#25275-aff in pt & rev in pt-GAS
2010 SD 4
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
JOEL DARLING, Claimant and Appellant,
v.
WEST RIVER MASONRY, INC., Employer and Appellee,
and
UNITED FIRE & CASUALTY COMPANY, Insurer and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
* * * *
HONORABLE LORI S. WILBUR
Judge
* * * *
MICHAEL J. SIMPSON of
Julius & Simpson, LLP
Rapid City, South Dakota Attorneys for appellant.
ERIC C. BLOMFELT
JEREMY D. NAUMAN of
Eric C. Blomfelt & Associates, PC
Denver, Colorado Attorneys for appellees.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 16, 2009
OPINION FILED 01/06/10
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SEVERSON, Justice
[¶1.] Joel Darling (Darling) appeals the circuit court judgment that the
South Dakota Department of Labor (the Department) erred in concluding his work-
related injury was a major contributing cause of his disk bulges, nerve
impingement, stress fractures, and disk slippage so that the treatment, including
surgery, related to those conditions was compensable. We affirm in part and
reverse in part.
BACKGROUND
[¶2.] Darling has worked as a stone mason most of his adult life. West
River Masonry, Inc. (West River Masonry) has employed Darling as a stone mason
since 2001. In 1989, Darling strained his back and consequently missed
approximately nine months of work. He recovered and did not have any problems
with his back until January 2005. During that fifteen-year period, Darling never
saw a doctor or missed work for low back pain.
[¶3.] On January 15, 2005, Darling was carrying concrete blocks down a
stairway into the basement of the Adams Museum in Deadwood, South Dakota. It
was cold and snowy that day, so Darling and his co-workers carefully cleaned and
sanded the steps of the stairway. A smooth concrete landing with a nine-inch step
was at the bottom of the stairway. Darling was carrying two concrete blocks
weighing 35 to 40 pounds when he slipped on the concrete landing. His feet came
out from under him and his lower back hit the edge of the nine-inch step. Darling
felt pain immediately, but continued to work because he did not believe his injury
was serious. The pain in his low back, left side, and left leg steadily increased
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throughout the day. When Darling finished work, the pain had progressed to the
point that he could barely walk. Darling’s wife helped him into his house when he
arrived home, and he used his daughter’s crutches to get to the emergency room as
he could not bear any weight on his left leg.
[¶4.] Dr. Vosler treated Darling at the emergency room. Dr. Vosler directed
Darling to take a few days off work and prescribed Percocet to relieve his pain.
Darling again saw Dr. Vosler on January 24, 2005. At that time, Dr. Vosler noted
Darling had bruises across his mid-lumbar spine and left proximal femur. Dr.
Vosler prescribed additional pain medications for Darling, including Ibuprofen and
Vicoden. Shortly thereafter, Dr. Vosler approved Darling’s request to return to
work under certain conditions. Darling later saw Dr. Vosler in March 2005.
Although Darling indicated that his leg pain had subsided, he was still experiencing
pain in his low back. Dr. Vosler prescribed physical therapy or chiropractic
treatment.
[¶5.] Darling saw Dr. Brett Lawlor, a rehabilitation medicine specialist, on
May 27, 2005. Dr. Lawlor diagnosed Darling with discogenic low back pain and
possible SI and facet dysfunction. Dr. Lawlor recommended physical therapy and
pain medication. He also ordered an MRI, which showed degenerative disc disease
at L3-L4, L4-5, and L5-SI, facet hypertrophy at L3-L4 and L4-5, and mild foraminal
stenosis. The radiologist’s report did not mention disk bulges, nerve impingement,
stress fractures, or disk slippage. Over the next year, Dr. Lawlor treated Darling
with facet, epidural, and joint injections, neuromuscular electrostimulation, and
pain medications, but to no avail. On March 14, 2006, Dr. Lawlor discussed surgery
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with Darling, but Darling indicated he was not yet willing to undergo surgery.
Darling underwent a Functional Capacities Evaluation (FCE) on April 10, 2006.
Dr. Lawlor assigned Darling a five-percent whole-person impairment for the lumbar
spine. He also restricted Darling to lifting no more than fifty pounds occasionally or
thirty pounds frequently. The FCE did not preclude Darling from twisting or
bending.
[¶6.] On May 12, 2006, Darling was playing baseball in his yard with his
son. As Darling was demonstrating a swing, though not taking a full swing, he felt
a popping sensation accompanied by sudden and severe pain. Darling immediately
experienced severe left leg pain so that he could barely walk. He used the baseball
bat and a handrail to support his weight as he walked back to his house.
