Wise v. Brooks Construction Services

#23938, #23943-a-JKM

2006 SD 80

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

DANNY D. WISE, Claimant, Appellee,
Cross-Appellant and Appellant,

v.

BROOKS CONSTRUCTION
SERVICES and ACUITY, A Employer, Insurer, Appellants,
MUTUAL INSURANCE COMPANY, Cross-Appellees and Appellees,

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN CALDWELL
Judge

* * * *

BRAM WEIDENAAR of
Hoy Trial Lawyers Attorney for claimant, appellee,
Sioux Falls, South Dakota cross-appellant and appellant.

J. G. SHULTZ
JENNIFER L. WOLLMAN of Attorneys for employer, insurer,
Woods, Fuller, Shultz & Smith appellants, cross-appellees and
Sioux Falls, South Dakota appellees.

* * * *

ARGUED ON MAY 23, 2006

OPINION FILED 08/23/06
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MEIERHENRY, Justice

[¶1.] Danny Wise appeals a circuit court decision affirming the South

Dakota Department of Labor’s (Department) determination denying permanent and

total disability benefits pursuant to the odd-lot doctrine. Brooks Construction

Services and Acuity Insurance Company (collectively referred to as Employer)

appeal the circuit court’s decision affirming the Department’s determination that

Wise proved that his December 5, 2001, injury was a major contributing cause of his

need for treatment and surgery to his lumbar spine and that any recovered medical

expenses could be paid through Wise’s counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶2.] Shortly after graduating from high school in 1974, Wise began working

for Employer as a concrete laborer and foreman and remained with the company for

the next twenty-seven years. Over the course of his employment, Wise suffered

several work-related injuries, including three separate injuries to his back, a knee

injury and a neck injury. Wise sought treatment for these injuries from Dr. David

Hoversten, an orthopedic surgeon. Dr. Hoversten performed surgery on Wise’s back

in 1990, 1995, and 1998, including a fusion at the L5-S1 level.

[¶3.] This appeal involves two separate injuries Wise suffered in 2001. The

first injury occurred on July 5, 2001, when Wise was struck in the head by a fifty-

five gallon drum of cement cure. The blow knocked him unconscious, but he was

able to finish out the work day. A co-worker drove him home and his wife took him

to the emergency room that evening. Wise continued to have pain in his neck and

sought treatment from Dr. Fahrendorf, a chiropractor, from July 11, 2001 to

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December 10, 2001. Wise then sought treatment from Dr. Hoversten who in turn

referred Wise to Dr. Wilson Asfora, a neurologist. On May 9, 2002, Dr. Asfora

performed an inferior cervical diskectomy with cord decompression followed by a

fusion at the C5-6. Dr. Asfora released Wise from active treatment on January 14,

2003. Upon his release, Wise was assigned a fifteen percent permanent partial

disability rating by Dr. John Dowdle. Employer paid permanent partial disability

benefits for this injury.

[¶4.] Subsequent to the July injury, Wise returned to work for Employer

and was injured the second time on December 5, 2001, when he slipped on a muddy

ramp at the job site, hyper-extending his back. Due to the injury, Wise left the job

site without notifying his superiors. The next day, Wise was terminated from his

employment for leaving the work site without notifying his superiors. Also that

day, Wise completed the South Dakota Employers First Report of Injury.

[¶5.] Wise sought treatment from Dr. Hoversten who, after examining him,

determined that Wise had sustained an acute back strain with sciatica probably

without disk rupture. Although Wise was unemployed, Dr. Hoversten advised him

not to engage in any work-related activities for one week. Wise returned to Dr.

Hoversten on December 20, 2001, still in pain. Dr. Hoversten noted that there was

an appearance of significant disk strain and ordered an MRI. Dr. Hoversten again

advised him not to engage in any work-related activities for an additional two

weeks. Wise’s condition did not improve. Dr. Hoversten saw Wise again on

January 3, 2002. Based on the MRI results, Dr. Hoversten noted a right-sided disk

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bulge with mild pressure on the nerve root to the right at the L3-4 level. He

recommended a decompressive laminectomy at the L3-4 level.

[¶6.] Initially, Dr. Hoversten thought that the need for treatment and

surgery at the L3-4 level was not caused by Wise’s work-related injury. His opinion

was that the slip in the mud and back hyper-extension was not a major contributing

cause of the need for surgery. Dr. Hoversten believed the major cause was chronic

degeneration with stenosis at the L3-4 level. Based on Dr. Hoversten’s opinion,

Employer denied Wise’s claim for workers’ compensation benefits on January 24,

2002.

