Orth v. Stoebner & Permann Const., Inc.

• Decision Date: 15 November 2006
• Docket Number: No. 23731.,23731.
• Citation: 2006 SD 99,724 N.W.2d 586
• Court: South Dakota Supreme Court
• Parties: Dwain ORTH, Claimant and Appellant, v. STOEBNER & PERMANN CONSTRUCTION, INC., Employer and Appellee, and American Family Mutual Insurance Co., Insurer and Appellee.

Page 586

724 N.W.2d 586

2006 SD 99

Dwain ORTH, Claimant and Appellant, v. STOEBNER & PERMANN CONSTRUCTION, INC., Employer and Appellee, and American Family Mutual Insurance Co., Insurer and Appellee.

No. 23731.

Supreme Court of South Dakota.

Argued February 15, 2006.

Decided November 15, 2006.

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Ronald A. Parsons, Jr., and A. Russell Janklow of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, SD, Glenn L. Roth, Olivet, SD, for appellant.

Jeffrey L. Bratkiewicz and J.G. Shultz of Woods, Fuller, Shultz & Smith, Sioux Falls, SD, for appellees.

GORS, Circuit Judge.

[¶ 1.] Dwain Orth appeals from a circuit court decision affirming the South Dakota Department of Labor's determination that he was not entitled to workers' compensation benefits. Reversed and remanded.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Dwain Orth (Dwain) was born in Scotland, South Dakota, on February 22, 1942. He graduated from Scotland High School in 1960. He lived and worked in South Dakota his entire life. In 1962 Dwain married Rita. They had two children.

[¶ 3.] After graduating from high school Dwain held a variety of jobs. From 1972 through 1976 Dwain worked for Cargill Grain Elevator in Scotland, South Dakota. On rare occasions the job required heavy lifting. Dwain did not sustain a work-related injury while at Cargill, but he did at times seek chiropractic treatment for both general maintenance adjustments and also for back pain.

[¶ 4.] From 1976 through 1988 Dwain drove a concrete truck, performed carpentry work, and was responsible for general maintenance at Scotland Redi-Mix in Scotland, South Dakota. In 1978 Dwain injured his ankle while working for Scotland Redi-Mix. His injury was treated as compensable. Dwain made a full recovery and returned to work. During the twelve years Dwain was employed by Scotland Redi-Mix he would occasionally seek chiropractic treatment for general maintenance adjustments and back pain.

[¶ 5.] From 1989 through 1994 Dwain performed general carpentry for Slaba Construction in Tripp, South Dakota. While employed by Slaba Construction Dwain continued occasional chiropractic treatment. In 1993 Dwain slipped on a roof while carrying a bundle of shingles and injured his back. He sought treatment from Dr. Merkwan, a chiropractor in Tyndall, South Dakota. Dwain made a full recovery and did not file any workers' compensation claim while employed by Slaba Construction.

[¶ 6.] Dwain began working for Stoebner & Permann Construction, Inc. (S & P Construction) in March of 1994. S & P Construction was founded in 1980 by Keith Stoebner (Stoebner) and Steven Permann (Permann). The company was involved in various types of construction and remodeling. Stoebner and Permann were hands-on owners who worked side-by-side with their employees.

[¶ 7.] As an employee of S & P Construction Dwain was expected to perform a variety of tasks from pouring concrete to hanging sheetrock to shingling roofs. His work-related duties required bending, stooping, and heavy lifting.

[¶ 8.] When Dwain started working for S & P Construction in 1994 he was in excellent physical condition and was able to perform all work-related tasks. Dwain worked ten-hour days, five days per week. His employers described him as an "exceptional worker" and a "very good employee" who "worked very hard."

[¶ 9.] Dwain worked for S & P Construction for several years without incident. By the late 1990s, however, Dwain was approaching sixty years of age and his back was starting to give him trouble. He found it increasingly more difficult to perform heavy physical labor as an employee of S & P Construction.

[¶ 10.] Dwain asked his employers to be assigned light-duty tasks. S & P Construction valued Dwain as an employee and assigned him to light-duty to keep him on the job. S & P Construction was aware of Dwain's increasing back trouble, and the decision to relegate Dwain to light-duty tasks was based, in part, on this knowledge. Around this time Dwain started taking pain medication for his back.

[¶ 11.] Later in the Spring of 2000 Dwain asked his employers to reduce his work schedule from five days a week to four. His back condition had continued to worsen, and Dwain believed that an extra day off would help him to recuperate and allow him to continue working for S & P Construction. S & P Construction granted his request. Dwain's employers understood that this request was made due to Dwain's worsening back problems.

