’s earlier suspicion of a dissection, which required confirmation from Dr. Crosby’s examination of the MRA films.

[¶ 22.] We have often said that medical opinions can be no better than the facts they rely on. Westergren v. Baptist Hosp. of Winner, 1996 SD 69, ¶ 25, 549 N.W.2d 390, 397 (citing Helms v. Lynn’s, Inc., 1996 SD 8, ¶ 21, 542 N.W.2d 764, 768; Bridge v. Karl’s, Inc., 588 N.W.2d 521, 525 (S.D.1995)). Dr. Bushara’s opinion, which relied on Dr. Crosby’s MRA report, is completely undercut by that very report. Indeed, Dr. Crosby’s report was available to the Department at the hearing and to Dr. Bushara both before and during his deposition. It was simply overlooked by everyone, including counsel for Ms. Tebben. The Department carried over this mistake in the findings: “Dr. Bushara opined that objective radiological evidence of a dissection was specifically looked for and never found.” In affirming the Department, the circuit court wrote that Dr. Crosby’s report, “does not clearly state that a dissection was observed by the radiologist, but could be interpreted to mean that his observations were merely consistent with a suspected dissection.” Thus, the original error in Dr. Bushara’s opinion that there was “no evidence” of a dissection was compounded by a conclusion that Dr. Crosby’s report was unclear.

[¶ 23.] To correct the chain of mistaken conclusions reached by the Department and the circuit court, Ms. Tebben moved, under SDCL 1-26-34, to present additional evidence to the circuit court. She offered, among other things, the affidavit of Dr. Crosby, wherein he reconfirmed that he found a vertebral dissection in the MRA. In denying the motion, the circuit court wrote that Ms. Tebben “had the opportunity to offer the testimony of Dr. Crosby at the hearing and failed to do so.” Whether the court ruled correctly on that motion need not be decided. We need go no further than to say that the Department’s original conclusion based on Dr. Bushara’s mistaken opinion was clearly erroneous. See Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶ 18, 653 N.W.2d 247, 251 (citing Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228).

[¶ 24.] Because the medical evidence was offered through depositions, we review de novo all this testimony and the accompanying exhibits. Watertown Coop. Elevator Ass’n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171 (citations omitted); see also Kasuske, 2006 SD 14, ¶ 9, 710 N.W.2d at 453 (citations omitted). From our de novo examination of the record, we can say unequivocally that Dr. Bushara’s opinion mistakenly interpreted Dr. Crosby’s report, and, in accepting that flawed opinion, the Department was clearly erroneous. For this reason, the case is remanded to the Department for a new hearing.

[¶ 25.] A new hearing must also be granted because the Department further erred in requiring all the medical opinions to be conclusive on whether Mr. Tebben suffered a dissection of his vertebral artery and that the dissection was related to his work activities. Ms. Tebben’s burden in this case was to prove causation by a preponderance of the evidence, not beyond a reasonable doubt or with absolute certainty. See Rawls, 2002 SD 130, ¶ 20, 653 N.W.2d at 252 (quoting Caldwell, 489 N.W.2d at 358); see also A. Larson, Larson’s on Workers’ Compensation Law, 128.02(1) (award may be made when medical evidence is “inconclusive, indecisive, fragmentary, inconsistent, or even nonexistent”). There was a dispute between the claimant’s and the employer’s experts. Yet, just because medical opinions differ does not mean that the claimant’s medical evidence is inconclusive. It is only when a claimant’s expert testimony is equivocal or based on mere possibility that we have found the evidence to be inconclusive and insufficient to satisfy the claimant’s burden. See Enger v. FMC, 1997 SD 70, 565 N.W.2d 79 (the claimant’s expert’s testimony was equivocal); Hanten, 1997 SD 3, 558 N.W.2d 76 (claimant’s expert advanced an equivocal medical opinion, thereby making the evidence inconclusive).

[¶ 26.] Here, Ms. Tebben’s expert, Dr. Sabow, testified on causation to a reasonable medical probability, not that causation was possible or that its probabilities were equal. It was Dr. Sabow’s opinion that Mr. Tebben’s death was caused by a dissection of the vertebral artery and that his work activities were a major contributing cause of the dissection. In addition to Dr. Sabow’s expert opinion, Ms. Tebben entered into evidence two letters from Dr. Koob, Mr. Tebben’s treating physician. In a letter dated February 5, 2004, Dr. Koob opined that within a degree of medical probability Mr. Tebben suffered a dissection of the vertebral artery, and that the dissection occurred in relation to his work activities. While Dr. Koob’s letter was not sworn testimony, this alone does not render Dr. Sabow’s opinion inconclusive. Under SDCL 19-15-3 (Rule 703), experts are permitted to base their opinions or inferences on facts or data provided by others. Therefore, the Department’s conclusion that Ms. Tebben failed to present sufficient medical evidence was clear error.

[¶ 27.] The only testimony entered in disagreement with Dr. Sabow’s and Dr. Koob’s medical opinions was the faulty opinion of Dr. Bushara. It is clear from the record that Dr. Bushara made a mistake, a mistake that the Department relied on to the detriment of the claimant. In a new hearing, there is a substantial likelihood that the claimant may be entitled to recover benefits. The South Dakota Workers’ Compensation Act is remedial legislation enacted to protect employees injured in the course of their employment. When there is an obvious mistake resulting in denial of benefits, we will not hesitate to order a new hearing so that the mistake can be corrected.

[¶ 28.] By notice of review, Haugan Construction asserts that the Department abused its discretion when it denied Hau-gan Construction’s motion to compel discovery related to Dr. Koob. At Dr. Bush-ara’s deposition, counsel for Ms. Tebben read a portion of a letter authored by Dr. Koob to Ms. Tebben’s attorney. After counsel read the selected portion, Haugan Construction requested a copy of the entire letter. Counsel for Ms. Tebben refused, claiming that the letter was protected as work product. Haugan Construction brought a motion to compel production of “all letters to and from [claimant or [her] attorney and [claimant’s expert Dr. Koob, including but not limited to Dr. Koob’s May 7, 2004 letter written by Dr. Koob to [c]laimant’s attorney.” According to Hau-gan Construction, the communications were discoverable under SDCL 15-6-26(b)(4). The Department examined the contents of the letter and denied Haugan Construction’s motion, concluding that “the portion of the letter not read at the deposition is attorney work-product and is not a medical record.”

[¶ 29.] “The test we apply for determining whether a document or tangible thing is attorney work product is whether ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Kaarup v. St. Paul Fire & Marine Ins. Co., 436 N.W.2d 17, 21 (S.D.1989) (citation omitted). Based on our review of the record, Dr. Koob was not expressing his medical opinion, but was instead discussing matters related to his review of Dr. Bushara’s report in anticipation of the upcoming deposition of Dr. Bushara. See SDCL 15 — 6—26(b)(3) (work product is defined as “documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative”). Dr. Koob’s letter to Ms. Tebben’s counsel, therefore, is clearly protected by attorney work product, and the Department did not abuse its discretion in denying Haugan Construction’s motion.

