Barkdull v. Homestake Min. Co.

• Citation: 317 N.W.2d 417
• Decision Date: 28 October 1981
• Docket Number: No. 13415,13415
• Parties: Thomas BARKDULL, Claimant and Appellant, v. HOMESTAKE MINING COMPANY, Employer, Self-Insurer and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 417

317 N.W.2d 417 Thomas BARKDULL, Claimant and Appellant,
v.
HOMESTAKE MINING COMPANY, Employer, Self-Insurer and
Appellee. No. 13415. Supreme Court of South Dakota. Considered on Briefs Oct. 28, 1981.
Decided March 24, 1982.

Bradley G. Bonynge, Sioux Falls, for claimant and appellant.

John J. Delaney of Amundson & Fuller, Lead, for employer, self-insurer and appellee.

DUNN, Justice.

Thomas Barkdull (employee) petitioned for and was awarded worker's compensation benefits by the Director of the Division of Labor and Management (Director). Homestake Mining Company (employer) appealed to the circuit court, which reversed the Director's award. Employee took this appeal asking that the circuit court's order be reversed. We reverse the circuit court's order and remand for reinstatement of the Director's order and findings.

Employee, a miner, was injured on July 14, 1976, in the course of his employment when the ore car in which he was riding collided with another car. At employer's clinic he complained of neck and back pain. One of the clinic's doctors assessed the injury as a soft tissue injury to the sacral 2-4 region, the lower back. The doctor denied that employee had complained of neck pain immediately after the accident. The clinic's records do not document employee's complaint of neck pain until August 25, 1976.

On December 10, 1976, a muscular ligamentous injury to the cervical area, a neck sprain, was diagnosed. A year later, x-rays were taken and a cervical disc degeneration was diagnosed. In January of 1978, employee underwent surgery to treat this disc

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degeneration. In all, seven doctors gave their opinions on the cause of the disc degeneration or the nature of employee's disability. These opinions were given by direct testimony, deposition or stipulation.

Employee contends that the Director's award was not clearly erroneous and should be reinstated. Employer argues in support of the circuit court's reversal of the award and attacks several of the Director's findings that it contends were clearly erroneous.

Both the circuit court and this court review an administrative action to determine if it is "clearly erroneous." SDCL 1-26-36(5).

In reviewing the actions of any agency it is our duty to decide whether the law has been correctly applied and whether the agency's findings are clearly erroneous. South Dakota Public Utilities Commission v. Otter Tail, 291 N.W.2d 291 (S.D.1980); Matter of Certain Territorial Elec. Boundaries, Etc., (Mitchell Area), 281 N.W.2d 65 (S.D.1979). In reviewing the sufficiency of the evidence we do not sit as a trial de novo of the agency but limit our review to whether the findings and decision of that agency are clearly erroneous. SDCL 1-26-36(5); Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., Etc., 265 N.W.2d 262 (S.D.1978). The review by this court is the same as that conducted by the...