[¶7.] Subsequently, Dr. Hoversten changed his opinion as to what caused

the need for Wise’s surgery. While performing a decompressive laminectomy at the

L3-4 level on September 22, 2002, Dr. Hoversten discovered a fracture of the

inferior facet on the left at the L3-4 level. After making this discovery, Dr.

Hoversten no longer believed that the problems Wise was experiencing were

degenerative in nature. He, instead, acknowledged that the slip and hyper-

extension on December 5, 2001, was the mechanism of injury leading to the need for

the surgery. He noted that “this stenosis was not the typical old-age stenosis but is

an injury stenosis due to the facet fracture, and for that reason work comp should

be responsible for that coverage.”

[¶8.] Although Wise was released from care and allowed to return to work in

November 2002, he continued to experience neck pain. He again saw Dr. Asfora

who prescribed physical therapy which Wise completed in February 2003. In March

2003, Dr. Hoversten concluded that Wise had reached maximum medical

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improvement. Wise has not sought or received any medical treatment for his neck

or back since March 2003.

[¶9.] After his termination from Employer and since his recovery, Wise

attempted to obtain suitable employment. Wise was employed by Jans Corporation

as a construction worker for three days in August 2002. Wise left this employment

as the work was outside his physical restrictions. Wise was then employed by Jay

McDonald Construction for six weeks as a cut man for a siding crew. After the

siding jobs were completed, the crew went on to framing jobs. Wise was forced to

quit as the work again fell outside of his physical restrictions.

[¶10.] In April 2003, Wise undertook a more extensive employment search by

looking at the classifieds in the paper, contacting people he knew in the industry

and contacting the Career Service Center. Wise also contacted the South Dakota

Division of Vocational Rehabilitation. He was referred to the Volunteers of America

program for a functional capacities evaluation (FCE). The FCE showed that Wise

was capable of performing light to medium level work. He could work an eight hour

day. He could sit for four hours at forty-five minute durations, stand for six hours

at sixty minute durations, and walk six hours frequently. The FCE indicated that

occasionally Wise could lift 30.2 pounds above his shoulders, 30.2 pounds off the

floor, carry 32 pounds and push/pull 56.3 pounds.

[¶11.] Wise next obtained employment with Austad’s Golf in April 2004.

While the job was described as temporary, Wise had been employed for nineteen

weeks at the time of the hearing. Wise worked as an order packer twenty-two to

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twenty-five hours a week and was paid $7.00 an hour. This wage was less than his

workers’ compensation rate of $468 per week.

[¶12.] Wise filed for workers’ compensation benefits and a hearing was held

on August 12, 2004. The only medical evidence provided was Wise’s medical records

and the deposition testimony of Dr. Hoversten. Both sides presented expert

testimony relating to Wise’s ability to find comparable work in the Sioux Falls area

and his ability to benefit from vocational retraining. Wise’s expert, Thomas Audet,

testified that Wise was physically able to perform light duty work, the occupations

identified as being suitable for Wise would pay less than his temporary total

disability rate and that Wise’s academic aptitude and orientation would preclude

him from competing in any sort of vocational rehabilitation program. Overall,

Audet was of the opinion that Wise was permanently and totally disabled pursuant

to the odd-lot doctrine.

[¶13.] Employer’s expert, Thomas Karrow, disagreed. Karrow identified

several potential employers in Sioux Falls that may have positions that were the

same or similar to Wise’s job with Employer. He further testified that Wise would

benefit from vocational rehabilitation programs and specifically identified programs

at Southeastern Technical Institute (STI) that he believed were appropriate for

Wise.

[¶14.] After having heard and considered the testimony of the witnesses and

the exhibits and evidence presented by the parties, the Department deemed the

lower back injury sustained by Wise on December 5, 2001, to be compensable and

ordered that Employer pay Wise’s medical expenses directly to counsel for Wise.

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Further, the Department found that Wise had not shown that he was unemployable

and denied Wise’s permanent and total disability benefits pursuant to the odd-lot

doctrine.

[¶15.] Employer appealed the Department’s decision that Wise’s injury on

December 5, 2001, was a major contributing cause for his need of treatment and

surgery. Employer further appealed the Department’s decision that Wise’s medical

expenses be paid through his counsel’s office. Wise filed a cross-appeal, claiming

the Department erred in denying permanent and total disability benefits pursuant

to the odd-lot doctrine. The circuit court affirmed the Department’s decision in all

respects. Wise filed this appeal raising one issue:

Whether the circuit court erred as a matter of law in affirming
the Department’s denial of permanent and total disability
benefits pursuant to the odd-lot doctrine.

