Billman v. Clarke Mach., Inc.

• Decision Date: 10 March 2021
• Docket Number: #29296
• Citation: 956 N.W.2d 812
• Parties: Steven BILLMAN, Claimant and Appellant, v. CLARKE MACHINE, INC., Employer and Appellee, and Sentury Insurance a Mutual Company, Insurer and Appellee.
• Court: South Dakota Supreme Court

956 N.W.2d 812

Steven BILLMAN, Claimant and Appellant,

v. CLARKE MACHINE, INC., Employer and Appellee,andSentury Insurance a Mutual Company, Insurer and Appellee.

#29296

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS NOVEMBER 16, 2020

OPINION FILED March 10, 2021

JAMI J. BISHOP of Johnson, Janklow, Abdallah, & Reiter, LLP, Sioux Falls, South Dakota, RENEE H. CHRISTENSEN, Sioux Falls, South Dakota, Attorneys for claimant and appellant.

THOMAS J. VON WALD, BRIAN A. ZIELINSKI of Boyce Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for employer, insurer, and appellees.

GILBERTSON, Retired Chief Justice

[¶1.] During his employment at Clarke Machine, Inc. (Clarke), Steven Billman (Billman) suffered a work-related injury that caused the amputation of a portion of his left leg. As a result, Billman applied for permanent total disability benefits. The Department of Labor and Regulation (Department) denied Billman's application finding him not obviously unemployable and that he failed to conduct a reasonable job search. He appealed to the circuit court which affirmed the Department's findings. He appeals, arguing that the Department's conclusions that he is not obviously unemployable and, alternatively, that he failed to conduct a reasonable job search are both clearly erroneous. We reverse.

Background

[¶2.] Billman was sixty-two years old at the time of his Department hearing. He has Type I diabetes with peripheral neuropathy

.¹ His education includes an associate degree in electronic technology, completion of the core requirements for mechanical computer-assisted drafting, and a one-year certificate in computer-aided design (CAD) training. Billman's work history spans more than forty years, including positions as an auto-mechanic, manufacturing technician, mechanical/design engineer, railroad designer, and senior trackwork designer. He also remodeled houses.

[¶3.] In March 2014, Clarke hired Billman to perform drafting using a CAD program. Billman had no experience using Clarke's software so Clarke offered training, but Billman opted to self-train. Billman has a history of being a quick study and learning new drafting software on-the-job. At the time of his injury, Clarke had moved Billman from drafting to operating a plasma cutter's program. Clarke had workers’ compensation insurance through Sentry Insurance, a Mutual Company (Insurer).

[¶4.] On February 6, 2015, while operating the plasma cutter, a one-inch metal shaving pierced the sole of Billman's shoe entering the joint of his foot. He did not feel the initial pain due to his Type I diabetes

but noticed the injury upon returning home from work and finding blood on his sock.

[¶5.] On February 9, Billman notified Clarke of his injury and sought treatment at the local clinic. Due to the wound being infected, he was transferred by ambulance to Avera Hospital in Sioux Falls. On February 14, the infection made it necessary to amputate his left leg just below the knee. Doctors released Billman from the hospital on February 18. Upon release from the hospital, he moved in with his father and sister in Volga, South Dakota,² where he remained through the date of the hearing. He received a prosthetic leg in June 2015, but he regularly experienced issues with its fit.

[¶6.] Dr. Thomas Ripperda (Dr. Ripperda) issued his permanent work restrictions, in April 2016, at which time he gave Billman an eighty-percent permanent partial disability rating and permanent restrictions of light-duty work and no lifting more than twenty pounds occasionally. He is restricted from going up and down ladders, squatting or kneeling on his left leg, and balancing. Tyler Clementson (Clementson), Billman's prosthetic specialist, however, opined that Billman's physical capabilities are that of an active adult or athlete with a prosthetic.

[¶7.] Since the amputation, Billman has also experienced trouble controlling his Type I diabetes

. On multiple occasions, family members called medical professionals to his home because he was unresponsive. The reports stated the incidents were due to diabetic-associated hypoglycemia.

[¶8.] In June 2016, Billman underwent a second surgery for a left stump revision due to fluid collection and pain in his stump. After the surgery, Billman had to remain non-weight bearing and could only perform seated work. In August 2016, Billman returned to his permanent work restrictions.

