Belhassen v. John Morrell & Co.

SABERS, Justice

(dissenting).

[¶ 30.] Thé majority opinion affirms the denial of permanent total disability and Cozine benefits. I respectfully disagree and would reverse because Belhassen established a prima facie case of permanent total disability. Therefore, this case should be remanded to determine whether Morrell met its burden of showing that suitable employment is available within Sioux Falls that will accommodate all of Belhassen’s limitations. Accordingly, the issue of whether Belhassen is entitled to Cozine benefits does not need to be reached.

[¶ 31.] Belhassen has satisfied his burden of proof that he is obviously unemployable.

[¶ 32.] A claimant is entitled to permanent total disability if:

‘[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.’ The burden is on claimants to make a prima facie showing that their physical impairment, age, mental capacity, training, and education place them in the odd-lot category.

Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 21, 576 N.W.2d 237, 241 (quoting Shepherd v. Moorman Mfg., 467 N.W.2d 916, 918 (S.D.1991)) (other citations omitted). In establishing “obvious unemploya-bility,” Belhassen can show either:

(1) that his physical condition along with his education and training make it obvious that he is in the odd-lot total disability category, or
(2) that he suffers the kind of continuous, severe, and debilitating pain....

Id. ¶ 22 (citations omitted) (emphasis added). Once Belhassen proves that he is “obviously unemployable,” the burden shifts to the employer to show that suitable employment is available within the community that will accommodate the claimant’s limitations. Id.

[¶ 33.] Belhassen is 53-years-old. He injured his back in October of 1993 while lifting a box at work. The diagnosis was a bulging disc with possible herniation. After two surgeries, he was gradually restricted to “light duty” work, with instructions Jo limit his twisting activity and alternate various light duty jobs. Morrell initially complied with these medical restrictions and Belhassen stood for one-hour re-trimming meat and sat the next hour assembling boxes. On March 27, *5401996, Dr. Cass reported that Belhassen should continue “light duty” and avoid excessive bending and twisting.

[¶ 34.] On June 5, 1996, Belhassen was disqualified from working the re-trim position, which is internally referred to as a “Grade 4” job because it is a very strenuous position. However, on July 7, 1996, Dr. Cass’ nurse reviewed a videotape of the re-trim position, and, based on her account of the job, Dr. Cass conditionally approved the position for Belhassen. The condition was that he be allowed to sit or stand at his convenience. Besides the conditional approval, it is important to note that the videotape did not show the specific job within the re-trim department that Belhassen was asked to perform. Nor did the videotape reflect that “butt boards” would be used to accommodate Belhassen, which was contrary to Dr. Cass’ conditional approval. Furthermore, the speed of this fine was not accurately portrayed in the videotape nor the job specifications; i.e. the specific percentages of fat that had to be trimmed from the meat at the speed of the line.

[¶ 35.] On August 1, 1996, Morrell required Belhassen to work the re-trim position for eight continuous hours instead of his approved restriction of alternating jobs every hour. Coincidentally, this was the same position that Morrell disqualified Belhassen from just two months before. In a feeble attempt to comply with his medical restrictions, Morrell provided Bel-hassen with a butt board, which he could lean back against to relieve the pressure from his feet. At best, the butt board allowed him to partially sit while continuing to work. Yet, Morrell’s butt board did not comply with Dr. Cass’ work restrictions or his conditional approval of the position. Dr. Cass did not condition his approval of the re-trim job on Belhassen being allowed to partially sit.

[¶ 36.] As stated, Morrell was required to provide Belhassen with alternating positions of completely sitting down in a chair or standing. Additionally, a functional capacity assessment was issued in February of 1998 and it verifies that Belhassen was restricted to light duty and must vary sitting, standing and walking with limited bending and stooping. Even Morrell’s expert witness, Mary Ann Schuerman, who conducted an onsite job analysis, testified that the re-trim job required an employee to stand at least eighty percent of the shift, less if a butt board was utilized. This means that Belhassen could be required to stand on his feet for nearly six and one-half hours during an eight-hour shift. The fact that Belhassen refused to work an eight-hour shift on a fast, strenuous line with only a butt board available was justified as Morrell violated Belhas-sen’s work restrictions.