Employer filed a notice of review raising two issues:

1. Whether Wise proved that his December 5, 2001, injury was a
major contributing cause of his need for treatment and surgery
to his lumbar spine.

2. Whether Wise is entitled to have any recovered medical
expenses paid through his counsel’s office.

Because Wise’s injury must be determined to be a major contributing cause before

odd-lot benefits can be determined, we address issue two first.

STANDARD OF REVIEW

[¶16.] “This Court’s standard of review for an administrative agency decision

is well settled and governed by SDCL 1-26-37, which provides in relevant part that

on review we ‘shall give the same deference to the findings of fact, conclusions of

law, and final judgment of the circuit court as it does to other appeals from the

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circuit court.’” Holscher v. Valley Queen Cheese Factory, 2006 SD 35, ¶28, 713

NW2d 555, 564. “The Department’s factual findings and credibility determinations

are reviewed under the clearly erroneous standard.” Kuhle v. Lecy Chiropractic,

2006 SD 16, ¶15, 711 NW2d 244, 247 (citing Enger v. FMC, 1997 SD 70, ¶10, 565

NW2d 79, 83) (citation omitted). “We will reverse those findings only if we are

definitely and firmly convinced a mistake has been made.” Id. (citing Gordon v. St.

Mary’s Healthcare Center, 2000 SD 130, ¶16, 617 NW2d 151, 157.) “However, ‘we

review findings based on deposition testimony and documentary evidence under the

de novo standard of review.’” Holscher, 2006 SD 35, ¶29, 713 NW2d at 564 (citing

Mudlin v. Hills Materials Co., 2005 SD 64, ¶5, 698 NW2d 67, 71 (citation omitted)).

“Questions of law are reviewed de novo. Mixed questions of law and fact are also

fully reviewable.” Kuhle, 2006 SD16, ¶15, 711 NW2d at 247 (citing Enger, 1997 SD

70, ¶10, 565 NW2d at 83) (additional citations omitted). “Ultimately, the claimant

retains the burden of proving all facts essential to compensation.” Id. (citing

Clausen v. Northern Plains Recycling, 2003 SD 63, ¶7, 663 NW2d 685, 687 (citation

omitted)).

DECISION

Whether Wise’s December 5, 2001, Injury was a Major Contributing Cause of His
Need for Treatment and Surgery.

[¶17.] Wise “had the burden to prove by a preponderance of the evidence ‘all

the facts essential to compensation.’” Horn v. Dakota Pork, 2006 SD 5, ¶14, 709

NW2d 38, 41-42 (citing Grauel v. South Dakota School of Mines and Technology,

2000 SD 145, ¶11, 619 NW2d 260, 263) (quoting Westergren v. Baptist Hosp., 1996

SD 69, ¶10, 549 NW2d 390, 393). “Our law requires a claimant to establish that his

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injury arose out of his employment by showing a causal connection between his

employment and the injury sustained.” Id. “The claimant also must prove by a

preponderance of medical evidence, that the employment or employment related

injury was a major contributing cause of the impairment or disability.” Id. (citing

Arends v. Dacotah Cement, 2002 SD 57, ¶15, 645 NW2d 583, 588).

[¶18.] Here, the only medical evidence was provided by Wise. Wise

introduced his medical records and the deposition of Dr. Hoversten to prove that his

slip in the mud and resulting back hyper-extension was a major contributing cause

of his need for treatment and surgery. Therefore, we review this evidence under the

de novo standard of review. Holscher, 2006 SD 35, ¶28, 713 NW2d at 564 (citations

omitted).

[¶19.] Wise had a thirteen-year treatment history with Dr. Hoversten, who

saw him for all of his prior back and neck injuries. Initially, Dr. Hoversten thought

that the December 5, 2001, slip in the mud was not a major contributing cause of

Wise’s need for treatment. He said that the “major cause [was] chronic

degeneration with stenosis at L3-4. Injury was an acute aggravation.” It was only

after Dr. Hoversten performed a decompressive laminectomy at the L3-4 level that

he discovered a fracture of the inferior facet on the left at the L3-4 level. After this

discovery, Dr. Hoversten changed his opinion. It was his revised opinion that “this

stenosis [was] not the typical old-age stenosis but [was] an injury stenosis due to

facet fracture, and for that reason work comp should be responsible for that

coverage.”

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[¶20.] During Dr. Hoversten’s deposition he explained his change of opinion.

