#25995-a-GAS
2011 S.D. 91
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MARK DENNIS MCQUAY, Plaintiff and Appellant,
v.
FISCHER FURNITURE, Employer and Appellee,
and
ACUITY, Insurer and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
****
THE HONORABLE MARK BARNETT
Judge
****
DENNIS W. FINCH of
Finch Maks, Prof. LLC
Rapid City, South Dakota Attorneys for appellant.
CHARLES A. LARSON of
Boyce, Greenfield, Pashby & Welk,LLP
Sioux Falls, South Dakota Attorneys for appellees.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 16, 2011
OPINION FILED 12/21/11
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SEVERSON, Justice
[¶1.] Mark Dennis McQuay received workers’ compensation benefits for a
neck and back injury he suffered on October 22, 2002, while working for Fischer
Furniture. After his workers’ compensation benefits were discontinued in March
2004, McQuay sought treatment for a low back condition. He petitioned the
Department of Labor (Department) for workers’ compensation benefits. The
Department ruled McQuay did not prove his low back condition was related to his
original October 22, 2002 work injury. The circuit court entered an order affirming
the decision of the Department. We affirm.
Background
[¶2.] McQuay was an employee at CarpetMart in Rapid City, South Dakota.
CarpetMart is one of several stores owned by Fischer Furniture. McQuay’s duties
at CarpetMart included cutting carpet and vinyl remnants. He also worked in the
warehouse and was frequently required to carry rolls of carpet and linoleum within
the store. On October 22, 2002, while McQuay was carrying a bolt remnant on his
shoulder, another remnant fell and struck McQuay on the head. Immediately after
this incident, McQuay felt sore in his lower back and neck. McQuay had not been
treated or diagnosed with back or neck problems prior to this incident.
[¶3.] The next day, at the direction of Fischer Furniture, McQuay was
examined by Dr. Wayne Anderson at the Spearfish Health Center. Dr. Anderson
assessed McQuay with a head contusion and neck pain. On October 30, 2002,
McQuay saw Dr. Anderson a second time, complaining of low back pain primarily
on the right side. Dr. Anderson conducted another examination of McQuay and
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noted that his “[l]ow back has good range of motion with some tenderness on the
right at the L2-L3 area.” Dr. Anderson diagnosed McQuay with lumbar strain.
[¶4.] Dr. Anderson examined McQuay again on December 2, 2002 and
assessed him with “low back pain with right L5 radiculopathy.” Dr. Anderson
ordered an MRI of McQuay’s lumbar spine. On December 9, 2002, an MRI of
McQuay’s low back was performed at Black Hills Imaging Center. A doctor
reviewed the MRI image and drafted a report indicating McQuay had a “normal
MRI of the lumbar spine.”
[¶5.] Dr. Anderson referred McQuay to Dr. Mark Simonson at The Rehab
Doctors. McQuay visited Dr. Simonson on December 11, 2002. After conducting an
examination of McQuay’s low back, Dr. Simonson diagnosed McQuay with lumbar
strain. McQuay continued to see Dr. Simonson to treat the pain in his low back.
Several of Dr. Simonson’s treatment notes indicate McQuay’s low back pain
improved while he treated with Dr. Simonson. In a January 24, 2003 record, Dr.
Simonson stated McQuay was “doing well regarding his low back” and his “[l]ow
back is doing good.”
[¶6.] McQuay’s workers’ compensation benefits were discontinued as of
March 2004. Although McQuay continued to undergo treatment for problems with
his upper back and neck, he did not report experiencing low back pain until June
30, 2005, when he visited the Rapid City Community Health Center complaining of
“left lower back pain radiating into his left thigh and upper calf.” On August 5,
2005, McQuay sought treatment for his low back pain with Dr. Christopher Dietrich
at The Rehab Doctors. Dr. Dietrich’s notes indicate McQuay reported a “recurrence
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of low back pain with no known injury.” His records further indicate McQuay had
experienced lower back pain in 2002 and 2003, but that this pain “resolved.”
[¶7.] McQuay sought treatment for his low back pain with Dr. John
Lassegard at the Rapid City Community Health Center on October 4, 2005.
According to Dr. Lassegard’s records, McQuay reported experiencing “pain radiating
to the lateral part of his thigh down to his knee over the last several months,
getting worse.” An MRI of McQuay’s low back was conducted on October 7, 2005.