[¶ 30.] Reversed in part, and affirmed in part.

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

[¶ 32.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurs in part and dissents in part).

[¶ 33.] I concur on Issue 1, but would not reach Issue 2, and if I did, I would reverse or permit the deposition of Dr. Koob prior to retrial.

      . Dr. David Sabow, Ms. Tebben’s expert, testified that an MRA (magnetic resonance ang-iography) is like an MRI (magnetic resonance imaging), "but what they do is they change the physical parameters and inject into the bloodstream a certain type of contrast.”

      . During his deposition, Dr. Bushara provided the following description of a vertebral artery dissection: the artery or any vessel really has three layers, the inner layer, which is a smooth endothelium or intima, and then the middle layer connective tissue and then the outer layer with the muscle. And the inner layer or the intima, if there is a cut or a tear the blood is forced between the intima and the other layers causing the intima to swell and block the arteryb]

      . Mr. Tebben's prior medical history included a severe cervical injury suffered in a motor vehicle accident in 1984. A fracture to his second cervical vertebrae at the junction of the lamina and spinous process, commonly known as a "hangman’s fracture,” required treatment with a halo collar for three months. According to his medical records, Mr. Tebben suffered no neurological symptoms from the fracture.

      . Five months before his death, Mr. Tebben had worked a significant amount of time on a Haugan Construction job site caulking ceilings, which required him to keep his arms over his head and extend his neck back for prolonged periods of time. Dr. Koob opined that Mr. Tebben’s work "driving heavy equipment [at Haugan Construction] and his previous bouts of work involving having his neck extended for prolonged periods of time were both significant possibilities as to the cause of his problem.”

      .Ms. Tebben's counsel attempted to impeach Dr. Bushara using a letter dated May 7, 2004, authored by Dr. Koob, in which Dr. Koob stated that the dissection was the cause of Mr. Tebben’s injury and death. However, the letter had not been disclosed during discovery. Counsel for Haugan Construction requested a copy. Ms. Tebben's counsel refused, maintaining that it was protected attorney work product. Haugan Construction moved to compel production of the letter. The Department denied the request, but granted a continuance to depose Dr. Koob. With his impending heart surgery, however, Dr. Koob was removed from the expert witness list and the deposition was never taken.

      . In Dr. Koob’s discharge summary, dated July 18, 2003, he stated, "Mr. Tebben is a 45-year-old male admitted to the hospital with acute bilateral cerebellar stroke and who has been found on our studies to have an occluded vertebral artery on the right felt to be secondary to an arteñal dissection.” (Emphasis added).

      . In arguing that Dr. Crosby reported that there were “[n]o findings supportive for a dissection,” Haugan Construction quotes from the first page of Dr. Crosby's report. But that quote only refers to his findings with respect to the "carotid” and “cerebral” arteries, not the "vertebral” arteries discussed on the second page. It seems obvious that everyone overlooked this second page.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2007 SD 19
    William ROTENBERGER, Plaintiff and Appellee, v. Lex BURGHDUFF, Defendant and Appellant.
    No. 24143.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 8, 2007.
    Decided Feb. 28, 2007.
    See also 727 N.W.2d 291.

      Roger A. Tellinghuisen of Tellinghuisen & Gordon, Spearfish, South Dakota, Attorneys for plaintiff and appellee.
    Robert M. Nash of Wilson, Olson & Nash, Rapid City, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Lex Burghduff (Burghduff) appeals from a circuit court decision that declared William Rotenberger (Rotenber-ger) had a prescriptive easement across Burghduffs property. He appeals and raises two issues. We affirm.

FACTS

[¶ 2.] Rotenberger owns two parcels of property in Harding County, which are separated by an 80-acre parcel owned by Burghduff. Rotenbergér bought the land in 1984 from Neil Ketchum (Ketchum). While Ketchum owned the land, he used a trail that runs over Burghduffs land to access his land. He used the trail from 1943 or 1944 to 1984. From 1984 until 2001, Rotenberger used that trail to access his land. In 2001, Rotenberger could no longer use the trail because Burghduff padlocked the gate shut. According to Burghduff, he padlocked the gate because Rotenberger ran over and killed two calves while using the trail. Rotenberger asked Burghduff to remove the padlock so he could use the trail, but Burghduff refused.

[¶3.] Rotenberger sought a declaratory judgment that he held a prescriptive easement over Burghduffs land and an injunction preventing Burghduff from interfering with his use of the easement. This action was dismissed for lack of prosecution under SDCL 15-15-11. After the circuit court vacated the dismissal and entered an order of dismissal nunc pro tunc, making the dismissal without prejudice, Burghduff appealed and that appeal was recently decided. See Rotenberger v. Burghduff, 2007 SD 7, 727 N.W.2d 291 (Rotenberger I).

[¶4.] On July 18, 2005, Rotenberger again sued Burghduff, alleging he had a prescriptive easement and requesting an injunction that prohibited Burghduff from interfering with his use of the easement. Both parties filed motions for summary-judgment, relying on their respective affidavits, the pleadings and the deposition of Ketchum. The circuit court granted Ro-tenberger’s summary judgment motion.

[¶ 5.] Burghduff appeals raising the following two issues:

1. Whether the trial court erred in granting summary judgment when it concluded that a prescriptive easement existed in favor of Rotenber-ger.
2. Whether Rotenberger was required to commence his prescriptive easement action within one year after Burghduff denied access across his property under SDCL 15-3-3.

STANDARD OF REVIEW

[¶ 6.] This Court’s review of a summary judgment grant is well settled:

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party. 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. On the other hand, “the 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.”

Myears v. Charles Mix County, 1997 SD 89, ¶ 6, 566 N.W.2d 470, 472 (citing Ward v. Lange, 1996 SD 113, ¶ 10, 553 N.W.2d 246, 249) (internal citations omitted).

[¶ 7.] 1. Whether the circuit court erred in granting summary judgment when it concluded that a prescriptive easement existed in favor of Rotenber-ger.

[¶ 8.] A party claiming the existence of a prescriptive easement must meet a two-part test by clear and convincing evidence. Rancour v. Golden Reward Mining Co., 2005 SD 28, ¶ 7, 694 N.W.2d 51, 53-54 (citing Thompson v. E.I.G. Palace Mall, L.L.C., 2003 SD 12, ¶ 6, 657 N.W.2d 300, 303-04). First, the party must show “an open, continued, and unmolested use of the land in the possession of another for the statutory period ... of 20 years.” Id. Second, the party claiming a prescriptive easement must show the property is being used “in a manner that is hostile or adverse to the owner.” Id. In order to satisfy the adverse or hostile requirement, the use must be to the “physical exclusion of all others under a claim of right.” Thompson, 2003 SD 12, ¶ 7, 657 N.W.2d at 304.