Q: Okay. Let me skip the second one there. What I want to
understand from this, I guess, is that at the time that you wrote
this note in January of 2002, your conclusion was that the
gentleman suffered solely from chronic degeneration with an
aggravation of some sort. True?
A: Yes.
Q: You changed your mind, did you?
A: Yes.
Q: Tell me why.
A: During surgery we found a fracture of the inferior facet on the
right at L3-4. This had been there for some time. I don’t know
how long. I went back and looked on my X-rays, and it has been
there at least two to three years. When it’s a fracture with
instability from the fracture, it makes it an injury-based
problem. True, there’s degeneration associated with it, but
based upon finding of fracture of the facet, I changed my mind
that it wasn’t strictly degenerative.

Dr. Hoversten then explained, based on these X-rays, he could not be certain when

the fracture occurred, or how it occurred but, Wise had suffered this fracture

sometime between 1991 and 1997. Dr. Hoversten further explained that the

fracture was from an extension injury, or “extending the back way back over

backwards.” He explained that prior to the December 5, 2001, injury he last saw

Wise on August 10, 1999. At that time, Wise was not complaining of any radicular

symptoms in his lower extremities. Dr. Hoversten explained:

Q: We’re getting at, I think the crux of the deposition here is the
relationship between that previous facet fracture and the
mechanism of injury which occurred on 12-13 [sic]-2001. It
appears that after the mechanism of injury there’s onset of new
symptoms, because he obviously wasn’t a surgical candidate
prior to that mechanism of injury, was he? (emphasis added)
A: No, he wasn’t. (emphasis added)
Q: So can you explain for us the relationship between the prior
facet fracture and whatever he may have done when he slipped
in the mud?
A: Well, with the facet fracture, there’s some increased instability.
There’s some buildup of spur and extra swelling around the area

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of the fracture, and an extension would cause the pushing into
the nerve root of this extra material. So, originally I viewed it
as an aggravation of the problem.
Q: And that would be related to the work injury, that aggravation
was a mechanism that – the work related injury was a
mechanism of the aggravation, was it not?
A: Yes. That was – you know, he was doing pretty good for a couple
of years, and then this happens. Then it makes it worse.
Originally I thought it was just a stenosis thing, and it was only
after I did surgery and found the fracture of the facet with the
extra swelling, I said, “Hey, something else is behind this.”

He further stated:

Q: We’ve got two time lines here going, don’t we, Doctor? We have
the facet fracture time line, as to when that actually occurred,
until you discovered it in the surgery in 2002. Then when he
became symptomatic after the fall in the mud. Right?
A: Well, clearly that fall in the mud was an aggravation that led to
more radiculopathy and the need to do more surgery, whereas
before there was no need to do the surgery. (emphasis added)

[¶21.] Employer did not present medical evidence to refute Dr. Hoversten’s

opinions. Nevertheless, Wise bore the burden of proving a causal connection

between his condition and his work-related injury. SDCL 62-1-1 provides that a

compensable injury be “established by medical evidence,” and that “[n]o injury is

compensable unless the employment or employment related activities are a major

contributing cause of the condition complained of.” In applying the statute, we have

held “a worker’s compensation award cannot be based on possibilities or

probabilities, but must be based on sufficient evidence that the claimant incurred a

disability arising out of and in the course of his employment.” Day v. John Morrell

& Co., 490 NW2d 720, 724 (SD 1992) (citation omitted). We have further said

“South Dakota law requires [Wise] to establish by medical evidence that the

‘employment or employment conditions are a major contributing cause of the

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condition complained of.’ ‘A possibility is insufficient and a probability is

necessary.’” Brady Memorial Home v. Hantke, 1999 SD 77, ¶11, 597 NW2d 677,

680 (internal citation and emphasis omitted) (citing Maroney v. Aman, 1997 SD 73,

¶9, 565 NW2d 70, 73 (citation omitted)).

[¶22.] Employer argues that Wise failed to meet his burden of proof because

Dr. Hoversten’s opinion did not use the exact words of the statutes. Employer

claims that Dr. Hoversten needed to specifically say that work was “a major

contributing cause” under SDCL § 62-1-1(7)(b). Employer contends that without

these “magic words,” Wise cannot prevail. The Department did not require the

“magic words.” It determined that even though Dr. Hoversten did not “specifically

state that [Wise’s] employment related injury is and remains a major contributing

cause of his disability, impairment or need for treatment, such opinion can be

gleaned from the totality of Dr. Hoversten’s testimony.” Employer relies on Byrum

v. Dakota Wellness Found., in support of its argument. 2002 SD 141, 654 NW2d

215. Byrum, however, does not stand for the proposition that an expert’s opinion

fails because it omits the exact words, “major contributing cause.”

