Stang v. Meade School Dist. 46-1

• Decision Date: 25 April 1994
• Docket Number: No. 18430,18430
• Parties: Connie K. STANG, Claimant and Appellee, v. MEADE SCHOOL DISTRICT 46-1, Employer and Appellant, and American States Insurance, Insurer and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 496

526 N.W.2d 496

Connie K. STANG, Claimant and Appellee, v. MEADE SCHOOL DISTRICT

46-1, Employer and Appellant,

and

American States Insurance, Insurer and Appellant.

No. 18430.

Supreme Court of South Dakota.

Considered on Briefs April 25, 1994.

Decided Jan. 11, 1995.

Rehearing Denied Feb. 16, 1995.

James D. Leach, Viken, Viken, Pechota, Leach & Dewell, Rapid City, for appellee.

David M. Dillon, of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for appellants.

McMURCHIE, Circuit Judge.

Meade School District 46-1 (Employer) and American States Insurance (Insurer) appeal a circuit court judgment in a worker's compensation case. Judge Steven L. Zinter affirmed the Division of Labor and Management's (Division) decision to classify the claimant, Connie Stang (Stang), within the odd-lot category. We affirm.

ISSUE

WAS THE DEPARTMENT'S DECISION GRANTING STANG PERMANENT TOTAL DISABILITY BENEFITS UNDER THE ODD-LOT DOCTRINE CLEARLY ERRONEOUS IN LIGHT OF THE ENTIRE EVIDENCE?

FACTS

On March 14, 1989, Stang, while employed as a custodian by Employer, attempted to unclog the chute on a snow blower without turning it off. Her left hand was badly injured with multiple fractures and significant soft tissue damage, resulting in three operations.

Stang was taken to Sturgis Hospital, then transferred by ambulance to Rapid City Regional Hospital. During the course of Stang's treatment, Michael D. Brandner, M.D., a hand surgeon, performed three separate surgeries as Stang's treating physician.

On June 17, 1991, Dr. Brandner determined that Stang had reached maximal recovery. Dr. Brandner's assessment of Stang's injury included notations that Stang had diminished grip strength, pinch strength, length of the index finger, range of motion involving the left wrist and all fingers of the left hand. Additionally, he found she had diminished sensibility involving the ulnar aspect of the left index finger. Dr. Brandner also noted subjective factors, including diminished strength, dexterity and cold tolerance. Dr. Brandner opined that Stang had a permanent partial disability rating of her left hand of 35%, which was equivalent to approximately "a 32% permanent partial disability for the left upper extremity as a whole."

Stang wears a glove on her left hand to keep it warm in mild weather and a battery heated glove during cold weather. She cannot close her left hand to make a fist because of stiffness and pain. Stang wears prescribed plastic finger splints on her middle and index fingers at all times. She has difficulty with household duties, driving, and dressing because of the injury to her left hand. Stang experiences increased pain which extends up her wrist and into her arm when she overuses her left hand. It is conceded that Stang's overuse, repetitive action and therapy will not increase the strength and dexterity of her hand, indicating maximal recovery.

Stang's employment history includes work as a motel maid, as a cleaning woman in private homes, and as a waitress. Stang worked as a custodian from 1977 until she was injured on the job in 1989. She completed the eighth grade and later received her General Education Diploma. Stang is 49 years old. She is the mother of three grown children.

There is no dispute that Stang's injury prevents her from returning to her previous employment as a custodian. Stang completed a Functional Capacity Assessment (FCA) which indicated that she could perform periodic dexterity tasks, such as typing. Dr. Brandner and Dr. Anderson did not object to periodic typing tasks. However, Dr. Goff believed all repetitive hand actions should be eliminated and stated that it was unrealistic "to expect [that] she can do things like assemble, type, keypunch."

Diane Christiansen (Christiansen), a nurse rehabilitation specialist retained by the Insurer, enrolled Stang in the clerical skills program at the Career Learning Center in Rapid City. Christiansen sought and obtained Dr. Brandner's approval of the training program. Stang enjoyed attending the Career Learning Center four hours each day, working on various clerical assignments. She successfully completed a formal program at the Career Learning Center in mid-October 1991.

Shortly after beginning the clerical skills course, Stang began a job search. She worked as a temporary clerical worker at an alcohol and drug curriculum program for approximately thirty days between November and December 1991 while still enrolled in the clerical curriculum at the Career Learning Center. With assistance from Christiansen, Stang began a job search in July 1992 and intensified her search upon completion of the clerical course work in October 1992. Stang kept a detailed diary of her efforts to find work. After over 100 applications Stang's search for permanent work was unsuccessful. Stang also registered with Job Service and met with a representative on a regular basis.

Mr. Richard Ostrander, a vocational rehabilitation specialist and licensed professional counselor, testified by deposition concerning Stang's performance on the GATB exam: "She is way below average in all the activities requiring use of both hands, finger dexterity, manual dexterity. In fact, the scores aren't significant in terms of having any ability in bimanual work."

He further testified concerning the GATB test scores as follows:

Q: Well to that extent, would it indicate that Connie had the ability to engage in the type of rehabilitation training that she did at the Career Learning Center?

A: In terms of aptitude, yes. In terms of physical capacity, No. Her finger and manual dexterity scores would certainly indicate that she is never going to be a typist.

Q: All right. Would you have recommended that course?

A: No.

Ostrander also completed and analyzed a labor market survey.

Based on the record the Department found that "Claimant would not be able to find employment other than something of a sporadic nature resulting in an insubstantial income, whether based on the Sturgis labor market or the entire Black Hills labor market."

DECISION

I. Standard of Review

This Court's review of a decision of administrative agencies is controlled by SDCL 1-26-37, which 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.

An agency's factual determinations will be overruled only if this Court finds them to be "clearly erroneous" in light of the entire evidence. SDCL 1-26-36 (1992). "However, conclusions of law are entirely reviewable." Petersen v. Hinky Dinky, 515 N.W.2d 226, 231 (S.D.1994) (citing Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987)). "Whether the claimant made a prima facie case that he belongs in the odd-lot total disability category is a question of fact." Petersen, 515 N.W.2d at 231. This Court will not overturn the Department's determination that a claimant met his prima facie burden showing that he belongs in the odd-lot total disability category, unless such a finding is clearly erroneous. Petersen, 515 N.W.2d at 231 (citing Shepherd v. Moorman Mfg., 467 N.W.2d 916, 919 (S.D.1991)).

This Court has announced that "[t]he test is whether after reviewing all the evidence we are left with a definite and firm conviction that a mistake has been made." Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992). Additionally, this Court has stated:

[T]he question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding.... [T]he court shall give great weight to findings made and inferences drawn by an agency on questions of fact.

Petersen, 515 N.W.2d at 231 (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 708, 711 (S.D.1989) (Morgan J., concurring specially) (citations omitted)). Finally, we added in Shepherd, "We do not substitute our judgment for that of [the Department] on the weight of the evidence [.] ... [S]o long as there is some 'substantial evidence' in the record which supports the Department's...