Hendrix v. Graham Tire Co.

• Decision Date: 21 March 1994
• Docket Number: Nos. 18463,18475,s. 18463
• Citation: 520 N.W.2d 876
• Parties: William E. HENDRIX, Employee and Appellant, v. GRAHAM TIRE COMPANY, Employer and Appellee, and The Travelers, Insurer and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 876

520 N.W.2d 876

William E. HENDRIX, Employee and Appellant, v. GRAHAM TIRE COMPANY, Employer and Appellee, and The Travelers, Insurer and Appellee.

Nos. 18463, 18475.

Supreme Court of South Dakota.

Considered on Briefs March 21, 1994.

Decided Aug. 3, 1994.

Wally Eklund of Johnson, Eklund, Nicholson, Dougherty & Abourezk, Gregory, for appellant.

Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees.

SABERS, Justice.

Employee appeals partially adverse determination of worker's compensation benefits. We affirm.

FACTS

From July, 1981, until April 7, 1990, William Hendrix (Hendrix) was a route salesman for Graham Tire (Graham). His delivery route ranged from 300 to 1100 miles per week. Hendrix's duties at Graham included the loading and unloading of tires ranging in size from car tires to farm tractor tires. Hendrix's salary was based upon commissions and in his last full year of employment, his gross salary was $26,892.81.

On September 25, 1989, Hendrix, while in the course of his employment, was involved in a one vehicle rollover accident. Hendrix experienced bruises and pain in his back, shoulders, leg, and groin area. He was taken by ambulance to a local hospital, treated, and released.

Following the accident, Hendrix worked in the Graham store while the manager was on vacation. Hendrix then returned to his route sales duties, which he continued until April 7, 1990. Hendrix's request for lighter work was denied and in a letter dated April 3, 1990, Graham's customers were informed that Hendrix was taking a medical leave of absence. After April 7, 1990, Hendrix never reported for work.

Because his condition worsened, Hendrix consulted Dr. Gail Benson (Benson), an orthopedic specialist, in December 1989. Benson diagnosed degenerative disc disease. According to Benson's deposition, Hendrix has degenerative disc disease of his lumbar spine aggravated by the accident. In March 1989, prior to the accident, Dr. Martin Christensen (Christensen), Hendrix's family doctor, had also diagnosed degenerative disc disease. Christensen had placed Hendrix on Naprosyn, an anti-inflammatory, and advised him to refrain from heavy lifting. Christensen treated Hendrix for degenerative disc disease through May 3, 1989.

In June 1990, Hendrix underwent a functional capacities assessment (FCA). The FCA showed that in an eight hour day, Hendrix could sit for 6 to 8 hours for 60 to 65 minute durations with regular breaks; that he could stand for 3 to 4 hours for 30 to 40 minute durations with regular breaks; that he could push or pull approximately 106 pounds; that he could carry 22 pounds frequently and 57 pounds occasionally, and that he could lift 26 to 33 pounds frequently and 64 pounds occasionally. As a result of the FCA, Benson opined that Hendrix was capable of working within the guidelines set forth in the FCA.

Hendrix filed a Petition for Hearing with the Department of Labor (Department) seeking worker's compensation disability benefits as a result of the September 1989 accident. Graham and The Travelers (Travelers) denied any relationship between the September 1989 accident and Hendrix's disability and asserted that Hendrix was not entitled to any benefits.

A hearing was held on December 13, 1991. Department found that the requisite causal connection existed between the accident and Hendrix's back condition and awarded Hendrix worker's compensation for medical expenses and a five percent permanent partial disability. Hendrix's claims for temporary total, temporary partial, and rehabilitation benefits were denied.

Hendrix appealed. Graham and Travelers filed a Notice of Review. The Department's finding of causation in favor of Hendrix and the denial of temporary total benefits were affirmed. The case was remanded to Department for additional findings of fact and conclusions of law on the issues of temporary partial and rehabilitation benefits. The circuit court also required Department to redetermine Hendrix's permanent partial disability benefit because it was calculated in part on the impairment of Hendrix's personal and social life.

Without taking additional evidence, Department entered further Findings of Fact and Conclusions of Law. The supplemental findings resulted in a reduction of the five percent permanent partial disability rating to four percent. Department adhered to its earlier decision and denied an award of temporary partial and rehabilitation benefits. The circuit court affirmed Department's decision. Hendrix appealed. Graham and Travelers filed a Notice of Review.