[¶23.] The case in which this Court did reverse because the phase “major

contributing cause” was not used can be distinguished from the present case. In

Brady, this Court was reviewing the deposition testimony of three doctors, two of

which did not specifically use the phrase and one that did. The one doctor that used

the phrase testified that it was not a major contributing cause. 1999 SD 77, ¶13-15,

597 NW2d at 681. This Court concluded “[w]e recognized that Hantke’s ‘proof need

not arise to a degree of absolute certainty; however, an award may not be based

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upon mere possibility or speculative evidence.’” Id. ¶16. “The evidence here

established, at best, a possibility. Only Dr. Dowdle provided an unequivocal opinion

of whether Hantke’s employment was a major contributing cause of her condition;

he stated that it was not.” Id. ¶17 (emphasis omitted).

[¶24.] In the present case, the Department determined Wise had met his

burden of proof based upon all of the evidence. The ALJ reasoned as follows:

Employer’s argument that Dr. Hoversten’s opinions lack
foundation and are speculative is rejected. To the contrary, Dr.
Hoversten’s opinions are well-founded and rise to the level
necessary to establish a causal relationship between Claimant’s
December 5th work injury and his need for treatment and
surgery. First, Dr. Hoversten was Claimant’s treating physician
for over thirteen years. Dr. Hoversten was very familiar with
Claimant’s medical and work history. Further, Dr. Hoversten
had opportunity to observe Claimant’s back condition as he
performed all of the back surgeries, including the operation in
September 2002.
Although Dr. Hoversten did not specifically state that
Claimant’s employment related injury is and remains a major
contributing cause of his disability, impairment or need for
treatment, such opinion can be gleaned from the totality of Dr.
Hoversten’s testimony. . . . For example, Dr. Hoversten opined
that “this stenosis is not the typical old-age stenosis but is an
injury stenosis due to facet fracture[.]” Dr Hoversten then stated
that a fracture with instability from the fracture makes it an
injury-based problem. Finally, Dr. Hoversten stated, “with the
facet fracture, there’s some increased instability. There’s some
buildup of spur and extra swelling around the area of fracture,
and an extension would cause the pushing into the nerve root of
this extra material.” (emphasis in original).
Based upon Dr. Hoversten’s testimony, claimant has not
only met his burden, but exceeded his burden of proof. Claimant
established by a preponderance of the evidence that his work
related injury is and remains a major contributing cause of his
disability, impairment or need for treatment.

A review of the record supports the Department’s decision. Dr. Hoversten, Wise’s

doctor for the past thirteen years, originally believed that the slip was not a major

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contributing cause. However, after doing surgery, he changed his opinion. He

testified that Wise was not a surgical candidate prior to the slip in the mud and

that “he (Wise) was doing pretty good for a couple of years, and then this happens.

Then it makes it worse.” Furthermore, and importantly, Dr. Hoversten testified

that “clearly that fall in the mud was an aggravation that led . . . to the need to do

more surgery, whereas before there was no need to do the surgery.”(emphasis

added). Finally, it must also be remembered that Dr. Hoversten’s medical records

of December 2001, immediately following Wise’s injury, further support causation.

Significantly, on December 13, Dr. Hoversten recorded that Wise was there “with

acute low back and left leg pain. He stepped in the mud and hyper-extended his

back. He had the onset of some pain in the back with radiation into the left leg.”

These new symptoms ultimately led to the surgery at issue. Considering the

totality of the medical evidence, Dr. Hoversten established that the December 5,

2001 injury caused new symptoms that required the surgery. His testimony was

not speculative, rather it was precise and well supported. Horn, 2006 SD 5, ¶14,

709 NW2d at 42 (citing Byrum, 2002 SD 141, ¶16, 654 NW2d at 219). We agree

with the ALJ that Dr. Hoversten’s opinions are well founded and establish a causal

relationship between Wise’s December 5, 2001, work injury and his need for

treatment.

[¶25.] We also note that other courts in addressing this issue have refused to

require pronouncement of the “magic words.” See AT&T Wireless Services Inc. v.

Castro, 896 So2d 828, 833, n6 (FlaDistCtApp 2005) (“the statutory standard may be

established without using magic words”); Hunt v. Exxon Co. USA & GAB, 747 So2d

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966, 973 (FlaDistCtApp 1999) (holding “The applicable legal standard may be

established without pronouncement of the magic words, [‘major contributing cause’],

provided the totality of the evidence demonstrates a causal relationship between the

claimant’s injury and employment with the appropriate quantum of proof.”); Maid v.

