Eite v. Rapid City Area School Dist. 51-4

• Decision Date: 05 September 2007
• Docket Number: No. 24178.,24178.
• Citation: 2007 SD 95,739 N.W.2d 264
• Parties: Bernard M. EITE, Claimant and Appellant, v. RAPID CITY AREA SCHOOL DISTRICT 51-4, Employer and Appellee, and Associated School Boards of South Dakota Workers Compensation Trust Fund, Provider and Appellee.
• Court: South Dakota Supreme Court

739 N.W.2d 264

2007 SD 95

Bernard M. EITE, Claimant and Appellant, v. RAPID CITY AREA SCHOOL DISTRICT 51-4, Employer and Appellee, and Associated School Boards of South Dakota Workers Compensation Trust Fund, Provider and Appellee.

No. 24178.

Supreme Court of South Dakota.

Considered on Briefs on February 13, 2007.

Decided September 5, 2007.

James D. Leach, Rapid City, South Dakota, Attorney for claimant and appellant.

Naomi R. Cromwell of Tieszen Law Office, LLC, Pierre, South Dakota, Attorney for appellees.

MEIERHENRY, Justice.

[¶ 1.] Bernard Eite (Eite) filed a petition for workers' compensation benefits after he suffered his third back injury while working as a custodian for the Rapid City School District (the District). After extensive expert testimony, the Department of Labor denied Eite's petition for permanent and total disability benefits under the odd-lot doctrine. Eite appeals and we reverse.

FACTS

[¶ 2.] Eite is fifty-eight years old and came to the Rapid City area from England in 1985. Eite received his education in England during the 1950's. Eite stated that he "finished" school at age fifteen although he could not say that his education level equated to having a high school diploma. Eite has difficulty reading and writing and has an IQ of 80.¹ Upon arriving in Rapid City, he worked as a dump truck driver and a limousine driver. In 1989, he began working for the District as a custodian.

[¶ 3.] During his employment with the District, Eite suffered three separate back injuries. The first occurred in 1993 when Eite fell on the ice while taking some garbage out to the trash bin. Eite was prescribed pain medication and bed rest and eventually returned to work with the District. The second injury occurred in 1996 when Eite was lifting a box of bleach. Although Eite returned to work, his back pain worsened and he began seeing neurosurgeon Dr. Larry Teuber in 1999.

[¶ 4.] Under Dr. Tueber's advice, Eite underwent an operation commonly known as an L4-5 fusion² and began physical therapy with Dr. Brett Lawlor. Because Eite was restricted from lifting anything over forty-five pounds, he was unable to return to his position as custodian. Consequently, the District offered Eite a job as an Instructional Assistant,³ which Eite accepted. However, due to Eite's limited ability to read and write, he struggled in this position. Eite subsequently spoke with Dr. Lawlor about returning to work as a custodian. Dr. Lawlor agreed that Eite could return to work without any lifting restrictions. Eite resumed his position as custodian. At this time, Dr. Lawlor noted that Eite was at a 10% permanent impairment rating.

[¶ 5.] Eite's third back injury occurred in February of 2001 when Eite fell on the ice while working as a custodian. Eite was restricted from working and began physical therapy. After he failed to see any improvement, Eite accepted the District's offer to return to work as an Instructional Assistant/Tutor/Noon Duty. Once again, Eite experienced difficulty because he was unable to help students with their work because of his inability to read or write at a sufficient level.

[¶ 6.] Eite's back pain did not improve and he returned to Dr. Teuber. The District subsequently placed Eite on a leave of absence. In October of 2001, Dr. Teuber performed a second surgery on Eite's back, wherein a permanent metal device resembling an old-fashioned two-support football goalpost with a crossbar was implanted in Eite's spine at S-1 to L-5 to L-4.⁴ As a result of this lower level fusion, Dr. Lawlor restricted Eite to lifting twenty pounds. During the first three months after this surgery, Eite's back pain persisted. Despite Eite's participation in physical therapy from January to March of 2002, his pain levels remained the same.

[¶ 7.] In August of 2002, Eite completed his first functional capacities examination (FCE) with physical therapist Myron Sorestad. Sorestad concluded that Eite could work at the "light" level of work as defined by the U.S. Department of Labor Dictionary of Occupational Titles.⁵ Accordingly Eite could not lift more than twenty pounds. Sorestad observed that Eite self-limited his participation in sixteen of the twenty-one tasks. Sorestad noted that self-limitation was common when participants feared re-injury; experienced pain, anxiety, depression; lacked familiarity with a safe physical maximum; or lacked motivation to perform maximally because of financial consequences. Sorestad noted that self-limitation was common under a variety of circumstances. He reported that patients may self-limit because they fear re-injury, or because they are experiencing pain, depression or anxiety. Self-limitations may also be caused by the patient's unfamiliarity with the maximum amount of activity and movement they may safely do without pain or reinjury, or because the patient lacks the motivation to perform to their maximum ability because they believe they will lose financial benefits. Eite reported that he limited his participation because of increased low back pain and fear of further injury.

