Foltz v. Warner Transp.

Decision Date11 January 1994
Docket NumberNo. 18372,18372
PartiesJohn FOLTZ, Claimant and Appellant, v. WARNER TRANSPORTATION, Employer and Appellee, and Cigna Insurance Company of North America, Insurer and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Richard D. Casey, Strange, Farrell, Johnson & Casey, P.C., Sioux Falls, for claimant and appellant.

R. Alan Peterson and Marsha Stacey, Lynn, Jackson, Shultz and Lebrun, Sioux Falls, for appellees.

WUEST, Justice.

John Foltz (Foltz) appeals from the circuit court's judgment affirming the Department of Labor's (Department) denial of workers' compensation benefits. We reverse.


On February 19, 1990, John Foltz (Foltz) was involved in an accident while employed by Warner Transportation (Warner). Foltz was a thirty-two year old over-the-road truck driver with a ninth grade education. The accident occurred in the mountains of California following a snowstorm. An automobile pulled in front of another Warner truck just ahead of the truck Foltz was driving; the first Warner truck hit its brakes, then Foltz applied the brakes, but slid into the back of the truck in front of him on the downhill side of the mountain. Although travelling at a slow speed and wearing a seat belt, Foltz slid forward and hit the top of his head on an instrument panel above the truck windshield. Foltz was immediately unable to continue driving because of dizziness and blurred vision, so an extra driver in the other Warner truck drove to Los Angeles while Foltz laid in the sleeper. Physicians at the Los Angeles emergency room advised Foltz to see a neurologist and not to drive for several days; eventually, at Warner's urging, Foltz drove to Phoenix, but then sought further medical attention at a Phoenix hospital emergency room. After several days, Warner had Foltz flown home, and he was sent to Sioux Falls neurologist Dr. Warren Opheim. Additional facts about Foltz' examinations and consultations with Dr. Opheim and other physicians are recounted in a subsequent section on expert testimony.

Warner was insured for workers' compensation purposes by Cigna Insurance Company (Cigna). Foltz filed a petition for hearing before the South Dakota Division of Labor and Management of the Department of Labor (Department), claiming that he was permanently and totally disabled as a result of a loss of peripheral vision suffered by him in the trucking accident. After a hearing, the hearing officer issued his decision denying Foltz any workers' compensation benefits, and entering findings of fact, conclusions of law, and an order on August 3, 1992. In its findings of fact, the Department most notably stated:


The weight of the medical testimony is in favor of Employer and Insurer, that Claimant has not sustained a loss of peripheral vision.

* * * * * *


Claimant has failed to meet his burden of proof that he has any loss of peripheral vision, and, therefore, an award for loss of peripheral vision is denied.

Foltz' petition for review with Department was denied. Foltz appealed to the circuit court; based on a review of the briefs and Department record, the circuit court affirmed the Department, entering a judgment to that effect on March 25, 1993. It is from that judgment that Foltz appeals.


In administrative appeals, the standard of review is generally governed by SDCL 1-26-36 1 and -37 2. In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 415-16 (S.D.1986); Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). Under SDCL 1-26-36, questions of law are fully reviewable, with no deference given to the agency's conclusions of law. Caldwell, 489 N.W.2d at 357; In re State & City Sales Tax Liab. of Quality Serv. Railcar Repair Corp., 437 N.W.2d 209, 210-11 (S.D.1989) (citing Permann v. Dep't of Labor, 411 N.W.2d 113 (S.D.1987)); see U.S. West Commun., Inc. v. Public Util. Comm'n, 505 N.W.2d 115 (S.D.1993). We also note that generally, when the issue in an administrative appeal is a question of fact, we apply the clearly erroneous standard. Quality Serv. Railcar, 437 N.W.2d at 211. "A finding is 'clearly erroneous' when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made." Selle v. Pierce, 494 N.W.2d 634, 636 (S.D.1993) (citations omitted).