[¶ 37.] In summary, it is obvious that Belhassen is physically disabled and is unable to perform an eight-hour shift on his feet, even with the purported “accommodation” of a butt board. Morrell apparently agreed as evidenced by its compliance with his work restrictions for over three years and by its disqualification of Belhassen from the re-trim job in June of 1996. However, without explanation, Morrell suddenly required him to work an eight-hour shift on the “strenuous” line of re-trim, a position he was disqualified from two months earlier. It is clear that Mor-rell knew that Belhassen could not perform this job and the accommodation of a butt board was wholly inadequate.

[¶ 38.] A very significant factor in the decisions of the DOL and the majority opinion is that Belhassen was “a truck driver and infantryman in the Libyan Army for approximately seventeen years.” Belhassen’s vocational expert, Rick Os-trander, was not aware of this experience at the time he conducted his evaluation and did not consider the employment possibilities occasioned by that experience at that time. However, during the hearing, he testified that given Belhassen’s limitations, the skills acquired in Libya are not transferable to the available labor market in Sioux Falls, South Dakota.

*541[¶ 39.] Belhassen does not read, write or speak English. The majority opinion repeatedly attempts to shade his credibility by implying that Belhassen is somewhat capable of communicating in English. For example, the majority opinion notes:

it is quite concerning as to how Belhas-sen was able to explain to his supervisor that his move to an entire eight-hour shift on the re-trim position would violate his medical restrictions. This concern is based upon Belhassen’s continual assertions that he cannot read, speak or understand English. However, Belhas-sen apparently has a good understanding of medical restrictions phrased by his doctor in the English language.

This is a mis-characterization of the record which reflects that Morrell regularly used an interpreter to communicate with Bel-hassen. An interpreter was used at the time Belhassen met with his supervisors to discuss his ability to work the re-trim position for eight hours. It was the supervisor, not Belhassen, who referred to the terminology “medical restrictions.”6 In contrast, Belhassen stated, through an interpreter, that he could not work eight straight hours on the re-trim position. It is also obvious from the record that an interpreter was also used during the DOL hearing.

[¶ 40.] Belhassen has a fifth grade education, which is minimal even in his native Third World country. He can not apply for a commercial driver’s license because he reads and writes only Arabic and speaks and understands very little English. While in Libya, Belhassen drove a Toyota “bus” and passenger cars for the military. He never drove a semi-truck.7 It is against common sense to determine that this experience, coupled with his physical limitations and minimal English skills, provides him with a transferable skill in Sioux Falls. He can not read a map or street signs. Without an interpreter to accompany him, a job as a driver would be improbable. Even if Belhassen could read or speak English, driving a vehicle for a living would be difficult because of his physical limitations. A position requiring him to drive for long periods of time conflicts with his medical restrictions and would inevitably aggravate the existing injury or further injure his back.

[¶ 41.] Ostrander testified that in light of Belhassen’s physical condition and his limited education, training and language, his skills as a driver were not transferable. Ostrander concluded that Belhassen was obviously unemployable. He determined that these limitations reduced Belhassen’s employability by ninety-five percent and reduced his labor market access by ninety-nine percent. Therefore, Belhassen has clearly established a prima facie case of permanent total disability. The findings of the DOL were clearly erroneous and we should reverse and remand for further determination of whether Morrell satisfied its burden to show that suitable employment is available within Sioux Falls that will accommodate all of Belhassen’s limitations.

. Belhassen, through an interpreter, testified: “He [his supervisor, Steve Kiepke] asked me to work on the line eight straight hours. I told him I have note from doctor my back hurt - I can't handle it on the line. He said[,] no[,] you have to do it or you have to go home.”

. The examination of Belhassen, through an interpreter, shows:

Q: How old was he [Belhassen] when he started driving trucks?
A: Seventeen
Q: Okay. What kind of trucks did he drive?
A: We have like little bus that go to - Toyota.
Q: Toyota?
A: Yes.
Q: Passenger cars?
A: Yes, sir.
Q: Did you ever drive a semi-truck?
A: No. Just little bus.