[¶ 9.] A prima facie case for a prescriptive easement is established “by showing an open and continuous use of another’s land with the owner’s knowledge, creating a presumption that such use is adverse and under a claim of right.” Id. ¶ 8 (citing Kougl v. Curry, 73 S.D. 427, 432, 44 N.W.2d 114, 117 (1950)). Once established, a presumption of a prescriptive easement is created “from the proof of an uninterrupted adverse use for the prescriptive period.” Id. That presumption “may be rebutted by proof that the use was by permission or not under a claim of right.” Id.

[¶ 10.] Rotenberger used the trail from 1984 until Burghduff blocked his access in 2001. These seventeen years do not meet the statutory prescriptive period. However, Rotenberger’s predecessor, Ket-chum, testified he used this trail to access his land from 1943 or 1944 to 1984. Ket-chum testified he never received permission from Burghduffs predecessor to use the trail. This forty or forty-one year period where Ketchum used the trail with the neighbor’s knowledge creates a presumption that a prescriptive easement exists since the land was used for more than twenty years without interruption.

[¶ 11.] Rotenberger, as the moving party, has the burden of demonstrating no genuine issues of material facts exist. Burghduff must diligently resist the motion and “mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment.” Myears, 1997 SD 89, ¶ 6, 566 N.W.2d at 472. Burghduff has not put forth any specific facts that show that Ketchum received permission to use the trail. There are no material facts in dispute that Ro-tenberger’s predecessor fulfilled the requirements for a prescriptive easement, which existed when Rotenberger purchased the land. See Kokesh v. Running, 2002 SD 126, ¶ 16, n. 2, 652 N.W.2d 790, 794-95 n. 2.

[¶ 12.] Burghduff alleges that he “consented to and allowed” Rotenber-ger to use the trail until 2001, therefore, the “hostile or adverse” elements could not be fulfilled. The circuit court noted he did not show any evidence he granted Roten-berger “permission” to use the trail. Instead, the circuit court noted the doctrine of acquiescence, found in adverse possession law, could be used to demonstrate the adverse or hostile requirement in prescriptive easements. It is undisputed that Burghduff had knowledge of Rotenber-ger’s use of the trail and did not prevent him from using it. “When such acquiescence continues during the statutory period prescribed as a bar to reentry, title may be acquired through acquiescence alone.” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 22, 607 N.W.2d 22, 28 (citing Lehman v. Smith, 40 S.D. 556, 168 N.W. 857, 859 (1918)).

[¶ 13.] The forty-one years Ket-chum used the trail can be “tacked” to the time Rotenberger used the trail unimpeded by Burghduff. See Shippy, 304 N.W.2d at 121 n. 2. There are no genuine issues of material fact that the trail was used in “an open, continued, and unmolested ... manner that is hostile or adverse” in excess of the prescriptive period of twenty years. Therefore, Burghduff is not entitled to summary judgment and Rotenber-ger is entitled to summary judgment.

[¶ 14.] 2. Whether Rotenberger was required to commence his prescriptive easement action within one year after Burghduff denied access across his property under SDCL 15-3-3.

[¶ 15.] Burghduff alleges Roten-berger had one year from the time he prevented Rotenberger from using the trail to commence his declaratory action. He bases this claim on SDCL 15-3-3, limitation of actions based on entry on real estate:

No entry upon real estate shall be deemed sufficient or valid as a claim unless an action be commenced thereupon within one year after the making of such entry, and within 20 years from the time when the right to make such entry descended or accrued.

Since its codification in 1939, our Court has only discussed the statute in one case. See Johnson v. Biegelmeier, 409 N.W.2d 379, 381 n. 1 (S.D.1987).

[¶ 16.] In Johnson, the statute was found inapplicable where a party was granted 2.43 acres of neighboring land by adverse possession. 409 N.W.2d at 381. The plaintiff alleged the defendant had to file a claim within one year after occupying the land. Id. In rejecting that claim it was noted that “[a]dverse possession occurs by operation of law and does not require an action to commence it, nor to continue it.” Id. at 382. Furthermore, the Court noted that the term “entry” is not defined and did not go on to define it, but rather it explained that “reading the statute as [the plaintiff] would have us do, it would be antithetical to the statutory provisions for title by adverse possession.” Id.

[¶ 17.] Similarly, it would be antithetical to adverse possession law to interpret the statute as advocated by Burgh-duff. Under his theory, a person claiming title by adverse possession would have one year from the time of entry to bring an action or have twenty years from the time a right to make such entry descended or accrued. There are two problems with this interpretation. First, this interpretation would require a claimant to go to court before his claim had even ripened, as the twenty year statutory period would not be fulfilled. Second, a claimant does not have a “right to make such entry” and need not have a “right to make such entry” in order to start the adverse possession time period.

[¶ 18.] Other courts have interpreted statutes that are identical to SDCL 15-3-3. Their interpretations do not support Burghduffs argument. In Brockman v. Brandenburg, a Wisconsin court found the “entry” mentioned in an identical Wisconsin statute meant an entry constituting an interruption of the adverse possession. 197 Wis. 51, 221 N.W. 397, 398 (1928). In Brockman, the plaintiff (land owner) did not bring an action within one year of his entry, so he could not argue that his entry upon the disputed land to build a fence interrupted the adverse possession. Id. (noting that before an “entry constitutes an interruption of the adverse possession” plaintiff must “commence an action within one year after such entry”).

[¶ 19.] In Adams v. Rockwell, Senator Maison, writing for the Court for the Correction of Errors of New York reaches a similar result. He noted the statute gave “Adams the right to commence his action for the recovery of his land within 20 years from the time his right accrues.... ” 16 Wend. 285, Lock. Rev. Cas. 16 (1836). He went on to note that a land owner has twenty years to take his land back from someone attempting to establish adverse possession.

[¶ 20.] The cases demonstrate that the statute means the land owner threatened with losing his land to adverse possession has one year to commence an action to establish he interrupted the adverse possession by entering the land. In the case of a prescriptive easement claim, the land owner burdened by a potential prescriptive easement would have to prevent the use of the easement. Then, he would have to start an action within one year to establish he interrupted the “open and continued use” elements of a prescriptive easement claim.

[¶ 21.] In this case, Burghduff or Burghduffs predecessor had one year from preventing the use of the easement to commence an action. However, this statute only applies within the twenty-year prescriptive period. Once the twenty years have run, the claimant has a prescriptive easement and the land owner burdened with the easement may not interrupt its usage. When Burghduff prevented Rotenberger from using the trail in 2001, it was too late, as the twenty-year period had already passed and the requirements for a prescriptive easement had been fulfilled.

