Cozine v. Midwest Coast Transport, Inc., s. 16726

• Decision Date: 18 April 1990
• Docket Number: Nos. 16726,16737,s. 16726
• Citation: 454 N.W.2d 548
• Parties: Laural Lee COZINE, Plaintiff and Appellant, v. MIDWEST COAST TRANSPORT, INC., Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 548

454 N.W.2d 548

Laural Lee COZINE, Plaintiff and Appellant, v. MIDWEST COAST TRANSPORT, INC., Defendant and Appellee.

Nos. 16726, 16737.

Supreme Court of South Dakota.

Argued Feb. 12, 1990.

Decided April 18, 1990.

N. Dean Nasser, Jr., of Nasser Law Offices, P.C., Sioux Falls, for plaintiff and appellant.

G. Kevin Kane of May, Johnson, Doyle & Becker, P.C., Sioux Falls, for defendant and appellee.

SABERS, Justice.

Laural Lee Cozine appeals her award of worker's compensation benefits, claiming the benefits awarded are inadequate. By notice of review, Cozine's employer, Midwest Coast Transport (Midwest), claims that some of the compensation benefits are excessive.

Facts

Cozine was employed as a truck driver for Midwest and was in Salem, Oregon on October 13, 1981, when she injured herself in the course of her employment. The injury occurred when she caught her hand in the latch of a semi-trailer door. Cozine consulted a doctor in Oregon, who took X-rays, but could find no abnormalities. He advised Cozine to consult an orthopedic surgeon or neurologist upon her return to South Dakota.

After returning to South Dakota, Cozine contacted Judy Spilde, Midwest's worker's compensation claim examiner, and on several occasions requested permission to select her own physician. Spilde informed Cozine that Central Plains Clinic (CPC) in Sioux Falls was the only authorized medical provider for employees of Midwest and she would have to receive treatment there. Cozine was informed that she had the right to select her own physician, but if she did, her medical expenses would not be covered. Consequently, Cozine went to CPC for treatment.

Cozine first sought treatment at CPC on November 3, 1981, when she saw Dr. Tam. Dr. Tam took X-rays, but could not find anything wrong at that time. Nevertheless, Cozine was placed on temporary, total disability beginning November 3, 1981. She saw Dr. Tam again on two occasions in December 1981 and continued to complain of pain in her hand and an inability to fully use the hand. Dr. Tam was unable to find a cause for Cozine's problem and referred her to Dr. Larke, an orthopedic surgeon at CPC. Dr. Larke first saw Cozine on December 23, 1981, and prescribed an extensive physical therapy program.

In mid-January of 1982, Spilde contacted Drs. Tam and Larke, seeking a report on Cozine's condition. After receiving a letter from Dr. Tam and talking to him on the phone, Spilde decided that Cozine was no longer disabled as a result of her injuries and sent a letter to Cozine instructing her to return to work. ¹ The letter stated that Midwest would be "unable to continue compensation benefits." A few days after sending the letter to Cozine, Spilde received a letter from Dr. Larke stating that Cozine was presently disabled from driving her truck and he did not know when she would be able to return to work. In spite of this letter, Spilde did not change her determination that Cozine should return to work, and she did not inform Cozine of Dr. Larke's opinion. Instead, she let stand her letter to Cozine that stated that both Drs. Tam and Larke had concluded that Cozine was "no longer disabled as a result of [her] injury and that there [was] nothing physically wrong with [her] hand." ² As a result, Midwest terminated payment of temporary, total disability benefits on January 26, 1982.

On February 3, 1982, Cozine contacted Dr. Rhoades, an orthopedic surgeon, for treatment. Dr. Rhoades concluded that there was probably some limitation of the use of the hand for Cozine's type of employment, but he suggested "continued use of the hand with activities as tolerated." About February 4, 1982, Cozine consulted another orthopedic surgeon, Dr. Lewis. After that initial visit, Dr. Lewis contacted Midwest for approval of medical treatment. Dr. Lewis was informed that CPC was the only authorized medical provider for Midwest; he may have informed Cozine of that fact. Cozine continued to see Dr. Lewis through May 1982. During that same period she also contacted Dr. Merkwan, a chiropractor, and received additional treatment from him.

