News Am. Mktg. v. Schoon
| Decision Date | 28 December 2022 |
| Docket Number | 29900-a-SRJ |
| Citation | 2022 S.D. 79 |
| Parties | NEWS AMERICA MARKETING and FARMINGTON CASUALTY COMPANY, Employer, Insurer, and Appellants, v. DESTINY SCHOON, Claimant and Appellee. |
| Court | South Dakota Supreme Court |
ARGUED NOVEMBER 8, 2022
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE CHRISTINA L. KLINGER Judge
SETH A. LOPOUR J.G. SHULTZ of Woods, Fuller, Shultz & Smith P.C. Sioux Falls, South Dakota Attorneys for employer insurer, and appellants.
BRAD J. LEE of Beardsley, Jensen & Lee, Prof. LLC Rapid City South Dakota Attorneys for claimant and appellee.
[¶1.] Destiny Schoon (Claimant) injured her shoulder and neck while working for News America Marketing (Employer). Employer and Farmington Casualty Company (Employer/Insurer) initially paid benefits to Claimant, but subsequently denied her claim for surgery and additional benefits. Claimant petitioned the South Dakota Department of Labor and Regulation (Department) for a hearing on her claims, which resulted in a decision approving her request for benefits. The circuit court entered an order affirming the Department's decision. Employer/Insurer appeals from the circuit court's order. We affirm.
[¶2.] Claimant was injured on May 7, 2015, while working part-time for Employer as an advertising representative.[1] Her duties consisted of hanging advertising signage on shelves and ceilings in stores, as well as data entry. Claimant reported that she was injured while using a screwdriver to mount a shelf. She described how she was "cranking" on the screwdriver to loosen a screw when the screwdriver gave way and she immediately felt a sharp pain in her right shoulder that worsened over the next 24 hours. Claimant testified at the hearing before the Department that when the injury occurred she felt severe pain in her shoulder area and that her neck began to tighten.
[¶3.] Claimant sought chiropractic treatment the next day at Black Hills Health and Wellness Center. The medical record of that visit notes that Claimant complained of loss of motion and spasms in her neck. She was diagnosed with a neck strain. The record from a second visit shows that she continued to complain about her neck as well as pain in her right shoulder.
[¶4.] Claimant was referred to Black Hills Orthopedic and Spine Center and attended her first appointment on May 18, 2015. The record from that visit identifies right shoulder pain as her chief complaint and includes a plan to evaluate and treat her for right shoulder and neck strain. She began physical therapy and was then referred to Dr. Lawlor, a rehabilitation and pain medicine specialist, who had previously treated Claimant for prior injuries to her neck and shoulder. Claimant's symptoms from the work injury included pain, numbness, and tingling down her arm and into her fingers. Dr. Lawlor prescribed additional physical therapy and ordered a cervical MRI. The MRI showed a C5-6 herniation. Dr. Lawlor referred Claimant to Dr. Wilson, a neurosurgeon. Dr. Wilson explained that numbness and tingling were likely caused by radiculopathy from the herniated disc and recommended surgery to replace the disc with an artificial disc.
[¶5.] Claimant sought pre-approval from Employer/Insurer to pay for the procedure. In response, Employer/Insurer retained Dr. Nipper to conduct an independent medical examination (IME) of Claimant. The IME included a physical examination of Claimant and a review of her medical records. In the IME report, Dr. Nipper opined that Claimant only strained her shoulder and that the herniation at C5-6 was preexisting and unrelated to her work injury. He noted that "[t]here is no record of [Claimant] complaining of pain in the neck during her first visits with [PA] Winters at Black Hills Orthopedic and Spine Center."[2] Dr. Nipper also disagreed with Dr. Wilson's opinion that Claimant's pattern of pain aligned with the affected discs, but in his deposition agreed that pain and numbness in one part of the body can originate elsewhere. Employer/Insurer denied the claim based on Dr. Nipper's IME report. Despite the denial, Claimant proceeded with the surgery. The surgery resolved some of Claimant's cervical radiculopathies, including the numbness in her arms, but not all of her pain.
