Joffer v. Crusy's Power Brake & Supply, Inc., 10451
Decision Date | 19 February 1968 |
Docket Number | No. 10451,10451 |
Citation | 156 N.W.2d 189,83 S.D. 191 |
Parties | Robert JOFFER, Claimant and Appellant, v. CRUSY'S POWER BRAKE & SUPPLY, INC., Employer, and Iowa Mutual Insurance Company, Insurer, Defendants and Respondents. |
Court | South Dakota Supreme Court |
Edwin C. Parliman, Sioux Falls, for claimant and appellant.
Gene E. Pruitt, Willy, Pruitt & Matthews, Sioux Falls, for defendants and respondents.
Claimant employee filed a petition for hearing on his claim for an award under the South Dakota Workmen's Compensation Law. SDC 64. After a hearing, which was adjourned for taking a further deposition, the Industrial Commissioner denied an award. This appeal is from a Judgment of the circuit court affirming the Commissioner's action.
Claimant began work the morning of December 20, 1965. Just before quitting time that day he was putting a spring back under a trailer. As he was bending over he testified he felt a sharp pain and cramp in his back. He went home but had difficulty sleeping and on returning the next morning he tried to work but told his foreman he had hurt his back and could not stand it anymore and went home. The Commissioner found as a fact and concluded claimant had failed to prove a permanent-partial disability attributable to the injury sustained December 20, 1965. His written opinion contained pertinent parts of the first (August 1966) deposition of the medical expert. It will be observed the questions, while leading and suggestive of an answer, were answered guardedly by the doctor. They were:
The later November deposition included:
The Commissioner's opinion (See Campbell v. City of Chamberlain, 78 S.D. 245, 253, 100 N.W.2d 707, 711, for similar references) stated the issues and disposition as:
'It is undisputed that claimant suffered a compensable injury on December 20, 1965 and as indicated, the employer-insurer has paid temporary-total disability as well as medical and hospital costs incurred up until June 2, 1966.
'The sole issue in this case is whether claimant is entitled to an Award for permanent-partial disability related or attributable to said injury.
'After a careful review of all the testimony, records and files I am inclined to the view that claimant has failed to sustain the burden of proof required to establish permanent-partial disability attributable to his compensable injury suffered on December 20, 1965.
'The fact that it could have been responsible for his 10% Impairment cannot be based on speculation alone, and the medical testimony has to establish that fact and the objective findings failed to do so.'
This was not the first time claimant had trouble with his back. In 1966 he was 43 years old and testified . He was then treated by a doctor but had more or less continuous trouble with his back until 1955 at which time he was 32 years old. He related some of his various employers and the clinics and chiropractors consulted for treatments of his back. He quit almost every job he had because of his back until a 1955 operation to remove a disc. From 1956 to 1961 he gave the names of several employers, but worked for so many he was unable to remember all of them. He again consulted a doctor regarding his back in 1961 because of pain resulting from bending over to pick up a case of eggs. One employer let him go after an accident, another 'fired' him after one or two days and still another after a caterpillar tractor rolled off the truck he was driving.
The court has set forth guide lines in a series of opinions, including Edge v. City of Pierre, 59 S.D. 193, 239 N.W. 191; Riccord v. John Burns Memorial Hospital, S.D., 141 N.W.2d 160; King v. Johnson Bros. Construction Company, S.D., 155 N.W.2d 183; Campbell v. City of Chamberlain, supra. They declare the claimant has the burden of proving all facts essential to compensation and if he...
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