[¶ 22.] Affirmed.

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

      .The property is located in Harding County, South Dakota, Township 21 North, Range 6 East, BHM described as:
      Section 6: All
      Section 7: S1/2 NE1/4 and Nl/2 SE 1/4

      . Burghduffs property is located in Section 7 and is described as: Nl/2 NE1/4, Section 7, T21N, R6E, BHM, Harding County, South Dakota.

      . The trail was used by stagecoaches and is known as the "Old Stagebrush Road.”

      . Burghduff raises five issues in this appeal. The first three issues were raised and decided in Rotenberger I, 2007 SD 7, 727 N.W.2d 291. This appeal addresses the remaining two issues.

      . “Possession of successive occupants ... can be tacked together to make up the required continuity.” Shippy v. Hollopeter, 304 N.W.2d 118, 121 n. 2 (S.D.1981).

      .Q: Okay. And did you ever have any discussions with the owners of the 80 acres that you crossed to get to this quarter about using this trail or this road to get to it? Did they ever say anything to you?
      A: No sir. Because they trailed across me, and I trailed across them, and I got along with my neighbors. And that’s just the way it was. In fact, when we come out of the forest, we gathered the cattle and [worked] them in my pasture and they trailed them across mine. So we trailed back and forth, and there was never any problems.
      Q: So there was never any discussion about using that road?
      A: No.

      . Burghduffs answer claims he blocked Ro-tenberger’s access to the property in 1994. However, in his brief, Burghduff concedes Rotenberger was allowed to cross the land undisturbed until 2001. Brief for Appellant at 15, Rotenberger v. Burghduff, 2007 SD 19, 729 N.W.2d 175 (Rotenberger II).

      . Essentially a claim for a prescriptive easement is similar to a claim of ownership by adverse possession, except in a prescriptive easement claim, the claimant only receives the easement, not the land title. Thompson, 2003 SD 12, ¶ 7, 657 N.W.2d at 304.

      . North Dakota has an identical statute. NDCC 28-01-06. The North Dakota Supreme Court has cited the statute in one case, but did not interpret it. See Nelson v. Christianson, 343 N.W.2d 375, 377 (N.D.1984).

      . Wis. Stat. section 330.04.

      . The blocking or padlocking of the gate constitutes the "entry” referred to in SDCL 15-3-3. Burghduff brought no action within one year of entry, nor within 20 years from the time when the right to make such entry descended or accrued.” SDCL 15-3-3.


author: HANSON, Justice.

text:
    Stanley L. ROEMHILDT, Respondent, v. GRESSER COMPANIES, INC. and, Zurich Insurance Company/Creative Risk Solutions, Relators (A06-1721)-Respondents, and Met Con Companies and, State Fund Mutual Insurance Company, Respondents-Relators (A06-1793).
    Nos. A06-1721, A06-1793.
    Supreme Court of Minnesota.
    March 29, 2007.

      Jay T. Hartman, Heacox Hartman Mat-taini Koshmrl Cosgriff & Johnson, Saint Paul, MN, for Relators.
    Mark Chapin Hall, Lynn, Scharfenberg & Associates; Mark G. Olive, Sieben, Grose & Von Holtum, Minneapolis, MN, for Respondents.
   OPINION

HANSON, Justice.

These consolidated appeals are brought by a settling employer and a non-settling employer on issues of contribution. Employee Stanley L. Roemhildt filed a worker’s compensation claim against two former employers and their insurers, Met Con Companies, insured by State Fund Mutual Companies (collectively Met Con), and Gresser Companies, insured by Zurich Insurance Company/Creative Risk Solutions (collectively Gresser). Gresser filed a petition for contribution against Met Con. Gresser commenced payment of benefits pursuant to a temporary order. Gresser and employee reached a lump sum settlement of all claims except future medical expenses. The compensation judge found that Met Con was liable to the employee for benefits and that Gresser’s settlement with employee was reasonable. The compensation judge awarded Gresser contribution for paid benefits, including the payment of the lump sum settlement. The Workers’ Compensation Court of Appeals (WCCA) affirmed the finding that Met Con was liable to employee, but reversed the contribution award, holding that the settlement agreement was not an appropriate basis for contribution. We affirm in part and reverse in part.

On August 17, 2001, employee injured his low back while working for Met Con. On August 23, 2001, Met Con filed a First Report of Injury, and five days later Met Con filed a Notice of Insurer’s Primary Liability, accepting liability for employee’s work-related injury and agreeing to pay temporary total disability. Met Con voluntarily paid some of employee’s medical expenses. On September 18, 2001, Met Con filed a second Notice of Insurer’s Primary Liability, denying primary liability, and terminated the payment of benefits to employee.

When employee was laid off from Met Con, he began working for Gresser. While employed at Gresser, employee reported two work-related injuries to his low back: the first occurred on September 7, 2004, and the second on October 4, 2004. Gresser filed a First Report of Injury and Notice of Insurer’s Primary Liability, accepting liability for the September and October injuries. A compensation judge entered a temporary order under Minn. Stat. § 176.191, subd. 1 (2006), requiring Gresser to begin paying benefits to employee for temporary total disability.

After being placed on partial restrictions by his doctors, employee returned to work at Gresser until March 2005, when he was completely unable to work. Employee filed a claim petition seeking various workers’ compensation benefits from both Met Con and Gresser. Gresser filed a petition for contribution against Met Con. The claim petition and petition for contribution were consolidated.

Employee’s claims were resolved in a mediation, which resulted in a settlement agreement between employee and Gresser. Met Con was invited to join the mediation, but declined. The carefully crafted stipulation for settlement between employee and Gresser stated, among other things, that: (1) employee accepted the lump sum payment as a full, final, and complete settlement of all past, present, or future claims that he might have against Gresser and Met Con, except claims for future medical expenses; (2) Gresser preserved its claim for contribution and reimbursement against Met Con; (3) the settlement did not limit any defense that Met Con may have against employee; (4) Gresser would pay employee a lump sum of $82,500.00; and (5) employee would assign to Gresser all rights he had against Met Con. The settlement was approved by a compensation judge, pursuant to Minn. Stat § 176.521, subd. 2 (2006), and an award based on the settlement was entered.

An evidentiary hearing was then held on Gresser’s contribution claim against Met Con. The compensation judge found that: (1) the injury sustained by employee while working at Met Con was work-related, arose out of and in the course of his employment, and was a permanent injury from which the employee never fully recovered; (2) the injuries sustained by employee while working at Gresser were work-related, arose out of and in the course of his employment, and were permanent injuries from which the employee never fully recovered; (3) Gresser was entitled to contribution from Met Con for specified portions of the benefits that Gresser had paid to employee, including the lump sum payments; (4) the specified benefits should be apportioned 50% against Met Con and 50% against Gres-ser; and (5) Met Con’s statute of limitations defense failed because the payments that Met Con had made to employee, before Met Con denied liability, “tolled” the statute.

