Bonnett v. Custer Lumber Corp., 18760

• Decision Date: 29 November 1994
• Docket Number: No. 18760,18760
• Citation: 528 N.W.2d 393
• Parties: Randy BONNETT, Claimant and Appellant, v. CUSTER LUMBER CORPORATION, Employer and Appellee, v. CIGNA PROPERTY AND CASUALTY COMPANIES, Insurer and Appellee. . Considered on briefs
• Court: South Dakota Supreme Court

Page 393

528 N.W.2d 393

Randy BONNETT, Claimant and Appellant, v. CUSTER LUMBER CORPORATION, Employer and Appellee, v. CIGNA PROPERTY AND CASUALTY COMPANIES, Insurer and Appellee.

No. 18760.

Supreme Court of South Dakota.

Considered on briefs Nov. 29, 1994.

Decided March 1, 1995.

Lawrence R. Bihlmeyer, Rapid City, for claimant and appellant.

Mary A. Gubbrud and Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, Rapid City, for appellees.

MILLER, Chief Justice.

In this appeal it is asserted that the South Dakota Department of Labor (Department) and the trial court erred in denying a claimant permanent total disability benefits under the odd-lot doctrine. We affirm.

FACTS

On June 25, 1987, Randy Bonnett (Bonnett) injured his left leg while working for Custer Lumber Corporation (Custer Lumber). Ultimately, his treating physician restricted his work activities to "no standing or walking more than three hours in an eight hour shift and no lifting greater than 50 pounds." Custer Lumber's worker's compensation carrier, Cigna Property and Casualty Companies, paid benefits for a fifty percent permanent, partial disability.

Bonnett now appeals Department's decision denying his permanent, total disability claim and the circuit court's affirmance thereof. He contends he is not competitively employable and therefore is totally disabled under the odd-lot doctrine. Bonnett alleges Department was clearly erroneous in finding that (1) an employer, Dakota Cinch, offered suitable employment to him, which he did not accept for reasons unrelated to his injury; (2) he lacked motivation to find work and did not make a reasonable job search; (3) vocational rehabilitation in the form of on-the-job training was available to him; (4) his pain though moderate in degree, was not continuous, severe or debilitating; (5) he quit employment as a dispatcher for reasons unrelated to his injury, namely nervousness and dislike for the job; and (6) he was deemed ineligible for state rehabilitation services because he misled the rehabilitation counselor about restrictions on the use of his hands and wrists.

DECISION

WHETHER THE DECISION OF DEPARTMENT TO DENY BONNETT PERMANENT, TOTAL DISABILITY BENEFITS UNDER THE ODD-LOT DOCTRINE WAS CLEARLY ERRONEOUS IN LIGHT OF THE EVIDENCE PRESENTED.

Bonnett petitioned Department for an award of permanent total disability benefits, i.e., "odd-lot" benefits. To receive "odd-lot" worker's compensation benefits, the claimant must show that he has a temporary or permanent "total disability." Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). An individual 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." Id. (citations omitted). In Petersen, we explained the burdens of production and persuasion associated with this "odd-lot" test:

[T]he ultimate burden of persuasion remains with the claimant to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in the odd-lot category. The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to claimant.

We have recognized two avenues by which a claimant may make the required prima facie showing for inclusion in the odd-lot category. First, if the claimant is "obviously unemployable," then the burden of production shifts to the employer to show that some suitable employment is actually available in claimant's community for persons with claimant'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. Second, if " 'the claimant's medical impairment is so limited or specialized in nature that he is not obviously unemployable or relegated to the odd-lot category,' then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has unsuccessfully made 'reasonable efforts' to find work." The burden will only shift to the employer in this second situation when the claimant produces substantial evidence that he is not employable in the competitive market.

Id. at 231-32 (citations omitted) (emphasis in original).

Bonnett points to evidence in the record which either directly or indirectly contradicts Department's factual findings, most notably the testimony of two experts who opined that he was not competitively employable in his community. However, the trier of fact is free to accept all, part, or none of an expert's opinion. Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988). Furthermore, " 'the question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding.' " Kennedy v. Hubbard Milling Co., 465 N.W.2d 792, 794 (S.D.1991) (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 708, 711 (S.D.1989) (Morgan, J., concurring specially)). On our review of the record, we find there is substantial evidence to support Department's findings and its ultimate conclusion that Bonnett was not permanently and totally disabled. We will consider each of the disputed findings in turn.

First, Department's finding that Bonnett refused an offer of suitable employment is not clearly erroneous. The testimony of Bill Tysdal (Tysdal), a vocational rehabilitation counselor, indicated that Dakota Cinch, a leather works factory, was willing to hire Bonnett in an on-the-job training position beginning April 27, 1992. Although Bonnett testified that he never received notification of the offer, there is evidence in the record to refute this claim. A letter dated April 16, 1992, indicated that Custer Lumber's attorney reported the job offer to Bonnett's attorney. The office records of James Wilson (Wilson), a vocational rehabilitation counselor for the state of South Dakota, show that Bonnett was aware he was under consideration for a position, but that Bonnett claimed it was a "standing job" outside of his physical restrictions. Similarly, these office records reflect that on April 30, 1992, Bonnett's attorney informed Wilson that Bonnett "was not...