Haynes v. Ford, No. 22749.

CourtSupreme Court of South Dakota
Citation2004 SD 99,686 N.W.2d 657
Decision Date25 August 2004
PartiesMary Ann HAYNES, Claimant and Appellant, v. McKie FORD, Employer and Appellee, and Mid-Century Insurance Company, Insurer and Appellee.
Docket NumberNo. 22749.

686 N.W.2d 657
2004 SD 99

Mary Ann HAYNES, Claimant and Appellant,
v.
McKie FORD, Employer and Appellee, and
Mid-Century Insurance Company, Insurer and Appellee

No. 22749.

Supreme Court of South Dakota.

Considered on Briefs October 27, 2003.

Reassigned March 30, 2004.

Decided August 25, 2004.


686 N.W.2d 658
Michael J. Simpson of Julius and Simpson Rapid City, SD, for claimant and appellant

Craig A. Pfeifle, J. Ashley Parr of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, for employer, insurer and appellees.

ZINTER, Justice (on reassignment).

[¶ 1.] Mary Haynes appeals from a circuit court decision overruling a Department of Labor ruling that Haynes was permanently and totally disabled and entitled to workers' compensation benefits. We affirm the circuit court.

Facts and Procedural History

[¶ 2.] Mary Haynes was diagnosed with mild mental retardation predating this case. She worked at several jobs after finishing high school, but they were all short-lived. She was unemployed from October 1995 to March 1997, but then

686 N.W.2d 659
started a program at the Black Hills Workshop, a non-profit organization that provides employment service to adults with disabilities. There, Haynes was given daily assistance and job skills. She was also "placed" at the Comfort Inn as a housekeeper. In that employment, she was given a substandard work evaluation, but was "getting close to the standard for the average worker." In October 1997, Haynes was placed at McKie Ford as a cleaning person. In March 1998, she asked that Black Hills Workshop's services be terminated and she be allowed to continue her job at McKie Ford "on her own."

[¶ 3.] On March 5, 1999, Haynes slipped and fell while working at McKie Ford. She was treated in the emergency room by Dr. Bryan Den Hartog. He diagnosed Haynes with an acute low back strain. He took Haynes off work for two weeks, and then returned her to work on a part-time basis.

[¶ 4.] Haynes testified that she continued to have pain in her back and maintained that the pain did not exist prior to the slip and fall. However, Dr. Den Hartog noted that Haynes had good range of motion in her back and her neurovascular examination and motor function appeared intact. Dr. Den Hartog further noted that Haynes was not doing the back exercises she had been instructed to do. Because of Haynes's continued complaints of pain and the absence of abnormalities in his evaluations, Dr. Den Hartog ordered an MRI to rule out any objective injury. The results of the MRI were "essentially normal." Dr. Den Hartog thereafter noted that "most of her complaints [were] subjective. I cannot find any objective signs on her examination today of any significant nerve impingement or mechanical back pain." Moreover, by the summer of 1999, Dr. Den Hartog returned Haynes to working full-time.

[¶ 5.] In October 1999, Haynes was terminated from McKie Ford for reasons unrelated to the work injury. Haynes next found a job at a Super 8 motel in December 1999. She started working part-time in the laundry department, and this position increased to full-time employment in the summer months.

[¶ 6.] At the request of the workers' compensation insurer, Haynes was examined by Dr. Brett Lawlor. Dr. Lawlor saw Haynes five times from June 1999 until March 2000. Neither a MRI, EMG, nor an x-ray could confirm a specific source of pain. However, Dr. Lawlor diagnosed mechanical low back pain, a designation that he described as a catch-all diagnosis for patients who do not have a specifically identifiable cause of back pain. He stated that Haynes's subjective complaints were the only evidence of a permanent injury. Dr. Lawlor also noted that Haynes had not been fully compliant with her physical therapy. Therefore, although Dr. Lawlor indicated that the slip-and-fall was a major contributing cause of Haynes's initial mechanical back pain, he opined that the work injury was not a major contributing cause of any permanent impairment, and he returned her to work without restrictions. Although Dr. Lawlor also testified that it was not his opinion Haynes was malingering, he opined that Haynes had a zero percent impairment rating.

