Schlenker v. Boyd's Drug Mart

• Decision Date: 25 April 1990
• Docket Number: No. 16756,16756
• Citation: 458 N.W.2d 368
• 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
• Court: South Dakota Supreme Court

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 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 are fully reviewable. Matter of Change of Bed Category of Tieszen, 343 N.W.2d 97 (S.D.1984); Nash Finch Co. v. S.D. Dept. of Rev., 312 N.W.2d 470 (S.D.1981). When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous. Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); State Div. of Human Rights v. Miller, 349 N.W.2d 42 (S.D.1984)."

Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113, 116 (S.D.1987) (citing Johnson v. Skelly Oil Company, 359 N.W.2d 130, 132 (S.D.1984)); see also Hanson v. Penrod Const. Co., 425 N.W.2d 396 (S.D.1988).

As stated by Justice Morgan in his special concurrence (joined by this author) in Lawler v. Windmill Restaurant, 435 N.W.2d 708, 711 (S.D.1989) (citations omitted), we have two tenets of appellate administrative review, namely:

(1) the question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding....; and (2) the court shall give great weight to the findings made and inferences drawn by an agency on questions of fact....

MERITS

We have consistently held since Barkdull v. Homestake Min. Co., 317 N.W.2d 417 (S.D.1982), that:

'[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.'

Wendel v. Domestic Seed & Supply, 446 N.W.2d 265, 270 (S.D.1989) (brackets in original) (citing Hanson, supra ). "Under this 'odd-lot' test, the claimant has the burden to make a prima facie showing that his physical impairment, mental capacity, education, training, and age place him in an odd-lot category." Wendel, supra 446 N.W.2d at 270 (citations omitted). "The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant." Id.

The facts here are somewhat unusual. Claimant agreed to go through a pain clinic program before a final determination of Department would be made regarding her claim. She was to receive temporary total disability benefits through the completion of the program after which Department would rehear her claim regarding permanent total disability. Claimant appeared for the first day's evaluation and refused further treatment thereafter. Department held that claimant failed to prove she was permanently and totally disabled by refusing such further treatment.

Employer/insurer assert that it was improper for claimant to refuse treatment unless such refusal was reasonable. We agree. Once claimant agreed to attend the pain clinic, the burden to prove permanent total disability remained with her, it had not yet shifted to employer to prove that some suitable work was available. We also agree that unless evidence exists to show that her refusal was reasonable, she has failed in her burden of proof.

Employer/insurer cite us to 1 Larson's Workmen's Compensation Law Sec. 13.22(b), for the rule that "[t]he question of whether refusal of treatment should be a bar to compensation turns on a determination of whether the refusal is reasonable." That section goes on to state that, "[r]easonableness in turn resolves itself into a weighing of the probability of the treatment's successfully reducing the disability by a significant amount, against the risk of the treatment to the claimant." (Emphasis added.) Therefore, the issue is not whether she should have attended the pain clinic, but whether her...