Sykes, 763 So2d 377, 383 (FlaDistCtApp 2000) (same for “reasonable medical

certainty”); Jensen v. City of Pocatello, 135 Idaho 406, 18 P3d 211 (2000) (holding

“No special verbal formula is necessary when, as here, a doctor’s testimony plainly

and unequivocally conveys his conviction that events are causally related.”) (citing

Paulson v. Idaho Forest Indus., Inc., 99 Idaho 896, 591 P2d 143 (1979), overruled on

other grounds by Jones v. Emmett Manor, 134 Idaho 160, 997 P2d 621 (2000));

Gooby v. Lake Shore Management Co., 136 Idaho 79, 85, 29 P3d 390, 396 (2001)

(holding “Whether or not the Commission can rely upon a medical opinion, however,

does not depend upon the exact language [‘reasonable degree of medical

probability’], used by the expert in expressing that opinion.”); Swanson v. Park

Place Automotive, 267 Neb 133, 144, 672 NW2d 405, 415 (2003) (holding “We have

long held, in the context of evaluating an expert medical opinion, that such

testimony need not be couched in ‘magic words’ such as ‘reasonable medical

certainty’ or ‘reasonable probability.’”); Owen v. American Hydraulics, Inc., 258 Neb

881, 889, 606 NW2d 470, 477 (2000) (same (citing Frank v. A&L Insulation, 256

Neb 898, 594 NW2d 586 (1999)); Columbia Forest Products v. Woolner, 177 OrApp

639, 646, 34 P3d 1203, 1207-07 (2001) (holding “in other workers’ compensation

contests, we have held that evidence need not consist of ‘magic words’ in order to

adequately support the Board’s findings.”); SAIF v. Strubel, 161 OrApp 516, 521-22,

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984 P2d 903 (1999) (holding that an expert’s opinion need not be ignored because it

fails to include the magic words “major contributing cause”); Bank of Newport v.

Wages, 142 OrApp 145, 150-51, 919 P2d 1189 (1996) (same); Freightliner Corp v.

Arnold, 142 OrApp 98, 105, 919 P2d 1192 (1996) (same); Moore v. Douglas County,

92 OrApp 255, 258, 757 P2d 1371 (1988) (same for “reasonable medical

probability”); Harrison v. Texas Emp Ins. Ass’n., 747 SW2d 494, 499 (TexApp 1988)

(“medical doctor, testifying as an expert, need not use the exact ‘magical’ words of

‘reasonable medical probability’, if the expert’s testimony is adequate and sufficient

under the total circumstances.”) (citing Stodghill v. Texas Emp. Ins Ass’n, 582

SW2d 102 (Tex 1979)); Repass v. Workers’ Compensation Div., 212 WVA 86, 104,

569 SE2d 162, 180 (2002) (discouraging reliance on magic words and urging due

consideration to actual content of medical reports).

[¶26.] Therefore, Wise supplied sufficient medical evidence that the slip and

fall, which caused him to hyper-extend his back, was a major contributing cause of

his need for treatment and surgery. Thus, Employer’s liability was established.

Steinberg v. South Dakota Department of Military and Veterans Affairs, 2000 SD

36, ¶29, 607 NW2d 596, 606. The Department’s decision is affirmed.

Denial of Permanent and Total Disability Benefits Pursuant to the Odd-Lot
Doctrine.

[¶27.] “Whether a claimant is entitled to odd-lot disability benefits is a

question of fact subject to review under the clearly erroneous standard.” Kassube v.

Dakota Logging, 2005 SD 102, ¶34, 705 NW2d 461, 467 (citing Enger, 1997 SD 70,

¶22, 565 NW2d at 85). Therefore, the “Department’s determination that claimant

failed to make the required prima facie showing [that he is obviously unemployable]

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will not be overturned unless we find that the determination was clearly erroneous.”

Lends His Horse v. Myrl & Roy’s Paving Inc., 2000 SD 146, ¶9, 619 NW2d 516, 519

(citing Shepherd v. Moorman Mfg., 467 NW2d 916, 919 (SD 1991)).

[¶28.] Whether a person is totally and permanently disabled is governed by

SDCL 62-4-53, which provides in part:

An employee is permanently totally disabled if the employee’s
physical condition, in combination with the employee’s age,
training, and experience and the type of work available in the
employee’s community, cause the employee to be unable to
secure anything more than sporadic employment resulting in an
insubstantial income. An employee has the burden of proof to
make a prima facie showing of permanent total disability. The
burden then shifts to the employer to show that some form of
suitable work is regularly and continuously available to the
employee in the community. The employer may meet this
burden by showing that a position is available which is not
sporadic employment resulting in an insubstantial income as
defined in subdivision 62-4-52(2). An employee shall introduce
evidence of a reasonable, good faith work search effort unless
the medical or vocational findings show such efforts would be
futile. The effort to seek employment is not reasonable if the
employee places undue limitations on the kind of work the
employee will accept or purposefully leaves the labor market.
An employee shall introduce expert opinion evidence that the
employee is unable to benefit from vocational rehabilitation or
that the same is not feasible.

