Shepherd v. Moorman Mfg.

• Citation: 467 N.W.2d 916
• Decision Date: 08 January 1991
• Docket Number: No. 17079,17079
• Parties: Riley SHEPHERD, Appellant, v. MOORMAN MANUFACTURING, Employer, and Liberty Mutual Insurance Company, Insurer, Appellees. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 916

467 N.W.2d 916

Riley SHEPHERD, Appellant, v. MOORMAN MANUFACTURING, Employer, and Liberty Mutual Insurance Company, Insurer, Appellees.

No. 17079.

Supreme Court of South Dakota.

Considered on Briefs Jan. 8, 1991.

Decided March 27, 1991.

Wm. Jason Groves, Rapid City, for appellant.

Susan Jansa Brunick, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees.

SABERS, Justice.

Worker's Compensation claimant appeals denial of his claim of permanent total disability by Department of Labor and circuit court.

Facts

Riley Shepherd (claimant) worked as a salesman and deliveryman of livestock feeds and feeding equipment for Moorman Manufacturing (employer) from 1975 to 1984. On November 11, 1983, he suffered a serious back injury while delivering supplies to a customer. At the time of his accident, he was 45 years old. He had a high school equivalency and a general agricultural work history.

From the morning after his accident, Shepherd began experiencing pain in his lower back which prevented him from continuing the delivery and unloading part of his job. For several months, he worked from his home, maintaining contact with his sales customers by telephone and seeing a chiropractor for relief of pain. However, the pain spread through his buttocks and down his legs, and became so debilitating that he found himself increasingly unable to concentrate. In April, 1984, he quit working altogether and took a leave of absence from employer. During the summer of 1984, employer's insurer Liberty Mutual (insurer) hired a private rehabilitation consultant, Phillips, to work with him. During the same time period, claimant independently applied for assistance with the South Dakota Department of Vocational Rehabilitation (DVR).

On November 7, 1984, laminectomy surgery was performed on his back. He testified that this surgery substantially relieved his back and leg pain for the next year and a half. In the summer of 1985, the surgeon who performed the laminectomy released him to return to work with certain restrictions on lifting, overtime and prolonged sitting. The surgeon also prescribed a soft brace for him to wear during periods of tension. The surgeon continued to see him at 3-month intervals.

In the fall of 1985, insurer hired Dr. Berkebile to examine claimant and evaluate his physical condition. While Berkebile found that the surgery yielded excellent results and restored claimant's ability to function, he noted residual symptoms of sciatic nerve injury, and rated claimant as 100% disabled for his old job and at least 50% disabled for other jobs.

In 1986 claimant entered into negotiations to purchase a tourist business in the Black Hills. DVR closed its two year old file on claimant for this reason. However, the purchase was never consummated because of a fire which destroyed the facility.

During this same period, claimant's pre-surgery symptoms began to return and he found himself in increasing pain. He reported pain radiating down as far as his right heel. He was unable to remain in any position for more than 15-30 minutes at a time, and unable to do many simple household chores or concentrate long enough to read a book. Claimant reported that on occasion he was awakened by pain and had to leave his bed and sit in a recliner in order to get relief. He defined a "good day" as a day in which he was without pain for two consecutive hours. On bad days, he reported that it took him two hours to get out of bed. In general, he described his condition as "deteriorating" and testified that "I have to use most of my time just fighting my pain."

On December 23, 1987, claimant petitioned the Department of Labor (Department) for a hearing to determine his eligibility for permanent total disability benefits.

In May of 1988, Dr. Berkebile again examined claimant, this time at claimant's request. While Berkebile observed little overt physical change since the 1985 examination, he noted increased symptoms of pain and some slight loss of sensation. Berkebile sent claimant to another doctor for a neurological evaluation and a CAT scan. Berkebile testified that the further examination revealed mild irritation of claimant's L-5 rootlet and that his continuing back problems were arthritis-related.

During the spring and summer of 1988, claimant resumed his contact with DVR, and insurer's rehabilitation consultant Phillips again saw claimant. DVR and Phillips both concluded, without benefit of Dr. Berkebile's report, that claimant was unemployable and not an appropriate subject for rehabilitation.

The hearing to determine eligibility for permanent total disability benefits was held on March 8, 1989. DVR testified that claimant's physical limitations rendered him unemployable in the Rapid City and Black Hills labor market. Claimant testified about his pain and claimant's spouse testified as to changes in claimant's behavior and personality. In addition, Dr. Berkebile testified for claimant on the results of his 1988 examination. Employer called only Phillips, who retreated from his earlier conclusion that claimant was unemployable and testified that there were jobs available for persons with claimant's physical limitation.

On June 13, 1989, Department ruled that while claimant had sustained his burden of proof that his present condition was caused by his 1983 work accident, he did not make a prima facie case under the odd-lot doctrine that his present condition was permanently and totally disabling. On appeal, the circuit court affirmed the Department in all respects.

On this appeal, the issue is whether claimant made a prima facie case of permanent total disability under the odd-lot doctrine.

Decision

Under the odd-lot doctrine, "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); Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988); Barkdull v. Homestake Mining Co., 317 N.W.2d 417, 418 (S.D.1982). The ultimate burden of persuasion on this point remains with the claimant. Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985). However, if the claimant's physical condition, coupled with his education, training and age, make it obvious that he is in the odd-lot total disability category, the burden of production shifts to the employer to show that some suitable employment is actually available in claimant's community for persons with claimant's limitations. Rank v. Lindblom, 459 N.W.2d 247, 249 (S.D.1990); Wendel v. Domestic Seed and Supply, supra; 2 Larson, The Law of Workmen's Compensation Sec. 57.61(c) (1989). If, on the other hand, "the claimant's medical impairment is so limited or specialized in nature that he is not obviously unemployable or relegated to the odd-lot category," then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has unsuccessfully made "reasonable efforts" to find work. 2 Larson, supra, at Sec. 57.61(d); Franklin Fabricators v. Irwin, 306 A.2d 734, 737 (Del.1973).

In this case, claimant concededly made no efforts to find work because he claims his pain would prevent him from working even if he found work. Therefore, the outcome of the case hinges on whether the facts claimant was able to marshal about his physical condition, in combination with his age and background, make it so clear that he is totally disabled that the burden of showing employability is shifted to employer.

Whether the claimant made a prima facie case that he belongs in the odd-lot total disability category is a question of fact. Schepanovich v. United States Steel Corp., 669 P.2d 522, 529 (Wyo.1983). The Department's determination that claimant failed to make the required prima facie showing will not be overturned unless we find that the determination was "clearly erroneous." Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548, 551 (S.D.1990); SDCL 1-26-36(5). This means that "[w]e do not substitute our judgment for that of [Department] on the weight of evidence[.]" Rank v. Lindblom, supra, at 248. See also Wendel v. Domestic Seed and Supply, supra, at 271. In other words, even if there is evidence in the record which tends to contradict the Department's factual determination, so long as there is some "substantial evidence" in the record which supports the Department's determination, this court will affirm it. Schepanovich, supra; Governor Bacon Health Center v. Noll, 315 A.2d 601, 605 (Del.Super.1974).

The crux of claimant's case for total disability is that he suffers such substantial and frequent pain that he not only cannot physically exert himself but he cannot even sit still or concentrate for more than a few minutes at a time, and that his endurance as well as his daily schedule can vary dramatically depending on whether he is having a good day or a bad day. Claimant argues that because...