Davidson v. Horton Industries, Inc., No. 21970.

• Court: South Dakota Supreme Court
• Writing for the Court: SABERS, Justice.
• Citation: 2002 SD 27,641 N.W.2d 138
• Parties: Marie DAVIDSON, n/k/a Marie Myklegard, Claimant and Appellant, v. HORTON INDUSTRIES, INC., Employer and Appellee, and Sentry Insurance, Insurer and Appellee.
• Decision Date: 27 February 2002
• Docket Number: No. 21970.

641 N.W.2d 138
2002 SD 27

Marie DAVIDSON, n/k/a Marie Myklegard, Claimant and Appellant,
v.
HORTON INDUSTRIES, INC., Employer and Appellee, and
Sentry Insurance, Insurer and Appellee

No. 21970.

Supreme Court of South Dakota.

Considered on Briefs November 13, 2001.

Decided February 27, 2002.

Rehearing Denied April 16, 2002.

641 N.W.2d 139

Ronald J. Hall of Siegel, Barnett & Schutz, LLP, Aberdeen, South Dakota, for claimant and appellant

Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, for appellees.

SABERS, Justice.

[¶ 1.] Marie Davidson, n/k/a Myklegard (Davidson), appeals from a decision denying an award of workers' compensation benefits. We reverse and remand.

FACTS

[¶ 2.] Davidson began working for Horton Industries in 1987. Horton Industries (Horton) makes fan clutches for trucks and buses. Davidson worked in several areas while employed with Horton. She was initially employed as a janitor, then moved into an accounting position. In September 1993, Davidson began working on the assembly floor putting together repair kits. In February or March of 1994, Davidson began working in the final assembly area. At the time of this claim, Davidson was employed in the final assembly area. This job involved assembling fan clutches and lifting and manipulating weights in excess of sixty pounds.

[¶ 3.] On May 10, 1994, while lifting a clutch part, Davidson experienced pain in her neck and right shoulder. Davidson informed her supervisor and left work. On May 11, Davidson was examined by Dr. Purintan who diagnosed right parascapular strain and inflammation. Dr. Purintan prescribed medication and recommended a course of physical therapy. He further recommended that Davidson return to light duty work. In June 1994, Davidson returned to work for four to six hours per day.

[¶ 4.] Davidson's pain did not improve. In September 1994, Horton's insurer appointed a nurse case manager to Davidson to assist in her treatment and return to work. The case manager noted Davidson's complaints of constant tingling in her right arm and hand, burning in her shoulder, and sharp radiating pains in her neck. The case manager arranged for Davidson to be examined by another doctor.

[¶ 5.] Throughout 1994, she was referred to numerous physicians, including Dr. MacDougall, an orthopedic surgeon, Dr. Malek, a neurosurgeon, Dr. Quinlan, an upper extremity orthopedic specialist, and Dr. Blow, a physiatrist, all of whom diagnosed her with chronic arm, shoulder and neck pain related to overuse. The physicians prescribed varying courses of medication and physical therapy and recommended only light work duty. Davidson, however, still did not improve.

[¶ 6.] During this same time period, Horton and its insurer offered to have

641 N.W.2d 140

Davidson examined at the Mayo Clinic. Two of Davidson's physicians also recommended that she attend a pain clinic, which her employer also offered to pay for. Davidson refused, mostly for personal reasons

[¶ 7.] On January 24, 1995, Davidson went to the emergency room with severe neck and right shoulder pain where she was treated by Dr. Small. Davidson later returned to see Dr. Small who noted that Davidson had a limited range of motion and experienced extreme tenderness in her right shoulder. Dr. Small recommended that Davidson not work and referred her to an orthopedic surgeon, Dr. Johnson, at the request of her attorney. Horton did not authorize the visit to Dr. Johnson.

[¶ 8.] Dr. Johnson examined Davidson on February 7, 1995, and diagnosed her with myofascial pain disorder. Dr. Johnson recommended that she undergo a functional capacity evaluation (FCE). In late February, the FCE was completed at Sioux Valley Hospital. The FCE indicated that Davidson could perform a light-medium level of work, but should avoid repetitive use of her upper right extremity.

[¶ 9.] In May 1995, Dr. Quinlan approved a position for Davidson in Horton's repair kit area. Horton offered her a job in this area, but she refused the offer based on a recommendation from Dr. Johnson. As a result of her refusal to work, Davidson's temporary disability benefits were terminated after May 23, 1995.