[¶ 8.] Eite was subsequently evaluated by Dr. Lawlor. Dr. Lawlor noted that Eite presented no volitional movement with forward flexion, side bending, extension or extension rotation. Dr. Lawlor prescribed the following limitations and restrictions: "Change position from sit to stand to walk every half hour as necessary. Limit bending and twisting, lifting, walking, crawling, climbing a ladder, and squatting to occasional; maximum lift of 20 pounds." Eite was restricted to the light work category.

[¶ 9.] Later in 2002, Eite met with psychologist Bobbi Kramlich at the request of the Social Security Administration. Kramlich noted that although Eite had difficulty with number reversals, he still had the intellectual capacity to effectively manage his Social Security benefits. At this time, Eite informed Kramlich that he had "become more depressed just before Christmas when he was informed that workers' comp was finished and that he was expected to get a job."

[¶ 10.] Eite met with Rick Ostrander, a vocational rehabilitation counselor, to obtain assistance with his job search. After meeting with Eite, Ostrander realized Eite had limited intellectual functioning so he referred him to Dr. Curt Hill for a psychological and intellectual assessment. The results of Eite's intelligence testing indicated that he had a verbal IQ of 79, a performance IQ of 86, and a full scale IQ of 80, which placed him in the borderline level of intellectual functioning. Eite's aptitude testing indicated Eite had a first grade reading level and a fourth grade spelling level. Additionally, Dr. Hill diagnosed Eite as having major depressive disorder, recurrent, of moderate severity.

[¶ 11.] Ostrander also administered a Transferable Skills Analysis to evaluate what type of work might be available to Eite within the Rapid City labor market. Considering Eite's twenty pound lifting restriction, his age, his previous back injuries,⁶ his intellectual functioning, and his depression, Ostrander concluded that there were very few opportunities for employment for Eite and a job search would be futile. Nevertheless, Ostrander was able to identify a few possible job opportunities, which included work as a taxi driver, courier, messenger or parking lot attendant. However, after contacting such employers, he discovered the positions required Eite to lift more than twenty pounds or paid at a level below Eite's workers' compensation rate. Consequently, Ostrander concluded that Eite was not employable within the Rapid City labor market at or above his workers' compensation benefit rate. Furthermore, Ostrander concluded that Eite would not benefit from vocational rehabilitation and that such training was not feasible.

[¶ 12.] Despite Ostrander's conclusion that Eite was not employable within his labor market, Eite and his attorney continued searching for suitable employment. Eite checked on job listings at the One Stop Career Center a couple of times per week and read the Rapid City Journal classifieds regularly. Eite followed up on several job leads and kept a written log of his job search. However, Eite failed to find any open positions to apply for that would accommodate his lifting restrictions or that met his workers' compensation rate. Eite also applied for rehabilitation services from the South Dakota Division of Rehabilitation Services and purchased a security guard license, but he was still unable to obtain employment.

[¶ 13.] Eite also met with Bruce Rogers, a vocational rehabilitation counselor, for job search information. After meeting with Eite, Rogers concluded that a work search would not be futile and provided Eite with twenty-six job leads. Rogers noted that Eite followed up on all of the job leads he was provided but failed to submit an application for positions that had been filled. Rogers felt that Eite should have submitted an application regardless of whether the position was filled in order to be considered for possible future openings. Consequently, he labeled Eite's job search as one of the poorest he had ever seen.

[¶ 14.] Eite was also asked to submit to an independent medical exam (IME). Dr. Anderson facilitated the IME and noted that Eite reported that he had difficulty carrying on any sustained activity besides lying down for more than one-half hour at a time. Eite demonstrated a five degree flex motion and a zero degree extension. Dr. Anderson described Eite's range of motion as an "incredible restriction." Dr. Anderson restricted Eite to work at a light work category, with twenty pounds maximum lifting and ten pounds frequent lifting.

[¶ 15.] In 2003, physical therapist Nano Johnson administered Eite's second FCE. She noted that when asked to bend from his waist, Eite moved forward only three degrees and back only four degrees, causing Johnson to opine that Eite's range of motion was "out of the realm" of anything s...