Peterson v. Evangelical Lutheran Good Samaritan Soc'y

• Decision Date: 27 June 2012
• Docket Number: No. 26214.,26214.
• Citation: 816 N.W.2d 843,2012 S.D. 52
• Parties: Megan M. PETERSON, Claimant and Appellant, v. The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Employer and Appellee, and Sentry Insurance, Insurer and Appellee.
• Court: South Dakota Supreme Court

816 N.W.2d 843

2012 S.D. 52

Megan M. PETERSON, Claimant and Appellant,

v. The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Employer and Appellee,andSentry Insurance, Insurer and Appellee.

No. 26214.

Supreme Court of South Dakota.

Considered on Briefs April 17, 2012.

Decided June 27, 2012.

Michael E. Unke, Salem, South Dakota, Attorney for claimant and appellant.

Michael S. McKnight, Meghann M. Joyce of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellees, employer and insurer.

ZINTER, Justice.

[¶ 1.] Megan Peterson worked at a nursing home owned by The Evangelical Lutheran Good Samaritan Society (Good Samaritan). Peterson alleged that she sustained a work-related injury to her back when assisting a resident with a wheelchair. Good Samaritan denied Peterson's claim. Two doctors, who testified by deposition, disagreed whether Peterson suffered a work-related injury and whether employment was a major contributing cause of her back condition. The Department of Labor (Department), after considering the depositions and Peterson's medical records, determined that Peterson failed to prove that she sustained a compensable work-related injury. The Department also determined that Peterson failed to prove that her employment remained a major contributing cause of her condition and need for treatment. The circuit court affirmed. On de novo review, we reverse and remand.

Facts and Procedural History

[¶ 2.] Peterson was twenty-two years of age at the time of the Department hearing and had a history of injuries. In 2003, she slipped on wet stairs at her middle school and injured her left ankle. The ankle injury was treated with ice, compression bandages, and crutches. Although the injury resolved, Peterson continued to have occasional flare-ups.

[¶ 3.] In 2007, Peterson began working for Good Samaritan as a certified nursing assistant. On December 9, 2007, she sustained a work-related injury to her lower back while helping move a resident into bed. Dr. Scott D. Tieszen, of Tieszen Chiropractic Clinic, treated Peterson's hips and back. Following treatment, Dr. Tieszen recommended that Peterson continue to wear a back brace. By January 2008, Peterson returned to work with no restrictions.

[¶ 4.] In early 2009, Peterson experienced an ankle flare-up involving swelling and pain because of the twelve-hour shifts she was working. Peterson received physical therapy at Prairie Rehabilitation, Hartford Therapy Services. She also began wearing a doctor-recommended walking boot. Peterson was wearing the walking boot while working her overnight shift on July 15–16, 2009.

[¶ 5.] Peterson testified that while working that overnight shift, she bent down to help a resident with a wheelchair foot pedal, she stood back up, and she felt a sharp pain go through her lower back. Peterson complained of back pain and asked her supervisor for pain medication. Peterson told her supervisor that Peterson thought she had pinched a nerve. She took Tylenol and completed her shift.

[¶ 6.] After work, Peterson went home to bed. When she awoke, she could not move from the waist down due to pain. An ambulance was called, and Peterson was transported to a hospital emergency room around 4 pm. The emergency room records note that Peterson “complain[ed][of] low back pain 18 hours ago.” Peterson also reported that she was going to physical therapy for her foot and that “last night [she] felt low back pain getting progressively worse.” A CAT scan revealed a disk protrusion at the L5–S1 level. Peterson was medicated and released from the emergency room to bed rest at home. She then treated with her family physician, Dr. Dawn A. Flickema, at the McGreevy Clinic. Dr. Flickema recommended an epidural block, but Good Samaritan's insurer refused to pay for that procedure.

[¶ 7.] On August 25, 2009, Peterson sought medical assistance from Dr. David L. Hoversten, a board certified orthopedic surgeon. Dr. Hoversten performed a physical examination and reviewed Peterson's medical records from Hartford Therapy Services, the McGreevy Clinic, and the emergency room. Because the emergency room CAT scan was not definitive, Dr. Hoversten ordered an MRI. The MRI revealed a “dark disk” at L5–S1 that was “substantially bulging” and had a thirty percent loss of height. Peterson was terminatedfrom Good Samaritan on September 1 because of work restrictions imposed by Dr. Hoversten.

