Sorensen v. Harbor Bar, LLC
| Decision Date | 10 November 2015 |
| Docket Number | 27420.,Nos. 27409,s. 27409 |
| Citation | 871 N.W.2d 851 |
| Parties | Sarah SORENSEN, Plaintiff and Appellee, v. HARBOR BAR, LLC, Employer and Appellant, and Midwest Family Mutual Insurance Company, Insurer and Appellant. |
| Court | South Dakota Supreme Court |
Lee C. "Kit" McCahren of Olinger, Lovald, McCahren & Reimers, P.C., Pierre, South Dakota, Attorneys for appellee.
Steven J. Morgans, Sharla B. Svennes of Myers Billion, LLP, Sioux Falls, South Dakota, Attorneys for appellants.
[¶ 1.] Sarah Sorensen was injured during the scope of her employment at The Harbor Bar (Employer) on December 31, 2009. Approximately a week later, she complained of a sudden onset of headaches and vomiting, which caused her to undergo brain surgery. She filed for workers' compensation benefits but was denied, as Employer alleged that her injuries were the result of a different incident on January 4, 2010. The Department of Labor (Department) conducted a hearing and held that the workplace incident was a major contributing cause of her condition. Employer appealed this ruling to the circuit court, which affirmed in part and remanded in part for clarification of compensable damages. After the Department clarified compensable damages, the circuit court affirmed. We affirm.
[¶ 2.] Sarah Sorensen graduated from high school in Watertown. After high school, Sorensen attended culinary school in Mitchell, but dropped out after a year. Sorensen moved back to Watertown and began living on her own, and took a position as a waitress at the Harbor Bar in late 2009.
[¶ 3.] While Sorensen was working on New Year's Eve in 2009, a fight broke out in the bar among some customers. Sorensen attempted to break up the fight, and her co-worker Paul Kranz tried to help when he noticed Sorensen getting involved. While trying to intervene, Kranz saw one of the customers hitting another person while the other lay on the floor. Kranz pulled the man off, and discovered that Sorensen was the person being attacked. Sorensen ran to the bathroom to clean herself up, and finished the remainder of her shift. During her shift, several people noticed that Sorensen was getting black eyes. She also complained of a headache.
[¶ 4.] On the morning of January 7, about a week after the assault, Sorensen suffered an onset of severe headaches and vomiting. Her boyfriend took her to the emergency room, and an MRI revealed a massive intraventricular hemorrhage in her brain. She was transported to Sanford Hospital in Sioux Falls, and underwent brain surgery the next day.
[¶ 5.] Dr. William Asfora was Sorensen's surgeon, and he performed three separate surgeries on her. The first surgery required Dr. Asfora to insert a temporary drainage tube into Sorensen's brain, while the second surgery entailed inserting a permanent drain. During the third surgery, Dr. Asfora connected blood vessels in the scalp to vessels in the inner brain.
[¶ 6.] Dr. Asfora performed the third surgery after discovering that Sorensen suffered from moyamoya disease, a vascular disease of the brain. It results in the closing of some major blood vessels in the brain, which results in a network of smaller and less stable vessels growing in an attempt to supply the brain with its necessary nutrients. These small, unstable blood vessels make the brain more prone to bleeding and a person with this condition is at greater risk for a major brain bleed. The Department found that the first two surgeries were results of the accident, but that the third surgery was due to the moyamoya disease alone.
[¶ 7.] On January 3, 2010, the workplace assault was reported to the Watertown Police. The police took pictures of Sorensen's face, which showed that she had a swollen face and two black eyes. Amanda Greeley, Sorensen's co-worker, saw Sorensen when Sorensen went back to the bar on January 4 to pick up her check. Greeley testified that Sorensen had two black eyes at that time, and was complaining of a headache.
[¶ 8.] After the police took the photographs, Detective Timothy Toomey became involved in the investigation of the New Year's Eve assault. Toomey interviewed witnesses to the assault and reviewed Harbor Bar's surveillance footage. This information led to the arrest of Sorensen's attacker.