Met Con appealed. The WCCA affirmed the rejection of Met Con’s statute of limitations defense, but reversed on Met Con’s liability for contribution, concluding that the settlement could not be enforced against Met Con because Met Con was not a party to the settlement and Met Con could not be' required to contribute for benefits that Gresser had paid but that had not yet accrued. Roemhildt v. Gresser Co. Inc., 2006 WL 2646040, at *6, *9 (Minn. WCCA Aug. 23, 2006).

Met Con appealed from the WCCA’s decision on the statute of limitations, and Gresser appealed from the WCCA’s decision on contribution. Both issues present questions of law, which we review de novo. Owens v. Water Gremlin Co., 605 N.W.2d 733, 735 (Minn.2000).

I.

Met Con argues that, although its initial acceptance of liability and voluntary payment of benefits may have tolled the statute of limitations, that tolling ended and the running of the limitations period restarted when Met Con filed a second notice denying liability, more than three years before employee filed his claim.

The statute of limitations contained in Minn.Stat. § 176.151 (2006) provides:

The time within which the following acts shall be performed shall be limited to the following periods, respectively:
(1) Actions or proceedings by an injured employee to determine or recover compensation, three years after the employer has made written report of the injury to the commissioner of the Department of Labor and Industry, but not to exceed six years from the date of the accident.

(Emphasis added.) Because Met Con filed a written report of injury to the Department of Labor and Industry on August 23, 2001, the applicable statute of limitations was three years. If not satisfied, the limitations period would have expired on August 23, 2004. Employee filed his claim petition in October 2004, and Gresser filed its claim for contribution in November 2004, both after that three-year period. But the statute of limitations does not bar those claims if Met Con’s earlier payment of benefits constituted “proceedings” that stopped the running of the limitations period.

In Meinen v. Dashow, we affirmed a compensation judge’s decision that “payments of compensation made by the insurer and the filing of evidence of such payments with the commission constituted a ‘proceeding,’ ” with the consequence that the statute of limitations “has no application.” 283 Minn. 269, 271-72, 167 N.W.2d 730, 732 (1969). We held that even though the insurer later filed a denial of liability, that “does not alter the situation” because “we do not see how a change of mind on the part of the employer-insurer could transform acts constituting proceedings before the Workmen’s Compensation Commission to something less than that.” Id. at 272, 167 N.W.2d at 732.

The Meinen decision, and the cases it relied on, did not refer to the concept of “tolling,” but instead concluded that the commencement of a proceeding "within the limitations period makes the statute of limitations thereafter inapplicable to the claim. See, e.g., Nyberg v. Little Falls Black Granite Co., 192 Minn. 404, 406, 256 N.W. 732, 733 (1934) (“To hold otherwise would be to put at a disadvantage the employe[e] who reaches an agreement as to his compensation as compared with one who institutes a controversy.”); Knopp v. Gutterman, 258 Minn. 33-34, 37, 102 N.W.2d 689, 691, 696 (1960) (holding that the two-year statute of limitations did not bar a claim brought more than three years after the injury because the employer’s voluntary payment constituted a “proceeding” that avoids the time limit of the statute). But when the Meinen decision was cited with favor in some subsequent cases, the concept of tolling was, perhaps inadvertently, engrafted on it. See, e.g., Savina v. Litton Indus./Litton Med. Sys., 330 N.W.2d 456, 457, 458 (Minn.1983) (holding that voluntary payments “may constitute ‘an action or proceeding’ * * * that tolls the running of [the statute]” (emphasis added)); Weidemann v. Kemper Ins. Group, 312 Minn. 157, 160, 251 N.W.2d 117, 119 (1977) (stating that “the payment of medical expenses may be a ‘proceeding’ that results in tolling the statute of limitations” (emphasis added)).

These references to tolling raise the question whether the commencement of a proceeding by an employer’s voluntary payments merely suspends the running of the limitations period, so that an employer’s later denial of liability restarts the running of the statute. Met Con reads Meinen to only recognize a tolling of the statute of limitations and argues that a subsequent filing of a notice of denial ended the tolling and restarted the running of the limitations period. Met Con also argues that legislative amendments to the Workers’ Compensation Act in 1981 and 1983 implicitly overruled Meinen. We disagree with these arguments for several reasons.

First, the rationale in Meinen was broader than a mere tolling of the limitations period. Meinen equated the employer’s voluntary payment of benefits to the commencement of an action which, if done within the limitation period, satisfies the statute of limitations and makes it no longer applicable. 283 Minn. at 272, 167 N.W.2d at 732.

Second, there is no reference to tolling in the statute of limitations! In this respect, section 176.151 is unlike statutes in some other states that specifically provide that the voluntary payment of benefits only tolls the limitation period for a specified time after the last payment. See, e.g., Ala.Code § 25-5-80 (1975) (stating that if payments have been made, the period of limitation does not begin to run until the time of the last payment); Fla. Stat. § 440.19 (2006) (stating that the payment of benefits tolls the limitation period for one year from the date of the last payment); Ga.Code Ann. § 34-9-82 (2004) (stating that compensation will be barred unless a claim is made within one year of the date of injury but if payments of weekly benefits have been made, the claim may be filed within one year after the date of the last payment of weekly benefits). If the Minnesota legislature had intended this consequence, it would have used language similar to that used by these other states.

Third, the 1983 amendment to Minn. Stat. § 176.221, subd. 1 (2006) only provided a mechanism for an employer to terminate benefits, after it had commenced payment, by filing a notice of denial of liability within 30 days after notice of injury. See Act of June 7, 1983, ch. 290, § 129, 1983 Minn. Laws 1310, 1379. That amendment did not provide that such a denial of liability would have any effect on the statute of limitations nor was any simultaneous amendment made to the statute of limitations.

Fourth, although the 1981 amendments to section 176.221, subd. 1, are perhaps more relevant, they do not change the rule in Meinen. They do two things: (1) they shorten the time from 30 to 14 days when compensation must be paid after notice of injury, and (2) they provide that the commencement of payments by an employer does not “waive any rights to any defense.” See Act of June 1, 1981, ch. 346, § 96, 1981 Minn. Laws. 1611, 1672. Met' Con argues that the reference to “any defense” includes a statute of limitations defense.

