Petersen v. Hinky Dinky, No. 18281

CourtSupreme Court of South Dakota
Writing for the CourtLOVRIEN; MILLER; LOVRIEN, Circuit Judge, for AMUNDSON
Citation515 N.W.2d 226
PartiesDavid D. PETERSEN, Claimant and Appellant, v. HINKY DINKY, Employer and Appellee, and INA/CIGNA, Insurer and Appellee. . Considered on Briefs
Decision Date05 October 1993
Docket NumberNo. 18281

Page 226

515 N.W.2d 226
David D. PETERSEN, Claimant and Appellant,
v.
HINKY DINKY, Employer and Appellee,
and
INA/CIGNA, Insurer and Appellee.
No. 18281.
Supreme Court of South Dakota.
Considered on Briefs Oct. 5, 1993.
Decided April 20, 1994.

Scott G. Hoy of Hoy Law Office, Sioux Falls, for claimant and appellant.

Comet Haraldson of Woods, Fuller, Schultz & Smith, Sioux Falls, for appellees.

LOVRIEN, Circuit Judge.

This is an appeal by David D. Petersen (Petersen) from a judgment of the circuit court wherein it affirmed a decision of the South Dakota Department of Labor, Division of Labor and Management (Department), in favor of Hinky Dinky (Employer) and its worker's compensation carrier, INA/CIGNA (Insurer), denying Petersen's claim for a permanent total disability rating under the odd-lot doctrine. We affirm.

PROCEDURAL HISTORY

Petersen's claim was first heard by the Department in September of 1987. The Department rendered its decision in June of 1988, and issued a preliminary Order on July 27, 1988. Since the Department found that Petersen had the potential to either return to work or to attend a vocational rehabilitation program, it ordered that he be provided, at Employer's expense, access to a pain management clinic, a work hardening program, chemical dependency treatment, a psychological evaluation, vocational counseling and, if necessary, a rehabilitation program and that he be paid permanent partial disability benefits of 22.5% whole person as of that date. The Department retained jurisdiction and delayed a decision regarding permanent total disability benefits until all programs were completed by Petersen.

On March 2, 1992, the Department held a second hearing to determine whether Petersen was entitled to permanent total disability benefits. The Department issued its decision on July 24, 1992, denying Petersen's claim. The Department denied a motion to reconsider on September 29, 1992. The circuit court affirmed the Department's decision on February 1, 1993.

ISSUE

WHETHER THE DEPARTMENT'S DECISION DENYING PETERSEN PERMANENT TOTAL DISABILITY BENEFITS UNDER THE ODD-LOT DOCTRINE WAS CLEARLY ERRONEOUS IN LIGHT OF THE ENTIRE EVIDENCE PRESENTED.

FACTS

Because the history of this case spans more than a decade, an extensive review of the facts is necessary to lay a proper foundation for our decision.

Petersen is presently thirty-five years old and lives in Sioux Falls, South Dakota. He has a high school education. The majority of his work experience was obtained in the grocery store business. In November of 1982, at the age of twenty-four, Petersen suffered an injury to his lower back arising out of and in the course of his employment with Employer. After a short period of conservative care and recuperation, Petersen returned to work with Employer.

In March of 1983, Petersen re-injured his back while on the job. Approximately four days later, Petersen was admitted to McKennan Hospital under the supervision of his family physician, Dr. Neal Elkjer. Dr. Elkjer prescribed physical therapy and medication for Petersen upon his release from McKennan.

In August of 1983, Dr. Elkjer referred Petersen to Dr. Dennis Johnson, an orthopedic surgeon practicing in Sioux Falls. Dr. Johnson hospitalized Petersen and treated him with chymopapain injections at the L4-5 and L5-S1 levels of the lumbar spine. This treatment was ineffective in relieving his pain. Between his release from the hospital in August of 1983 and mid-December of 1985, Petersen was seen and evaluated by five other physicians in addition to Drs. Elkjer and Johnson. 1

On December 18, 1985, Dr. Gail Benson performed a posterolateral fusion at the L3-5 and S1-2 levels of the lumbar spine with the implantation of a luque loop wiring fixation to provide stability. Following surgery, Petersen

Page 228

continued treatment with Drs. Elkjer and Benson. In March of 1987 he began therapy at the Midwest Back Center in Sioux Falls.

