Arends v. Dacotah Cement

AMUNDSON, Justice

(concurring in part and dissenting in part).

[¶ 25.] Although I fully recognize that this Court is obligated to liberally construe coverage in workers’ compensation cases, the majority opinion simply goes too far. See Mattis v. Weaver Electric, Inc., 2000 SD 150, ¶ 8, 619 N.W.2d 526, 528; Fair-cloth v. Raven Indus., Inc., 2000 SD 158, ¶ 16, 620 N.W.2d 198, 203. During his first deposition, Dr. Seeman testified that Arends’ job was a contributing cause of his knee injury, not a major contributing cause.1 Next, on May 18, 2000, his second *590deposition took place where counsel for the claimant led the good doctor through these troubled waters to get to the right answer.2

Q. Doctor, would you state your name, please?
A. Dr. Terry Lee Seeman.
Q. And, Doctor, for your information, this is a supplemental deposition to your deposition that was taken on August 12, 1999, regarding A1 Arends. Do you recall that deposition being taken at that time?
A. Yes.
Q. At that time, I asked you this question:
[[Image here]]
"If I hear you correctly based on the history you took and your findings on the surgery that you performed, and based on the information you obtained from the patient, it's your opinion based upon a reasonable degree of medical certainty that the arthritic conditions and this knee problem of Mr. Arends' is a result of his work with Dacotah Cement.''
Your answer was:
"It would be my opinion that without information to the contrary, that would be the likely cause of his degenerative changes noted at the time of the surgery.”
That was the end of your answer. And that gave me a little bit of concern, Doctor, so because of subsequent inquiries made by counsel representing Dacotah Cement, additional information has been obtained and I have the following question for you, Doctor.
Doctor, based upon the history you took during the time that you were providing medical services to Mr. Arends and your findings during the surgery that you performed, is it your opinion based upon a reasonable degree of medical certainty, that the work that Mr. Arends was performing with Dacotah Cement was a major contributing cause of Mr. Arends' arthritic conditions in his current knee problems?
And I want you to assume the following facts: That in the mid to late 1970's, and thereafter, Mr. Arends did body work on vehicles consisting of changing fenders, changing doors, and minor repairs in the shop in his home. And that he would probably work on or restore approximately eight vehicles a year, and the nature of that work was body work and painting where he would occasionally have to get on a creeper and get underneath the car. He would put the cars up on jack stands so that he could get underneath the cars on the creeper. And further assume, Doctor, that approximately 12 years ago, Mr. Arends helped change a clutch in a vehicle in his garage, where he had to possibly get down on his knees and also under the vehicle on a creeper to accomplish the job.
Further assume that during the period of 1990 through 1996, Mr. Arends worked on two cars and one pickup. One car was a 1988 Volv[o] on which he replaced fenders, radiator support, grill, repaired the right quarter panel and painted the car. The other vehicle was a 1991 Chevrolet in which he replaced a hood, two fenders, radiator support, bumper, and painted the front. The other vehicle that Mr. Arends worked on was a 1982 Ford pickup, on which he replaced rocker panels and repaired rust on the back of the cab.
Also assume that during the time that Mr. Arends was working on vehicles, he has not *591sustained any type of injury, never had a car fall on him, nor did he injure his knees or back.
And further assume that beginning in approximately 1973, Mr. Arends did some trapping of fur bearers, as sort of a hobby two to three weeks during the winter months at the most. And while he was trapping, he would generally bend over to place the traps. For the years 1990 to 1995, he did no trapping, nor has he been trapping since his surgery in January of 1997.
And further assume that Mr. Arends from time to time has done some fishing from a boat and some hunting of pheasant and deer but has never been injured while hunting or fishing.
End of question, Doctor.
A. The physical findings taken operatively demonstrated that he had evidence of chronic disease within his right knee. Chronic disease meaning that it’s — It wasn't one acute injury that caused the damage that we observed in surgery. Part of this, the chronic nature of his knee condition according to the patient, he had a lot of squatting and kneeling, kneeling on concrete at work. And, therefore, that would be a major contributing ... [clause of, or a contributing insult to his knee.
[[Image here]]

[¶ 26.] Additionally, Dr. Looby, who examined Arends, testified that Arends’ job and fall through the ice both contributed to the condition, but he could not opine that it was the major contributing factor. More importantly, Arends’ degenerative knee problems never kept him from working prior to his fall though the ice; he did not limp prior to the fall through the ice; and he did not seek medical attention for his knee problems prior to his fall through the ice. The equivocal medical testimony and lack of prior knee problems, in conjunction with Arends’ history of physically active pastimes, like car repair, hunting, fishing and trapping, make it, in my opinion, pure speculation to conclude that Arends’ job was a major contributing cause of injury after review of this record.

[¶ 27.] If we hold Arends’ job was the major contributing cause, we are, in my opinion, establishing a totally unacceptable liberal precedent. Any employee with a degenerative condition who has a history of manual labor, and who rock climbs, snow or water skis, or takes part in any other physically taxing activity will be able to fall back on alleged work-related physical wear and tear after a traumatic occurrence off the job. There is no doubt that doing repetitive manual labor will have some impact on one’s body as time passes, but as time passes, we all go through normal wear and tear degenerative processes. Just the fact that there is a degenerative condition does not justify imposing liability on workers’ compensation coverage. Therefore, I dissent on the coverage issue. It goes without saying that I concur with the majority that there was a good-faith dispute.

. The following is a response by Dr. Seeman from his deposition on August 12, 1999:

*590Q. Back to, when we were discussing the November of '96 injury, had he not fallen through the ice at that time ... it appears from all of his records he would have been working and never seen a doctor about the knee problems, or maybe mentioned it once or twice, but had not seen anybody for treatment. Had he not fallen through the ice in November of '96, you would agree that he probably could have kept working without restrictions at least for some time period?
A. My opinion of Mr. Arends is that he was a good worker. He did whát he was told. He may have been having pain of a certain type, certain amount of stiffness when he worked. So it's hard — You know, I would say that if he hadn’t fallen through the ice and had that rather, you know, that rather kind of violent direct blow to his knee, he probably would have continued to do what he was doing. I think it would have eventually caught up with him with some type of injury, either at home or at work, but, you know, that’s hard to say. (emphasis added). [But later on it is not hard for him to say that work was a major contributing factor.]

. Dr. Seeman’s second deposition stated the following: