Johnson v. Albertson's

• Decision Date: 05 April 2000
• Docket Number: No. 21110.,21110.
• Citation: 610 N.W.2d 449,2000 SD 47
• Parties: Teresa JOHNSON, Appellant, v. ALBERTSON'S, Appellee.
• Court: South Dakota Supreme Court

610 N.W.2d 449

2000 SD 47

Teresa JOHNSON, Appellant, v. ALBERTSON'S, Appellee.

No. 21110.

Supreme Court of South Dakota.

Considered on Briefs February 14, 2000.

Decided April 5, 2000.

Margo Tschetter Julius of Groves, Julius & Simpson, Rapid City, for appellant.

Dennis W. Finch of Finch Bettmann Maks, P.C., Rapid City, for appellee.

GILBERTSON, Justice

[¶ 1.] Teresa Johnson (Johnson) appeals the circuit court's order denying her claim for workers' compensation benefits. The Office of Hearing Examiners (hearing examiner) and the circuit court found Johnson had not proven her work-related injury was causally related to her mental disability. Johnson appeals. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Johnson began working at Albertson's supermarket in Rapid City, South Dakota in August of 1989. On January 31, 1990, she suffered an injury to her neck and upper back while stacking baking pans in the bakery department. Johnson was treated by a chiropractor for muscle strain and was then referred to Dr. Hollis Leroy Ahrlin, an orthopedic surgeon. Dr. Ahrlin described Johnson's condition as a back strain or myofascitis.¹ Dr. Ahrlin concluded Johnson's back strain would improve with time.

[¶ 3.] Johnson continued to work at Albertson's and on April 22, 1990, she aggravated her muscle strain while lifting a garbage bag.² Dr. Ahrlin found Johnson's reflexes, sensation and motor function all to be within normal limits, but concluded she had aggravated her previous muscle strain. He advised Johnson to seek a different line of work, because if she continued to lift, she would again aggravate her muscle condition. Dr. Ahrlin did not expect Johnson to sustain any permanent impairment from this aggravation.

[¶ 4.] On November 13, 1990, Johnson saw Dr. Steven Goff, who recommended physical therapy. Dr. Goff never advised Johnson she could not or should not work.

[¶ 5.] On March 13, 1991, Dr. Steven Hata determined Johnson had a 4.5 percent permanent partial physical impairment due to her muscle strain. Johnson was given a second impairment rating by Dr. Goff on March 19, 1991, of 6 percent. Two percent of this rating was from his objective findings, while four percent was due to subjective complaints by Johnson.

[¶ 6.] Rick Ostrander, a certified rehabilitation specialist, first met with Johnson in April of 1991. Based on his meetings with Johnson and his review of the depositions of Dr. Finley, Dr. Goff and Dr. Ahrlin, as well as the medical and vocational testing records, Ostrander concluded that Johnson had a 92 percent reduction in employability, and that she was essentially unemployable in her community.

[¶ 7.] Albertson's retained Bill Penniston as its vocational expert and he found three job positions for Johnson with Albertson's. These jobs were customer service clerk, video clerk and bakery sales clerk. Penniston also performed a labor market survey of the Rapid City area and identified jobs regularly available to Johnson within her physical restrictions. These jobs included being a hostess, parking lot attendant, desk clerk, flagger, airport security and a tanning salon receptionist. Penniston determined there were jobs regularly and continuously available to Johnson in the Rapid City community and that she was employable.

[¶ 8.] On January 5, 1993, a Functional Capacities Assessment (FCA)³ was performed on Johnson by Anthony Yurick, a physical therapist with Work Analysis Systems in Rapid City. The FCA indicated the results were an invalid representation of Johnson's true capabilities. An invalid assessment indicates the client has manipulated the assessment by portraying less capabilities than what the client is actually able to perform, and may be malingering.⁴

[¶ 9.] Dr. Finley's testimony was the only new medical evidence submitted at the second hearing,⁵ held on December 2 and 3, 1997, before the hearing examiner. Dr. Finley testified in his September 23, 1997 deposition that Johnson was unemployable in the competitive labor market. He also testified her medical condition did not change substantially since his first deposition, but that her depression had increased. Dr. Finley also stated that Johnson was not malingering.

[¶ 10.] At the second hearing, Johnson claimed her January 31, 1990 work injury caused her to have pain which prevented her from working and that the pain and inability to work caused depression.