[¶ 8.] Dr. Hoversten later opined by letter that Peterson's work activities independently caused her back discomfort, pain, and the need for evaluation and treatment. In a subsequent July 20, 2010 deposition, Dr. Hoversten testified that Peterson had a congenitally weak back and the flattened disk was the source of her pain. Dr. Hoversten also testified that both back injuries probably caused the disk problem and pain. Based on Peterson's history, Dr. Hoversten testified that Peterson suffered a work-related injury on July 15, 2009: he indicated that both back injuries had a substantial part to play in the deterioration of the L5–S1 disk. Dr. Hoversten further testified that Peterson's ankle problem played no causative role in her July 2009 back injury.

[¶ 9.] Prior to Dr. Hoversten's physical examination, Good Samaritan's workers' compensation insurance company retained Dr. Jerry J. Blow to review Peterson's medical records. Dr. Blow is a physiatrist practicing rehabilitation medicine. After reviewing some of Peterson's medical records, he opined by letter (before Dr. Hoversten's physical examination) that Peterson's lower back injury was caused by her preexisting ankle problem and resulting impaired balance. He also indicated that general deconditioning and obesity were contributing factors. He opined that her back injury was not caused by her work. Based on Dr. Blow's letter, Good Samaritan's insurer denied any workers' compensation benefits.

[¶ 10.] Peterson filed a claim with the Department. Both physicians testified by deposition. The Department adopted Dr. Blow's opinion over the opinion of Dr. Hoversten and denied relief. The circuit court affirmed. Peterson now appeals to this Court. She argues that she sustained a work-related injury and that her employment remains a major contributing cause of her condition and need for treatment.

Standard of Review

[¶ 11.] The parties disagree whether the clearly erroneous or de novo standard of review applies to the Department's findings of fact. Peterson points out that the Department's findings on causation were based solely on medical records and the depositions of Drs. Hoversten and Blow. Peterson also points out we have often stated that “the matter is reviewed de novo when ‘an agency makes factual determinations on the basis of documentary evidence, such as depositions' or medical records.” Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 10, 777 N.W.2d 363, 366–367 (quoting Vollmer v. Wal–Mart Store, Inc., 2007 S.D. 25, ¶ 12, 729 N.W.2d 377, 382 (citing Watertown Coop. Elevator Ass'n v. S.D. Dep't of Revenue, 2001 S.D. 56, ¶ 10, 627 N.W.2d 167, 171)); accord Mudlin v. Hills Materials Co., 2005 S.D. 64, ¶ 5, 698 N.W.2d 67, 71;Brown v. Douglas Sch. Dist., 2002 S.D. 92, ¶ 9, 650 N.W.2d 264, 268.

[¶ 12.] On the other hand, Good Samaritan points out that in the initial review of agency findings, SDCL 1–26–36 requires the circuit court to “give great weight to the findings made and inferences drawn by an agency on questions of fact.” The circuit court must review the agency's findings to determine whether they are “[c]learly erroneous in light of the entire evidence in the record.” SDCL 1–26–36(5). Good Samaritan also points out that at the next level of review, “[t]he Supreme Court shall give the same deference to the findings of fact, conclusions of law, and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.” SDCL 1–26–37. Further, a 2000 amendment to SDCL 15–6–52(a) providesthat the circuit court's “[f]indings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous....” 2000 S.D. Sess. Laws ch. 91, § 1 (emphasis added). Good Samaritan points out that based on this amendment to SDCL 15–6–52(a), we have recently rejected the argument that findings based on documentary evidence and deposition testimony are reviewed de novo:

This Court formerly reviewed documentary evidence and deposition testimony under the de novo standard. However, SDCL 15–6–52(a), [as amended in 2000], specifically provides that “findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous.”

Stockwell v. Stockwell, 2010 S.D. 79, ¶ 17, 790 N.W.2d 52, 60 (alteration in original) (quoting Gluscic v. Avera St. Luke's, 2002 S.D. 93, ¶ 15, 649 N.W.2d 916, 919). Because SDCL 1–26–37 requires our review of the circuit court's decision to be the same as any other appeal from a circuit court, and because SDCL 15–6–52(a) requires clearly erroneous review of circuit court decisions based on documentary evidence, Good Samaritan contends that we must review the decision in this case for clear error and not under the de novo standard. We take this opportunity to resolve the conflicts that may appear in these authorities.

[¶ 13.] We are reviewing an appeal from circuit court. SDCL 1–26–37 (as amended in 1983) requires that our review of circuit court decisions reviewing agency appeals be conducted in the same manner as we would review any other appeal from a circuit court. Therefore, SDCL 1–26–37 would appear to require adherence to SDCL 15–6–52(a), which requires clearly erroneous review even if the decision is based on documentary evidence. But as we explained in State, Div. of Human Rights ex rel. Miller v. Miller, 349 N.W.2d 42, 46 (S.D.1984), we are generally not reviewing the circuit court's findings in appeals from administrative agencies. We pointed out that a simultaneous...