Schlenker v. Boyd's Drug Mart, 16756

• Court: Supreme Court of South Dakota
• Citation: 458 N.W.2d 368
• Docket Number: No. 16756,16756
• Parties: Sheryll K. SCHLENKER, Claimant and Appellee, v. BOYD'S DRUG MART, Employer and Appellant, and United States Fidelity and Guaranty Company, Insurer and Appellant. . Considered on Briefs
• Decision Date: 25 April 1990

Page 368

458 N.W.2d 368 Sheryll K. SCHLENKER, Claimant and Appellee,
v.
BOYD'S DRUG MART, Employer and Appellant,
and
United States Fidelity and Guaranty Company, Insurer and
Appellant. No. 16756. Supreme Court of South Dakota. Considered on Briefs April 25, 1990.
Decided July 18, 1990.

Scott Sumner of Banks, Johnson, Johnson, Colbath & Huffman, Rapid City, for claimant-appellee.

Dennis W. Finch of Finch, Viken, Viken & Pechota, Rapid City, for employer/insurer-appellants.

MILLER, Justice.

In this opinion, we affirm a circuit court's reversal of a Department of Labor decision in a worker's compensation case and hold that Department erred when it denied permanent total disability benefits to a claimant until she completed a pain clinic program.

FACTS/PROCEDURAL HISTORY

It is undisputed that in August, 1982, claimant (age 42 at the time of the proceedings before Department) severely injured her back while working for employer. Although she initially returned to work, she ceased working upon the medical advice of a neurosurgeon. She ultimately underwent two laminectomies and an epidural steroid block, but did not recover. Her neurosurgeon gave her a twenty percent whole body disability rating, diagnosing her condition as a "failed disc syndrome."

Claimant was referred to various doctors and consulted with vocational rehabilitation specialists and a physical therapist. A vocational rehabilitation counselor retained by employer, who evaluated various reports concerning claimant (but who never personally saw her), recommended that she attend a pain clinic as part of a rehabilitation program. ¹

Counsel for claimant and employer/insurer entered into a "Memorandum of Understanding" in December, 1986, whereunder the worker's compensation hearing before Department would be indefinitely postponed upon claimant's agreement to attend a "pain management program" at some mutually agreed-upon facility. Employer/insurer agreed to retroactively continue to pay claimant temporary total disability benefits (they had terminated in June 1986) pending completion of the program and to pay for the costs of the program.

After receiving information concerning various programs, claimant agreed to attend the four-week program in the pain clinic at McKennan Hospital in Sioux Falls, South Dakota. She chose this location over others because it was nearest in proximity to her relatives' home in eastern South Dakota. Her neurosurgeon, Dr. James, had previously advised her that the pain clinic would not be productive to her. Because of her dissatisfaction with the program, and comments made to her by certain professionals at McKennan Hospital, she returned home after completing only one day of evaluation.

Through counsel, claimant proceeded with her worker's compensation claim, seeking permanent total disability benefits. Employer/insurer, although conceding she was severely disabled, asserted that her claim should be denied because of her refusal to complete the pain clinic program.

At the hearing, only claimant and a vocational

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rehabilitation counselor testified. ² The balance of the evidence was presented by deposition. Department ultimately issued a decision followed by findings of fact and conclusions of law. Department's conclusions hold that claimant "is severely disabled, however, a determination of permanent total disability cannot be made until completion of a pain clinic program." It ruled that she could continue to receive temporary total disability compensation for a reasonable period, pending enrollment and completion of a pain clinic.

Claimant appealed Department's ruling to the circuit court, which reviewed the record pursuant to SDCL 1-26-37. Infra. That court found not only that claimant is severely disabled but that the pain is real and not psychological. It also found that Department's only basis for denying the claim was claimant's failure to prove her total disability by virtue of her unwillingness to attend a pain clinic. The court noted that the only medical testimony (that of Dr. James) was an opinion that the pain clinic would not do claimant any good because she is not susceptible to treatment or improvement through such a program. ³ The trial court found the testimony of the two vocational rehabilitation counselors recommending a pain clinic "to be insubstantial and without sufficient weight, credibility and foundation" to support Department's holding. The trial court reversed Department, concluding that the agency decision was clearly erroneous and holding that claimant is permanently and totally disabled under the odd-lot doctrine and SDCL 62-4-6(23) and 62-4-7. We affirm.

DECISION SCOPE OF REVIEW

SDCL 1-26-37 provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The 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. (Emphasis added.)

We review the administrative agency's decision the same as did the circuit court, not substituting our judgment for that of the agency's on the weight of the evidence pertaining to questions of fact unless clearly erroneous or characterized by an abuse of discretion. Lee v. South Dakota Dept. of Health, 411 N.W.2d 108 (S.D.1987); Appeal of Templeton, 403 N.W.2d 398 (S.D.1987). Nor do we make any presumptions that the circuit court's decision was correct. Templeton, supra.

"... When the issue is a question of law, the decision of the administrative agency and the circuit court...