[¶ 12.] Neither the light-duty nor the shortened work-week alleviated Dwain's back pain. On the evening of May 15, 2001, Dwain came home from work in intense pain. Dwain's wife took him to the emergency room. He believed he had a kidney stone. The emergency room personnel questioned Dwain to determine the source of the pain. Dwain indicated that he had not strained his back. Tests revealed degenerative changes in Dwain's spine. The emergency room doctors concluded this was the most likely cause of his back pain. Dwain did not have a kidney stone.

[¶ 13.] Dwain was unable to work for several weeks after the emergency room visit. On May 30, 2001, Dwain saw Dr. Stolz, a chiropractor in Scotland, South Dakota. Dr. Stolz conducted a physical examination and reviewed Dwain's x-rays. Dr. Stolz confirmed the existence of degenerative changes in Dwain's spine.

[¶ 14.] Dwain also sought treatment from Dr. Gail Benson of the Orthopedic Institute in Sioux Falls. Dwain saw Dr. Benson on June 6, 2001. Dwain indicated to Dr. Benson that his back pain began about twenty years earlier, but that it had worsened over time. Dr. Benson recommended an MRI exam and a discography.

[¶ 15.] On June 8, 2001, Dr. Stolz told Dwain he could return to work on the condition that he limit himself to light-duty work and refrain from all heavy lifting. Dwain did in fact return to work, but even with light-duty tasks his back pain was unbearable. Ultimately, Dwain's back condition became so debilitating that on July 17, 2001, he was forced to quit his job with S & P Construction. Dwain told his employers that his back pain had worsened to the point that he "couldn't do the work anymore." Dwain explained that his back pain was caused by "degenerated discs and wore [sic] out."

[¶ 16.] Dwain continued treatment for his back condition. On August 1, 2001, Dr. Benson noted that Dwain's MRI and discography confirmed "extensive torn degenerated disc [sic] throughout the lumbar spine." Dr. Benson indicated that Dwain was not a surgical candidate due to the large number of injured discs. Dr. Benson determined that Dwain should be considered disabled for social security purposes because he could no longer do the physical labor required of a carpenter.

[¶ 17.] Dr. Walter Carlson, another of Dwain's doctors at the Orthopedic Institute in Sioux Falls, agreed with Dr. Benson's evaluation, indicating in a clinical note that there was no "surgical treatment that will give [Dwain] predictable improvement in his condition." Dr. Carlson further noted that Dwain would not "be able to carry out any type of employment that he is trained to do—be it standing or sitting." Dr. Carlson agreed with Dr. Benson's conclusion that Dwain was totally disabled and should be awarded social security disability benefits.

[¶ 18.] Dwain filed for and was awarded social security total and permanent disability benefits.

[¶ 19.] On March 5, 2002, Dr. Carlson wrote a letter to Russell Janklow, Dwain's attorney. At the time of the hearing Dr. Carlson was a board-certified orthopedic surgeon with over thirty years of experience in his field. He was one of Dwain's treating physicians for over a year. He practiced medicine in the same office as Dr. Benson, one of Dwain's treating physicians. In his letter Dr. Carlson indicated that he was unable to determine the major contributing cause of Dwain's back condition, but if he was asked to apportion it, he would conclude that fifty percent of Dwain's condition came as a result of "work related issues" and fifty percent came as a result of Dwain's "pre-existing degenerative changes."

[¶ 20.] On or about May 20, 2002, S & P Construction received a South Dakota Employer's First Report of Injury form indicating that Dwain was claiming a work-related injury and was seeking workers' compensation benefits. The date of injury was indicated to be May 14, 2001. Stoebner completed the form. In the box for "Body Part Injured" Stoebner entered code 18, which indicated a back injury. Stoebner described the injury in the following manner: "employee said his back can not [sic] take this kind of work."

[¶ 21.] On June 14, 2002, S & P Construction and their Insurer, American Family Mutual Insurance Company filed their joint answer denying responsibility for benefits.

[¶ 22.] On April 29, 2003, Dr. Richard Farnham conducted an independent medical examination on Dwain. Dr. Farnham reviewed Dwain's medical records and physically examined him. Dr. Farnham diagnosed Dwain with "mechanical low back pain due to multi-level intervertebral disk degeneration and non-traumatic, congenital grade I-II spondylolisthesis of L5 on S1 with low back pain." Dr. Farnham opined that Dwain's career in manual labor had no impact on his pre-existing degenerative back condition. He indicated that none of Dwain's employment duties—while employed at S & P Construction or elsewhere—worked "to either temporarily exacerbate or permanently aggravate" his back condition. Dr. Farnham's report concluded that Dwain's condition was not work-related but instead was "a function of time and the aging process and past history of tobacco use for 30 years."

[¶ 23.] A hearing on Dwain's application for workers' compensation benefits was held before a Department of Labor (Department) hearing examiner on January 29, 2004, in Sioux Falls. Three issues were presented in the case: 1) whether Dwain's injury was causally connected to his work activities at S & P...