Baier v. Dean Kurtz Construction Inc.

#24940, #24958-a-JKK

2009 SD 7

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

KELLY J. BAIER, Claimant and Appellee,

v.

DEAN KURTZ CONSTRUCTION,
INC., Employer and Appellant,

BITUMINOUS INSURANCE
COMPANIES, Insurer and Appellant,

and

MID-CENTURY INSURANCE
COMPANY, Insurer and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

CONSIDERED ON BRIEFS
ON JANUARY 12, 2009

OPINION FILED 02/04/09
JON J. LaFLEUR of
LaFleur, LaFleur and LaFleur, P.C. Attorneys for appellee
Rapid City, South Dakota Kelly J. Baier.

ERIC C. BLOMFELT of
Blomfelt & Associates, P.C.
Windsor, Colorado

JEREMY D. NAUMAN Attorneys for appellee
Rapid City, South Dakota Mid-Century.

PATRICIA A. MEYERS
STEPHEN C. HOFFMAN of
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter, LLP
Rapid City, South Dakota Attorneys for appellant.
#24940, #24958

KONENKAMP, Justice

[¶1.] Kelly Baier suffered from a degenerative arthritic hip disability.

During the course of his employment, Baier’s employer was insured by two separate

workers’ compensation insurers. The current insurer disputes its responsibility to

pay Baier’s workers’ compensation benefits. The Department of Labor found the

current insurer liable and awarded benefits. The insurer appeals and we affirm.

Background

[¶2.] Kelly Baier began working for Dean Kurtz Construction (Kurtz) in

1987 as a carpenter’s helper and later as a lead man and job foreman. On

September 24, 1999, Baier suffered an injury to his low back while at work. The

injury was work related and Kurtz’s insurer at the time, Mid-Century, paid Baier’s

workers’ compensation benefits. After considerable treatment for his back, Baier

was released to return to work in May 2000, with certain permanent restrictions:

twenty pound lifting maximum; limited bending and twisting at the waist; work

involving squatting reduced to occasional; and changing positions from standing,

sitting, and walking every 45 minutes. Baier returned to work at Kurtz as a project

superintendent. The work required physical labor, but was within his restrictions.

[¶3.] On May 12, 2004, Baier visited his doctor for a routine physical

examination. During the exam, he told Dr. Allen Nord that he was experiencing

chronic hip pain in both hips, but that the right was worse than the left. Baier

explained that the pain had been slowly but steadily getting worse and that it

caused him discomfort in his job. Dr. Nord ordered x-rays, which showed

“[a]dvanced changes of degenerative joint disease affecting both hips.” Baier was

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referred to an orthopedic surgeon. On May 26, 2004, Baier reported a first report of

injury with Kurtz. Dr. Mark Harlow, an orthopedic surgeon, saw Baier in July

2004. He recommended that Baier undergo bilateral hip replacement. According to

Dr. Harlow, Baier’s x-rays showed “end stage degenerative arthritis, which shows

bone-on-bone contact and entophyte formation involving both hips.” Baier’s right

hip was replaced in August 2004, and his left in October 2004.

[¶4.] Baier did not return to work until January 2005. Dr. Harlow imposed

the following restrictions: stand one hour per day with breaks; sit seven hours per

day with breaks; drive one hour per day with breaks; walk one hour per day with

breaks; limit work to sedentary or light duty classification; limit lifting to twenty-

five pounds; no impact activity such as use of jackhammer or jumping off

equipment. On August 25, 2005, Baier was laid off because Kurtz had no work

within Baier’s restrictions.

[¶5.] After Baier’s first hip replacement, he petitioned the Department of

Labor for a hearing to address his entitlement to workers’ compensation benefits

from Kurtz. Kurtz and its insurer at the time, Bituminous Insurance Companies,

denied that Baier’s hip disability was work related, alleged that Baier failed to

timely give notice, and averred that the hip surgery was the result of Baier’s

previous back injury, at which time Kurtz was insured by Mid-Century. In March

2005, Bituminous and Kurtz moved to add Mid-Century as an additional insurer

and the Department issued an order granting the motion.