[¶ 7.] In March 2000, Haynes was still complaining of back pain and right leg numbness to Dr. Lawlor. Dr. Lawlor found her complaints to be inconsistent and further found that when Haynes was casually observed, she had greater flexion than that demonstrated when she was being directly observed. Dr. Lawlor again found that Haynes's test results were normal.

[¶ 8.] Haynes next sought medical care from Nancy McPherson, a physician's assistant.

686 N.W.2d 660
McPherson treated Haynes on a number of occasions for a variety of conditions including anxiety and depression. McPherson saw Haynes for back pain on three occasions from June through September of 2000. On the September visit, McPherson limited Haynes to working twenty hours per week and four hours a day. However, McPherson testified that this restriction was temporary, and that Haynes was to see her again in a few weeks. Haynes did not return to McPherson

[¶ 9.] In November 2000, Haynes sought treatment from Dr. Gregory Lowenberg, a chiropractor. Dr. Lowenberg treated Haynes from November 2000 through March 2001. He found "tightness or spasm" in Haynes's mid-back down through her buttocks. Dr. Lowenberg testified that his findings of spasms were objective findings. He also found Haynes's spine had restricted motion. Although Dr. Lowenberg believed that Haynes had back pain, he conceded that he was unable to express an opinion that Haynes was permanently disabled as a result of the slip-and-fall. He was unable to express that opinion because Haynes never followed through on the treatment plan he prescribed for her to get back to work.

[¶ 10.] A number of other factors impacted Haynes's ability to work. In October 2000, Haynes was the victim of domestic abuse, and her husband was jailed for the offense. Additionally, in early 2001, Haynes was admitted to a psychiatric facility on two occasions.

[¶ 11.] Consequently, evidence was presented at hearing from Dr. Charles Lord, a psychiatrist. Dr. Lord had last seen Haynes in October 1998, prior to her work injury. After reviewing her post injury medical history and his prior involvement with Haynes, he opined that she had a tendency to somatize, meaning she took psychological discomfort and put it into a target organ. He explained this condition by noting that the medical evidence reflected no objective physical findings that caused the ongoing problem. He ultimately opined that Haynes's mental condition would have made her uncompetitive in the labor market with or without the injury at McKie Ford. With respect to the issue of that injury being a major contributing cause of a permanent and total disability, he specifically deferred to Dr. Lawlor, but declined to defer to Dr. Lowenberg or McPherson.

[¶ 12.] At the time of the hearing, Haynes worked at the Clarkson nursing home. In that job, she sat at a table folding laundry approximately twenty to twenty-five hours per week. Occasionally, Haynes worked up to thirty to thirty-five hours per week.

[¶ 13.] After a hearing, the Department awarded permanent and total disability benefits. The circuit court reversed. Haynes now appeals, raising the following issues:

1. Whether the circuit court erred in determining that Haynes's work injury was not a major contributing cause of her current disability.
2. Whether the circuit court erred in determining that Haynes was not permanently and totally disabled pursuant to the odd-lot doctrine.

Analysis and Decision

[¶ 14.] In workers' compensation cases:

Our standard of review ... is controlled by SDCL 1-26-37. "Under 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,
686 N.W.2d 661
the actions of the agency are fully reviewable." We will reverse only when, after careful review, we are firmly convinced a mistake has been made.... "The standard of review in an appeal to the Supreme Court from a trial court's appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct." "Whether a claimant makes a prima facie case to establish odd-lot total disability inclusion is a question of fact."

Lagge v. Corsica Co-op, 2004 SD 32, ¶ 14, 677 N.W.2d 569, 573 (internal citations omitted). However, when an agency makes factual determinations on the basis of documentary evidence, such as a deposition, the matter is reviewed de novo. Watertown Coop. Elevator Ass'n. v. SD Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171 (citations omitted).

1. Whether Department erred in determining that Haynes's work injury was a major contributing cause of her current disability.