The WCCA’s dissenting opinion agreed with Met Con, stating that “by adding the language concerning ‘any defense’ to Minn. Stat. § 176.221, subd. 1, the legislature intended to allow employers to assert whatever defenases those employers could have asserted but for their timely and voluntary payment of benefits.” Roem-hildt, 2006 WL 2646040, at ⅜6. Although we recognize that the “any defense” language was designed to encourage an employer/insurer to make voluntary payments, even before their investigation was complete, we conclude that this language is too general to be interpreted as implicitly overruling our longstanding case law on what constitutes a “proceeding” or on the effect that the commencement of a proceeding has on the statute of limitations. The 1981 amendments to section 176.221 were not accompanied by any amendment to the statute of limitations. More specifically, the 1981 amendments did not change the concept of “proceeding” that we relied on to reach our decision in Meinen.

As a result, the effect of the 1981 amendments to section 176.221 is that, although the payment of voluntary benefits does not constitute a “waiver” of a statute of limitations defense, the statute of limitations defense may still be invalid for other reasons. Under the present facts, the statute of limitations defense is invalid, not because it was waived, but because it was satisfied before the limitations period expired.

Met Con argues that the denial of the statute of limitations defense under these facts will discourage employer/insurers from making voluntary payments until their investigation is complete, whereas the 1981 amendments were designed to encourage prompt voluntary payments. We note that an employer or insurer who does not begin payment of compensation within the 14 day period provided in section 176.221, subd. 1, is subject to penalties under subdivision 3 of that section, ranging from 30 percent to 105 percent of the compensation due, depending on the length of the delay. These penalties should encourage prompt voluntary payments. In any event, Met Con’s policy arguments are similar to those that we specifically rejected in Meinen, where we said:

[Tjhese are matters which should be evaluated by the legislature. We do not feel that we would be justified in rejecting the rationale of the Nyberg case, which has been recognized authority in this jurisdiction for over 30 years.

283 Minn. at 273, 167 N.W.2d at 733. Similarly, we would not be justified in now rejecting the rationale in Meinen, which itself has stood for over 30 years.

Finally, Met Con argues that a 1983 amendment that eliminated the Act’s remedial nature implicitly overruled Meinen, which was decided at a time when we gave liberal construction to the Act. Act of June 7, 1983, ch. 290, § 25, 1983 Minn. Laws 1310, 1324 (“[T]he legislature hereby declares that the workers’ compensation laws are not remedial in any sense and are not to be give a broad liberal construction * * *.”). But in Foley v. Honeywell, Inc., we concluded that the 1983 amendment did not overrule prior case law, stating:

The trial court failed to give consideration to our early cases on this issue, concluding that they had been invalidated by the 1983 amendment to the Workers Compensation Act, which eliminated the “remedial nature” of the act, and thus removed the need for a “liberal construction” of the statute. * * * [T]he amendment simply requires that the Act be construed in a non-discriminatory manner. We do not read the 1983 amendment to abolish previous case law, and wish to specifically note its continued validity, except, of course, where overruled by this court or altered by the legislature.

488 N.W.2d 268, 271 n. 2 (Minn.1992) (footnote added).

Because the “any defense” clause in section 176.221 can be reconciled with the decision in Meinen, by concluding that the voluntary payment of benefits does not “waive” a statute of limitations defense but does commence a “proceeding” that makes the statute of limitations defense inapplicable, there is no basis to conclude that the “any defense” clause implicitly overrules Meinen. We affirm that portion of the WCCA’s opinion holding that Met Con’s statute of limitations defense fails.

II.

The WCCA majority reversed the compensation judge’s award of contribution, based primarily on the fact that Met Con was not a party to the settlement: “Because Met Con was not a party to the settlement, the reasonableness of the settlement between the employee and Gres-ser is simply irrelevant to Met Con’s liability.” Roemhildt, 2006 WL 2646040, at *9. The majority also said that nothing in the Act “would allow a compensation judge to compel a party to pay benefits in the absence of proof that such benefits are presently due and actually payable.” Id.

A. The Use of Common Law Principles of Contribution in Workers’ Compensation Cases

Long before contribution or apportionment was expressly recognized in the Act, we applied common law principles of contribution in worker’s compensation cases. Silva v. Maplewood Care Ctr., 582 N.W.2d 566, 568 (Minn.1998) (“In Minnesota, common law principles of equitable apportionment have long been applied to permit apportionment between insurance carriers when two or more successive injuries combine to produce the final disability.”). We first recognized the authority of a compensation judge to apportion liability among successive insurers for injuries occurring under the same employment, and then we concluded that the natural extension of that reasoning was that a compensation judge had authority to allow an employer to seek contribution from another employer for compensation arising out of injuries occurring under each employment. In Haverland v. Twin City Milk Producers Ass’n, we summarized our reasoning as follows:

“[W]e have approved apportionment of liability for disability resulting from successive accidents under the same employer between two insurers, one of whom represented the employer at the time of the first accident and the other of whom represented him when the second occurred. Carpenter v. Arrowhead Steel Products Co., 194 Minn. 79, 259 N.W. 535; Peniston v. City of Marshall, 192 Minn. 132, 255 N.W. 860.”
It appears reasonable that, if liability for compensation arising from two or more industrial accidents under the same employer may be apportioned between his successive insurers, it should likewise be apportionable between successive employers where industrial accidents are sustained under each of them, both of which contribute to the disability of the employee.
* * * [W]e think of no reason why the last employer held primarily liable for the compensation under such circumstances should not have the right to seek proportionate contribution from a former employer under whom the employee sustained an industrial accident which created his physical impairment and which contributed to his final disability.

273 Minn. 481, 488-90, 142 N.W.2d 274, 280 (1966) (citation omitted).

Likewise, in DeNardo v. Divine Redeemer Memorial Hospital, we confirmed that we have used the concept of apportionment to support contribution among successive employers. 450 N.W.2d 290, 292-93 (Minn.1990). We said:

Common law principles of equitable apportionment have long been applied to require successive employers and successive insurers each to contribute their proportionate share of the total responsibility for temporary total and temporary partial disability benefits. The same principles of equitable apportionment also have been applied to allocate responsibility for payment of permanent partial disability (“PPD”) benefits between successive employers or successive insurers when benefits are awarded on the basis of a single permanency rating of the disability resulting from more than one compensable injury.

Id. at 292 (citations omitted).

These common law principles of contribution have been regularly applied by the WCCA. For example, in Niemi v. Mesabi Drill Operations, the employee and all but one employer, Mesabi Drill, reached a settlement. 45 Minn. Workers’ Comp. Dec. 348, 350-51 (WCCA), aff'd without opinion, 476 N.W.2d 895 (Minn.1991). The settling employers then filed a claim for contribution against Mesabi Drill. Id. at 351. The WCCA affirmed the decision of the compensation judge that the employee’s injury at Mesabi Drill “was a substantial contributing factor in her total disability and [that] l/6th of the responsibility for that disability” should be apportioned to the Mesabi Drill injury. Id. at 352-54. And in Masters v. Moorhead Construction Co., the WCCA concluded that the settling insurer’s contribution claims against a non-settling insurer were not barred, stating that to hold otherwise would bar claims for contribution that were specifically authorized by the Act and were recognized under the common law principles of equitable apportionment. 47 Minn. Workers’ Comp. Dec. 432, 437 (WCCA 1992).

