Maroney v. Aman

• Citation: 1997 SD 73,565 N.W.2d 70
• Decision Date: 14 January 1997
• Docket Number: A-J,No. 19592,19592
• Parties: Larry E. MARONEY, Employee, Claimant and Appellant, v. Curtis R. AMAN andTrucking, Employer and Appellee, and Wausau Insurance Companies, Defendant and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 70

565 N.W.2d 70

1997 SD 73

Larry E. MARONEY, Employee, Claimant and Appellant, v. Curtis R. AMAN and A-J Trucking, Employer and Appellee and Wausau Insurance Companies, Defendant and Appellee.

No. 19592.

Supreme Court of South Dakota.

Considered on Briefs Jan. 14, 1997.

Decided June 18, 1997.

Robert M. Ronayne and Joe L. Maynes of Ronayne and Wein, Aberdeen, for employee, claimant and appellant.

Susan Jansa Brunick and Kristi Geisler Holm of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees.

AMUNDSON, Justice.

¶1 Department of Labor (Department) denied Larry E. Maroney (Maroney) workers' compensation benefits, finding that his injuries did not arise out of and in the scope of his employment. The circuit court affirmed, and Maroney appeals. We affirm.

FACTS AND PROCEDURE

¶2 On October 16, 1991, Maroney, a truck driver, was traveling north on United States Highway 83. It is undisputed that, after passing a utility truck, Maroney's truck went off the road to the right. The truck then traveled across a pasture, hit a railroad embankment, and landed in a slough on the north side of the embankment.

¶3 As a result of the accident, Maroney suffered numerous cuts, abrasions and bruises, and a broken left arm. In addition, he suffered an occlusion of his right carotid artery, commonly known as a stroke, which paralyzed the left side of his body and rendered him permanently and totally disabled.

¶4 Maroney filed a claim for workers' compensation benefits. ¹ His employer, A-J Trucking and Curtis R. Aman, and his insurer, Wausau Insurance Companies (collectively referred to as Wausau), filed a joint answer denying that Maroney's injuries arose out of and in the scope of his employment. Department denied workers' compensation benefits, agreeing that Maroney's injuries did not arise out of and in the scope of his employment.

¶5 Maroney appealed to the circuit court, which affirmed Department's conclusion. He appeals the circuit court's decision, raising the following issues:

I. Whether the occlusion of Maroney's right internal carotid artery arose out of and in the scope of his employment.

II. Whether portions of the depositions of an expert witness should have been admitted as evidence.

III. Whether Department erred in refusing to allow the testimony of an expert witness.

STANDARD OF REVIEW

¶6 The standard of review applied to administrative appeals is well-established:

We will overrule an agency's findings of fact only when they are clearly erroneous. 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. In other words, even if there is evidence in the record which tends to contradict Department's factual determination, so long as there is some "substantial evidence" in the record which supports Department's determination, this court will affirm. Great weight is given to the findings made and inferences drawn by an agency on questions of fact. Conclusions of law are given no deference and are fully reviewable. 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.

Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 (S.D.1994) (citations and quotations omitted). The video depositions of four doctors, ² however, are reviewed under a clearly erroneous standard because Department had the opportunity to view their credibility. The use of video depositions in this case is similar to a jury's use of such depositions in a medical malpractice case, wherein they are allowed to assess the credibility of the deponent via video tape. See State v. Barber, 1996 SD 96, p 23, 552 N.W.2d 817, 821 (stating it is the jury's responsibility to examine a witness' credibility). Just as a jury is allowed to assess a witness' credibility while watching a video deposition, so is Department. See, e.g., 44 AmJur Model Trials § 35, at 251 (1992) (stating videotaped testimony is "capable of preserving the demeanor of the witness"). Therefore, the depositions of these four medical experts will be reviewed under the same clearly erroneous standard applied to live witnesses. See, e.g., Curtis v. State, 301 Ark. 208, 783 S.W.2d 47, 50 (1990) (holding that an appellate court should apply a clearly erroneous standard of review to video depositions).

DECISION

¶7 I. Whether the occlusion of Maroney's right internal carotid artery arose out of and in the scope of his employment.

¶8 Maroney contends that the occlusion of his right internal carotid artery on the day of the accident was traumatically induced and therefore arose out of and in the scope of his employment. To have a traumatically induced stroke, it is admitted that he must have suffered a hyper-extension or flexion of the neck sufficient to cause an occlusion.

