Spitzack v. Berg Corp., No. 18542

CourtSupreme Court of South Dakota
Writing for the CourtKONENKAMP; MILLER, C.J., AMUNDSON, J., and WUEST; SABERS; GILBERTSON; SABERS
Citation532 N.W.2d 72
Decision Date15 September 1994
Docket NumberNo. 18542
PartiesGerald SPITZACK, Claimant and Appellee, v. The BERG CORPORATION, Employer and Appellant, and Wausau Insurance Companies, Insurer and Appellant. . Considered on Briefs

Page 72

532 N.W.2d 72
Gerald SPITZACK, Claimant and Appellee,
v.
The BERG CORPORATION, Employer and Appellant,
and
Wausau Insurance Companies, Insurer and Appellant.
No. 18542.
Supreme Court of South Dakota.
Considered on Briefs Sept. 15, 1994.
Decided May 24, 1995.

Wynn A. Gunderson, Paul S. Swedlund of Gunderson, Palmer, Goodsell and Nelson, Rapid City, for claimant and appellee.

Craig A. Pfeifle of Lynn, Jackson, Shultz & Lebrun, Rapid City, for appellants.

KONENKAMP, Justice.

Gerald Spitzack sought odd-lot category permanent total disability benefits. The Department of Labor, Division of Labor and Management (Department) denied his request. On appeal, the circuit court reversed the Department. Employer and its worker's compensation insurer, Wausau Insurance, appeal the following issues:

I. Did the circuit court err in concluding that the Department's denial of permanent total disability benefits was clearly erroneous?

II. Did the circuit court err by requiring Employer to carry the burden of proof

Page 74

that retraining or rehabilitation was feasible?

We affirm in part, reverse in part, and remand.

FACTS

On January 12, 1990, while working for his employer of seventeen years, The Berg Corporation (Employer), forty-five year old Gerald Spitzack was throwing a hook into a flatbed trailer, when he slipped on ice and fell, injuring his back. Two weeks later, pain radiating from his lower back to his legs prompted him to visit Dr. Gregory Scherr, a chiropractor, who placed him on a conservative treatment regime of spinal manipulation, electromuscular stimulation, hot-cold moist pack applications, massage therapy, and exercise. Dr. Scherr also referred him to Dr. Dale Berkebile, an orthopedic surgeon, to see if surgery was warranted. A CT scan revealed herniation in the lumbar spine. In the meantime, Dr. Scherr released Spitzack to perform light duty work.

Spitzack was also referred to Dr. Steven Goff, a physiatrist. Dr. Goff agreed with Dr. Scherr's method of treatment, but additionally prescribed a TENS unit, a device which delivers low voltage Transcutaneous Electrical Nerve Stimulation to reduce or block pain. (After one month, Spitzack stopped using the TENS unit because it did not reduce the pain.) Although Dr. Goff returned Spitzack to light duty work, he recommended a sedentary-type job. Thereafter, Dr. Scherr instructed Spitzack not to perform his previous work. From May 5, 1990 until Employer went out of business on July 31, 1990, Spitzack worked at home making occasional phone calls for Employer. This non-physical labor, for which he received $100 per week, fit within his work restrictions.

During June and July of 1990, Spitzack underwent six weeks of physical therapy and a four-week work hardening program, but his condition persisted. On July 30, Dr. Goff felt Spitzack's condition was plateauing and projected he would reach maximum medical improvement in two to three months. Dr. Goff also expressed doubt about Spitzack's ability to ever resume a full-time job.

Wausau Insurance retained the services of Jeff Bailie, a certified rehabilitation consultant with Karr Rehabilitation Services. Bailie conducted a vocational assessment and a computer-assisted labor market survey to find work for someone with Spitzack's physical limitations. Although Bailie found three possible occupation areas--microfilm document preparation, hardware and home improvement, and taxi cab coordinating or dispatching--there were no openings in these fields which would accept someone with Spitzack's physical condition. Shari McDonald, also of Karr, then took over from Bailie and furnished several leads to Spitzack, some of which were merely newspaper clippings or job listings. She admittedly failed to consider Spitzack's physical restrictions, and in many cases, she did not know if the "leads" were actual job openings. Months later, William Peniston, a rehabilitation specialist Spitzack hired, concluded that Spitzack was not a good candidate for retraining.

