Belhassen v. John Morrell & Co.

• Decision Date: 21 June 2000
• Docket Number: No. 21258., No. 21253
• Parties: Mohammed BELHASSEN, Claimant and Appellant, v. JOHN MORRELL & COMPANY, Employer, Self-Insurer and Appellee.
• Court: South Dakota Supreme Court

613 N.W.2d 531

2000 SD 82

Mohammed BELHASSEN, Claimant and Appellant, v. JOHN MORRELL & COMPANY, Employer, Self-Insurer and Appellee.

Nos. 21253, 21258.

Supreme Court of South Dakota.

Considered on Briefs April 24, 2000.

Decided June 21, 2000.

Scott G. Hoy of Scott G. Hoy Law Office, Sioux Falls, for claimant and appellant.

Michael S. McKnight, Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for employer, self insurer and appellee.

AMUNDSON, Justice.

[¶ 1.] Mohammed Belhassen (Belhassen) appeals the Department of Labor's (Department) denial of odd-lot benefits and Cozine benefits. We affirm.

FACTS

[¶ 2.] Belhassen began working for John Morrell & Company of Sioux Falls, South Dakota in April 1992.¹ In October 1993, Belhassen suffered a work-related injury to his back in the course of his employment with John Morrell. As a result of this injury, Belhassen was ordered off work from October 7, 1993 to March 6, 1995.² On May 26, 1994, Dr. Asfora performed arthroscopic surgery on Belhassen's back.³ Despite the surgery, Belhassen continued to have problems with his back and was referred to Dr. Charles Burton.

[¶ 3.] Dr. Burton, a neurosurgeon and Senior Medical Director for the Institute of Low Back and Neck Care in Minneapolis, Minnesota, examined Belhassen on October 5, 1994. Burton diagnosed Belhassen with a two-level degenerative disease and recommended further surgery on L3-4 Level of Belhassen's back.

[¶ 4.] On December 7, 1994, John Morrell sent Belhassen to Dr. David Hoversten for an Independent Medical Evaluation. Hoversten found that Belhassen was uncooperative during the examination and was exaggerating his pain symptoms. Hoversten concluded that Belhassen was "a poor candidate for surgery and that it would be `likely to result in several further surgeries with a total disability after he had been operated on enough times.'" John Morrell then sent Belhassen to Dr. Frederick Entwistle on May 25, 1995. Entwistle recommended Belhassen undergo additional surgery, but referred Belhassen to Dr. Joseph Cass for a second opinion. On June 26, 1995, Dr. Cass examined Belhassen and recommended additional surgery was necessary. Belhassen underwent the surgery on July 15, 1995.

[¶ 5.] Belhassen was released by Dr. Cass to return to work on October 23, 1995, with instructions that Belhassen work only four hours a day and perform only light duty. Within a month, Belhassen was reporting the same symptoms in his back that he had complained of prior to the July surgery. At a follow-up appointment with Dr. Cass, Cass was unable to determine the source of Belhassen's symptoms, but released him back to work with the same light duty work restrictions.

[¶ 6.] On March 27, 1996, after further concerns had been raised about Belhassen's ability to perform his assigned work, Dr. Cass ordered a functional capacity assessment and re-examined Belhassen to formulate an impairment rating. Dr. Cass concluded that Belhassen had a ten percent impairment of the whole person under the AMA Guide to Impairment (Fourth Edition). Dr. Hoversten performed two examinations and found that under the AMA Guide (Fourth Edition) Belhassen had a fifteen percent impairment of the whole person, but under the AMA Guide (Third Edition) Belhassen had a ten percent impairment of the whole person.

[¶ 7.] On June 7, 1996, John Morrell sent Dr. Cass a letter asking him to review a videotape depicting the retrial blade meat job and determine whether it would be appropriate for Belhassen. Registered nurse Linda Pudenz reviewed the videotape and subsequently spoke with Dr. Cass about her observations. Dr. Cass ultimately approved the retrim blade meat job for Belhassen, based upon Pudenz's observations, but provided that weight restrictions be maintained and Belhassen be allowed to sit or stand at his convenience.

[¶ 8.] While Belhassen had initially been released back to work and required to work only four hours per day, after a brief period, Belhassen ultimately was allowed to return to work full-time, but would alternate between two job functions on an hourly basis: standing and trimming meat for one hour and sitting and assembling boxes for another hour. On August 1, 1996, Belhassen was informed that he would be expected to work the retrim blade meat position for an entire eight-hour shift and not just every other hour. Belhassen claims that he attempted to explain to his supervisor that an eight-hour shift on the retrim blade position would violate his medical restrictions from Dr. Cass.⁴ Belhassen, therefore, refused to perform the eight-hour shift. After subsequent meetings between Belhassen, Belhassen's union representative, an interpreter, two of Belhassen's supervisors and John Morrell's personnel director, Belhassen still refused to perform the job and he was discharged for refusing the assignment.

