Horn v. Dakota Pork

• Decision Date: 11 January 2006
• Docket Number: No. 23528.,23528.
• Citation: 709 N.W.2d 38
• Parties: Daniel HORN, Claimant and Appellant, v. DAKOTA PORK and Wausau Insurance Companies, Employer, Insurer and Appellees and Riverside Manufacturing and AIG Claims Services, Employer, Insurer and Appellees.
• Court: South Dakota Supreme Court

709 N.W.2d 38

Daniel HORN, Claimant and Appellant, v. DAKOTA PORK and Wausau Insurance Companies, Employer, Insurer and Appellees and Riverside Manufacturing and AIG Claims Services, Employer, Insurer and Appellees.

No. 23528.

Supreme Court of South Dakota.

Considered on Briefs August 30, 2005.

Decided January 11, 2006.

A. Russell Janklow and Ronald A. Parsons, Jr. of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, South Dakota, Attorneys for claimant and appellant Daniel Horn.

R. Alan Peterson and Steven S. Siegel of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellee Dakota Pork and Wausau Insurance Companies.

J.G. Shultz, Jennifer L. Wollman of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for employer, insurer and appellee Riverside Manufacturing and AIG Claims Service.

JENSEN, Circuit Judge.

[¶ 1.] Daniel Horn (Horn) appeals a circuit court decision affirming the South Dakota Department of Labor's (Department) determination that he sustained a short term compensable injury, but was not entitled to permanent disability benefits under the workers' compensation law. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Horn was employed as a welder at Riverside Manufacturing (Riverside). On Friday, July 7, 2000, during the workday, Horn bent over and experienced severe back pain when he attempted to straighten up. Horn reported the injury to his supervisor and completed his workday. He saw Jackie Siver (Siver), a physician's assistant, the following Monday. Horn reported "increasing pain in his lower back especially with movement such as bending over." Siver advised Horn that he should avoid twisting, lifting and bending motions and imposed a twenty pound lifting restriction.

[¶ 3.] Horn was subsequently referred to Dr. Gail Benson (Dr. Benson), an orthopedic surgeon, for examination and treatment. Horn reported experiencing back pain over the two to three weeks since injuring his back on July 7. Dr. Benson ordered an MRI and continued the light duty restrictions.¹ On September 27, 2002, Dr. Benson advised Riverside's workers' compensation carrier that Horn's complaints and symptoms at that time were related to the July 7, 2000, injury.

[¶ 4.] Horn continued to have back problems and pain, but did not receive further medical treatment for the condition. Horn did not return to work at Riverside after the July 7, 2000, injury because Riverside had no positions available to accommodate his lifting and bending restrictions. Horn began working part-time delivering newspapers in late 2000 and continued to work in that position at the time of the hearing before Department. Horn applied for several full-time positions, but each involved repetitive lifting and bending duties that he did not believe his back could tolerate.

[¶ 5.] For most of his adult life, Horn was engaged in heavy physical labor involving repetitive lifting, bending and stooping. For twenty years he worked in the loading dock and icehouse at Armour and Co. (Armour) lifting boxes of frozen meat. He strained muscles in his back on three occasions and, after each injury, he was given muscle relaxants and returned to work within a few days. After Armour closed in 1982, Horn drove a feed truck and loaded and unloaded sacks of feed for approximately two years.

[¶ 6.] Horn began working in the casing department for Dakota Pork in 1984.² In 1997 Horn injured his back lifting a sixty pound bag of salt at Dakota Pork. Horn initially saw Siver for the back injury. An MRI scan showed degenerative disc changes in Horn's low back. Horn also consulted with Dr. Joseph Cass (Dr. Cass), an orthopedic surgeon, concerning the low back injury. Dr. Cass diagnosed Horn with mechanical low back pain and issued him a five percent whole body impairment rating. Horn received a workers' compensation settlement from Dakota Pork based upon the five percent impairment rating. Horn returned to work approximately two months after the injury and continued to work in a meat cutting position until Dakota Pork closed later in 1997.

[¶ 7.] Horn attended welding school after Dakota Pork closed and began working as a welder at Yale Manufacturing in early 1998. Yale closed shortly thereafter and Horn began his employment at Riverside in April 1998. Horn worked at Riverside until his injury in July 2000.

[¶ 8.] On January 17, 2001, following his injury at Riverside, Horn saw Dr. R. Farnham (Dr. Farnham), an Occupational Medical Specialist, for an independent medical examination ordered by Dakota Pork. Dr. Farnham diagnosed Horn with mechanical low back pain due to degenerative changes of the lumbosacral spine compatible with age rather than trauma. Dr. Farnham opined that Horn's current complaints were unrelated to the 1997 injury. He further determined that the July 7, 2000, injury temporarily exacerbated the mechanical low back pain, but was not the cause of his current impairment or disability. Dr. Farnham gave Horn a whole body impairment rating of five percent.