[¶6.] Claimant's preexisting medical history involved three injuries to her neck and right shoulder areas. Claimant sustained neck and shoulder injuries due to motor vehicle accidents in 2001 and 2003. Claimant was diagnosed with whiplash after the first accident. Approximately ten months after that accident, Claimant continued to complain of "[c]onstant upper back pain into the neck and shoulders[.]" Following the second accident, Claimant was again treated for pain in her neck and right shoulder. More than nine months post-accident, Claimant continued to complain of "constant neck and shoulder pain." She continued regular chiropractic treatments for these injuries for several years following the accidents.
[¶7.] Claimant fractured her wrist in a 2004 slip and fall and underwent surgery. The fall also exacerbated her prior neck and shoulder injuries, which she alleged, in a lawsuit against the city and concert venue where she fell, caused her to "suffer[] serious and permanent personal injuries[.]" On June 23, 2005, her medical records show that she Still experiencing pain from the fall, however, she continued regularly treating with a chiropractor for back and neck pain.
[¶8.] In 2008, a chiropractor who had treated Claimant offered an opinion in her slip and fall lawsuit that she would "have residuals from her accident injuries for the rest of her life or until some other treatment is discovered that will repair her injuries." Notes from a provider in 2008 show Claimant reported her shoulder pain had "been getting worse as time [went] on[,]" she had "neck problems[,]" and she was "wondering if this could be a problem." Another expert opinion letter offered in the slip and fall lawsuit included the provider's opinion that "the injuries that she has been dealing with will be permanent[.]" Claimant had also been diagnosed with fibromyalgia, depression, and degenerative disc disease prior to her 2015 work injury.
[¶9.] Claimant had a cervical MRI in 2009 that showed some impingement at C5-6 but not to the degree the 2015 MRI showed following her work injury. Dr. Dietrich compared these two MRIs and noted the change at C5-6, which he stated was objective evidence that her condition had changed. Dr. Nipper opined that the task Claimant was performing could not have caused her cervical injury but agreed that the 2015 MRI was worse.
[¶10.] In 2009, Dr. Lawlor performed cervical facet area injections in an effort to reduce Claimant's level of pain. Claimant testified that the injections significantly reduced her neck and shoulder pain and that she was able to work sixty hours per week and play softball with only occasional flare-ups until the 2015 work injury. Despite her past medical history, Claimant explained that her "pain was pretty much nonexistent other than an occasional flare-up" from 2009 until her 2015 work injury. She testified that she was able to manage pain with Flector patches and returned to work and other normal activities without significant limitation or treatment. Claimant described how after the 2015 work injury, her pain and symptoms in her neck and shoulder increased significantly.
[¶11.] Claimant presented expert opinions from three of her treating physicians at the hearing. Medical records from Dr. Lawlor and Dr. Wilson, along with their opinion letters and affidavits were introduced in lieu of live testimony. Dr. Dietrich's medical records and deposition testimony were also submitted at the hearing.
[¶12.] Dr. Lawlor's letter was a response to Employer/Insurer's request to justify treatment as related to Claimant's shoulder. In it, he explained that Claimant's 2015 cervical MRI showed C5-6 herniation. He noted that reporting shoulder pain as a predominate complaint was "not uncommon for people with a C5-6 disc herniation[,]" and it was appropriate to "address the neck as it relates to her shoulder pain" in physical therapy.
[¶13.] Dr. Wilson's letter explained that Dr. Lawlor had referred Claimant to him for further evaluation and that he had personally reviewed her MRI. He opined that "the event at work while lifting a sign over her head is directly related to her C5-6 herniation and ongoing neurologic symptoms." Given her age, he recommended C5-6 cervical disc replacement as a durable treatment of her symptoms.
[¶14.] On July 16, 2019, Dr. Dietrich performed an impairment evaluation and determined that Claimant was 11% impaired. At Dr. Dietrich's deposition, Employer/Insurer objected to his testimony regarding causation and the need for medical treatment, asserting he could not state his opinion to a reasonable degree of medical probability because he had not seen every record of Claimant's treatment for her preexisting injuries. Over that objection, Dr. Dietrich opined that the objective changes observable between the two cervical MRIs reflected "significantly more than you would expect to see in a 33 year old with a slight disc protrusion" over that period in the absence of trauma of some sort. He testified that he believed her 2015 work injury exacerbated her underlying cervical disc problems and led to the treatment and surgery that followed. He confirmed that he had treated other patients in the past for similar injuries...
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