McClaflin v. John Morrell & Co.

• Decision Date: 03 July 2001
• Docket Number: No. 21588.,21588.
• Citation: 2001 SD 86,631 N.W.2d 180
• Parties: Robert L. McCLAFLIN, Claimant and Appellee, v. JOHN MORRELL & CO., Employer, Self-Insurer and Appellant.
• Court: South Dakota Supreme Court

631 N.W.2d 180

2001 SD 86

Robert L. McCLAFLIN, Claimant and Appellee, v. JOHN MORRELL & CO., Employer, Self-Insurer and Appellant.

No. 21588.

Supreme Court of South Dakota.

Considered on Briefs January 8, 2001.

Decided July 3, 2001.

Ron J. Volesky of Volesky and Schaeffer Huron, SD, Attorneys for claimant and appellee.

Michael S. McKnight, Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, SD, Attorneys for employer, self-insurer and appellant.

AMUNDSON, Justice.

[¶ 1.] Robert L. McClaflin (Claimant) was awarded odd-lot benefits under the Workers Compensation Act. John Morrell (Employer) appeals that decision. We affirm in part and reverse and remand in part.

FACTS

[¶ 2.] In 1972, Claimant began working for Employer at its Kansas City location. During the next ten years, Claimant's job included working in a number of positions, including cutting and running a scribe saw, the bone line, and utility. In 1982, Claimant relocated to Employer's Sioux Falls location. There, he performed a variety of tasks such as cutting bologna and tails, and utility.

[¶ 3.] In 1995, Claimant sought medical treatment for complaints related to his upper extremities. He was diagnosed as suffering from carpal tunnel, a work related injury, and subsequently had surgery to relieve his pain. After surgery, Claimant went through a rehabilitation program and returned to work in November of 1996.¹ His post-surgery positions included the knife room, trash collection, equipment cleaning, and his current position in the coatroom. His duties in the coatroom involve handing laundered coats to other employees and light clean up. His current coatroom position, approved by his treating physician, involves Claimant working 8 to 9 hours per day, 5 to 6 days per week, and is paid $10.00 per hour.

[¶ 4.] On October 27, 1997, Claimant petitioned the Department of Labor (Department) for permanent total disability and Cozine benefits. Four doctors, including those on behalf of Claimant, opined that Claimant was capable of working. A vocational expert opined that Claimant was not employable, despite Claimant's current position at Employer. Department found that, due to his carpal tunnel, Claimant was entitled to both Cozine and odd-lot benefits. Because Department also found that Claimant was currently employed, Department retained jurisdiction over the odd-lot claim suspending payment of such benefits. Employer appealed.

[¶ 5.] The circuit court reversed Department as to Department's finding that Claimant was "obviously unemployable" due to his "continuous and debilitating pain." The circuit court found that Claimant failed to meet the requirements to be considered "obviously unemployable." Nevertheless, the court affirmed the award of odd-lot benefits on the basis that Claimant was "obviously unemployable" because he was "not employable in the competitive market." The court also affirmed the suspension of benefits due to Claimant's current position.² Employer raises two issues:

1) Whether a Claimant may receive permanent total disability benefits where he has shown that he is not employable in the competitive market.

2) Whether Employer satisfied its burden of showing suitable work is available to Claimant.

ISSUE 1

[¶ 6.] Whether a Claimant may receive permanent total disability benefits where he has shown that he is not employable in the competitive market.

[¶ 7.] To qualify for odd-lot worker's compensation benefits, a claimant must show that he or she suffers a temporary or permanent "total disability." Our definition of "total disability" has been stated thusly:

A person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.

Shepherd v. Moorman Mfg., 467 N.W.2d 916, 918 (S.D.1991); Tiensvold v. Universal Transport, Inc., 464 N.W.2d 820, 822 (S.D.1991); Barkdull v. Homestake Mining Co., 317 N.W.2d 417, 418 (S.D.1982). Under the odd-lot doctrine, the ultimate burden of persuasion remains with the claimant to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in the odd-lot category. If the claimant can make this showing, the burden shifts to the employer to show that some suitable work is regularly and continuously available to the claimant. Shepherd, supra; Tiensvold, supra.