[¶6.] In October 2005, a telephonic prehearing conference was held, after

which the Department issued a prehearing order indicating that the issues

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scheduled to be presented at the hearing would be: medical expenses, causation,

temporary total disability, which insurer is responsible, and apportionment. The

order also listed the intended witnesses from all parties, and the intended

deposition testimony. However, another telephonic conference was held in

November 2005. As a result of this conference, for which there is no record, the

Department issued a letter indicating that the hearing that was previously set to

address the issues of medical expenses, causation, and temporary total disability

was cancelled. The letter further indicated that the parties agreed to submit all

outstanding issues to the Department on the record, including the issues of

apportionment and which insurer is responsible.

[¶7.] On December 13, 2005, counsel for Baier wrote the Department

requesting that a status hearing be held to set a scheduling order for the hearing on

the issues of which insurer is responsible and apportionment. The Department

issued a notice of hearing for January 9, 2006. On December 27, 2005, Bituminous

moved the Department for summary judgment on the issues of coverage and

apportionment. A telephonic conference was held on January 9, 2006. There is no

record of the conference, but the Department issued a letter on January 10, stating

that “[t]he parties have agreed to submit the outstanding issues on the record. The

two issues to be addressed are the application of the last injurious exposure rule

and apportionment.” The letter further indicated what the record was to consist of

and a briefing schedule for the parties.

[¶8.] On June 7, 2006, the Department issued its written decision declaring

Bituminous the responsible insurer. Applying the last injurious exposure rule, the

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Department concluded that because Bituminous was the insurance carrier covering

the risk at the time of Baier’s most recent exposure bearing a causal relation to the

disability, Bituminous was responsible for Baier’s workers’ compensation benefits.

The Department directed the parties to submit proposed findings of fact,

conclusions of law, and objections. Kurtz and Mid-Century submitted proposed

findings of fact and conclusions of law, as did Baier. Bituminous, however, did not,

and informed the Department, after inquiry, that it did not intend to submit any

proposed findings of fact or conclusions of law.

[¶9.] On August 2, 2006, the Department issued findings of fact, conclusions

of law, and an order declaring Bituminous liable for Baier’s workers’ compensation

benefits. The order further declared that “[t]he Department shall retain jurisdiction

over the issue of extent and degree of Claimant’s disability, if any.” No appeal to

the circuit court followed this order. On September 28, 2006, under a stipulation of

the parties, the Department entered an order dismissing Mid-Century from the

action. No appeal was taken from the order dismissing Mid-Century.

[¶10.] On November 20, 2006, after a telephonic conference, the Department

issued a prehearing order to address the issue of Baier’s benefits. The order further

listed the intended live witnesses, deposition testimony, and medical records. A

hearing on Baier’s benefits was held on January 4, 2007. On November 14, 2007,

the Department issued a letter decision, which set forth Baier’s weekly workers’

compensation rate, found Baier permanently and totally disabled, and determined

that Baier had been unable to secure continuous and suitable employment. The

parties were directed to submit proposed findings of fact, conclusions of law, and

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objections. All parties submitted proposed findings and conclusions, and on

December 7, 2007, the Department issued its findings of fact, conclusions of law,

and an order in accord with its letter decision.

[¶11.] Bituminous appealed to the circuit court. It challenged the

Department’s August 2, 2006 order, findings of fact and conclusions of law, the June

7, 2006 letter decision finding Bituminous liable for Baier’s benefits, the December

7, 2007 order, findings of fact and conclusions of law, and the November 14, 2007

letter decision, finding Baier permanently and totally disabled. In response, Baier

asserted that the circuit court did not have jurisdiction to consider the appeal

because Bituminous failed to timely appeal from the Department’s August 2, 2006

order and its June 7, 2006 letter decision. Mid-Century moved to be dismissed from

the appeal based on the Department’s order dismissing Mid-Century from the

action.