Dr. Lassegard reviewed the MRI image and reported that it showed disc protrusions
in McQuay’s lumbar spine.
[¶8.] McQuay did not seek additional treatment for his low back until
August 8, 2007, when McQuay saw Dr. Tim Watt for a “new complaint of low back
pain with some pain going down into the left leg.” Dr. Watt’s records indicate
McQuay’s low back pain “came on fairly spontaneously” and did not “have any
specific precipitator.” A third MRI was performed on August 8, 2007. After
reviewing the MRI image, Dr. Watt reported that it showed a “new protrusion left
L4-5.”
[¶9.] A hearing was held before the Department of Labor on the limited
issue of whether the original October 22, 2002 injury was a major contributing
cause of McQuay’s low back condition.1 The Department ruled McQuay did not
1. McQuay initially filed a petition for hearing with the Department on January
26, 2005. The issue before the Department at that time was whether
McQuay was entitled to receive benefits for surgery on his upper back. The
Department ruled in favor of McQuay. The Decision was appealed to the
circuit court. On June 20, 2007, the circuit court affirmed the Department’s
decision. The parties then entered into a settlement agreement regarding
(continued . . .)
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meet his burden of proving the original October 22, 2002 work injury was a major
contributing cause of the low back condition McQuay has suffered from since 2005.
The circuit court entered an order on March 24, 2011 affirming the decision of the
Department.
Standard of Review
[¶10.] The standard of review for administrative appeals is controlled by
SDCL 1-26-36. We review an agency’s factual findings under the clearly erroneous
standard. See Williams v. S.D. Dept. of Agric., 2010 S.D. 19, ¶ 5, 779 N.W.2d 397,
400 (“[O]ur standard of review is controlled by SDCL 1-26-36, requiring us to give
great weight to the findings of the agency and reverse only when those findings are
clearly erroneous in light of the entire record.”). However, “when ‘an agency makes
factual determinations on the basis of documentary evidence, such as depositions’ or
medical records,” our review is de novo. Darling v. W. River Masonry, Inc., 2010
S.D. 4, ¶ 10, 777 N.W.2d 363, 366-67 (quoting Vollmer v. Wal-Mart Store, Inc., 2007
S.D. 25, ¶ 12, 729 N.W.2d 377, 382). Questions of law are also reviewed de novo.
Williams, 2010 S.D. 19, ¶ 5, 779 N.W.2d at 400 (citing Vollmer, 2007 S.D. 25, ¶ 12,
729 N.W.2d at 382). “Mixed questions of law and fact require further analysis.”
________________________
(. . . continued)
past-due temporary total-disability benefits. After McQuay filed another
petition for hearing with the Department on April 18, 2008, the parties
entered into a second settlement agreement. This settlement agreement
addressed temporary total-disability benefits and impairment benefits for
McQuay’s neck condition. McQuay’s neck and upper back condition are not
at issue in this appeal.
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Darling, 2010 S.D. 4, ¶ 10, 777 N.W.2d at 366 (quoting McNeil v. Superior Siding,
Inc., 2009 S.D. 68, ¶ 6, 771 N.W.2d 345, 347).
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 [circuit] court, and the [circuit]
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 concepts
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. (quoting McNeil, 2009 S.D. 68, ¶ 6, 771 N.W.2d at 347-48) (quoting United
States v. McConney, 728 F.2d 1195, 1202 (9th Cir. 1984)).
Analysis
[¶11.] In a workers’ compensation proceeding, the claimant bears the burden
of proving the facts “necessary to qualify for compensation by a preponderance of
the evidence.” Id. ¶ 11 (citing Titus v. Sioux Valley Hosp., 2003 S.D. 22, ¶ 11, 658
N.W.2d 388, 390). “The fact that an employee may have suffered a work-related
injury does not automatically establish entitlement to benefits for his current
claimed condition.” Id. (citing Haynes v. McKie Ford, 2004 S.D. 99, ¶ 17, 686
N.W.2d 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.”
Id. (citing Vollmer, 2007 S.D. 25, ¶ 14, 729 N.W.2d at 382-83). See also SDCL 62-1-
1(7)(a) (“No injury is compensable unless the employment or employment related
activities are a major contributing cause of the condition complained of.”).