[¶ 8.] We have recognized two avenues in which a claimant may pursue in making out the prima facie showing necessary to fall under the odd-lot category. First, if the claimant is "obviously unemployable," then the burden of production shifts to the employer to show that some suitable employment within claimant's limitations is actually available in the community. Shepherd, 467 N.W.2d at 918; Tiensvold, 464 N.W.2d at 823. A claimant may show "obvious unemployability" by: 1) showing that his "physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category," or 2) "persuading the trier of fact that he is in the kind of continuous, severe and debilitating pain which he claims." Shepherd, supra, at 918-19.

[¶ 9.] Second, if "`the claimant's medical impairment is so limited or specialized in nature that he is not obviously unemployable or regulated to the odd-lot category,' then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made [] `reasonable efforts' to find work" and was unsuccessful. Id. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that "some form of suitable work is regularly and continuously available to the claimant." Id. (citing Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 270 (S.D.1989)). Even though the burden of production may shift to the employer, however, the ultimate burden of persuasion remains with the claimant. Shepherd, supra, at 918.

[¶ 10.] Department found, based on the testimony of Claimant and his treating physicians, that Claimant was not "obviously unemployable by proving he is in continuous, severe and debilitating pain." Department also found that Claimant did not show that he made "reasonable efforts to find work," but was unsuccessful. Department, however, did find that he demonstrated he was obviously unemployable based on his "physical condition, coupled with his education, training and age." Thus, he made a prima facie showing that he was obviously unemployable.

[¶ 11.] This finding was rejected by the circuit court. The circuit court, however, affirmed Department's ultimate finding that Claimant was obviously unemployable because there was evidence that Claimant is "not employable in the competitive market."³ Under our workers' compensation jurisprudence, we have never allowed recovery based on this test employed by the circuit court. We decline to adopt such an extension.⁴

[¶ 12.] The circuit court, relying on Claimant's vocational expert, found that Claimant's coatroom position was "favored work" and that it was not a "competitive job" because of the high number of breaks Claimant had to take while performing his duties. The circuit court relied on this Court's earlier decisions in Tiensvold and Shepherd as authority to award odd-lot benefits based on a claimant's inability to be employable in the competitive market. The circuit court's reliance on these cases, however, is misplaced.

[¶ 13.] It is true that in our decision in Tiensvold we articulated in dicta that "`when a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive market' the burden shifts to the employer." 464 N.W.2d at 823. It cannot be said that we adopted that standard as a new avenue of recovery. The Tiensvold case involved a claimant that based his odd-lot claim on his "continuous and debilitating pain." He failed to meet his burden. In reaching our conclusion, this Court did not reach the issue of whether a claimant could fall under a "competitive market" standard. Thus, this Court has yet to approve this standard and decline to do so today.

[¶ 14.] Under the facts presented, however, this Court is not yet willing to dismiss Claimant's claim for odd-lot benefits. Although Claimant is not in a position of "favored work,"⁵ his current position in the coatroom allows Employer to shield itself from liability under our workers' compensation laws. As it stands, Claimant cannot meet his initial burden because he is currently employed by Employer. As we are mindful that Employer could now fire Claimant without cause because South Dakota is an "at-will" jurisdiction, we direct the circuit court to retain jurisdiction over this matter should Claimant no longer work for Employer. If Claimant can show, once no longer employed by Employer, that he is obviously unemployable and Employer cannot meet its corresponding burden, then the circuit court should instruct Employer to pay Claimant odd-lot benefits.

[¶ 15.] This Court is also mindful of SDCL 62-7-35, the two-year statute of limitations for workers compensation.⁶ Due to Claimant's current coatroom position, however, under the specific facts of this case, it is premature for any odd-lot determination; thus the time for the statute of limitations or failure to prosecute has not commenced. Although presented in a different posture, this Court on occasion has allowed a workers compensation case to be reopened due to a change in Claimant's condition. See e.g., Sopko v. C & R Transfer Co., Inc., 1998 SD 8, 575 N.W.2d 225

; Whitney v. AGSCO Dakota, 453 N.W.2d 847 (S.D.1990). Under our well established precedent, we reiterate the notion that workers' compensation statutes should be construed liberally in favor of injured employees....