At the commencement of the hearing in this case, counsel agreed to limit the issues to whether Foltz had suffered a loss of peripheral vision and if so, whether his peripheral vision was now less than twenty degrees, thus constituting permanent and total impairment by statute. The purpose of the proceeding was not to delve into the vocational aspects of the workers' compensation claim. Thus, in this appeal, we are largely faced with a question of fact: Does Foltz suffer from a loss of peripheral vision or not? Review of this factual question would normally require us to apply the clearly erroneous standard. In this administrative appeal, the circuit court's decision was based entirely on the written record from the agency. "We are fully as capable of reading the agency record as was the trial court. We may therefore review the agency record in the same light as does the trial court to determine whether or not the agency's decision was clearly erroneous in light of all the evidence in the record." In re Northwestern Bell Tel. Co., 382 N.W.2d 413, 416 (S.D.1986). However, in this case, almost all of the expert testimony that would aid the factfinder in determining whether Foltz suffered a loss of peripheral vision was presented via deposition, affidavit and exhibit. In this regard, we have stated: "When reviewing evidence presented by deposition, we do not apply the clearly erroneous rule but review that testimony as though presented here for the first time." Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992) (citing Lien v. Miracle Span Corp., 456 N.W.2d 563, 565 (S.D.1990)); Northwestern Bell, 382 N.W.2d at 415-16). See Wold v. Meilman Food Indus., 269 N.W.2d 112, 115 n. 2 (S.D.1978) (stating that deposition testimony of a treating physician can be reviewed by this court "unhampered by the clearly erroneous rule") (citing Ayres v. Junek, 247 N.W.2d 488, 490 (S.D.1976)); Geo. A. Clark & Son, Inc., v. Nold, 85 S.D. 468, 474, 185 N.W.2d 677, 680 (1971) (stating that where the clearly erroneous rule does not apply, this court is not burdened with a presumption in favor of the trial court's determination); State Auto. Casualty Underwriters v. Ruotsalainen, 81 S.D. 472, 479, 136 N.W.2d 884, 888 (1965) (noting that when reviewing deposition testimony, this court is "unhampered by the rule that a trial judge who has observed the demeanor of the witnesses, is in a better position to intelligently weigh the evidence than the appellate court."). Under this standard, "we will decide for ourselves the credibility of the deponents and the weight and value to be attached to their testimony." Caldwell, 489 N.W.2d at 357. More recently, we have restated and reaffirmed this rule:

When reviewing evidence presented by deposition, we do not apply the clearly erroneous rule but review that testimony as though presented here for the first time. [Citations omitted.] The question is not if there exists evidence contrary to the agency's finding, but is there substantial evidence to support the agency's finding?

Guthmiller v. South Dakota Dep't of Transp., 502 N.W.2d 586, 588 (S.D.1993) (citing Day, 490 N.W.2d at 723-24; Lien, 456 N.W.2d at 565; Oberle v. City of Aberdeen, 470 N.W.2d 238, 245 (S.D.1991)). 3

It is also useful to note the burden of proof in workers' compensation cases. Generally, to establish a workers' compensation claim, the " 'claimant has the burden of proving all facts essential to compensation[.]' " Phillips v. John Morrell & Co., 484 N.W.2d 527, 530 (S.D.1992) (quoting King v. Johnson Bros. Constr. Co., 83 S.D. 69, 73, 155 N.W.2d 183, 185 (1967)). "The employee's burden of persuasion is by a preponderance of the evidence." Caldwell, 489 N.W.2d at 358. An earlier statement of this court expanded on the concept of the employee's burden of persuasion, stating Having recognized the burden of proving all the essential facts of his claim is on the claimant, it becomes necessary to evaluate the evidence to determine whether the claimant has in fact met this burden. It should be noted proof need not arise to a degree of absolute certainty, but an award may not be based upon mere possibility or speculative evidence. Mehlum v. Nunda Coop. Ass'n, 74 S.D. 545, 56 N.W.2d 282 (1953). Before any award may be sustained, the findings of fact of the commissioner must be supported "by substantial, credible, and reasonable evidence." Oviatt v. Oviatt Dairy, Inc., 80 S.D. 83, 119 N.W.2d 649 (1963).

Kraft v. Kolberg Mfg. Co., 88 S.D. 140, 215 N.W.2d 844, 846 (1974) (emphasis added).

With these guidelines in mind, we review the testimony of the medical experts in this case.

1. Dr. Warren Opheim, M.D.

Dr. Opheim's opinions are presented via affidavit attached to medical reports on Foltz. Dr. Opheim practices with Neurology Associates, P.C., in Sioux Falls, South Dakota. As stated earlier, physicians in the Phoenix emergency room recommended that Foltz see a neurologist. Foltz was referred to Dr. Opheim by Cigna, Warner's insurance carrier. Dr. Opheim saw Foltz on at least ten occasions from March 1990 through February 1991. Initially, the reports show that Foltz reported symptoms including headaches, dizziness, tinnitus, and blurred vision. Dr. Opheim diagnosed post traumatic syndrome secondary to the head injury, "with headache, disequalibrium [sic] and irritability and visual blurring," and ordered various diagnostic tests including magnetic resonance imaging (MRI) scan of the neck. As time went on, the symptoms improved, and on 5/4/90, Dr. Opheim released Foltz to work to try "short hauling at...

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