In June of 1987, following the therapy program, a functional capacities assessment (FCA) was performed by Philip C. Moe, a physical therapist and clinical supervisor at the Midwest Back Center. Mr. Moe concluded that the FCA he conducted on Petersen was invalid because, in his view, Petersen intentionally tried to manipulate the results. Four years later, in June of 1991, two additional FCAs were performed, one by Dr. Dong Cho, and the other again by Mr. Moe. Both of these FCAs were considered valid.

From 1983 to 1987, Petersen's treating physicians recognized that there was a possible psychological component to his physical condition. Clinical psychologist Dr. Bill Arbes examined Petersen five times between April 1984 and April 1986. Dr. Arbes diagnosed Petersen as having an adjustment disorder with mixed emotional features. He concluded that Petersen's condition was treatable and that he should begin a physical therapy or pain management program. Dr. Arbes saw no evidence that Petersen was malingering, but he was disturbed by Mr. Petersen's unwillingness to follow through on recommended activities.

Petersen also saw psychiatrist Dr. David Bean in February of 1987. Dr. Bean found no psychiatric disorder at that time. However, Dr. Bean evaluated Petersen again in September of 1987, at the request of Petersen's attorney, and diagnosed Petersen with an adjustment disorder with mixed emotional features of anxiety and depression. Dr. Bean concluded that this disorder was a treatable condition of a mild to moderate degree, being secondary to his physical condition.

A third opinion was given by psychiatrist Dr. Daniel Kennelly in October of 1987. Dr. Kennelly found that Petersen suffered no psychological impairment, but concluded that Petersen exaggerated his symptoms and did not truthfully answer certain questions posed during the evaluation. None of the three doctors who evaluated Petersen psychologically felt that his psychological impairment was serious enough to keep him from being gainfully employed. 2

In April of 1986, Dr. Benson, the orthopedic surgeon who performed Petersen's luque loop surgery, released Petersen to sedentary or light duty work with certain restrictions on lifting, bending, stooping, etc., and recommended a vocational rehabilitation program. Dr. Benson felt that a solid fusion had been achieved and assigned a 20 to 25% physical impairment rating. Again, in September of 1991, Dr. Benson released Petersen to work within the limits of the 1991 FCA. Several of Petersen's other treating physicians either released him for light duty work, a vocational rehabilitation program, or recommended a pain clinic. 3

Page 229

The Department's preliminary order provided that Petersen enroll in a comprehensive back pain and work-hardening program. Accordingly, in January of 1989, Petersen was evaluated by Dr. Gary Dickinson for enrollment in the Chronic Pain Rehabilitation Program at McKennan Hospital.

It was initially decided that Petersen be placed in the program for an extended trial evaluation to determine whether he would be capable of fully involving himself in the program. Petersen made very little progress during the first three weeks of the trial evaluation, but improved enough during the final week so that he was accepted into the full program.

Dr. Dickinson stated in a letter to Petersen's original attorney that "we felt that he could progress to the point where he might actually be able to be employable again." Petersen however, declined participation in the program. 4

In January of 1991 Petersen was evaluated by vocational rehabilitation specialist, Richard Ostrander. Mr. Ostrander interviewed Petersen, reviewed his medical history, conducted certain tests and performed a transferable skills analysis and labor market survey. Mr. Ostrander provided Petersen with a list of ten potential employers having jobs which allowed for change of position.

Petersen approached some of these employers, but was unsuccessful in finding employment. Petersen also conducted his own personal job search from October 28, 1991 through November 7, 1991. Approximately forty to fifty employers were contacted by Petersen. Despite his efforts, no employment was secured.

Between the first and second hearings, Petersen was not employed. He neither attended nor enrolled in any educational retraining program. However, under the supervision of Dr. Elkjer, Petersen successfully overcame his chemical dependency on narcotic drugs.