It perhaps could have been argued in Haverland that the worker’s compensation laws are purely statutory and there is no legal basis to import common law principles into those laws. But we decided otherwise in Haverland, and we confirmed that decision in DeNardo and Silva.

In the 40 years since Haverland, the legislature has acquiesced in this judicial application of contribution principles in worker’s compensation cases and has not enacted any substantive changes to those principles. It is not that the legislature was inattentive to these issues because, although it has not made substantive changes, it has enacted procedural limitations on the availability of contribution under.the Act. In 1995, apparently in response to the growing number of contribution claims, it amended section 176.191 to add subdivision la, providing that “[e]quitable apportionment of liability for any injury under this chapter is not allowed” in proceedings before a worker’s compensation judge, but only in settlement agreements or in arbitration. See Act of May 25, 1995, ch. 231, art. 2, § 77, 1995 Minn. Laws 1977, 2056-58. But in 1997, the legislature relaxed that procedural restriction by amending section 176.191, subd. 1, to specifically authorize compensation judges to consider contribution claims once a temporary order had been issued that required one employer to commence payment of benefits. See Act of May 9, 1997, ch. 128, § 4, 1997 Minn. Laws, 854, 856; see also Silva, 582 N.W.2d at 569.

B. Met Con’s Objections to Contribution

With this background in mind, we turn to Met Con’s specific objections to the use of the Gresser settlement as the basis for an award of contribution against Met Con.

1. Met Con was not a party to the settlement agreement.

Met Con argues, and the WCCA majority agreed, that Met Con cannot be liable for contribution because it was not a party to the Gresser settlement. But, under the common law of contribution, the fact that one of the liable persons was not a party to a settlement is not an obstacle to contribution. “ ‘Contribution is the remedy securing the right of one who has discharged more than his fair share of a common liability or burden to recover from another who is also liable the proportionate share which the other should pay or bear. Contribution rests upon principles of equity.’ ” Lambertson v. Cincinnati Welding Corp., 312 Minn. 114, 123, 257 N.W.2d 679, 685-86 (1977) (quoting Hendrickson v. Minnesota Power & Light Co., 258 Minn. 368, 370, 104 N.W.2d 843, 846 (I960)). And a party who seeks contribution “need not make payment pursuant to a judgment, but may settle by a fair and provident payment and then seek contribution from other joint tortfeasors for their fair share of the settlement price.” Employers Mut. Cas. Co., v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 235 Minn. 304, 309, 50 N.W.2d 689, 693 (1951). Thus, Met Con’s argument that it should not be liable for contribution because it was not a party to the settlement fails.

2. Met Con did not have an opportunity to litigate directly with employee.

Met Con argues that it was denied due process because it was entitled to a hearing to defend against employee’s claims on the merits. We agree that “ ‘[b]asic fairness requires that the parties in a workers’ compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made.’ ” Manderfeld v. J.C. Penney, 526 N.W.2d 52, 54 (Minn.1995) (quoting Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894 (Minn.1988)). But the Gresser settlement did not purport to establish Met Con’s liability to employee. Instead, Met Con had a full opportunity to defend against liability to employee during the evidentiary hearing on Gresser’s contribution claim.

Met Con did present its defenses to any liability to employee by asserting a statute of limitations defense, providing an adverse medical evaluation of employee, cross-examining employee, and raising other legal challenges. In fact, Met Con had the opportunity to both defend against its underlying liability to employee (i.e., to prove that employee’s 2001 injury was not permanent or did not contribute to his current disability or that employee’s claim was procedurally barred) and to defend against Gresser’s claim of contribution (i.e., to prove that the settlement was not reasonable because the employee was not disabled or the settlement exceeded the amount the employee was likely to recover in benefits). These opportunities satisfied Met Con’s rights to due process.

3. The lump sum settlement included payment for benefits that have not yet accrued.

This brings us to the issue of whether a non-settling employer/insurer can be required to contribute to a lump sum settlement that includes payment for benefits that have not yet accrued. Met Con argues that the compensation judge has no jurisdiction to award benefits that have not accrued on the date of the hearing. The WCCA majority agreed — stating that nothing in the Act “would allow a compensation judge to compel a party to pay benefits in the absence of proof that such benefits are presently due and actually payable.” Roemhildt, 2006 WL 2646040, at *8 (emphasis added). Essentially, compensation benefits are due and payable “as nearly as possible * * * when the wage was payable.” Minn.Stat. § 176.021, subd. 3 (2006).

Because we have rejected Met Con’s statute of limitations defense, and Met Con did not appeal the compensation judge’s findings that Met Con was liable to employee or that specified benefits should be apportioned on a'50/50 basis, Met Con’s general liability to Gresser for contribution is established. The only question is when that liability may be enforced — whether currently, based on Gresser’s lump sum settlement of future benefits, or in the future as each underlying benefit accrues. In essence Met Con claims the right to delay payment of its share of the benefits until each benefit accrues, so that Met Con may take advantage of the possibility that some event might occur that would terminate or reduce employee’s benefits sooner than was contemplated by the lump sum settlement.

The WCCA dissent correctly points out that the majority’s view would require Gresser to “serially assert multiple contribution claims against Met Con for the accrued benefits to which the employee would have been entitled but for the settlement.” Id. at *11 (Johnson, J., dissenting). This process would be inefficient and it overlooks the effect of the settlement, which completely resolved the employee’s claims for the whole array of possible benefits, including temporary total and permanent total disability, temporary partial and permanent partial disability, rehabilitation benefits, and retraining benefits. The WCCA dissent also correctly concludes that the decision of the WCCA majority would subvert the principles of equitable apportionment and discourage settlements. Id. at * 11-12 (Johnson, J., dissenting).

Although these concerns provide good policy reasons why a compensation judge should be given jurisdiction to award contribution based on a settlement that includes future benefits, the question before us is whether common law principles of contribution, as procedurally limited by the Act, do provide that authorization. We conclude that a compensation judge does have jurisdiction to award contribution based on a settlement that includes future benefits. That jurisdiction is based on the combination of the compensation judge’s authority to apply common law principles of contribution and the specific legislative authorization for a compensation judge to hear and resolve all issues raised by a settling employer who has paid benefits under a temporary order and has petitioned for a determination of the liability of any other employer. That jurisdiction is reinforced by the statutory authorization of a compensation judge to approve settlements that include future benefits and to commute an employer’s liability for future benefits into a lump sum amount.