[¶9.] As a result of the injury, Billman received a permanent partial disability award of $57,350.40, at a weekly compensation rate of $448.05 or $11.20 per hour for two-and-a-half years. The Social Security Administration (SSA) deems Billman disabled.

[¶10.] In April 2017, Billman submitted a petition for hearing to the Department on the issue of whether he is entitled to permanent total disability benefits. The Department heard the case on December 7, 2018.

[¶11.] At the hearing, Billman discussed his work history, training, and physical limitations, beyond those listed in Dr. Ripperda's work restrictions. He testified that he cannot get down on his knees. It is difficult for him to walk on ice and uneven surfaces. He must hold the handrail when using stairs. If he turns too quickly, he falls because walking is now a deliberate act. Multiple times during the day, Billman must replace his prosthetic leg's sock lining because his leg tissue shrinks. If his prosthetic becomes too lose, his foot turns at a fifteen- or twenty-degree angle. He cannot stand for eight hours straight and can only sit for roughly an hour-and-a-half and then he must stand. If he takes off his prosthetic, he can sit longer, but he can sit no more than a combined total of four to five hours per day. He also does not perform many of the activities he did prior to the accident. He can still engage in activities like deer hunting and fishing but only at a five-percent level. However, he goes pheasant hunting with difficulty roughly three times a year and continues to do woodworking. Billman can drive his vehicle and can operate a snow blower and lawnmower but must hold on to the machine for balance and sit down after an hour.

[¶12.] Billman also testified that he did not start applying for jobs until March 2018 because he was re-learning to use his leg. After the second surgery, he had to restart the healing process. His job search included twelve positions in the drafting and design field. He felt unqualified to expand his search outside his known area and believed his prosthetic would be a problem. However, only one prospective employer informed him that the prosthetic was an issue. Billman's training is antiquated. He is versed in SolidWorks and MicroStation, but most employers now use AutoCAD. He also testified that his age affects his ability to find employment.

[¶13.] Billman's vocational expert, Tom Audet (Audet), is a certified rehabilitation counselor. At the hearing, he discussed that his job search for Billman focused on the Madison and Brookings labor markets. Audet determined that retraining was not a viable option for Billman as he would be around sixty-five, the age of retirement, upon completion of a program. However, he acknowledged that some training options might be shorter. Notably, Audet's job search considered Billman's physical limitations, in addition to Dr. Ripperda's work restrictions. Audet testified that work does exist within Billman's limitations and restrictions and that his search focused on positions in the drafting area. However, he stated that Billman's age and that he must take four to five days off a month, during which he must remove his prothesis, both affect his employability. When considering all Billman's limitations, Audet believed Billman conducted a good-faith job search and that because of his age he was not appropriate for retraining programs because he would reach the age of retirement by the time of completion. Audet concluded that Billman was best suited for the sedentary drafting and design jobs for which he had applied but did not receive employment.

[¶14.] Clarke's and Insurer's vocational expert, Kara Merkwan (Merkwan), is a vocational rehabilitation consultant, but she is not a certified rehabilitation counselor. At the time of the hearing, she was completing her master's degree in rehabilitation counseling and had performed career counseling since 2012.³ She testified at the hearing that her report did not consider Billman's physical limitations beyond Dr. Ripperda's work restrictions, and she did not interview Billman when preparing her report. Merkwan believed Billman should have started his job search earlier and that his search needed to expand beyond the drafting and design field. She admitted that Billman's age is a hinderance to him finding employment.

[¶15.] Merkwan's initial December 2017 assessment incorrectly listed Billman's residence as Howard. As a result, she conducted a market survey of Howard, Madison, Mitchell, Huron, and Brookings. She reported a dispatcher position at J&C Transport for $15-18 per hour in Madison, a full-time position at Mills Construction, Inc. in Brookings as an architectural technician, a full-time drafter CAD operator III at Alutiiq in Huron, and a full-time position at Trail King Industries in Mitchell as a design engineer. However, Audet contacted J&C Transport and discovered that the dispatcher position was no longer available. An employee at Mills Construction stated that Billman was probably not qualified for the Mill's position due to his experience in manufacturing and not architectural design. The other positions in Huron and Mitchell were outside Billman's "community" as defined by statute.

[¶16.] Merkwan modified her July 2018 assessment by excluding the labor market of Huron, but she still included the market of Mitchell. She also altered the search based on Billman's software capabilities; her previous search assumed Billman could adapt to the AutoCAD program. However, her report did not consider Billman's issues with traversing...