[¶7.] Darling returned to Dr. Lawlor who prescribed physical therapy and
ordered a second MRI. The radiologist’s report for this second MRI noted stress
fractures at L4-5 with disk slippage of L4 and L5, moderate canal stenosis and left
lateral stenosis, mid-grade I degenerative anterior stress fracture at L5-SI
bilaterally, and disk bulges and facet athrosis with obvious neural impingement.
Dr. Lawlor recognized that the disk bulges, nerve impingement, and stress
fractures were not noted on the June 2005 MRI report. Dr. Lawlor felt the current
course of treatment was not adequate and referred Darling to Dr. Rand
Schleusener, an orthopedic surgeon, for surgical consultation. Dr. Schleusener
recommended surgery to decrease pain and nerve impingement associated with the
disk narrowing and bulging, as well as the disk slippage caused by the stress
fractures.
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[¶8.] A hearing on Darling’s workers’ compensation claim was held before
the Department on November 13, 2007. At that hearing, Darling testified and
presented the deposition testimony of Drs. Lawlor and Schleusener. Drs. Lawlor
and Schleusener believed Darling’s January 2005 injury was a major contributing
cause of his current condition and need for treatment, including surgery. West
River Masonry presented the deposition testimony of Dr. Greg Reichhardt. Dr.
Reichhardt believed the January 2005 injury was not a major contributing cause of
Darling’s current condition and need for surgery. He testified the surgery was
needed to treat disk bulges, nerve impingement, and stress fractures, injuries not
present prior to the May 2006 incident as demonstrated by the June 2005 MRI
report. He concluded Darling was not entitled to workers’ compensation benefits for
any treatment related to those conditions. On June 5, 2008, the Department found
West River Masonry responsible for Darling’s ongoing medical expenses, including
the cost of surgery. West River Masonry filed a notice of appeal with the Sixth
Judicial Circuit Court on July 7, 2008.
[¶9.] The circuit court, per the Honorable Lori S. Wilbur, affirmed in part
and reversed in part. The circuit court affirmed the Department to the extent the
Department found a causal relationship between Darling’s January 2005 injury and
his general current condition. However, the circuit court reversed to the extent the
Department found a causal relationship between Darling’s January 2005 injury and
his disk bulges, nerve impingement, stress fractures, and disk slippage. The circuit
court concluded Darling was not entitled to workers’ compensation benefits for any
treatment, including surgery, related to those conditions. Darling appeals.
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STANDARD OF REVIEW
[¶10.] The standard of review in administrative appeals is established by
SDCL 1-26-37. Under this statute, “the applicable standard of review ‘will vary
depending on whether the issue is one of fact or one of law.’” Orth v. Stoebner &
Permann Constr., Inc., 2006 SD 99, ¶27, 724 NW2d 586, 592 (quoting Tischler v.
U.P.S., 1996 SD 98, ¶23, 552 NW2d 597, 602). The actions of the agency are judged
by the clearly erroneous standard when the issue is a question of fact. Id. The
actions of the agency are fully reviewable when the issue is a question of law. Id.
“Mixed questions of law and fact require further analysis.” McNeil v. Superior
Siding, Inc., 2009 SD 68, ¶6, 771 NW2d 345, 347 (citing Permann v. S.D. Dep’t of
Labor, 411 NW2d 113, 119 (SD 1987)).
If application of the rule of law to the facts requires an inquiry
that is “essentially factual” – one that is founded “on the
application of the fact-finding tribunal’s experience with the
mainsprings of human conduct” – the concerns of judicial
administration will favor the district court, and the district
court’s determination should be classified as one of fact
reviewable under the clearly erroneous standard. If, on the
other hand, the question requires us to consider legal precepts in
the mix of fact and law and to exercise judgment about the
values that animate legal principles, then the concerns of
judicial administration will favor the appellate court, and the
question should be classified as one of law and reviewed de novo.
Id. ¶6, 771 NW2d at 347-48 (quoting United States v. McConney, 728 F2d 1195,
1202 (9th Cir 1984)) (internal citations omitted). See In re Dorsey & Whitney Trust
Co., LLC, 2001 SD 35, ¶¶5-6, 623 NW2d 468, 471. Finally, the matter is reviewed
de novo when “an agency makes factual determinations on the basis of documentary
evidence, such as depositions” or medical records. Vollmer v. Wal-Mart Store, Inc.,
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2007 SD 25, ¶12, 729 NW2d 377, 382 (citing Watertown Coop. Elevator Ass’n v. S.D.