On November 19, 1990, as Spitzack's pain persisted, Dr. Lee Ahrlin, an orthopedic surgeon, performed an independent examination. Unable to determine the source of the pain, Dr. Ahrlin concluded Spitzack could handle light duty activities. Three months later, Dr. Goff examined Spitzack again and noted that he was taking twenty Bufferin tablets per day for pain. Dr. Goff gave Spitzack an 11% whole person impairment rating and ordered a functional capacities assessment (FCA). Dr. Scherr's April 10, 1991 FCA concluded that Spitzack could work a six-hour day with varied standing, sitting, and walking. Lifting was essentially restricted to under twenty pounds. Bending, use of his arms, hands, feet, and other physical activities were limited. A Key Functional Assessment was also conducted, with similar results. An MRI on February 4, 1992 reconfirmed herniation in the lumbar spine, a condition that had not significantly changed since the December 1990 CT scan. A neurologist in Sioux City opined that Spitzack might have a ruptured disc requiring surgery.

Unable to find work due to his pain and physical restrictions, Spitzack petitioned for permanent total disability benefits. At the

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time of the administrative hearing, Spitzack was forty-eight years old, had an eleventh grade education, with no GED or additional schooling. As the operating foreman handling train derailments, his duties with Employer had included planning jobs, obtaining the necessary permits, and supervising the derailment crew. His previous jobs included working as a cement tile company laborer, a creamery employee, and a bartender.
ANALYSIS

Our standard of review for administrative decisions is well established. We will overrule an agency's factual determinations only if they are "clearly erroneous." Conclusions of law, however, obtain no deference and are fully reviewable. Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987). Whether a claimant makes a prima facie case to establish odd-lot total disability inclusion is a question of fact. Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994); Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991). This Court will give great weight to findings made and inferences drawn by an agency on questions of fact. Matter of SDDS, Inc., 472 N.W.2d 502, 507 (S.D.1991); Kennedy v. Hubbard Milling Co., 465 N.W.2d 792, 794 (S.D.1991).

We do not substitute our judgment for that of [Department] on the weight of the evidence[.] 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. (Citations omitted.)

Shepherd, 467 N.W.2d at 919. We will reverse only if we are definitely and firmly convinced that a mistake has been made. Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992).

I. Department erred in finding Claimant had not...

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25 practice notes
  • Zoss v. United Bldg. Centers, Inc., Nos. 19764
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income. Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (quoting Shepherd, 467 N.W.2d at 918). Under this doctrine, an employee first bears the burden to show total disability. Baker v. ......
  • Sopko v. C & R Transfer Co., Inc., No. 20012
    • United States
    • Supreme Court of South Dakota
    • January 28, 1998
    ...the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)(citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)); see also United States v. U.S. Gypsum Co., 333 U.S. 364, ......
  • Goebel v. Warner Transp., No. 21185.
    • United States
    • Supreme Court of South Dakota
    • June 14, 2000
    ...entire record we are definitely and firmly convinced a mistake has been committed will we reverse. Id. (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)). When the issue is a question of law, the actions of the ag......
  • Erdahl v. Groff, No. 20027
    • United States
    • Supreme Court of South Dakota
    • May 6, 1998
    ...inferences drawn by the agency on question of fact. Kennedy v. Hubbard Milling Co., 465 N.W.2d 792 (S.D.1991); Spitzack v. Berg Corp., 532 N.W.2d 72 (S.D.1995). Conclusions of law and mixed questions of law and fact are fully reviewable. Id.; Permann v. Dep't of Labor, 411 N.W.2d 113 (S.D.1......
  • Request a trial to view additional results
25 cases
  • Zoss v. United Bldg. Centers, Inc., Nos. 19764
    • United States
    • Supreme Court of South Dakota
    • July 16, 1997
    ...causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income. Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (quoting Shepherd, 467 N.W.2d at 918). Under this doctrine, an employee first bears the burden to show total disability. Baker v. ......
  • Sopko v. C & R Transfer Co., Inc., No. 20012
    • United States
    • Supreme Court of South Dakota
    • January 28, 1998
    ...the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)(citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)); see also United States v. U.S. Gypsum Co., 333 U.S. 364, ......
  • Goebel v. Warner Transp., No. 21185.
    • United States
    • Supreme Court of South Dakota
    • June 14, 2000
    ...entire record we are definitely and firmly convinced a mistake has been committed will we reverse. Id. (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)) (citing Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992)). When the issue is a question of law, the actions of the ag......
  • Erdahl v. Groff, No. 20027
    • United States
    • Supreme Court of South Dakota
    • May 6, 1998
    ...inferences drawn by the agency on question of fact. Kennedy v. Hubbard Milling Co., 465 N.W.2d 792 (S.D.1991); Spitzack v. Berg Corp., 532 N.W.2d 72 (S.D.1995). Conclusions of law and mixed questions of law and fact are fully reviewable. Id.; Permann v. Dep't of Labor, 411 N.W.2d 113 (S.D.1......
  • Request a trial to view additional results

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