[¶12.] Following oral arguments, the circuit court issued a letter decision

affirming the Department’s ruling that Bituminous is responsible for Baier’s

workers’ compensation benefits, and finding that Baier is permanently and totally

disabled. The court further ruled that Bituminous had timely appealed from the

Department’s June 7, 2006 decision and August 2, 2006 order. The court denied

Mid-Century’s motion to dismiss. Bituminous now appeals to this Court asserting

that Baier did not meet his burden to show that Bituminous was liable under the

last injurious exposure rule, and Baier failed to prove that he is permanently and

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totally disabled. Baier submitted one issue on notice of review: whether

Bituminous’s appeal on compensability was timely. 1

Analysis and Decision

I.

[¶13.] Before we address the substantive issues, we must first resolve certain

jurisdictional and procedural questions. Baier and Mid-Century contend that

Bituminous’s appeal to the circuit court, from the Department’s June 7, 2006

decision and August 2, 2006 order, was untimely. Mid-Century further asserts that

because Bituminous did not appeal the Department’s September 28, 2006 order

dismissing Mid-Century as a party, Bituminous is prohibited from claiming that

Mid-Century is liable for Baier’s benefits. Bituminous responds that neither order

from the Department was final under SDCL 1-26-31.

[¶14.] Under SDCL 1-26-30.2, any party may appeal to the circuit court “in a

contested case from a final decision, ruling, or action of” the Department. The

appealing party has thirty days from the Department’s notice of a final decision to

appeal. SDCL 1-26-31. Here, the question is whether the Department’s August 2

1. We examine this case on the following standard of review:

In workers’ compensation cases, our standard of review is controlled by
SDCL 1-26-37. Witness credibility is a question of fact. Kuhle v. Lecy
Chiropractic, 2006 SD 16, ¶15, 711 NW2d 244, 247 (citing Enger v.
FMC, 1997 SD 70, ¶10, 565 NW2d 79, 83) (quoting Tieszen v. John
Morrell & Co., 528 NW2d 401, 403-04 (SD 1995)). When an issue is a
question of fact, then the clearly erroneous standard applies to the
agency’s findings. Id. We will reverse only when we are firmly
convinced a mistake has been made. Id. (citing Gordon v. St. Mary’s
Healthcare Ctr., 2000 SD 130, ¶16, 617 NW2d 151, 156).

(continued . . .)
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order was a final decision. A review of the order reveals that the Department

issued a ruling on the issue of which insurer is responsible. But the issue of what

benefits, if any, Baier was entitled to was yet to be determined. Indeed, the

Department specifically retained jurisdiction to decide the issue of Baier’s benefits.

Because the August 2 order resolved only the issue of liability and retained

jurisdiction to determine benefits, the August 2 order was not a final decision

appealable under SDCL 1-26-30.2. See Herr v. Dakotah, Inc., 2000 SD 90, ¶24, 613

NW2d 549, 554 (citing Call v. Benevolent & Protective Order of Elks, 307 NW2d

138, 139 (SD 1981)) (“If Department’s order continues jurisdiction over an award, it

does not achieve finality.”). To conclude otherwise would frustrate the goals of our

workers’ compensation laws, namely, to provide employees an expedient, fair, and

efficient way to seek compensation for work-related injuries. Allowing piecemeal

appeals would only extend the process, which in this case, has already lasted over

four years.

[¶15.] Further, the Department’s September 28, 2006 order dismissing Mid-

Century was not a final order under SDCL 62-7-19 and SDCL 1-26-30.2. Under

SDCL 15-6-54(b), “any order or other form of decision, however designated, which

adjudicates fewer than all the claims or the rights and liabilities of fewer than all

the parties shall not terminate the action as to any of the claims or parties, and the

order or other form of decision is subject to revision at any time before the entry of

judgment adjudicating all the claims and the rights and liabilities of all the parties.”

