Tebben v. Gil Haugan Const., Inc.

• Decision Date: 21 February 2007
• Docket Number: No. 23848.,No. 23847.,23847.,23848.
• Parties: Cheryl TEBBEN, Claimant and Appellant, v. GIL HAUGAN CONSTRUCTION, INC., Employer and Appellee, and General Casualty, Insurer and Appellee.
• Court: South Dakota Supreme Court

729 N.W.2d 166

2007 SD 18

Cheryl TEBBEN, Claimant and Appellant, v. GIL HAUGAN CONSTRUCTION, INC., Employer and Appellee, and General Casualty, Insurer and Appellee.

No. 23847.

No. 23848.

Supreme Court of South Dakota.

Argued February 14, 2006.

Reassigned October 11, 2006.

Decided February 21, 2007.

Rehearing Denied March 29, 2007.

James G. Abourezk of Abourezk Law Offices, P.C., Sioux Falls, for appellant.

Michael S. McKnight, Lisa Hansen Marso of Boyce, Greenfield, Pashby & Welk, L.L.P., Sioux Falls, for employer, insurer and appellees.

KONENKAMP, Justice (on reassignment).

[¶ 1.] Cheryl Tebben sought workers' compensation benefits for the death of her husband. The Department of Labor denied her claim and Ms. Tebben appealed to the circuit court. The court affirmed the Department's decision and she now appeals to this Court. We reverse in part and affirm in part.

Background

[¶ 2.] Cheryl and Brian Tebben were married on March 1, 1978. Brian Tebben began working for Gil Haugan Construction, Inc. in July of 2000, primarily as an equipment operator. On July 12, 2003, he fell ill with symptoms that included extreme sweating, vomiting, and weakness. He was taken to the emergency room at Avera McKennan Hospital in Sioux Falls, South Dakota. A CT scan revealed no apparent cause for his symptoms. The physician treating Mr. Tebben believed he was suffering from an inner ear infection and sent him home.

[¶ 3.] Mr. Tebben returned to work at Haugan Construction the following Monday. Two days later, on Wednesday, July 16, 2003, he returned to the emergency room with the same symptoms he had before, but he was also experiencing slurred speech. His family physician, Dr. Michael Farritor, sent him to Sioux Valley Hospital for an MRI, which revealed that Mr. Tebben had suffered several small strokes. He was admitted to the hospital and Dr. Farritor ordered a neurological consultation with Dr. Gene Koob, a Sioux Falls neurologist.

[¶ 4.] Dr. Koob examined Mr. Tebben and reviewed the MRI report. In his consultation report of July 16, 2003, he wrote:

Certainly MRI looks like a sub acute stroke, which could extend back to last week. Possibility of vasculitis needs to be considered, certainly embolus and from the heart has to be considered and because of mother's history of blood clot we should consider the possibility of an inherited coagulation defect. Also, I think the strong thing we should think about in a physically active male such as him, would be the possibility of a vertebral dissection. The basilar artery on the MRI looks pretty good. He has had his cardiac sector scan.

Dr. Koob then ordered an MRA.¹ Dr. Edward J. Czarnecki, a radiologist, reviewed the MRA and reported that "[t]he proximal right vertebral artery is occluded with reconstitution, possibly through an ascending thyroidal branch."

[¶ 5.] Mr. Tebben was discharged from the hospital on July 18, 2003, with orders from Dr. Koob to not work for one week and then perform only light-duty work after that. On Monday, July 21, Mr. Tebben went to Haugan Construction to file a workers' compensation claim. Later that day, he again experienced severe sweating, head pain, and dizziness. He returned to see Dr. Koob, who ordered an EKG. Dr. Farritor performed the EKG and concluded that it was normal, but set an appointment for Mr. Tebben to receive another MRI the next day. In the meantime, Mr. Tebben was sent home, but was advised that if he experienced any more symptoms to go to the hospital. That night he had difficulty breathing and collapsed at his home. Ms. Tebben called 911 and Mr. Tebben was rushed by ambulance to the hospital. He was unresponsive. An MRA was performed and Radiologist Dr. Daniel Crosby found that "[t]here is a complete absence of flow seen within the distal right and left vertebral arteries and basilar arteries through to the basilar tip." Dr. Crosby then concluded that the "[o]ccluded distal left and right vertebral arteries and basilar arteries as described [are] consistent with progression of suspected dissection seen on examinations of 7/16/2003."

[¶ 6.] Mr. Tebben was placed on life support in intensive care. He remained there for several days with no improvement. On July 28, 2003, he was declared brain dead. He expired after being removed from life support. He was forty-five years old. Ms. Tebben timely notified Haugan Construction of Mr. Tebben's death and filed a workers' compensation claim. Haugan Construction denied that his death arose out of and in the course of his employment or was causally related to his employment or employment related activities.