In August 1982, Cozine contacted yet another doctor, Dr. Van Demark, Jr. Dr. Van Demark eventually referred Cozine to the Mayo Clinic in Rochester, Minnesota. Cozine first obtained treatment at the Mayo Clinic in December of 1982 under the care of Dr. Dobyns. She returned to the Mayo Clinic for treatment several times over the next year and one-half. On July 28, 1983, Dr. Dobyns sent a letter to Cozine's counsel stating a prognosis that Cozine had a permanent, partial impairment of approximately twenty percent of the right upper limb and that she was unlikely to improve. However, treatment did continue. In 1984, the Mayo Clinic performed a procedure on Cozine's elbow called cryoanalgesia. As a result of this procedure, Cozine's condition worsened.

In August of 1984, Cozine returned to CPC for treatment when Midwest's counsel informed her that she could return. Cozine eventually came under the care of Dr. Opheim. He referred Cozine to Dr. Erickson at the University of Minnesota Hospital for ulnar nerve surgery in February of 1985. After the surgery, Cozine's condition returned to the condition before the cryoanalgesia procedure in the summer of 1984.

While undergoing her various medical treatment, Cozine pursued a college education. She returned to college at the University of South Dakota at Springfield in January of 1982 and graduated in June 1984 with a degree in machine tool and drafting. In the fall of 1984, Cozine enrolled at Mankato State University to obtain a master's degree in industrial and technical studies. In June 1984, Cozine filed a claim with Midwest requesting rehabilitation benefits for her education. Midwest denied the claim.

Cozine petitioned the Department of Labor for a hearing regarding her claim for worker's compensation benefits. On May 29, 1986, Cozine was paid permanent, partial disability benefits for 15% of the right arm based upon Dr. Erickson's 15% impairment rating. The hearing was held in October 1986. At the hearing, Cozine sought to introduce the testimony of a vocational expert regarding Cozine's loss of employability as evidence of her permanent, partial disability. The hearing examiner refused the testimony because she did "not believe that that is relevant under the statutes as they are interpreted by the Department." The vocational expert then testified as an offer of proof that Cozine's injury would produce a sixty-eight percent reduction in employability following rehabilitation.

A decision in the case was issued on June 18, 1987. The hearing examiner:

1) denied any additional permanent, partial disability benefits;

2) awarded additional temporary, total disability benefits from January 26, 1982, to February 4, 1982;

3) denied rehabilitation benefits;

4) denied attorney fees;

5) awarded temporary, partial disability benefits from February 4, 1982, to July 28, 1983; and

6) denied medical expenses incurred outside CPC.

Cozine appealed to circuit court. A hearing was held on October 26, 1987, and the court issued its findings of fact and conclusions of law on February 27, 1989. The circuit court affirmed the decision of the hearing examiner except for reversing the denial of medical expenses. Cozine appeals issues 1 through 4, and Midwest appeals on issues 5 and 6. We affirm all issues except that we reverse and remand on issues 1, 4, and the second part of issue 2.

Standard of review.

In reviewing a decision of an administrative agency, our standard of review is the same as the circuit court. We determine whether the agency's findings of fact are clearly erroneous and whether the law has been correctly applied. Barkdull v. Homestake Mining Co., 317 N.W.2d 417 (S.D.1982) (Barkdull I ). Our review of the circuit court's decision is without any presumption that its decision was correct. Id.

1. Permanent, partial disability benefits.

Cozine claims the Department of Labor hearing examiner erred when she let stand the permanent, partial impairment rating of a doctor as the sole measure of Cozine's loss of use of her arm or whole person. SDCL 62-4-6 specifies the amount of compensation an employee shall receive for the loss of a part of the body or its loss of use. The clear language of this statute directs that compensation shall be paid for loss of use. Consequently, the hearing examiner must determine if, and to what extent, a claimant has suffered the loss of use of a part of the body. This determination requires more than a mere adoption of a medical evaluation of anatomical impairment.

A medical impairment rating will not always measure loss of use. This concept was well explained in Boyce v. Sambo's Restaurant, Inc., 44 Or.App. 305, 308, 605 P.2d 1213, 1214 (1980) (quoting referee's decision):

After giving consideration to all the evidence, I conclude this is another case where the scientific measurement of impairment does not adequately measure the disability. It doesn't do a man much good to have a thumb with an excellent range of motion if he isn't able to use it for anything except the lightest of activities. ³

Although the medical impairment rating given by a doctor is an important factor, the extent of loss of use does not necessarily equal the extent of medical impairment. Id. ⁴ Indeed, the American Medical Association, Guide to the Evaluation of Permanent Impairment, x (2d ed. 1984), explains the limited nature of an impairment rating:

The physician who makes a determination about impairment must keep in mind that a permanent impairment rating is not the same as a disability rating. Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands, or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment.

A medical...