__________________
(. . . continued)
Vollmer v. Wal-Mart Store, Inc., 2007 SD 25, ¶12, 729 NW2d 377, 382.

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#24940, #24958

See also SDCL 1-26-32.1 (the procedural rules of Title 15 apply to appeals under

Chapter 1-26, “unless a different provision is specifically made by this chapter or by

the statute allowing such appeal”). Because the order dismissing Mid-Century

adjudicated the liability of fewer than all the parties and was subject to revision at

any time before the final judgment adjudicating all the claims against all the

parties in this action, the order dismissing Mid-Century was not a final order under

SDCL 62-7-19 and SDCL 1-26-30.2.

[¶16.] We next address a procedural question raised by Baier. He claims that

because Bituminous failed to submit proposed findings of fact and conclusions of

law before the Department’s August 2 order, this Court can only review whether the

findings of fact support the conclusions of law. Bituminous, on the other hand,

insists that the issue of liability was submitted to the Department on summary

judgment and proposed findings and conclusions were unnecessary.

[¶17.] A review of the record shows that on December 27, 2005, Bituminous

moved the Department for summary judgment on the issues of liability and

apportionment. Yet, on January 10, 2006, the Department issued a letter to all

parties indicating that the parties agreed to submit the issues of liability and

apportionment on the record. There is no mention of summary judgment in this

letter. Moreover, the Department’s June 7 letter decision and August 2 order state

nothing of summary judgment. Rather, the Department entered detailed factual

findings by preponderance of the evidence and multiple conclusions of law. The

Department further directed the parties to submit proposed findings of fact and

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conclusions of law. Bituminous did not do so, even after the Department asked

Bituminous if it intended to submit any proposals.

[¶18.] The only suggestion in the record that the Department possibly

considered the issues on summary judgment is the circuit court’s letter decision

declaring that the issues were submitted to the Department by way of Bituminous’s

motion for summary judgment. The circuit court further remarked that the

Department “essentially denied summary judgment[.]” We are not bound by the

circuit court’s statements. Rather, we rely on the record, which does not support

that the Department summarily ruled on the issues of liability and apportionment.

Because Bituminous did not propose findings of fact and conclusions of law, our

review is limited to whether the Department’s findings of fact support its

conclusions of law. See Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 SD

82, ¶11, 700 NW2d 729, 733 (quoting Premier Bank, N.A. v. Mahoney, 520 NW2d

894, 895 (SD 1994) (quoting Huth v. Hoffman, 464 NW2d 637, 638 (SD 1991))).

II.

[¶19.] Bituminous alleges that the Department erred when it found

Bituminous liable for Baier’s benefits. An employee need not prove a specific

trauma to receive workers’ compensation, if the employee can “‘prove a history of

injury to the body that occurs in the normal course of employment.’” Horn v.

Dakota Pork, 2006 SD 5, ¶16, 709 NW2d 38, 42 (quoting St. Luke’s Midland Reg’l.

Med. Ctr. v. Kennedy, 2002 SD 137, ¶11, 653 NW2d 880, 884). The employee must

also prove that the employment-related activities were a major contributing cause

of the complained condition. See SDCL 62-1-1(7)(a). Here, no party contests that

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Baier’s work activities were a major contributing cause of his hip disability. Rather,

the dispute centers on whether the disability occurred before 2002, which was

before Bituminous was the insurer for Kurtz. This question invokes the last

injurious exposure rule:

When a disability develops gradually, or when it comes as the
result of a succession of accidents, the insurance carrier covering
the risk at the time of the most recent injury or exposure bearing
a causal relation to the disability is usually liable for the entire
compensation.