¶9 Maroney has the burden of proving that there is a "causal connection between his injury and his employment." Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). Maroney must demonstrate by a preponderance of the evidence that an employment activity " 'brought about the disability on which the workers' compensation is based; a possibility is insufficient and a probability is necessary.' " Id. at 358 (quoting Wold v. Meilman Food Indus., 269 N.W.2d 112, 116 (S.D.1978)).

¶10 Department found that Maroney's occlusion "occurred naturally, and thus did not arise from hazards to which the employment exposed [Maroney] while doing his work." The ultimate conclusion of Department was that Maroney "failed to demonstrate by a preponderance of the evidence that his stroke and resulting disability arose out of his employment." The circuit court affirmed.

A. Testimony of Maroney and Other Witnesses

¶11 Since Maroney was the only person to experience and/or witness the events on October 16, 1991, we first examine his testimony. Department ultimately concluded his recollection of the events is "inconsistent, and is rejected."

¶12 Maroney testified that he left the road about 150 feet from a particular area, the Lowry corner, while Officer Price, the highway patrol officer who arrived at the scene and investigated the accident, testified it was half of that distance. Maroney claimed he attempted to brake twice before the Lowry corner but, while Officer Price was specifically searching for signs of braking, he found no such observable signs. Maroney also contended he actually hit the Lowry corner, but Officer Price stated there were no signs of impact with the Lowry corner and the tracks indicated that Maroney traveled across the Lowry road. Although there were no signs of impact with the Lowry corner, Maroney claimed the impact caused his truck to run wide open.

¶13 Maroney's accident reconstructionist, Lewis Dirks (Dirks), conceded that the point of departure from the Lowry road could not be ascertained. In addition, the angle of the slope on the descending side of the Lowry road was unknown, a fact Dirks acknowledged was very important in determining the angle of the truck and degree of control that would have been necessary to keep the truck upright. Dirks' opinion was only that Maroney would have had enough control to exercise some steering input and apply the brakes, but he could not estimate how much control would have been required.

¶14 Maroney also claimed his hands were on the steering wheel at all times. However, he received a deep laceration on his left hand and there are no sharp objects on the steering wheel or in other areas of the cab. Based on this disputed aspect of the case, Department did not accept Maroney's claim that he had complete control of the truck with both hands when he sustained a deep laceration to his left hand. It is Department's responsibility to determine the credibility of each witness, including Maroney. Petersen v. Hinky Dinky, 515 N.W.2d 226, 235 (S.D.1994).

¶15 Maroney testified that he initially began losing feeling on his left side during the ambulance ride from Mobridge to Bismarck. Officer Price arrived at the scene within minutes of the accident and noted that Maroney's speech was impaired and he did not have the use of one of his hands. Josephine Holder and Kevin Stoik, volunteer ambulance attendants, confirmed Officer Price's observations by testifying that, during the initial ambulance ride to Mobridge, Maroney complained of lack of feeling on one side and visibly suffered from immobility on one side. ³

¶16 Most significantly, Maroney admitted to Ken Fuhrmann, the claims adjuster, that he could not remember much of the accident, including entering the ditch. He stated the last thing he remembered was heading across two lanes. ⁴ Later, during his deposition, Maroney stated that he began recalling the details of the accident after Fuhrmann left his hospital room.

¶17 In light of this contradictory evidence surrounding what occurred at the time of the accident, Department was required to determine which version was credible. This record contains substantial evidence to support Department's finding that Maroney's testimony was inconsistent.

B. Medical Testimony

¶18 "Where there is no obvious causal relationship, the testimony of a medical expert may be necessary to establish the causal connection." Howe v. Farmers Coop. Creamery of Madison, 81 S.D. 207, 212, 132 N.W.2d 844, 846 (1965). Department must determine the credibility of each witness. Petersen, 515 N.W.2d at 235. Furthermore, Department is "free to accept all of, part of, or none, of an expert's opinion." Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988). The testimony accepted must indicate more than a possibility that the incident caused the disability. Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D.1992). Rather, there must be sufficient evidence upon which to base a workers' compensation award. Id.

¶19 Thus, the medical testimony in this case must demonstrate...