Kester v. Colonial Manor of Custer

• Decision Date: 05 November 1997
• Docket Number: No. 19972,19972
• Citation: 571 N.W.2d 376,1997 SD 127
• Parties: Margie A. KESTER, Claimant and Appellee, v. COLONIAL MANOR OF CUSTER, Employer and Appellant, and The Travelers, Insurer and Appellant.
• Court: South Dakota Supreme Court

Page 376

571 N.W.2d 376

1997 SD 127

Margie A. KESTER, Claimant and Appellee, v. COLONIAL MANOR OF CUSTER, Employer and Appellant and The Travelers, Insurer and Appellant.

No. 19972.

Supreme Court of South Dakota.

Argued Sept. 9, 1997.

Decided Nov. 5, 1997.

Lawrence R. Bihlmeyer, Rapid City, for claimant and appellee.

Gregory G. Strommen of Costello, Porter, Hill, Heisterkamp and Bushnell, Rapid City, for appellants.

MILLER, Chief Justice.

¶1 In this appeal, Colonial Manor and its workers' compensation insurer, The Travelers (hereinafter collectively referred to as Colonial Manor), assert that the South Dakota Department of Labor and the circuit court erred in finding that Margie Kester's present condition is causally connected to a work-related injury she suffered while working for Colonial Manor. Colonial Manor also asserts that the circuit court erred in reversing Department's decision denying permanent total disability benefits to Kester under the odd-lot doctrine. We affirm.

FACTS

¶2 Kester began working at Colonial Manor as a housekeeper on January 2, 1984. On October 11, 1985, she suffered a back injury while trying to lift a mop bucket filled with water. This injury prompted her to immediately seek medical attention from Dr. Steven Fisher, a family practice physician in Custer, South Dakota. Dr. Fisher diagnosed Kester as suffering from lumbar strain. He continued to see her about once per week while she rested from work, took some medication, and underwent physical therapy. On November 7, 1985, Kester informed Dr. Fisher that her symptoms of lower back pain had resolved and therefore he did not schedule further treatment at that time.

¶3 Kester returned to work about a month after she first suffered her back injury. Her back continued to bother her, but she did not report this to anyone. In September 1988, in an effort to ease the pain in her back, Kester changed her duties at Colonial Manor from housekeeping to laundry. On June 7, 1989, her back pain again became so bad that she returned to Dr. Fisher. Dr. Fisher diagnosed Kester as having a possible L4-5 disc degeneration and temporarily took her off of work. After a brief period of physical therapy, Kester returned to work at Colonial Manor until January 1991, when she resigned, in part, because her work there caused pain in her back.

¶4 Kester then briefly took a position as a housekeeper at the Sun-Mark Inn in Custer in the summer of 1991, until a position opened up at the South Dakota Development Center (SDDC). She took a job as a housekeeper with SDDC in July 1991 until January 1992. During this time, Kester complained of back pain to her husband. She also visited Dr. Stephen Massopust concerning lower back pain. A CAT scan of her lower spine on January 14, 1992, revealed a central bulge at the L5-S1 level.

¶5 Kester was referred to Dr. Edward H. James by Dr. Massopust around January 23, 1992. After examining her, Dr. James sent a letter to Dr. Massopust recommending that heavy aspects of Kester's work at SDDC be eliminated. She was terminated from her job at SDDC at the end of her six-month probationary period because of her inability to do heavy work. She has not held another job since.

¶6 On June 29, 1993, a Functional Capacities Assessment (FCA) was performed on Kester at Rapid City Regional Hospital. It indicated that she could work at a light level. Dr. Steven Goff, a physiatrist and Kester's treating physician since July 15 1992, downgraded the findings of the FCA by at least one-third on October 6, 1993. This downgrading was based on the symptoms reported to Dr. Goff at that time. He also opined that her present condition is causally related to her 1985 injury. Dr. Goff determined that on October 6, 1993, Kester had a 6% whole person physical impairment due to her back condition.

¶7 Bill Penniston was hired as a vocational consultant for Kester and first met with her in September of 1993. Penniston then met with Dr. Goff in October, 1993. Based on his meetings with Kester and Dr. Goff and also his review of the medical and vocational testing records, Penniston opined that Kester was capable of work in the sedentary to light duty ranges. He also stated he did not believe she could work an eight-hour day and is unemployable in her community.

