McKibben v. Horton Vehicle Components

Citation767 N.W.2d 890,2009 SD 47
Decision Date17 June 2009
Docket NumberNo. 25000.,25000.
PartiesKevin McKIBBEN, Appellant, v. HORTON VEHICLE COMPONENTS, INC. and American Home Assurance Company, Appellees.
CourtSupreme Court of South Dakota

Bram Wiedenaar of Hoy Trial Lawyers, Prof. LLC, Sioux Falls, South Dakota, Attorneys for appellant.

Patricia A. Meyers, Stephen C. Hoffman of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP, Rapid City, South Dakota, Attorneys for appellees.


[¶ 1.] Kevin McKibben sought vocational rehabilitation benefits after he was injured at work. An administrative law judge for the Department of Labor (DOL) determined that McKibben was entitled to vocational rehabilitation benefits from employer Horton Vehicle (Horton). Horton and Horton's insurer, American Home Assurance (AHA) Company, appealed the determination to circuit court. The circuit court reversed the award of benefits, and McKibben appeals. We reverse the circuit court and affirm the DOL.


[¶ 2.] McKibben worked at Horton's Britton, South Dakota facility as an intermediate machinist. On February 14, 2004, McKibben suffered a work-related injury while lifting some parts from a basket. He notified his supervisor and immediately sought medical attention. The physician on staff at the hospital in Aberdeen, South Dakota, examined McKibben and determined that McKibben had an inguinal hernia1 in his lower abdomen. Surgery was scheduled for the next day with Dr. Roger Werth, a general surgeon. Dr. Werth performed surgery and repaired the herniated area of the abdominal wall with mesh.

[¶ 3.] After the surgery, McKibben continued to experience sharp, shooting pain. McKibben testified that the pain increased with activity, such as walking, and only decreased when he reclined. McKibben consulted with Dr. Werth regarding the lingering pain. Dr. Werth kept McKibben on a light work schedule to see if McKibben's pain abated. McKibben's pain level did not improve. Consequently, Dr. Werth performed a second surgery on McKibben on June 7, 2004, to explore the possibility of ilioinguinal nerve entrapment2 occurring under the mesh or around the original surgery site.

[¶ 4.] The second surgery still did not alleviate McKibben's pain symptoms in the groin area. Dr. Werth referred McKibben to Dr. Heloise Westbrook, a pain specialist. Westbrook prescribed nerve block injections for the pain. The injections initially provided relief; however, the pain returned within twenty-four hours after the injection. McKibben refused additional injections because of the intensity of the pain following the injections. Dr. Werth then referred McKibben to Dr. O'Leary, in Minneapolis, Minnesota, for further treatment. Dr. O'Leary performed surgery to explore the groin area and repair the nerve that appeared to be causing the pain. This third surgery abated some of McKibben's pain but did not alleviate the pain in his upper groin.

[¶ 5.] In December of 2004, McKibben returned to work at Horton in a light duty job as a basic machinist. In addition to the light duty job, Horton made accommodations for McKibben's pain. Horton allowed McKibben to take frequent breaks and provided an area to recline during the breaks. McKibben would work for about one hour to an hour and forty-five minutes, then take a ten to fifteen minute break before resuming his work. He testified that after about an hour of work, the pain became so severe it caused him to cry. When this occurred, he informed his supervisor and went home. McKibben attempted to work three twelve-hour shifts at Horton each week but was not able to work a shift of more than three and one-half hours per day because of the pain.

[¶ 6.] At the request of Horton and AHA, McKibben underwent a Functional Capacity Evaluation (FCE) early in February, 2005, and an examination by their selected physician, Dr. Farnham. Based on his examination and the FCE, Farnham determined that McKibben suffered 15% impairment to his whole person as a result of his injury. Farnham also concluded that McKibben could return to work eight hour shifts as a machinist with lifting restrictions of twenty-five pounds. The FCE recommended a work-hardening program to strengthen McKibben's core, knee, and hip muscles. McKibben also underwent a brief psychological exam at the request of Jim Miller, the workers' compensation representative on his case. As recommended, McKibben entered a work-hardening program. McKibben participated in four sessions but missed several other sessions due to illness, lack of child care, and pain. McKibben testified that he eventually discontinued the work-hardening sessions because the sessions aggravated his pain.