STANDARD OF REVIEW

This court's standard of review of administrative appeals is clearly defined. We will overrule an agency's findings of fact only when they are clearly erroneous. Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992) (citation omitted). "The question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding." Id. at 723-24 (citing Lawler v. Windmill Restaurant, 435 N.W.2d 708 (S.D.1989)). "In other words, even if there is evidence in the record which tends to contradict the Department's factual determination, so long as there is some 'substantial evidence' in the record which supports the Department's determination, this court will affirm." Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991). See Lawler, 435 N.W.2d at 711 (Morgan, J., concurring specially) (quoting Application of Ed Phillips & Sons Co., 86 S.D. 326, 195 N.W.2d 400 (1972)). Great weight is given to the findings made and inferences drawn by an agency on questions of fact. Kennedy v. Hubbard Milling Co., 465 N.W.2d 792, 794 (S.D.1991) (citation omitted). See Lawler, 435 N.W.2d at 711 (Morgan, J., concurring specially). Conclusions of law are given no deference and are fully reviewable. Day, 490 N.W.2d at 723 (citations omitted). When reviewing evidence presented by deposition, we do not apply the clearly erroneous standard but review that testimony as though presented here for the first time. Id. (citations omitted). See Foltz v. Warner Transp., 516 N.W.2d 338, 341 (S.D.1994).

1. Whether Department's decision that Hendrix suffered an aggravation of a pre-existing medical condition as a result of the accident was clearly erroneous.

Before an employee can collect benefits under our worker's compensation statutes, he must establish, among other things, that there is a causal connection between his injury and his employment. That is, the injury must have its origin in the hazard to which the employment exposed the employee while doing his work. This causation requirement does not mean that the employee must prove that his employment was the proximate, direct, or sole cause of his injury; rather, the employee must show that his employment was a contributing factor to his injury. The employee's burden of persuasion is by a preponderance of the evidence.

Caldwell v. John Morrell & Co., 489 N.W.2d 353, 358 (S.D.1992) (citations omitted).

Graham and Travelers argue that Department's decision that Hendrix suffered an aggravation of a pre-existing medical condition as a result of the accident was clearly erroneous. A pre-existing medical condition or infirmity does not disqualify a claim under the "arising out of employment" requirement if the employment aggravated, accelerated, or combined with the condition or infirmity to produce the disability for which compensation is sought. Guthmiller v. Dept. of Transportation, 502 N.W.2d 586, 590 (S.D.1993) (Sabers, J., dissenting) (citing 1 Larson, Workmen's Comp. Sec. 12.25.) " 'Whether the employment aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact, not law, and a finding of fact on this point by [Department] based on any medical testimony ... will not be disturbed on appeal.' " Id.

There is no question that Hendrix has a history of low back problems for which he began receiving chiropractic treatment in May 1985. Chiropractic care continued on and off through December 1988 and in March 1989, Hendrix sought treatment from Christensen, who diagnosed degenerative joint disease and arthritis. Hendrix testified, however, that he never suffered pain to this degree prior to the accident. According to Benson's deposition, Hendrix "has degenerative disc disease of his lumbar spine aggravated by an auto accident in which it is my presumption that he has torn one of his degenerated discs in his lumbar spine." While Benson testified that he did not review Hendrix's prior medical records, he also testified that the fact that Hendrix was having back pains prior to the accident meant that he had a pre-existing disease that was aggravated by an injury which appeared to make it impossible for him to maintain his employment lifting tires during the day.

There is substantial evidence to support Department's findings. Graham and Travelers have failed to demonstrate that Department's finding that Hendrix's "preexisting condition of degenerative disc disease was aggravated by the auto accident" was clearly erroneous. (Emphasis in Decision.)

2. Whether Department's Finding of Fact XXIII is clearly erroneous.

Department's Finding of Fact XXIII states that "Claimant offered no medical evidence that he was temporarily, totally disabled at any time since he terminated his employment in April of 1990." Hendrix argues that this Finding of Fact is clearly erroneous. In support Hendrix cites an "Attending Physician's Statement" prepared by Benson's office, Midwest Orthopedic Center. According to Hendrix, a "fair reading" of the Statement indicates that he would never be able to return to work at his job and that he should not perform "any other work" for "1-3 Mos."

According to Hendrix's testimony, however, while Benson suggested that he get out of a line of work that involved heavy lifting and driving, he was never...