Dep’t of Rev. and Reg., 2001 SD 56, ¶10, 627 NW2d 167, 171).
DECISION
[¶11.] In a workers’ compensation dispute, a claimant must prove all
elements necessary to qualify for compensation by a preponderance of the evidence.
Titus v. Sioux Valley Hosp., 2003 SD 22, ¶11, 658 NW2d 388, 390 (citation omitted).
The fact that an employee may have suffered a work-related injury does not
automatically establish entitlement to benefits for his current claimed condition.
Haynes v. McKie Ford, 2004 SD 99, ¶17, 686 NW2d 657, 661. The claimant must
establish that his work-related injury is a major contributing cause of his current
claimed condition and need for treatment. Vollmer, 2007 SD 25, ¶14, 729 NW2d at
382-83 (citation omitted). An employee need only prove his work-related injury is
“a” major contributing cause of his current claimed condition. Brown v. Douglas
Sch. Dist., 2002 SD 92, ¶23, 650 NW2d 264, 271.
[¶12.] A claimant need not prove his work-related injury is a major
contributing cause of his condition to a degree of absolute certainty. Brady Mem’l
Home v. Hantke, 1999 SD 77, ¶16, 597 NW2d 677, 681 (citations omitted).
Causation must be established to a reasonable degree of medical probability, not
just possibility. Truck Ins. Exch. v. CNA, 2001 SD 46, ¶19, 624 NW2d 705, 709
(citing Enger v. FMC, 1997 SD 70, ¶18, 565 NW2d 79, 85). The evidence must not
be speculative, but must be “precise and well supported.” Vollmer, 2007 SD 25, ¶14,
729 NW2d at 382 (quoting Horn v. Dakota Pork, 2006 SD 5, ¶14, 709 NW2d 38, 42).
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[¶13.] The testimony of medical professionals is crucial in establishing the
causal relationship between the work-related injury and the current claimed
condition “because the field is one in which laypersons ordinarily are unqualified to
express an opinion.” Id. (quoting Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶21,
653 NW2d 247, 252 (quoting Day v. John Morrell & Co., 490 NW2d 720, 724 (SD
1992))). No recovery may be had where the claimant has failed to offer credible
medical evidence that his work-related injury is a major contributing cause of his
current claimed condition. SDCL 62-1-1(7). Expert testimony is entitled to no more
weight than the facts upon which it is predicated. Schneider v. S.D. Dep’t of
Transp., 2001 SD 70, ¶16, 628 NW2d 725, 730 (citations omitted).
[¶14.] We consider anew the medical expert testimony on causation in this
case because it was presented through deposition. Vollmer, 2007 SD 25, ¶12, 729
NW2d at 382 (citation omitted). Darling argues the January 2005 injury is a major
contributing cause of his current condition and need for treatment, including
surgery. He offered the opinions of Drs. Lawlor and Schleusener in support of this
contention. West River Masonry argues Darling has not proven to a reasonable
degree of medical probability that the January 2005 injury is a major contributing
cause of his current condition and need for surgery. Dr. Reichhardt testified the
surgery is needed to treat disk bulges, nerve impingement, and stress fractures,
injuries not present prior to the May 2006 incident as demonstrated by the June
2005 MRI report. He concluded Darling is not entitled to workers’ compensation
benefits for any treatment related to those conditions.
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[¶15.] We must first consider whether the January 2005 injury is a major
contributing cause of Darling’s general current condition. The testimony of Drs.
Lawlor and Schleusener demonstrates that the May 2006 incident was an
exacerbation of Darling’s January 2005 injury. While Darling was assigned
maximum medical improvement in April 2006, he was still experiencing severe pain
at that time. Darling’s description of the pain experienced after the May 2006
incident is similar to his description of the pain experienced after the January 2005
injury. In Darling’s words, after the May 2006 incident, he experienced the “same
kind of pain, same location, same intensity.” He “didn’t think it was anything new,
just a continuation or flare-up” since it “mimicked the symptoms of the earlier
injury.” Drs. Lawlor and Schleusener noted Darling’s pain initially worsened after
the May 2006 incident, but eventually subsided to the same degree as before the
incident. Dr. Reichhardt disputed this fact, but did not review Darling’s medical
records after June 2006. He thus cannot know Darling’s condition after that date.
Darling has demonstrated to a reasonable degree of medical probability that the
January 2005 injury is a major contributing cause of his general current condition.