[¶ 9.] Riverside referred Horn to Dr. Benson for an independent medical examination on November 26, 2002. Dr. Benson diagnosed Horn with ankylosing spondylitis³ and chronic low back pain. Dr. Benson opined in his written report that Horn's "current complaints are related to a condition called ankylosing spondylitis." Dr. Benson further wrote that the July 2000 injury was not a major contributing cause of Horn's impairment or disability, but did cause a short term need for treatment.

[¶ 10.] Horn filed a workers' compensation petition with Department on May 21, 2002, alleging that he suffered a compensable back injury arising from his employment at Riverside and Dakota Pork. At the hearing before Department, the parties stipulated to the admission of medical records, Independent Medical Examination Reports (IME Reports), correspondence and the depositions of Horn and Dr. Benson. Department determined that Horn sustained a compensable injury causing a short term need for medical treatment; but that the work injury was not a major contributing cause of his current disability.

[¶ 11.] Horn appealed Department's decision to the circuit court which affirmed Department. Horn appeals to this Court arguing that Department and the circuit court erred in determining that his workplace injury was not a major contributing cause of his disability. Horn also argues that Riverside is responsible for his compensable workplace injury. This latter issue was not addressed below because it was determined that Horn did not have a compensable workplace injury.

STANDARD OF REVIEW

[¶ 12.] The standard of review of an agency's decision is governed by SDCL 1-26-36 and ordinarily requires de novo review of questions of law and clearly erroneous review of findings of fact. Brown v. Douglas School Dist., 2002 SD 92, ¶ 9, 650 N.W.2d 264, 267. "When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule." Id. Since the record consists solely of documentary evidence and depositions, we give no deference to the decision of Department or the circuit court. Haynes v. McKie Ford, 2004 SD 99, ¶ 14, 686 N.W.2d 657, 661; Grauel v. South Dakota School of Mines and Technology, 2000 SD 145, ¶ 7, 619 N.W.2d 260, 262; Kurtz v. SCI, 1998 SD 37, ¶ 10, 576 N.W.2d 878, 882.

ANALYSIS AND DECISION

ISSUE

[¶ 13.] Whether Department erred in determining that Horn's employment or work related injury was not a major contributing cause of his disability.

[¶ 14.] Horn had the burden to prove by a preponderance of the evidence "all the facts essential to compensation." Grauel, 2000 SD 145, ¶ 11, 619 N.W.2d at 263(quoting Westergren v. Baptist Hosp., 1996 SD 69, ¶ 10, 549 N.W.2d 390, 393). "Our law requires a claimant to establish that his injury arose out of his employment by showing a causal connection between his employment and the injury sustained." Id. (citations omitted). The employment need not be the direct nor proximate cause of the injury in order to establish this causal connection, but rather must be shown to be a contributing factor to the injury. Id.; Gilchrist v. Trail King Industries, Inc., 2000 SD 68, ¶ 18, 612 N.W.2d 1, 5-6. The claimant also must prove by a preponderance of medical evidence, that the employment or employment related injury was a major contributing cause of the impairment or disability.⁴ Arends v. Dacotah Cement, 2002 SD 57, ¶ 15, 645 N.W.2d 583, 588; Grauel, 2000 SD 145, ¶ 19, 619 N.W.2d at 265. The evidence necessary to support an award must not be speculative, but rather must be "precise and well supported." Byrum v. Dakota Wellness Foundation, 2002 SD 141, ¶ 16, 654 N.W.2d 215, 219; Brady Memorial Home v. Hantke, 1999 SD 77, ¶ 16, 597 N.W.2d 677, 681.

[¶ 15.] Department correctly determined, and Horn does not contest Department's ruling, that the, injury temporarily caused a short term need for treatment, but was not a major contributing cause of Horn's current disability. Dr. Benson's IME Report stated that both the 1997 and 2000 injuries were unrelated to his current complaints which Dr. Benson reaffirmed in his deposition testimony. Dr. Benson's opinions were consistent with the opinions of Dr. Farnham in his report that the, injury caused a temporary exacerbation of Horn's low back pain, but did not independently contribute to his current impairment or disability relative to his low back.

[¶ 16.] Horn argues that the July 7, 2000, injury was only one of a number of cumulative injuries he sustained at Dakota Pork and Riverside from his years of repetitive bending and lifting; ultimately leading to the degeneration of his disc. This Court has approved an award of "compensation to claimants, even though they cannot prove any specific trauma, if they prove a history of injury to the body that occurs in the normal course of employment." St. Luke's Midland...