Id. There are two ways for Wise to make a prima facie showing necessary to fall

under the odd-lot category.

First, if the claimant is obviously unemployable, then the
burden of production shifts to the employer to show that some
suitable employment within claimant’s limitations is actually
available in the community. A claimant may show obvious
unemployability by: 1) showing that his physical condition,
coupled with his education, training and age make it obvious
that he is in the odd-lot total disability category, or 2)
persuading the trier of fact that he is in the kind of continuous,
severe and debilitating pain which he claims.

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Second, if the claimant’s medical impairment is so limited
or specialized in nature that he is not obviously unemployable or
regulated to the odd-lot category, then the burden remains with
the claimant to demonstrate the unavailability of suitable
employment by showing that he has made reasonable efforts to
find work and was unsuccessful. If the claimant makes a prima
facie showing based on the second avenue of recovery, the
burden shifts to the employer to show that some form of suitable
work is regularly and continuously available to the claimant.
Even though the burden of production may shift to the employer,
however, the ultimate burden of persuasion remains with the
claimant.

Sandner v. Minnehaha County, 2002 SD 123, ¶10, 652 NW2d 778, 783 (internal

quotations omitted, emphasis in original (citing McClaflin v. John Morrell & Co.,

2001 SD 86, ¶¶8-9, 631 NW2d 180, 183)).

[¶29.] The Department found that Wise had “established a prima facie case

that he was permanently and totally disabled because a good faith work search

would be futile.” A review of the record shows that Wise provided testimony

concerning the steps he had taken to find a job. He had searched the classifieds,

contacted Career Service, been appointed a Vocational Rehabilitation counselor,

and learned job skills at Volunteers of America. Eventually, Wise obtained his

current employment with Austad’s Golf earning $7.00 an hour, which was less than

his worker’s compensation rate. This evidence, “if unchallenged, would lead

reasonable persons to believe that he made reasonable, good faith efforts to find

suitable employment but was unsuccessful.” Id. ¶17. This evidence effectively

shifted the burden to Employer to show that some form of suitable employment was

available to Wise. Id.; SDCL 62-4-53.

[¶30.] Employer provided the testimony of Karrow who identified six

different employers that had positions available in Wise’s community that paid

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wages at or near his workers’ compensation rate. Wise admitted that he did not

contact any of these employers because he “was more concerned with [his] back

than going out and finding a higher paying job.” Therefore, the Department’s

holding that Employer “demonstrated that there were specific positions open and

available within Claimant’s community that would pay him a suitable wage” was

not clearly erroneous.

[¶31.] “Although the burden of production may shift to the employer, the

ultimate burden of persuasion remains with [Wise].” Sandner, 2002 SD 123, ¶22,

652 NW2d at 784 (citation omitted). Under SDCL 62-4-53 Wise was required to

“introduce expert opinion evidence that [he] is unable to benefit from vocational

rehabilitation or that the same is not feasible.” Id. Wise presented the expert

testimony of Audet who testified that Wise lacked the academic orientation and

aptitude to compete in any sort of vocational rehabilitation program. He felt that

Wise would have difficulty competing in any type of retraining program and that

vocational rehabilitation was unrealistic. However, Audet also admitted that

although it may be difficult for Wise, retraining was not impossible and that if he

completed the course work in a vocational retraining program, his worth in the

labor market would go up.

[¶32.] Employer, on the other hand, presented the expert testimony of

Karrow. Karrow testified that Wise would benefit from a retraining program and

identified five possible retraining programs at STI available for Wise that met his

physical limitations and paid wages higher than his workers’ compensation rate.

Wise did not inquire into or participate in any of these programs because he did not

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consider himself “a school kind of person” and because he did not qualify for

educational funding assistance. The Department found that Wise “would benefit

from vocational retraining and that it would be feasible despite [Wise’s] reluctance

to attend such a program.” Finally, the Department concluded Wise “failed in his

burden of persuasion to establish that he is permanently totally disabled as he

would benefit from vocational retraining.”

[¶33.] The evidence presented on this issue came from Wise and two experts,

Audet and Karrow. All three of these individuals testified live at the hearing.

Thus, deference must be given to Department which had an
opportunity to observe the experts’ demeanors and weigh their
credibility. The trier of fact is free to accept all of, part of, or none of,
an expert’s opinion. Furthermore, the reviewing agency is not required
to accept the testimony of the claimant and is free to choose between
conflicting testimony.