[¶ 11.] Shortly after Johnson received notification of the Department's first adverse decision on her workers' compensation claim, which was issued November 13, 1993, she was admitted to the Rapid City Regional Hospital psychiatric unit. Dr. Stephen Manlove, a psychiatrist, first saw Johnson in the psychiatric unit on November 18, 1993. Johnson later testified she was admitted because she was "devastated" by the Department's denial of her workers' compensation claim and "[b]ecause they said that I was lying."

[¶ 12.] Dr. Manlove diagnosed Johnson as having dependent and borderline personality features, which "probably were the underpinnings for her depression." Dr. Manlove also noted in Johnson's history that prior to her admission to the hospital, her stressors were the fact that she had lost her workers' compensation case about two weeks prior, she had to leave her husband, and had written several bad checks the day before. Dr. Manlove concluded that Johnson's January 19, 1990 injury contributed to her depression, that her depression was treatment resistant due to her pain and that her depression was a permanent medical condition making her unemployable.

[¶ 13.] On October 4, 1996, Johnson was again admitted to the psychiatric unit under the care of Dr. Vernard, who noted that she had a history of migraine headaches but denied having any other physical symptoms or medical problems at that time.

[¶ 14.] In September of 1997, Johnson underwent an MMPI-II test⁶ at the Manlove Clinic. A normal range on the validity scale or "F" scale for MMPI test results is a score of between 50-65. Johnson's validity scale test results showed an elevated score of 82. Dr. Manlove, Johnson's treating psychiatrist, testified an elevation of the F scale "suggests exaggeration of symptoms, psychopathology, or true psychopathology." Dr. Scott Cherry, a clinical psychologist, testified at both trials on behalf of Johnson. Dr. Cherry believed Johnson's MMPI-II test results were elevated but concluded she was not malingering or exaggerating symptoms.

[¶ 15.] However, Dr. Robert Arnio, a clinical psychologist who testified on behalf of Albertson's, disagreed and stated that when the F value on the MMPI test reaches a certain range, the validity of the profile becomes questionable. He testified that scores in the range of 80-90 are suggestive of malingering and exaggerating problems versus scores in the normal range of 50-65.

[¶ 16.] Finally, Dr. Richard Rewey, a psychiatrist, evaluated Johnson's condition on behalf of Albertson's. After meeting with Johnson on July 30, 1997, and reviewing medical and vocational records and psychological test results, Dr. Rewey diagnosed Johnson with recurrent depression, marijuana dependence and malingering. Dr. Rewey also explained that Johnson demonstrated a pattern of malingering, according to the Diagnostic and Statistical Manual-IV (DSM-IV), a standard reference for psychologists and psychiatrists. The DSM-IV states: "[m]alingering should be strongly suspected if any combination of the following is noted:

1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination);

2. Marked discrepancy between the person's claimed stress or disability and the objective findings;

3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and

4. The presence of Antisocial Personality Disorder.

[¶ 17.] Dr. Rewey also diagnosed Johnson with a mixed personality disorder with anti-social, borderline, paranoid and dependent features. Johnson was also diagnosed with myofascial strain syndrome. Dr. Rewey concluded that Johnson's MMPI-II test results were consistent with her severe personality disorder. He testified that Johnson's personality disorder was the cause of her depression, and that her depression was exacerbated by ongoing substance abuse of both marijuana and alcohol. Johnson's medical records show a history of using illegal "street drugs," i.e., marijuana, cocaine and acid. Finally, Dr. Rewey concluded that Johnson's 1990 muscle strain was not a source of contribution to her depression, and that there was no reason she could not look for new employment.

[¶ 18.] At the second hearing, the hearing examiner found Johnson failed to meet her burden of persuasion because of lack of credibility. Johnson appealed this decision to the Sixth Judicial Circuit Court for a fourth time, which affirmed the decision of the hearing examiner and ruled Johnson had failed to meet her burden of persuasion of showing her 1990 injuries were causally related to her depression. Johnson appeals, raising the following issue for our consideration:

Whether the hearing examiner's decision finding Johnson's depression was not causally related to her 1990 injuries at Albertson's was clearly erroneous.

STANDARD OF REVIEW

[¶ 19.] Our standard of review pursuant to SDCL 1-26-36 requires us to give great weight to the Department or hearing examiner on factual questions. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citing Helms v. Lynn's, Inc., 1996 SD 8, ¶¶ 9-10, 542 N.W.2d 764, 766; Finck v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988)). This Court reviews agency findings in the same manner as the circuit court in deciding whether they were clearly erroneous in light of all the evidence. Id. (citing Matter of Northwestern Bell Tel. Co., 382 N.W.2d 413, 415 (S.D.1986)). Only if after a review of the entire record we are definitely and firmly convinced a...