[¶16.] We must next consider whether the January 2005 injury is a major
contributing cause of Darling’s need for surgery. The testimony of Drs. Lawlor and
Schleusener demonstrates that the stress fractures were caused by the January
2005 injury. The June 2006 MRI report noted Darling had a stress fracture at two
levels. Dr. Schleusener testified that a stress fracture at one level is often
indicative of a degenerative condition, while a stress fracture at two levels is often
the result of a single traumatic event. Dr. Schleusener did not believe the May
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2006 incident contributed enough force to cause a stress fracture at two levels.
Rather, the hyperextension injury Darling suffered in January 2005 was a single
traumatic event likely to have caused a stress fracture at two levels. Additionally,
Drs. Lawlor and Schleusener noted bridging osteophytes, attempts by the body to
heal stress fractures, in the June 2006 MRI. Bridging osteophytes take years to
develop. The presence of the bridging osteophytes in the June 2006 MRI indicates
the stress fractures were present before the May 2006 incident. It is undisputed the
stress fractures have resulted in disk slippage. Therefore, Darling has
demonstrated to a reasonable degree of medical probability that the January 2005
injury is a major contributing cause of his stress fractures and disk slippage.
[¶17.] West River Masonry contends Darling has not presented credible
medical evidence that the January 2005 injury is a major contributing cause of the
disk bulging or stress fractures so that he is not entitled to workers’ compensation
benefits for the treatment of those conditions, namely surgery. However, surgery is
necessary not only to treat nerve impingement caused by disk bulging, but also disk
slippage caused by stress fractures. Darling has demonstrated to a reasonable
degree of medical probability that the January 2005 injury is a major contributing
cause of the stress fractures and disk slippage. Significantly, Darling and Dr.
Lawlor discussed the possibility of corrective surgery two months before the May
2006 incident. For these reasons, Darling has demonstrated to a reasonable degree
of medical probability that the January 2005 injury is a major contributing cause of
his current condition and need for treatment, including surgery.
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[¶18.] West River Masonry argues that because the disk bulges, nerve
impingement, stress fractures, and disk slippage were not noted in the June 2005
MRI report, they did not then exist and must have been caused by the May 2006
incident. This argument relies on a “false connection between causation and
temporal sequence.” Rawls, 2002 SD 130, ¶20, 653 NW2d at 252 (citation omitted).
Arguments relying solely on temporal sequence have “little value in the science of
fixing medical causation.” Id. That these conditions were not noted in the June
2005 MRI report does not mean they did not then exist. This is especially true
because the MRI reports were prepared by two different radiologists. Additionally,
even if these conditions had not yet manifested in June 2005, the January 2005
injury was still likely a major contributing cause of those conditions. Dr.
Schleusener testified that the fact the June 2005 MRI did not show disk bulges
would not change his opinion that the January 2005 injury was a major
contributing cause of Darling’s current condition. Ultimately, West River Masonry
advances a very limited evaluation of the causation requirement.
[¶19.] West River Masonry similarly makes much of the fact that Drs. Lawlor
and Schleusener did not examine the films of the June 2005 and June 2006 MRIs.
They assert Darling has not presented “precise and well supported” medical expert
testimony and cannot meet his burden. See Vollmer, 2007 SD 25, ¶14, 729 NW2d at
382 (citation omitted). We decline to judge the weight and credibility of the medical
expert testimony on such a limited basis. Indeed, the record indicates Dr.
Reichhardt, like Drs. Lawlor and Schleusener, did not view the films of the June
2005 and June 2006 MRIs. He, like Drs. Lawlor and Schleusener, reviewed the
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radiologists’ reports. Dr. Reichhardt’s opinions regarding the MRI reports,
therefore, should be given no more weight than the opinions offered by Drs. Lawlor
and Schleusener. To the contrary, the opinions of Drs. Lawlor and Schleusener,
Darling’s treating physicians, should be given substantial weight when compared to
the opinion of Dr. Reichhardt, which was prepared after a review of medical records.
[¶20.] We have engaged in a comprehensive analysis of the expert medical
testimony in this case. In affording the appropriate weight to the expert medical
testimony of Drs. Lawlor, Schleusener, and Reichhardt, we affirm the circuit court’s
grant of benefits for treatment of Darling’s general condition, but reverse the circuit
court’s denial of benefits for treatment, including surgery, relating to Darling’s disk
bulges, nerve impingement, stress fractures, and disk slippage.
[¶21.] Affirmed in part, reversed in part.
[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, concur.
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