Sandner, 2002 SD 123, ¶31, 652 NW2d at 786 (internal citations omitted). Under

the clearly erroneous standard of review and a careful review of the record, “we are

not definitely and firmly convinced that a mistake has been made.” Id. ¶32.

Therefore, the Department’s denial of permanent and total disability benefits under

the odd-lot doctrine is affirmed.

Wise’s Medical Expenses Paid Pursuant to the Medical Fee Schedule and Through
his Counsel.

[¶34.] Employer asserts that the Department erred when it ordered

Employer to pay Wise’s medical bills directly to his counsel and without the benefit

of the medical fee schedule under ARSD 47:03:05:05. Employer asserts that the

medical bills attached to the Stipulation should be paid directly to the individual

medical providers using the medical fee schedule.

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[¶35.] At issue is SDCL 62-1-1.3 and its application to this case. “Statutory

interpretation and application are questions of law.” Lewis & Clark Rural Water

System, Inc. v. Seeba, 2006 SD 7, ¶12, 709 NW2d 824, 830 (citing Block v. Drake,

2004 SD 72, ¶8, 681 NW2d 460, 463 (citation omitted)). This Court interprets

statutes “to discover the true intent of the legislature in enacting laws, which is

ascertained primarily from the language employed in the statute.” Id. (citing

Sanford v. Sanford, 2005 SD 34, ¶13, 694 NW2d 283, 287). “The intent of a statute

is determined from what the Legislature said, rather than what the courts think it

should have said.” Id. (citing Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612

NW2d 600, 611).

[¶36.] SDCL 62-1-1.3 provides:

If an employer denies coverage of a claim on the basis that the
injury is not compensable under this title due to the provisions
of subsections 62-1-1(7)(a), (b), or (c), such injury is presumed to
be nonwork related for other insurance purposes, and any other
insurer covering bodily injury or disease of the injured employee
shall pay according to the policy provisions. If coverage is
denied by an insurer without a full explanation of the basis in
the insurance policy in relation to the facts or applicable law for
denial, the director of the Division of Insurance may determine
such denial to be an unfair practice under chapter 58-33. If it is
later determined that the injury is compensable under this title,
the employer shall immediately reimburse the parties not liable
for all payments made, including interest at the category B rate
specified in § 54-3-16.

[¶37.] The text of this statute contemplates the situation where an employer

has denied coverage of an injury, which is later found to be compensable. That is

exactly what happened in this case. Employer denied coverage claiming Wise had

not proved that his slip in the mud was a major contributing cause of his need for

treatment and surgery. The statute provides “[i]f it is later determined that the

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injury is compensable under this title, the employer shall immediately reimburse the

parties not liable for all payments made, including interest at the category B rate[.]”

SDCL 62-1-1.3 (emphasis added). This Court has affirmed the Department’s

decision that Wise’s December 5, 2001, injury was a major contributing cause of his

need for treatment. Therefore, the injury is compensable and Employer “shall

immediately reimburse the parties not liable for all payments made.” Id.

[¶38.] This statute makes no reference to the medical fee schedule. The fee

schedule Employer wishes to use presupposes that an employer is following the

mandates of SDCL 62-4-1, which provides in part: “[t]he employer shall provide

necessary first aid, medical, surgical, and hospital services, or other suitable and

proper care . . . during the disability or treatment of an employee within the

provisions of this title.” If Employer had accepted responsibility for Wise’s injury

they would have been entitled to the benefits of the fee schedule. Because they

denied Wise’s claim, Wise, not Employer, incurred the expense of his treatment and

surgery. An employer cannot deny coverage and then, once a claimant has incurred

expenses, only pay the expenses it chooses according to the medical fee schedule.

An employer loses its access to the medical fee schedule when it denies coverage.

Therefore, under SDCL 62-1-1.3, the medical fee schedule is not applicable in this

case. Thus, Employer is liable for the full amount of the medical expenses

incurred by Wise.

[¶39.] Employer further asserts that if they have to pay, they should pay the

medical providers individually, not Wise’s counsel. This Court has previously

addressed this issue. In Lagge v. Corsica Co-op, this Court held that “[t]he

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Department’s order is not in contravention with any statute. Furthermore,

payment through a claimant’s attorney is commonly done and is contemplated by

statute.” 2004 SD 32, ¶38, 677 NW2d 569, 578. “The Department did not err in

requiring [Employer] to pay for [Wise’s] medical care through his counsel.” Id.

[¶40.] Affirmed.

[¶41.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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