Paulson v. Black Hills Packaging Co., 1996 SD 118, ¶10, 554 NW2d 194, 196

(quoting Novak v. C.J. Grossenburg and Son, 89 SD 308, 232 NW2d 463, 464-65

(1975) (quoting 3 Larson, Workmen’s Compensation Law, § 95.00)); see also SDCL

62-1-18.

[¶20.] Applying the last injurious exposure rule, the Department concluded

that Baier’s need for bilateral hip surgery was unrelated to his 1999 back injury,

and that, based on the medical testimony, Baier did not suffer a specific injury to

his hips, but rather suffered a degenerative condition that developed gradually.

The Department found Bituminous liable for Baier’s benefits because it concluded

that Bituminous was on the risk when Baier was most recently exposed to his work

environment, which was casually related to his disability.

[¶21.] In reaching its decision, the Department made fifty-four findings of

fact, all “established by a preponderance of the evidence[.]” The findings are based

on deposition testimony from multiple doctors, Baier, and his wife, Baier’s medical

records, and the Department’s hearing file. Specifically, the Department found that

based on Dr. Harlow’s deposition testimony, Baier suffered from end stage

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degenerative arthritis in both hips, caused by Baier’s strenuous work activities. Dr.

Harlow considered the fact that Baier made complaints about his hips before 2004,

but remarked that despite the complaints, he could not to a reasonable degree of

probability pinpoint when the degenerative condition began. The Department also

made findings with regard to Dr. Greg Reichhardt’s testimony. Dr. Reichhardt gave

a medical opinion based on his review of Baier’s medical records and the

depositions. Dr. Reichhardt performs no surgeries, but evaluates patients with

muscle, bone, and joint problems. He opined that Baier’s hip problems and need for

surgery were likely caused by a combination of his work activities and individual

genetics. He could not pinpoint when Baier’s arthritis began, but expressed the

view that it occurred through a gradual process, progressing over time.

[¶22.] Based on our review, the Department’s findings of fact support its

conclusions of law that Bituminous was the insurer at the time of Baier’s most

recent exposure bearing a causal relationship to his disability. Nonetheless,

Bituminous insists that the Department’s findings of fact show that Baier’s hip

disability was present before Bituminous was Kurtz’s insurer. It relies on the

following findings:

35. From 2000 to 2004, [Baier’s] hips gradually started to bother
him.

36. [Baier] did not suffer a specific injury to his hips. Rather,
the discomfort in both of [Baier’s] hips gradually increased to the
point where in 2002, [Baier] specifically began to notice that he
was losing motion and flexibility from his hips down to his legs.
[Baier] testified, “[i]t seems like it was gradual and, you know,
from 2002 to 2004 is when I really felt like I was becoming
disabled.”

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(Emphasis added.). Bituminous argues that the first time the appearance of

symptoms can be identified is when a disability arises for the purpose of assigning

liability to an insurer. Here, Bituminous claims that this occurred at least in 2000.

[¶23.] Which insurer is responsible for a claimant’s workers’ compensation

benefits for a gradually progressing disability does not entail a dissection of the

claimant’s medical records to find one statement or notation that a symptom of the

disability was present. Rather, when a disability develops gradually, “the insurance

carrier covering the risk at the time of the most recent . . . exposure bearing a

causal relation to the disability is usually liable for the entire compensation.”

Paulson, 1996 SD 118, ¶10, 554 NW2d at 196 (citations omitted). Here, no doctor

disputed that Baier’s work activities caused his degenerative condition, including

his work activities after 2002. Bituminous was covering the risk when Baier was

most recently exposed to his injurious work environment causally related to his

disability; therefore, Bituminous is responsible.

III.

[¶24.] Bituminous next alleges that Baier failed to prove his entitlement to

permanent total disability benefits. Specifically, Bituminous claims that Baier

produced insufficient evidence of a reasonable, good faith work search, failed to

meet his burden that he could not be retrained, and did not prove that his physical

condition prevented him from securing anything more than sporadic employment.