[¶ 10.] In April 1996, Horton arranged for Davidson to be examined by Dr. Bengston at the Mayo Clinic. Dr. Bengston diagnosed her with chronic right shoulder myofascial pain syndrome. He recommended that she avoid repetitive activity involving her right shoulder and concluded that she had reached her maximum medical improvement. He further concluded that her permanent partial disability would be zero-percent. On April 22, 1996, Horton and its insurer again terminated Davidson's temporary disability benefits.

[¶ 11.] Horton again offered Davidson a position in the repair kit area and she returned to work on May 30, 1996. After approximately thirty minutes of work, she left, complaining of pain. Davidson returned to see Dr. Small who recommended no further work.

[¶ 12.] In September 1996, Davidson underwent another FCE at the Mayo Clinic. The second FCE showed greater restrictions than the first one and indicated she should not do repetitive activities with her upper right extremity. Dr. Bengston assigned Davidson a five-percent impairment rating and stated that she had reached maximum medical improvement. Horton's insurer paid out the benefits available to her under this rating and cut off all weekly benefits.

[¶ 13.] On September 25, 1996, Horton and its insurer arranged for an independent medical exam by Dr. Tountas. After his exam, Dr. Tountas was unable to identify any underlying condition causing Davidson's pain. He further stated that Davidson could return to full-time work without any restrictions and that she did not have any permanent partial disability.

[¶ 14.] In October 1996, Horton made Davidson another offer to return to work in the repair kit area. Davidson attempted to return to work in January 1997, but left work after less than one hour because of pain.

[¶ 15.] Davidson filed a petition for hearing with the Department of Labor, Division of Labor and Management (Department) on September 21, 1995, seeking an award of all available workers' compensation benefits, including medical, temporary total disability, permanent partial disability

641 N.W.2d 141

and Cozine benefits and permanent total disability benefits under the odd-lot doctrine. A hearing was held before the Department, on November 5 and 6, 1997. On February 12, 1999, the hearing examiner found against Davidson, denying her claim for workers' compensation benefits. On March 26, 1999, the hearing examiner entered findings of fact, conclusions of law and an order and judgment. The hearing examiner's findings and conclusions stated that Davidson was not a credible witness and failed to support her claim for benefits with objective medical findings

[¶ 16.] On April 7, 1999, Davidson filed a petition for review with the Secretary of Labor. The Secretary affirmed. Davidson then appealed her claim to the Fifth Circuit. Davidson filed briefs almost one year later and requested that the circuit court remand the case to the Department for reconsideration of its decision in light of new and material evidence. The circuit granted the motion to remand, but the Department determined that the new evidence was not material and had no impact on its original decision. The circuit court then affirmed the decision of the Department in its entirety on April 10, 2001 and entered judgment on April 16, 2001.

STANDARD OF REVIEW

[¶ 17.] This Court's standard of review for workers' compensation cases is well established:

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 (citations omitted)). Under our review, "we are required to give `great weight to the findings and inferences made by Department on factual questions.'" Id. (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. (additional citations omitted).

Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 11, 613 N.W.2d 531, 535.

[¶ 18.] WHETHER THE DEPARTMENT ERRED IN DETERMINING CLAIMANT WAS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS, INCLUDING MEDICAL, TEMPORARY TOTAL DISABILITY, PERMANENT PARTIAL DISABILITY AND COZINE BENEFITS AND PERMANENT TOTAL DISABILITY BENEFITS UNDER THE ODD-LOT DOCTRINE.

[¶ 19.] This Court has stated that when the issue presented "`is a question of law, the actions of the agency are fully reviewable.'" Belhassen, 2000 SD 82 at ¶ 11, 613 N.W.2d at 535 (quoting Brady Mem'l Home, 1999 SD 77 at ¶ 8, 597 N.W.2d at 679-80). For all the reasons stated herein, the Department erred in its findings of fact and conclusions of law. It is simply not right when seven doctors basically give a diagnosis of chronic right shoulder myofascial pain syndrome and reach a prognosis that claimant should not work for a period of time, for the hearing examiner to ignore such evidence in favor of a very brief independent medical exam conducted by a physician hired by the claimant's employer.¹ It is not enough to

641 N.W.2d 142

ignore the substantial evidence of pain because the cause cannot be determined. While we recognize that an agency may disregard one expert's opinion in favor of another, it cannot disregard the similar opinions of numerous medical experts in favor of one expert hired by the insurer under these circumstances. Upon review of the entire record, we are firmly convinced that the Department's action constitutes error in a conclusion of law. Because we believe basic errors have been made by...