[¶ 9.] On January 27, 2010, a month after the incident, Toomey was contacted by Todd Syhre about another incident that had allegedly taken place at the Harbor Bar. Syhre told Toomey that he and his friend Dave McGuire were at the bar one night when they witnessed Sorensen roughhousing with her boyfriend and brother. Syhre testified that he saw her boyfriend attempt to pick Sorensen up, only to drop her to the floor. Syhre did not see her hit the floor, but thought she fell on her back and could have hit her head. Syhre did not remember the date of this alleged incident. Initially he thought it may have happened prior to December 31, but after calling McGuire, the two decided that the incident took place on January 4.
[¶ 10.] Toomey reviewed the surveillance tapes of the bar, but did not see Sorensen in the bar any night between the night of the assault and her admission to the hospital. However, he admitted at the hearing that he did not watch all the tapes, but only portions from each night. After watching the videos and considering what Syhre and McGuire had said, Toomey did not give their stories much weight. He believed they were encouraged to talk to him by Employer, and their inability to agree upon a date hurt their credibility. At the hearing, the Department found Toomey's testimony to be credible.
[¶ 11.] Sorensen presented evidence from Dr. Robert Packard, showing her qualifications for Social Security Disability. Packard testified live at the hearing that Sorensen now suffers serious mental defects, such as memory loss. He also testified that she has gained significant weight since the incident, as she has no ability to tell when she is hungry or full. Packard stated that Sorensen is not able to manage her own affairs.
[¶ 12.] Dr. Asfora, in his video deposition presented to the Department, stated that the workplace accident was a major contributing cause of Sorensen's brain hemorrhage. Her moyamoya disease was asymptomatic prior to the accident, and the punches she suffered were likely the cause of the hemorrhage. He testified that the rotation a person's head experiences when being punched could cause significant bleeding in the brain.
[¶ 13.] Employer presented the video deposition of Dr. Starzinski as expert testimony. Dr. Starzinski only reviewed the medical records and never treated Sorensen himself. He did not believe the accident was a major contributing cause of the hemorrhage. His opinion was based on the belief that Sorensen was able to continue her normal activities in the days following the accident, and it was only after the alleged second incident that she began to become symptomatic. He testified that an intracranial hemorrhage would be a "show-stopper" that would not allow a person to continue to function normally. Because he believed she had been able to function normally after the accident, he did not think that the accident was a major contributing cause of the hemorrhage.
[¶ 14.] During the hearing, Sorensen attempted to present testimony by Dr. Sabow as rebuttal to Dr. Starzinski's testimony. Employer objected, arguing that Dr. Sabow was an undisclosed expert witness. Initially, the Department did not allow Dr. Sabow to testify, but then allowed Sorensen's attorney to question Dr. Sabow as an offer of proof. Dr. Sabow's testimony was extremely brief, as he only answered a few questions. Sorensen's attorney asked him to examine the pictures of Sorensen taken on January 3. Dr. Sabow testified that the picture showed that Sorensen had "raccoon eyes" which can be a sign of intracranial trauma. Dr. Sabow never examined Sorensen personally. Sorensen's attorney argued that the testimony should be allowed as a rebuttal to Employer's claim that there was a second incident that caused the hemorrhage. The Department reconsidered its original position and included the testimony as substantive evidence.
[¶ 15.] Because of this admission, the Department allowed Employer to retain an additional expert and supplement the record with his testimony. Employer retained Dr. Howard, a neurosurgeon from the University of Iowa. Dr. Howard testified that a neurosurgeon could not diagnose an intracranial hemorrhage solely from "raccoon eyes" in a photograph.
[¶ 16.] The Department ruled in favor of Sorensen, finding that the work-related injury was a major contributing cause of the hemorrhage and resulting disabilities. The Department also found that the alleged second incident did not take place after the work-place assault as Employer claimed, if it happened at all. It also found that the first two surgeries performed by Dr. Asfora were compensable as a result of the injury, but that the third surgery was exclusively the result of Sorensen's moyamoya disease and thus not compensable. The Department awarded Sorensen her expenses for medical bills and lost income.
[¶ 17.] Employer appealed the decision to the circuit court, which affirmed on causation and compensation but remanded to the Department for clarification on which medical expenses were compensable.* This was because the Department had found that the third surgery was not the result of the work-place injury, but still directed Employer to pay for the third surgery when it issued its findings of fact and conclusions of law. The Department clarified its holding, thus reducing Sorensen's award. The circuit court issued a final order after remand with the adjusted award.
[¶ 18.] Employer appeals, raising the following issues:
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