[¶ 15.] Haynes claims permanent, total disability under the odd-lot doctrine. Under the odd-lot doctrine, a workers' compensation claimant must show that her physical condition, in combination with her age, training, and experience, and the type of work available in her community, causes her to be unable to secure anything more than sporadic employment resulting in insubstantial income. Enger v. FMC, 1997 SD 70, ¶ 21, 565 N.W.2d 79, 85 (quoting Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)). This showing can be made by establishing either that: "1) she is obviously unemployable; or 2) suitable employment is unavailable." Id. (citing Petersen v. Hinky Dinky, 515 N.W.2d 226, 231-32 (S.D.1994)).

[¶ 16.] Haynes testified that she had experienced back pain continuously since the date of her work injury. She also testified that prior to that work injury, she did not have any significant difficulty with her back. Although she worked full-time at McKie after her injury, she further testified that she sought medical assistance for treatment of her pain after the incident. The Department found...

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8 practice notes
  • Kassube v. Dakota Logging, No. 23308.
    • United States
    • Supreme Court of South Dakota
    • October 12, 2005
    ...from the injuries he sustained while working for Estes Brothers in 1990. We review such documentary evidence de novo. Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, [¶ 56.] Kassube sought treatment from Dr. Gruba after the 1990 Estes Brothers injury. Dr. Gruba treated claimant on an ongo......
  • Kasuske v. Farwell, Ozmun, Kirk & Co., No. 23555.
    • United States
    • Supreme Court of South Dakota
    • February 8, 2006
    ...evidence. We review documentary evidence de novo, affording no deference to the Department's findings or inferences. Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661 (citing Watertown Coop. Elevator Ass'n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171). [¶ 10.] Finally......
  • Darling v. West River Masonry, Inc., No. 25275.
    • United States
    • Supreme Court of South Dakota
    • January 6, 2010
    ...a work-related injury does not automatically establish entitlement to benefits for his current claimed condition. Haynes v. McKie Ford, 2004 SD 99, ¶ 17, 686 N.W.2d 657, 661. The claimant must establish that his work-related injury is a major contributing cause of his current claimed condit......
  • McDowell v. Citibank, No. 23858.
    • United States
    • Supreme Court of South Dakota
    • June 6, 2007
    ...However, the Department receives no deference on its findings and conclusions based on documentary evidence. Id. (citing Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661) (other citation omitted). Legal questions are also fully reviewable. Id. at ¶ 10 734 N.W.2d 5 (citing Enger, 1997 S......
  • Request a trial to view additional results
8 cases
  • Kassube v. Dakota Logging, No. 23308.
    • United States
    • Supreme Court of South Dakota
    • October 12, 2005
    ...from the injuries he sustained while working for Estes Brothers in 1990. We review such documentary evidence de novo. Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, [¶ 56.] Kassube sought treatment from Dr. Gruba after the 1990 Estes Brothers injury. Dr. Gruba treated claimant on an ongo......
  • Kasuske v. Farwell, Ozmun, Kirk & Co., No. 23555.
    • United States
    • Supreme Court of South Dakota
    • February 8, 2006
    ...evidence. We review documentary evidence de novo, affording no deference to the Department's findings or inferences. Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661 (citing Watertown Coop. Elevator Ass'n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171). [¶ 10.] Finally......
  • Darling v. West River Masonry, Inc., No. 25275.
    • United States
    • Supreme Court of South Dakota
    • January 6, 2010
    ...a work-related injury does not automatically establish entitlement to benefits for his current claimed condition. Haynes v. McKie Ford, 2004 SD 99, ¶ 17, 686 N.W.2d 657, 661. The claimant must establish that his work-related injury is a major contributing cause of his current claimed condit......
  • McDowell v. Citibank, No. 23858.
    • United States
    • Supreme Court of South Dakota
    • June 6, 2007
    ...However, the Department receives no deference on its findings and conclusions based on documentary evidence. Id. (citing Haynes v. Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661) (other citation omitted). Legal questions are also fully reviewable. Id. at ¶ 10 734 N.W.2d 5 (citing Enger, 1997 S......
  • Request a trial to view additional results

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