[¶ 9.] After his termination, Belhassen attempted to find work by registering with Job Service. Belhassen filled out one application with Carlisle Plastics, but was not hired. Further, Belhassen never contacted or was contacted by Job Service regarding any potential job openings. Belhassen did not apply for any other jobs.

[¶ 10.] Belhassen brought a workers' compensation action before Department to determine whether he was entitled to "odd lot benefits" and "Cozine benefits." On December 16, 1998, the Administrative Law Judge (ALJ) for the Department rejected Belhassen's expert, Rick Ostrander's opinion and denied Belhassen's request for odd lot and Cozine benefits. Belhassen appealed the decision to the circuit court which affirmed the denial of benefits to Belhassen. Belhassen subsequently filed a Motion for Reconsideration and a Motion for Order Allowing for Additional Evidence, but the motions were both denied. Belhassen appeals, raising the following issues:

1. Whether Belhassen is entitled to odd-lot benefits.

2. Whether Belhassen is entitled to Cozine benefits.

John Morrell filed a Notice of Review, raising the following issues:

3. Whether Cozine benefits should be denied due to Belhassen's failure to look for work.

4. Whether Cozine benefits should be denied due to Belhassen's ability to return to his usual and customary line of employment.

STANDARD OF REVIEW

[¶ 11.] Our standard of review in workers' compensation cases is well settled. We have often stated that "`[u]nder SDCL 1-26-37, when the issue is a question of fact, then the clearly erroneous standard is applied to the agency's findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.'" Brady Mem'l Home v. Hantke, 1999 SD 77, ¶ 8, 597 N.W.2d 677, 679-80 (quoting Wagaman v. Sioux Falls Constr., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 6, 557 N.W.2d 764, 766 (citations omitted))). Under our review, "we are required to give `great weight to the findings and inferences made by Department on factual questions.'" Id. (quoting Wagaman, 1998 SD 27, ¶ 12, 576 N.W.2d at 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted))). Further, "`[i]f after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.'" Id. (quoting Sopko, 1998 SD 8, ¶ 6, 575 N.W.2d at 228 (citations omitted)).

DECISION

[¶ 12] 1. Whether Belhassen is entitled to odd-lot benefits.

[¶ 13.] We have often stated that the determination of whether a claimant is entitled to permanent total disability benefits, otherwise known as odd-lot disability benefits, is determined as follows:

[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.

Under this doctrine, an employee first bears the burden to show total disability. If it is "obvious" an employee falls within the "odd-lot" category, the employer must then prove positions in the community are available for persons with the employee's limitations. A claimant may show "obvious unemployability" by: (1) showing that his physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category, or (2) persuading the trier of fact that he is in fact in the kind of continuous, severe and debilitating pain which he claims. Inversely, if the employee is not obviously unemployable, the burden remains with the employee to demonstrate the unavailability of suitable employment, after reasonable albeit unsuccessful, efforts to find work.

Kurtz v. SCI, 1998 SD 37, ¶ 14, 576 N.W.2d 878, 883-84 (quoting Zoss v. United Bldg. Ctrs., Inc., 1997 SD 93, ¶ 16, 566 N.W.2d 840, 845 (citations & internal quotations omitted)). To establish his entitlement to odd-lot benefits, Belhassen must either show that he is "obviously unemployable" or show that suitable employment is unavailable based upon Belhassen's reasonable, yet unsuccessful, efforts to find work. See Petersen v. Hinky Dinky, 515 N.W.2d 226 (S.D.1994)

. We will discuss each separately.

Obvious Unemployability

[¶ 14.] We have previously held,

[a] claimant can establish obvious unemployability by showing either that his physical condition along with his education and training make it obvious that he is in the odd-lot total disability category, or by convincing the trier of fact that he suffers the kind of continuous, severe, and debilitating pain which he claims.

Wagaman, 1998 SD 27, ¶ 22,576 N.W.2d at 242. The ALJ found that "[t]he evidence presented at the hearing [did] not establish that Belhassen is obviously unemployable." The ALJ noted that Ostrander, who stated that Belhassen was obviously unemployable, "was not aware of Belhassen's history as a truck driver and did not consider the employment possibilities...