On March 2, 1992, the Department held its second hearing to determine whether Petersen was permanently and totally disabled. The Department made its decision based on the complete file and record of the 1987 hearing and the additional evidence received at the 1992 hearing. 5

At the second hearing Petersen testified that he suffered constant and severe pain and that frequent changes of position were necessary to relieve his pain. He testified that sitting and standing for long periods of time was very uncomfortable. He stated that he could no longer do 80 to 90% of the activities he was once able to do. Petersen testified that he tried to lead as normal a life

Page 230

as he could, but that his condition had deteriorated slowly since the 1985 surgery. 6

Richard Ostrander testified at the second hearing as well. It was his opinion that if Petersen's functional limitations were the only consideration, Petersen could work and could probably complete a retraining program. However it was Ostrander's opinion that because of Petersen's pain limitations, his need to change positions frequently, and his lack of endurance, any type of competitive employment was ruled out and that even if Petersen was successfully retrained, he would have no reasonable expectation of employment thereafter. Ostrander further testified that based on tests he conducted, his opinion was that Petersen was neither malingering nor exaggerating his condition.

Three vocational rehabilitation specialists testified on behalf of the...

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31 practice notes
  • Jackson v. Lee's Travelers Lodge, Inc., No. 19645
    • United States
    • Supreme Court of South Dakota
    • February 20, 1997
    ...to the employer to show that some form of suitable work is regularly and continuously available to claimant. Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). We have recognized two avenues for making the required prima facie First, if the claimant is obviously unemployable, then the......
  • Kurtenbach v. Frito-Lay, FRITO-LA
    • United States
    • Supreme Court of South Dakota
    • December 3, 1996
    ...community. Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 395 (S.D.1995); Hendrix, 520 N.W.2d at 883; Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994); Shepherd v. Moorman Mfr'g, 467 Page 875 N.W.2d 916, 920 (S.D.1991); Rank v. Lindblom, 459 N.W.2d 247, 249 (S.D.1990). An employer c......
  • Zoss v. United Bldg. Centers, Inc., Nos. 19764
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...the trier of fact that he is in fact in the kind of continuous, severe and debilitating pain which he claims." Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994) (internal citations omitted). Inversely, if the employee is not obviously unemployable, the burden remains with the employee......
  • Sopko v. C & R Transfer Co., Inc., No. 20012
    • United States
    • Supreme Court of South Dakota
    • January 28, 1998
    ...drawn by an agency on questions of fact. Hendrix v. Graham Tire Co., 520 N.W.2d 876, 878-79 (S.D.1994); Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). Additionally, ample expert testimony supports these...
  • Request a trial to view additional results
31 cases
  • Jackson v. Lee's Travelers Lodge, Inc., No. 19645
    • United States
    • Supreme Court of South Dakota
    • February 20, 1997
    ...to the employer to show that some form of suitable work is regularly and continuously available to claimant. Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). We have recognized two avenues for making the required prima facie First, if the claimant is obviously unemployable, then the......
  • Kurtenbach v. Frito-Lay, FRITO-LA
    • United States
    • Supreme Court of South Dakota
    • December 3, 1996
    ...community. Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 395 (S.D.1995); Hendrix, 520 N.W.2d at 883; Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994); Shepherd v. Moorman Mfr'g, 467 Page 875 N.W.2d 916, 920 (S.D.1991); Rank v. Lindblom, 459 N.W.2d 247, 249 (S.D.1990). An employer c......
  • Zoss v. United Bldg. Centers, Inc., Nos. 19764
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...the trier of fact that he is in fact in the kind of continuous, severe and debilitating pain which he claims." Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994) (internal citations omitted). Inversely, if the employee is not obviously unemployable, the burden remains with the employee......
  • Sopko v. C & R Transfer Co., Inc., No. 20012
    • United States
    • Supreme Court of South Dakota
    • January 28, 1998
    ...drawn by an agency on questions of fact. Hendrix v. Graham Tire Co., 520 N.W.2d 876, 878-79 (S.D.1994); Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994). Additionally, ample expert testimony supports these...
  • Request a trial to view additional results

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