¶8 Kester started working with Gary Phillips, a Certified Rehabilitation Consultant, on June 30, 1994. Phillips has worked with her on at least a monthly basis since then. It is Phillips' opinion that she is not employable in her community. Colonial Manor hired Tom Karrow as its vocational expert and he sent a list of potential job leads to Kester. Phillips checked out each potential job lead sent by Karrow and determined that the jobs were either unavailable or unsuitable for someone with Kester's limitations.

¶9 On October 4, 1994, Gwen Hougdahl, a physical therapist with PT-OT Associates, performed a Work Tolerance Screening and a FCA on Kester. This FCA showed that she was capable of performing work at between a sedentary and light level of employment under the U.S. Department of Labor standards. It was also determined that she may not be able to tolerate an eight-hour work day.

¶10 On November 7, 1994, Dr. Michael Koehn, a chiropractor, diagnosed Kester as having a degenerative disc disease at the L4-5 and L5-S1 levels. Dr. Koehn also stated that her present condition is causally related to her work injuries at Colonial Manor.

¶11 Kester was also examined by Dr. James Gardiner, a scientific psychologist, who determined that she suffered from a major depressive disorder caused by her inability to work. As of November 23, 1994, it is Dr. Gardiner's opinion that she is unable to conduct a job search because of her depression.

¶12 Dr. Brian Tschida, a neurologist, performed an independent medical examination of Kester on January 6, 1994. Dr. Tschida determined that she could work at a light-duty level and that returning to work would help alleviate her depression. Dr. Tschida also opined that her present condition was not related to her 1985 injury.

¶13 At the time of Department's hearing, Kester was forty-seven years old, had a high school education, and was able to read at the seventh grade level. Her past experience consisted of being a nurse's aid, an institutional housekeeper, and an institutional laundry worker. Department concluded that Kester's present condition is causally related to her injury in 1985 and the circuit court affirmed. Department also concluded that Kester was not permanently totally disabled, and that she suffered from a 6% permanent partial impairment. The circuit court reversed and remanded to Department, directing it to award Kester permanent total disability benefits under the odd-lot doctrine. Colonial Manor appeals.

DECISION

¶14 I. Whether Department erred in determining that Kester's present condition was causally related to her October 11, 1985, injury at Colonial Manor.

¶15 Our standard of review in workers' compensation cases is well settled. Hanten v. Palace Builders, Inc., 1997 SD 3, p 8, 558 N.W.2d 76, 78. SDCL 1-26-37 governs our standard of review. Under this statute, 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, the actions of the agency are fully reviewable. Loewen v. Hyman Freightways, Inc., 1997 SD 2, p 6, 557 N.W.2d 764, 766 (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991)). We review the findings based on deposition testimony and documentary evidence under a de novo standard of review. Hanten, 1997 SD 3 at p 8, 558 N.W.2d at 78 (citing Caldwell, 489 N.W.2d at 357).

¶16 Our task on appeal is to determine if there is substantial evidence to support the agency's decision, and not to determine if there is substantial evidence that contradicts the agency's decision. Loewen, 1997 SD 2 at p 7, 557 N.W.2d at 766; Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citing Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991)). "We will reverse only if we are definitely and firmly convinced that a mistake has been made." Spitzack, 532 N.W.2d at 75 (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)).

¶17 Before Kester can collect any benefits under our workers' compensation statutes, she must establish a causal connection between her injury and her employment. Caldwell, 489 N.W.2d at 357. "This causation requirement does not mean that the employee must prove that [her] employment was the proximate, direct, or sole cause of [her] injury; rather the employee must show that [her] employment was a 'contributing factor ' to [her] injury." Id. at 358 (emphasis in original) (citing Sudrla v. Commercial Asphalt & Materials, 465 N.W.2d 620, 621 (S.D.1991)) (other citations omitted); see also Tischler v. United Parcel Serv., 1996 SD 98, p 27, 552 N.W.2d 597, 602.

¶18 " 'Issues of causation in worker's compensation cases are factual issues that are best determined by the Department.' " Therkildsen v. Fisher Beverage, 1996 SD 39, p 8, 545 N.W.2d 834, 836 (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 708, 709 (S.D.1989) (other citations omitted)). Here, Department found that "there is sufficient evidence showing that [Kester's] current condition is degenerative disc disease and that it is causally related to her work injuries."

¶19 Kester was first injured in 1985 and did not again require medical care for her back until 1989 and then in 1992. Colonial Manor claims that such a gap in medical care indicates that her original injury is not causally related to her current condition. Indeed, such a gap in time raises some doubt as to whether Kester's present condition is causally related to her 1985 injury. "Where there is no obvious causal relationship the testimony of a medical expert may be necessary to establish the causal connection." Howe v....