[¶ 7.] A Department of Labor hearing was held on October 5-6, 2004. See SDCL 62-7-12. Dr. David Sabow, a board certified neurologist, testified at the hearing as an expert witness for Ms. Tebben. Haugan Construction's expert was Dr. Khalafalla Bushara, a clinical neurologist who is on staff at the Minneapolis Veterans Administration Medical Center and an assistant professor of neurology at the University of Minnesota. He testified by deposition.

[¶ 8.] The medical experts for both parties agreed that the right vertebral artery was blocked at the section where the artery leaves the vertebra and enters the brain. However, the two experts disagreed on the cause of the blockage. Dr. Sabow believed that the blockage was caused by a "dissection of the vertebral artery with secondary stroke in the base of the brain."² According to Dr. Sabow, because Mr. Tebben suffered a hangman's fracture in 1984, he weakened or injured his vertebral artery.³ Then, he explained that "there was an accumulation of injury, especially with the heavy equipment operating and overhead work, and that eventuated in the more acute dissection[,] which then went on to be the cause of his death."⁴ Based on reasonable medical probability, Dr. Sabow opined that the cause of Mr. Tebben's death was a dissection of the vertebral artery.

[¶ 9.] Dr. Bushara, on the other hand, concluded that Mr. Tebben's death could not have been caused by a dissection of the vertebral artery. He based his conclusion on his belief "that objective radiological evidence of a dissection was specifically looked for and never found." According to Dr. Bushara, Dr. Koob and Dr. Crosby's medical reports did not include any specific findings from the MRA or MRI that indicated a dissection, only a suspicion of a dissection. Moreover, he asserted that it was highly uncommon for a hangman's fracture to result in a vertebral artery dissection nineteen years after the original injury. Rather, if such an injury were to cause a dissection, Dr. Bushara believed that it was more likely to occur within weeks of the original injury.⁵ Therefore, he concluded, based on a reasonable medical certainty, Mr. Tebben died from an embolization of a clot that traveled and occluded his right vertebral artery and caused a stroke. When asked where the emboli originated, he stated that it was not possible for him to identify an origin because the tests necessary for such determination were not ordered by the treating physician. However, he asserted that the origin was not determinative of his diagnosis or causation opinions.

[¶ 10.] The Department issued its decision on March 30, 2005. It found that because Dr. Koob, in his December 5, 2003 letter, merely opined that it was "possible" that Mr. Tebben's death was caused by his work activities, his opinion did not establish that Mr. Tebben's work activities were a major contributing cause of his death. Further, with respect to Dr. Sabow's opinion, the Department deemed it without foundation and inconclusive. According to the Department, "[a]t best, the medical opinions are not conclusive" on whether Mr. Tebben suffered a dissection of the vertebral artery, because Dr. Bushara testified that a dissection was specifically looked for but never found and Dr. Sabow opined that a dissection did in fact occur. Moreover, the Department found that the evidence was inconclusive on whether Mr. Tebben suffered arterial damage as a result of the 1984 accident and whether his work activities were a major contributing cause of his illness and death. Thus, the Department denied Ms. Tebben's claim, concluding that she failed to show by a preponderance of the evidence that there was a causal connection between Mr. Tebben's work and illness and his eventual death.

[¶ 11.] Ms. Tebben timely appealed the Department's decision. Before the hearing in circuit court, she moved under SDCL 1-26-34 to present additional testimony. At the hearing on this motion, Ms. Tebben argued that good cause existed to allow additional evidence in the form of Dr. Koob's opinion. According to Ms. Tebben, Dr. Koob's deposition could not be taken in advance of the Department's hearing because of his impending heart surgery. Dr. Koob was unable to testify live at the hearing because he was on a ventilator at that time. When asked why the hearing was not continued to allow Dr. Koob's deposition to be taken, Ms. Tebben's counsel noted that it was impossible at that time to predict when Dr. Koob would recover sufficiently to be available for a deposition due to his age and serious medical condition. In addition, counsel noted that Ms. Tebben wanted to complete the hearing as soon as possible as she was suffering serious financial difficulties from her own disability, which precluded her from working. She was also about to file for bankruptcy in order to save her family home. Ultimately, the circuit court denied Ms. Tebben's motion to present Dr. Koob's testimony.

[¶ 12.] Ms. Tebben also moved to present additional testimony from Dr. Crosby. At a second hearing, Ms. Tebben argued that the second page of Dr. Crosby's report indicated that a vertebral artery dissection had been found, and therefore, Dr. Bushara's testimony was clearly erroneous as it was based exclusively on Dr. Crosby not finding a dissection. Haugan Construction opposed the motion, arguing...