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[¶12.] We have emphasized, “[a] claimant need not prove his work-related
injury is a major contributing cause of his condition to a degree of absolute
certainty.” Id. ¶ 12 (citing Brady Mem’l Home v. Hantke, 1999 S.D. 77, ¶ 16, 597
N.W.2d 677, 681). But the claimant must establish causation “to a reasonable
degree of medical probability, not just possibility.” Id. (citing Truck Ins. Exch. v.
CNA, 2001 S.D. 46, ¶ 19, 624 N.W.2d 705, 709). “The evidence must not be
speculative, but must be ‘precise and well supported.’” Id. (quoting Vollmer, 2007
S.D. 25, ¶ 14, 729 N.W.2d at 382).
[¶13.] McQuay contends that his October 2002 injury was a major
contributing cause of the low back problems he has experienced since 2005.2
During the hearing before the Department, McQuay testified he suffered from
continuous pain in his low back after the October 2002 injury. McQuay further
testified his low back pain was always on his left side and down his left leg.
McQuay did not recall suffering from an intervening injury that would have caused
the low back problems he has experienced since 2005.
[¶14.] The Department found McQuay’s testimony was not credible because it
was inconsistent with medical evidence introduced during the hearing. McQuay
testified in person at the hearing. Therefore, we review the Department’s findings
as to McQuay’s credibility under the clearly erroneous standard. Orth v. Stoebner &
Permann Const., Inc., 2006 S.D. 99, ¶ 28, 724 N.W.2d 586, 592 (citing Brown v.
Douglas Sch. Dist., 2002 S.D. 92, ¶ 9, 650 N.W.2d 264, 267-68).
2. There is no dispute McQuay suffered a compensable work-related injury to
his lower back on October 22, 2002.
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[¶15.] One of the medical records introduced into evidence was a January 24,
2003 record in which Dr. Simonson indicated McQuay was “doing well regarding his
low back” and his “[l]ow back is doing good.” After visiting Dr. Simonson on
January 24, 2003, the record indicates McQuay did not report experiencing low back
problems again until June 30, 2005, when he visited the Rapid City Community
Health Center complaining of “left lower back pain radiating into the left thigh and
upper calf.”
[¶16.] McQuay visited Dr. Dietrich on August 5, 2005. Dr. Dietrich’s records
indicate McQuay reported a “recurrence of low back pain with no known injury.”
Dr. Dietrich’s records also indicate that McQuay experienced low back pain in 2002
and 2003, but that this pain “resolved.” This medical evidence conflicts with
McQuay’s testimony that he has experienced continuous low back pain since the
October 22, 2002 injury.
[¶17.] During the hearing, McQuay also testified his lower back pain was
always on the left side of his lower back. McQuay testified he had never had
problems with the right side of his low back. However, medical evidence introduced
at the hearing did not support McQuay’s testimony. For example, (1) Dr.
Anderson’s October 30, 2002 record states McQuay’s low back pain was primarily on
the right side; (2) Dr. Anderson’s December 9, 2002 record states McQuay was
experiencing right-sided L5 radiculopathy; (3) a physical therapy record from
Promotion Rehabilitation Center dated November 6, 2002, indicates McQuay had
increased muscle tone on the right low back; and (4) a record from Black Hills
Imaging Center dated November 25, 2002 contains a pain diagram in which
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McQuay indicated he was experiencing pain on the lower right-hand side of his
lumbar spine.
[¶18.] McQuay was presented with these medical records on cross-
examination. He was also presented with other medical records indicating that he
had experienced back pain on the right side of his lower back prior to 2005. After
being presented with this evidence, McQuay admitted he suffered from low back
pain on the right side following the October 22, 2002 accident.
[¶19.] McQuay did not testify consistently during the hearing. His testimony
was also contrary to the bulk of the medical evidence. After reviewing McQuay’s
testimony and the medical evidence in the record, we hold the Department’s finding
regarding McQuay’s credibility was not clearly erroneous.