According to Bituminous, Dr. Harlow’s physical restrictions on Baier were merely

recommendations: Baier could return to construction work. Bituminous argues

that because Baier would inevitably need a second hip replacement surgery, despite

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his level of activity, Baier’s hip condition does not make it impossible for him to

return to work.

[¶25.] “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.” SDCL 62-4-53. The burden is on the employee “to make a

prima facie showing of permanent total disability.” Id.

First, if the claimant is obviously unemployable, then the
burden of production shifts to the employer to show that some
suitable employment is actually available in claimant’s
community for persons with claimant’s limitations. Obvious
unemployability may be shown 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 fact in
the kind of continuous, severe and debilitating pain which he
claims.

Second, if the claimant’s medical impairment is so limited or
specialized in nature that he is not obviously unemployable or
relegated to the odd-lot category then the burden remains with
the claimant to demonstrate the unavailability of suitable
employment by showing that he has unsuccessfully made
reasonable efforts to find work.

Fair v. Nash Finch Co., 2007 SD 16, ¶19, 728 NW2d 623, 632-33 (quoting Kassube

v. Dakota Logging, 2005 SD 102, ¶34, 705 NW2d 461, 467 (internal citations

omitted)).

[¶26.] Here, the Department found that Baier is “obviously unemployable.”

It relied on the testimony of Dr. Harlow, who it found credible, that Baier has

permanent physical restrictions that prohibit him from returning to heavy-duty

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construction work. Moreover, the Department accepted Dr. Harlow’s

recommendation that Baier refrain from engaging in anything but sedentary to

light manual labor. The Department further considered Baier’s age (forty-eight),

along with the fact that he had not completed formal education or training, and that

he had only worked in the construction industry doing physical labor, which he is

now prohibited from continuing.

[¶27.] For its decision that Baier was unemployable, the Department relied

on the testimony of Dr. Lynn Meiners, who performed a vocational assessment by

reviewing Baier’s medical records, meeting with him, and reviewing other relevant

information. Dr. Meiners concluded that Baier’s physical restrictions presented a

significant barrier to his obtaining employment at the level of his workers’

compensation rate. Because of Baier’s background in physically demanding

construction work and now being limited to light-duty, sedentary work, Dr. Meiners

was unable to identify any jobs within Baier’s restrictions that paid the level of

Baier’s workers’ compensation rate.

[¶28.] “Whether a claimant makes a prima facie case to establish odd-lot

total disability inclusion is a question of fact.” Vollmer, 2007 SD 25, ¶12, 729 NW2d

at 382 (citing Lagge v. Corsica Co-op., 2004 SD 32, ¶14, 677 NW2d 569, 573

(citation omitted)). We give great weight to the findings and inferences made by the

Department and will only overrule the Department’s factual findings if they are

clearly erroneous. Spitzack v. Berg Corp., 532 NW2d 72, 75 (SD 1995) (citations

omitted). Based on our review of the record, we cannot conclude that the

Department clearly erred when it found Baier obviously unemployable. Dr. Harlow

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imposed permanent physical restrictions on Baier’s activities, prohibiting him from

returning to heavy-duty construction work. Heavy-duty construction work,

however, is all Baier has done for his career. Dr. Meiners could not identify any

employment opportunities for Baier within his restrictions at his workers’

compensation rate.

[¶29.] Because Baier made a prima facie showing that he is permanently and

totally disabled, the burden shifted to the employer “to show that some form of

suitable work is regularly and continuously available to the employee in the

community.” SDCL 62-4-53. “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).” Id. Sporadic

employment is “employment that does not offer an employee the opportunity to

work either full-time or part-time and pay wages equivalent to, or greater than, the

workers’ compensation benefit rate applicable to the employee at the time of the

employee’s injury.” SDCL 62-4-52(2).