[¶ 7.] McKibben continued to report for work at Horton but was unable to work a full shift. Horton notified McKibben on April 15, 2005, that he would need a doctor's note each time he could not complete a full shift. McKibben did not seek a doctor's note. McKibben explained, at the hearing, that he did not see a doctor because he was uncertain which doctor he was supposed to see. He also explained that Dr. Westbrook had already told him there was nothing else she could do to reduce his pain. Horton fired McKibben for failing to provide a doctor's note.

[¶ 8.] After his termination, McKibben sought employment in the surrounding area. He found no work suitable to his status and applied for vocational rehabilitation services through the Department of Human Services. McKibben was approved for and began a course in computer assisted drafting over the internet. He sought workers' compensation vocational rehabilitation benefits to pay for the course. See SDCL 62-4-5.1. Horton and AHA denied his request for vocational rehabilitation benefits.

[¶ 9.] McKibben appealed the denial of benefits to the DOL. An administrative law judge (ALJ) conducted a hearing and determined that McKibben was entitled to twenty-seven weeks of vocational rehabilitation benefits in the amount of $10,588.38, including interest, for the course work he had completed prior to the hearing and to an additional seventy-seven weeks of prospective benefits in the amount of $30,196.50, including interest. Horton and AHA appealed the DOL's decision to circuit court. The circuit court reversed the DOL's decision and determined that McKibben was not entitled to vocational rehabilitation benefits. McKibben appeals. The issue on appeal is whether the circuit court erred in reversing the DOL's determination that McKibben was entitled to vocational rehabilitation benefits.


[¶ 10.] The standard of review of an administrative proceeding is set forth in SDCL 1-26-36 as follows:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency (3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in the record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

SDCL 1-26-36. The statute applies to circuit court review of an agency decision as well as to appeals to this Court from the circuit court's review. Capital Motors, LLC v. Schied, 2003 SD 33, ¶ 10, 660 N.W.2d 242, 245.

[¶ 11.] The Supreme Court reviews the agency decision "de novo: unaided by any presumption that the trial court is correct." Id. Thus, a trial or appellate court must give great weight to an agency's findings and may only reverse if the findings are found to be "clearly erroneous in light of the entire evidence in the record." SDCL 1-26-36(5). An error of law, however, is fully reviewable. SDCL 1-26-36(4); Lends His Horse v. Myrl & Roy's Paving, Inc., 2000 SD 146, ¶ 9, 619 N.W.2d 516, 519 (citing Permann v. Dep't of Labor, Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987)). For an agency finding of fact to be clearly erroneous, a court must be definitely and firmly convinced, after reviewing all the evidence, that the agency made a mistake. Mettler v. Sibco, Inc., 2001 SD 64, ¶ 7, 628 N.W.2d 722, 723-24 (citation omitted). We consider deposition testimony and documentary evidence de novo. Truck Ins. Exchange v. CNA, 2001 SD 46, ¶ 6, 624 N.W.2d 705, 708 (citing Wagaman v. Sioux Falls Const., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240). However, we defer to the agency on the credibility of a witness who testified live because the agency "is in a better position than the circuit court to evaluate the persuasiveness of [witness] testimony." Lends His Horse, 2000 SD 146, ¶15, 619 N.W.2d at 520 (citing Matter of J.M.V.D., 285 N.W.2d 853, 855 (S.D.1979)). Further, "[d]ue to the deference given the Department, `[w]e do not substitute our judgment for that of [the] Department on the weight of the evidence.'" Id. ¶ 9 (quoting Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D. 1991)).


[¶ 12.] South Dakota workers' compensation law allows for rehabilitation benefits when the injured employee "is unable to return to the employee's usual and customary line of employment." SDCL 62-4-5.1. Benefits are provided as follows:

If an employee suffers disablement as defined by subdivision 62-8-1(3) or an injury and is unable to return to the employee's usual and customary line of employment, the employee shall...

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