[¶20.] In finding McQuay’s October 2002 injury was not a major contributing
cause of the low back problems he experienced since 2005, the Department
considered the deposition testimony of several medical professionals. We have
stated, “[t]he 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.’” Darling, 2010 S.D. 4, ¶ 13, 777 N.W.2d at 367 (quoting Vollmer, 2007
S.D. 25, ¶ 14, 729 N.W.2d at 382). Because the medical testimony the Department
considered was presented through deposition, we review the Department’s findings
regarding this testimony de novo. Id. ¶ 14 (citing Vollmer, 2007 S.D. 25, ¶ 12, 729
N.W.2d at 382).
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[¶21.] The Department considered the deposition testimony of Dr. Jeff
Luther, who works as the medical director for WorkFORCE Occupational Health
and Medical Services. Dr. Luther conducted an independent medical evaluation of
McQuay and concluded the October 2002 work injury was not a major contributing
cause of the low back condition McQuay reported experiencing in 2005 and
thereafter. As the medical director of WorkFORCE Occupational Health and
Medical Services, Dr. Luther regularly reviews and interprets MRI images. Dr.
Luther compared three MRI images of McQuay’s lower back. The MRIs were taken
in 2002, 2005 and 2007. Dr. Luther observed significant differences between the
2002 and 2005 MRI images. The 2002 MRI image showed McQuay had a normal
lumbar spine. However, Dr. Luther found several lumbar protrusions on the 2005
MRI image that did not appear on the 2002 MRI image.
[¶22.] Dr. Luther also reviewed McQuay’s medical records and concluded
that, prior to June 2005, McQuay was experiencing back pain on the right side of
his low back. But in June 2005, McQuay began reporting that he was experiencing
pain on the left side of his low back. After reviewing McQuay’s medical records, Dr.
Luther opined, within a reasonable degree of medical probability, that McQuay’s
October 2002 injury was not a major contributing cause of the low back problems
McQuay has experienced since June 2005.
[¶23.] Dr. John Dowdle also reviewed McQuay’s medical records and opined,
within a reasonable degree of medical probability, that the October 2002 work
injury was not a major contributing cause of the low back condition McQuay has
experienced since June 2005. Dr. Dowdle based his opinion upon the MRI reports
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from 2002, 2005 and 2007. He noted that the 2002 MRI report indicated McQuay’s
low back was normal. However, the 2005 MRI report indicated there was “a small
left disc protrusion at L4-5.” Dr. Dowdle opined that this disc protrusion “is
consistent with a degenerative disc that had developed over the years at that level.”
Dr. Dowdle concluded that the “small left disc protrusion at L4-5” was the cause of
the low back pain McQuay has experienced since 2005 and that the October 2002
injury was not a major contributing factor to these degenerative changes in
McQuay’s low back.
[¶24.] Dr. Dietrich disagreed with the opinions of Drs. Luther and Dowdle.
He conducted a review of McQuay’s medical records and concluded that the October
2002 work injury was a major contributing cause of McQuay’s low back condition.
McQuay argues the Department erred in accepting the testimony of Drs. Luther
and Dowdle over the testimony of Dr. Dietrich, who personally treated McQuay. We
disagree.
[¶25.] Dr. Dietrich based his opinion, in part, upon the fact that he was
unaware of any other intervening cause for McQuay’s low back problems. But Dr.
Dietrich admitted on cross-examination that there did not need to be an identifiable
cause for disc bulges, protrusions, or herniations. He admitted McQuay had
approximately a 30% chance of developing disc problems based on his age alone and
that this risk increased with McQuay’s nicotine use, which started at age 11 or 12.
Moreover, in forming his opinion, Dr. Dietrich did not review the 2002 or 2005 MRI
images. He also did not account for medical evidence indicating that prior to June
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2005, McQuay’s back pain was on the right side of his low back while McQuay’s
complaint at the time of the hearing was for low back pain on the left side.
[¶26.] Our de novo review of the conflicting medical testimony in this case
leads us to agree with the Department’s findings. The testimony of Drs. Luther and
Dowdle is consistent with the medical evidence. Moreover, Dr. Luther was the only
medical expert to comparatively examine each of the MRI images from 2002, 2005
and 2007. Because McQuay failed to establish by a preponderance of the evidence
that the October 2002 injury was a major contributing cause of his current low back
condition, we affirm the circuit court’s denial of workers’ compensation benefits.
[¶27.] Affirmed.
[¶28.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,
Justices, and SABERS, Retired Justice, concur.
[¶29.] SABERS, Retired Justice, sitting for WILBUR, Justice, disqualified.
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