Under common law principles of contribution, a settlement that reflects the present value of future damages can be the basis for a contribution claim. See, e.g., Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.1982). The only question is whether the settlement is reasonable (i.e., is there a sufficient risk of liability for the future damages and is the settlement a fair estimate of the present value of those damages). Id.; see also Samuelson v. Chicago, Rock Island & Pac. R.R. Co., 287 Minn. 264, 268-69, 178 N.W.2d 620, 624 (1970). Thus, unless the legislature has limited this application of common law principles of contribution for workers’ compensation eases, the Gresser settlement is an appropriate basis on which to order contribution. We conclude that the legislature has not limited this application of common law principles of contribution but, instead, has specifically authorized a compensation judge to apply them in the circumstances that are presented here.

First, the Act provides broad authority for a compensation judge to award contribution after a temporary order has been issued. As noted above, although the 1995 amendments to section 176.191 eliminated a compensation judge’s authority to award contribution, the 1997 amendment to the Act reinstated that authority by providing:

At any time after a temporary order is issued, the paying party may also petition for a formal hearing before a compensation judge for a determination of liability among the parties. * * * The compensation judge shall have jurisdiction to resolve all issues properly raised, including equitable apportionment.

Minn.Stat. 176.191, subd. 1 (2006) (emphasis added). This provision does not distinguish between cases where the temporary order was based on a settlement with the employee and cases where the order was based on a contested hearing.

In this case, a compensation judge entered a temporary order requiring Gresser to commence payments of benefits to employee. That order also provided:

IT IS FURTHER ORDERED that following a final determination of liability and if it has been determined that some other employer or insurer is liable for all or part of the compensation paid pursuant to this Temporary Order, then the Workers’ Compensation Division, a compensation judge, or the Workers’ Compensation Court of Appeals shall order the parties held liable to reimburse Gresser Companies and Zurich Insurance for that part of the compensation paid under this Temporary Order, for which the other parties are held liable, including interest at the rate of 12% per year.

Because that temporary order was issued, the compensation judge had complete authority to consider Gresser’s claim for contribution.

Second, Minn.Stat. § 176.521, subd. 2 (2006), reinforces this conclusion because it specifically authorizes a compensation judge to approve a settlement that “purports to be a full, final, and complete settlement of an employee’s right to medical compensation under this chapter or rehabilitation under section 176.102.” This section necessarily contemplates that a compensation judge may approve a lump sum settlement that includes the present value of benefits likely to accrue in the future, such as rehabilitation benefits. In fact, this section provides that such settlements are not valid unless approved (either by a compensation judge, the commissioner, or the WCCA). Id. And it authorizes a compensation judge to “exercise discretion in approving or disapproving a proposed settlement.” Id. In this case, a compensation judge did approve the Gresser settlement under section 176.521, finding that it was reasonable, fair, and in conformity with the Act.

Third, Minn.Stat. § 176.165 (2006) authorizes a compensation judge to commute periodic payments to a lump sum payment, on such terms and conditions as the compensation judge prescribes:

The amounts of compensation payable periodically may be commuted to one or more lump sum payments * * *. In making these commutations the lump sum payments shall amount, in the aggregate, to a sum equal to the present value of all future installments of the compensation calculated on a five percent basis.

In fact, this section authorizes a compensation judge to order a lump sum payment even where the parties have not reached any settlement on that lump sum. We cannot think of any reason why a compensation judge’s authority should be any less where the lump sum amount is specified in a settlement, so long as the compensation judge finds that settlement to be reasonable under common law principles of contribution.

We conclude that these statutory provisions, taken together, provide the compensation judge with jurisdiction to apply common law principles of contribution to a lump sum settlement that includes future benefits. Our conclusion is supported by the prior decisions of the WCCA that have affirmed awards of contribution in such circumstances. The WCCA decisions in Niemi and Masters each involved settlements that included lump sum payments to resolve an employee’s claims for future benefits. Masters, 47 Minn. Workers’ Comp. Dec. at 434; Niemi, 45 Minn. Workers’ Comp. Dec. at 351. Although the legislature limited the applicability of these decisions with its 1995 amendments, it effectively reinstated those decisions, for cases where a temporary order has been issued, with its 1997 amendment.

We hold that Gresser is entitled to recover contribution from Met Con for the lump sum settlement, including contribution for the payment by Gresser of future benefits. Accordingly, we reverse that portion of the decision of the WCCA and reinstate the award of the compensation judge.

Affirmed in part, reversed in part.

MEYER, J., took no part in the consideration or decision of this case.

      . More specifically, the compensation, judge found that: (1) Gresser was 100% liable for benefits paid from September 7, 2004 to January 3, 2005; (2) Gresser was 10% liable for the employee’s .permanent partial disability— thus 10% of the lump sum amount was solely Gresser’s responsibility; and (3) Gresser and Met Con were each 50% liable for the other benefits paid from January 4, 2005 forward.

      . Mel Con may not have satisfied the requirements of the new law because their denial only stated that: “Employee has failed to cooperative] with investigation of injury. Employee’s current pain complaints are a continuation of his personal injury which occurred on approximately 7/15/01.” Cf. Minn.Stat. § 176.221, subd. 1. But we do not address this issue because the adequacy of Met Con’s denial was not challenged.

      . The parties have not brought to our attention any legislative history that would support the conclusion that the legislature intended to address Meinen in its 1981 amendments. In Wagner v. Fanner's Union Central Exchange, we reviewed the 1981 amendments, but did not acknowledge any legislative intent to modify Meinen. 329 N.W.2d 801, 802-04 (Minn.1983). We said that the purpose of the 1981 amendments "was to decrease the time for payment of benefits to injured workers” in order to decrease litigation and lower insurance rates. Id. at 802.

      . We reaffirmed this “even-handed approach” in O’Malley v. Ulland Brothers, 549 N.W.2d 889, 894 (Minn.1996) (“We hold that the even-handed standard is the correct standard to apply in determining questions of law under the Act. The even-handed standard permits the Act to be construed to yield reasonable results consistent with prior decisions of this court and with the legislative intent of section 176.001 — that is to say, that the Act shall be construed in a nondiscriminatory fashion.”)

      . Even settlements that do not meet the qualifications for approval under section 176.521, subd. 2, require some action by a compensation judge because they cannot become effective until they have been confirmed in an award entered under section 176.521, subd. 2a.

      . Met Con's argument, that it should be able to delay payment on the possibility that the actual accrued benefits may turn out to be less than estimated by the lump sum settlement, was properly considered in the contribution hearing as part of the determination of whether the Gresser settlement was reasonable. Met Con was free to argue that the settlement was not reasonable because the lump sum amount overestimated the projected stream of benefits that employee would likely recover. The compensation judge rejected that argument, and Met Con did not appeal from the finding that the settlement was reasonable.