Caldwell v. John Morrell & Co.

• Decision Date: 22 July 1992
• Docket Number: 17688,Nos. 17686,s. 17686
• Parties: Michael A. CALDWELL, Claimant and Appellant, v. JOHN MORRELL & COMPANY, Employer/Self-Insurer and Appellee, and Safety Kleen Corporation, Employer and Appellee, and National Union Fire Insurance Company, Insurer and Appellee.
• Court: South Dakota Supreme Court

Page 353

489 N.W.2d 353

Michael A. CALDWELL, Claimant and Appellant, v. JOHN MORRELL & COMPANY, Employer/Self-Insurer and Appellee, and Safety Kleen Corporation, Employer and Appellee,

and

National Union Fire Insurance Company, Insurer and

Appellee.

Nos. 17686, 17688.

Supreme Court of South Dakota.

Argued Feb. 10, 1992.

Decided July 22, 1992.

R. Alan Peterson of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for claimant and appellant.

Michael S. McKnight of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for employer/self-insurer and appellee John Morrell & Co.

Michael L. Luce of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for employer and insurer and appellees Safety Kleen Corp. and National Union Fire Ins. Co.

JOHNS, Circuit Judge.

This is a worker's compensation appeal. The matter was heard by the Department of Labor, Division of Labor and Management (Department) on August 2, 1990. On November 21, 1990, the Department entered its findings of fact, conclusions of law, and order. John Morrell and Company (Morrell) filed a notice of appeal to circuit court on December 5, 1990. Safety Kleen Corporation (Safety Kleen) and its insurer, National Union Fire Insurance Company, filed their notice of appeal on December 6, 1990. (Hereinafter, Morrell, Safety Kleen and National Union will collectively be known as Employers). On or about December 7, 1990, a notice of review was filed by Michael A. Caldwell (Employee). Circuit court then entered its findings, conclusions, and judgment on July 30, 1991. From that decision, Employee filed a notice of appeal with this court on September 23, 1991, and Employers filed a joint notice of review on October 1, 1991.

We affirm in part, reverse in part, and remand.

FACTS

At the time of his hearing, Employee was a 39-year-old laborer who was a long-time employee of Morrell. In May of 1987, Employee went out on strike against Morrell. While on strike he obtained employment with Safety Kleen. In November of 1988, the strike ended and Employee returned to work at Morrell but he also continued his work at Safety Kleen until a replacement worker could be found for his position. Employee worked at both of these jobs on a full-time basis (30 to 40 hours a week at Safety Kleen and 45 to 60 hours a week at Morrell) until his back injury on January 14, 1989.

Prior to November 1988, Employee had no unusual back problems; and prior to January 14, 1989, he incurred no identifiable event in either employment which caused any unusual pain or discomfort. However, sometime in December 1988, Employee began to gradually experience soreness in his back with occasional tingling and numbness in his legs.

Employee completed his last shift at Morrell without incident on January 12, 1989. On January 13, 1989, Employee reported to work at Safety Kleen but did not work because of back pain. Employee sought chiropractic care and laid on a heating pad the remainder of that day. While at home on the night of January 14th or the early morning hours of January 15th, Employee awoke, walked a few steps and then collapsed, unable to move. Employee subsequently underwent surgery for a herniated disk.

Employee was totally incapacitated from January 15, 1989, until May 1, 1989. On May 1st he returned to full-time light duty work at Morrell. He did not return to work at Safety Kleen. On January 24, 1990, Employee was given a 15 percent medical impairment rating by his treating physician.

Department found that Employee's injury and subsequent disability arose out of and in the course of his joint employment with Employers and, thus, concluded that both were jointly and severally liable for worker's compensation benefits. Department awarded Employee temporary total disability benefits, temporary partial disability benefits, and permanent partial disability benefits. The latter were based on a 40 percent loss of use disability rating rather than the 15 percent medical anatomical impairment rating testified to by Employee's treating physician. In calculating the weekly rate basis for each of the benefits, Department used Employee's income from both jobs.

ISSUES

Employee raises the following issues:

1. Are earnings from a temporary job to be considered in calculating worker's compensation benefits for a temporary partial disability pursuant to SDCL 62-4-5? The Department held in the affirmative and circuit court held in the negative.

2. Are wage concessions under a collective bargaining agreement occurring after an injury to be considered in calculating worker's compensation benefits for a temporary partial disability pursuant to SDCL 62-4-5? The Department held in the negative and circuit court held in the affirmative.