[¶30.] At the time of the hearing, Baier was employed by Carousel Casino as

a casino host earning $7.50 per hour. This position was considered sporadic

employment because it does not pay at the level of Baier’s workers’ compensation

rate. See SDCL 62-4-52(2). Bituminous claims that Baier turned down a position

as a quality controller at $16 per hour for 565 days. The job was originally

advertised in the newspaper requiring applicants to have a degree in civil

engineering or construction management. According to Kurtz, however, the

requirements changed and a degree was no longer required. Kurtz claimed that the

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job requirements were within Baier’s physical restrictions. Baier turned down the

job offer because he does not have any degree, does not have experience with

blueprints and specifications, and lacks specific computer skills. Baier was also

concerned with the physical demands of the job.

[¶31.] Bituminous argues that the position offered by Kurtz to Baier satisfied

its burden to show that a position was available at a level greater than Baier’s

workers’ compensation rate. Bituminous claims Baier testified that he could

perform the job as indicated in the job description. Although Baier did state that he

could perform the job as described, the actual job included tasks beyond Baier’s

physical restrictions. Moreover, the Department rejected the argument that this

position satisfied the burden because it was only temporary. There is no dispute

that the position would last only 565 days.

[¶32.] Nonetheless, Bituminous claims that Baier unreasonably declined a

valid job offer and voluntarily limited his income. Bituminous relies on its

vocational expert, Gerry Gravatt, who said that quality control jobs come available

continuously in the community through the government and state. The

Department, however, specifically remarked that Baier “demonstrated that he

made reasonable efforts to find employment, but was unsuccessful.” Based on our

review of the record, the Department did not err when it concluded that the

employer failed to show that some form of suitable work is regularly and

continuously available.

[¶33.] With only sporadic employment available, the issue became whether

Baier could be retrained or rehabilitated to become employable. See Spitzack, 532

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NW2d at 76. The burden is on the employer to establish that retraining is

reasonable. See id. Here, Gerry Gravatt reviewed Dr. Harlow’s deposition

testimony, Baier’s deposition, and medical information. He also met with Baier.

Gravatt testified that he identified several jobs as a result of his market search that

were within Baier’s physical restrictions at his workers’ compensation rate.

However, upon further questioning, Gravatt testified that some of the jobs were not

currently available, but might be in the spring, and that these companies would be

interested in hiring Baier. Gravatt also opined that Baier could be self employed as

a carpenter and that there is regular and continuous carpentry work available in

Rapid City. Gravatt did not specifically research the possibility of retraining or

rehabilitation for Baier, but thought nonetheless that Baier would benefit from

vocational retraining.

[¶34.] Dr. Meiners testified on behalf of Baier. She believed that Baier would

not benefit from vocational rehabilitation or by returning to school to complete a

teaching degree. She considered his age and his previous academic performance,

and concluded that even if Baier obtained a teaching degree, he would face a barrier

of low demand. She also did not believe that Western Dakota Technical Institute

offered Baier any feasible program, as he did not have the aptitude for certain

programs or would not earn beyond an entry level wage, a wage below his workers’

compensation rate. In her market search, Dr. Meiners was unable to identify any

job within Baier’s restrictions that paid at least his workers’ compensation rate.

Baier’s medical restrictions, Dr. Meiners remarked, imposed a barrier to finding

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Baier employment. Moreover, Baier’s skill level is in construction work, which has

“negligible transferable skills[.]”

[¶35.] The Department found Dr. Meiner’s opinions to be “well-founded and

credible.” In regard to Gravatt’s testimony, the Department specifically rejected it

because it was inconsistent and contrary to the credible evidence that there are no

jobs available for Baier within his restrictions at his workers’ compensation rate.

We give great deference to the Department’s credibility determinations. Dr.

Meiners and Gravatt testified live, and therefore, we will not disturb the

Department’s findings and inferences unless we are left with a definite and firm

conviction that a mistake has been made. See Spitzack, 532 NW2d at 75.

[¶36.] Affirmed.

[¶37.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY,

Justices, and SABERS, Retired Justice, concur.

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