3. Are earnings from a temporary job to be considered as a measure of lost earning capacity in calculating worker's compensation benefits for a permanent partial disability pursuant to SDCL 62-4-6? The Department held in the affirmative and circuit court held in the negative.

Employers, by their notice of review, raise the following issues:

4. Did Employee meet his burden of proof that his back injury arose out of his employment? Circuit court affirmed Department's conclusion that he did.

5. Did the Department err in refusing to consider evidence that Employee received sick leave benefits from Morrell? Circuit court held that the Department's exclusion of this evidence was correct.

6. Did Employee meet his burden of proof that he was entitled to permanent partial disability benefits based upon a rating of 40 percent when there is no expert testimony to support a rating over 15 percent? Circuit court remanded this issue to the Department with instructions that Department not consider Employee's temporary job with Safety Kleen. Circuit court, however, refused to hold that Employee had not established his entitlement to permanent partial disability benefits beyond the 15 percent rating given by Employee's treating physician. Circuit court also refused to hold that expert testimony was necessary to support a rating which is greater than a person's medical anatomical impairment rating.

STANDARDS OF REVIEW

When an appeal of an administrative agency's decision in a contested matter is taken to circuit court and the final judgment of that court is appealed to this court, we must make the same review of the agency's actions as did the circuit court. Lee v. South Dakota Dept. of Health, 411 N.W.2d 108 (S.D.1987); Barkdull v. Homestake Min. Co., 411 N.W.2d 408 (S.D.1987) (Barkdull II ); Hanson v. Penrod Const. Co., 425 N.W.2d 396 (S.D.1988). The circuit court's review and our review of the agency's actions are controlled by SDCL 1-26-36. Under this statute our standard of review will vary depending on whether the issue is one of fact or one of law. When the issue is a question of fact, then the actions of the agency are judged by the clearly erroneous standard; and when the issue is a question of law, then the actions of the agency are fully reviewable. Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987); Egemo v. Flores, 470 N.W.2d 817 (S.D.1991). However, when evidence on an issue of fact is submitted to the agency entirely by deposition, then our review of that evidence is unhampered by the clearly erroneous rule. Lien v. Miracle Span Corp., 456 N.W.2d 563 (S.D.1990); Application of Northwestern Bell Tel. Co., 382 N.W.2d 413 (S.D.1986); Harden v. South Dakota Credit Union League, Inc., 87 S.D. 433, 209 N.W.2d 665 (1973). This means that we will decide for ourselves the credibility of the deponents and the weight and value to be attached to their testimony.

ANALYSIS

1. Causation.

Before an employee can collect benefits under our worker's compensation statutes, he must establish, among other things, that there is a causal connection between his injury and his employment. ¹ Sudrla v. Commercial Asphalt and Materials, 465 N.W.2d 620 (S.D.1991); Roberts v. Stell, 367 N.W.2d 198 (S.D.1985); Kirnan v. Dakota Midland Hosp., 331 N.W.2d 72 (S.D.1983). That is, the injury must have "its origin in the hazard to which the employment exposed the employee while doing his work." Sudrla, supra at 621 quoting Deuschle v. Bak Const. Co., 443 N.W.2d 5 (S.D.1989). This causation requirement does not mean that the employee must prove that his employment was the proximate, direct, or sole cause of his injury; rather, the employee must show that his employment was "a contributing factor" to his injury. Sudrla, supra at 621; King v. Johnson Bros. Construction Company et al., 83 S.D. 69, 155 N.W.2d 183 (1967).

The employee's burden of persuasion is by a preponderance of the evidence. In Mehlum v. Nunda Cooperative Ass'n., 74 S.D. 545, 546, 56 N.W.2d 282 (1953), we clearly stated that "(t)he burden of proof rested upon claimant to prove by a preponderance of the evidence the facts necessary to establish a right to compensation." Later, in King, supra, 83 S.D. at 74, 155 N.W.2d at 186, we said that the employee's burden "is not sustained when the probabilities are equal." Finally, in Wold v. Meilman Food Industries, 269 N.W.2d 112, 116 (S.D.1978), we cited Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296 (Ia.1974) for the proposition that "the claimant has the burden of proving by a preponderance of evidence that some employment incident or activity brought about the disability on which the worker's compensation claim is based; a possibility is insufficient and a probability is necessary." See also, Deuschle v. Bak, supra.

Department found that Employee suffered a single "indivisible" injury through his employment with Employers and, thus, concluded that Employers were jointly and severally liable. Employers have not challenged Department's joint and several liability conclusion. They only contend that Employee has failed to establish by a preponderance of the evidence that his back injury is causally related to his employment with them. Both sides have offered evidence on this question...