Tiensvold v. Universal Transport, Inc.

• Decision Date: 20 September 1990
• Docket Number: 17031,Nos. 17030,s. 17030
• Parties: Norris TIENSVOLD, Claimant/Appellant, v. UNIVERSAL TRANSPORT, INC., Employer/Appellee, and Maryland Casualty Company, Insurer/Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 820

464 N.W.2d 820

Norris TIENSVOLD, Claimant/Appellant, v. UNIVERSAL TRANSPORT, INC., Employer/Appellee, and Maryland Casualty Company, Insurer/Appellee.

Nos. 17030, 17031.

Supreme Court of South Dakota.

Considered on Briefs Sept. 20, 1990.

Decided Jan. 2, 1991.

Mitchell C. LaFleur, LaFleur, LaFleur & LaFleur, Rapid City, for claimant/appellant.

Franklin J. Wallahan, Wallahan & Eicher, Rapid City, for employer and insurer/appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

This case was heard before the Department of Labor on January 16, 1987. Norris Tiensvold (Tiensvold) sought a determination of permanent total disability after suffering injury in the course of his employment. The Department of Labor determined that Tiensvold would be allowed a permanent partial disability benefit of 20% of the right arm, but was denied permanent total disability benefits. Tiensvold subsequently petitioned for review of that decision on October 20, 1987, but was denied by the Secretary of Labor.

On November 18, 1987, Tiensvold appealed this decision to the circuit court and thereafter filed an application to present additional evidence, which was granted. Following a hearing held May 27, 1988, the Department of Labor entered a Modified Order and Modified Findings of Fact and Conclusions of Law finding Tiensvold to be permanently and totally disabled. Tiensvold's employer, Universal Transport, Inc. (UTI), and its Insurer, Maryland Casualty Company filed a petition for review by the Department of Labor. This was denied on May 29, 1989. Subsequently, Universal and Casualty appealed this decision to the circuit court.

On January 25, 1990, an Order was entered by the circuit court reversing the Modified Order finding Tiensvold to be permanently and totally disabled. On appeal, Tiensvold argues that:

(1) the Department of Labor's finding that Tiensvold was permanently and totally disabled was not clearly erroneous.

By Notice of Review, UTI argues that it is entitled to reimbursement of $529.29, which constitutes the full amount of temporary total disability benefits overpaid to Tiensvold.

We affirm the trial court, agreeing that the Department of Labor's finding of Tiensvold to be permanently and totally disabled was clearly erroneous.

FACTS

Tiensvold was employed by UTI as a truck driver. On December 28, 1984, during the course and scope of his employment, Tiensvold collided with a train and suffered various injuries. Based upon Tiensvold's earning record, he qualified for $247.00 per week in worker's compensation benefits.

Following the accident, Dr. William Janss treated Tiensvold, who complained of pain in the upper back, neck and shoulder area, with weakness and soreness across his shoulders. He had no fractures, dislocations or other abnormalities. Over a period of years Tiensvold was examined by Dr. Edward James, Dr. Dale Berkebile, a physical therapist, Dr. David Sabow, Dr. Timothy Gill, and the Mayo Clinic. A CAT scan revealed no organic abnormality. The doctors at the Mayo Clinic concluded Tiensvold suffered from a probable "frozen" shoulder, but he had no neurological problems.

Dr. Berkebile examined Tiensvold on January 14, 1986. He found that Tiensvold had a full range of motion in his neck and shoulder, but suffered a painful arc when abducting his arm between 90 and 120 degrees. Dr. Berkebile noted some atrophy in the right anterior deltoid muscle. He performed exploratory surgery on June 16, 1986, which left Tiensvold's complaints unresolved. Dr. Berkebile noted that he "still had a full range of motion in his shoulder, no evidence of weakness, and pain still in the same arc of 90 degrees to 120." When Dr. Berkebile last saw Tiensvold on July 22, 1986, he was still complaining of pain in his shoulder. Dr. Berkebile assigned a permanency rating of 20% of the right arm. He later testified that Tiensvold should not return to his usual employment as an over-the-road trucker. He suggested vocational rehabilitation and that Tiensvold try other work on a "trial and error" basis.

At the time of the first hearing Tiensvold was 55 years old. His employment history consisted entirely of unskilled or semi-skilled jobs, including a farm and ranch laborer, repairman, factory worker, gas station attendant, mail carrier, and trucker.

Otto Kaul, Tiensvold's expert witness, testified that because of Tiensvold's age and eighth grade education, retraining was not realistic. Considering his age, education, medical information and experience Kaul felt Tiensvold was totally disabled from obtaining any substantial employment in the Black Hills labor market. The hearing examiner, Michael Hanlon, concluded that Tiensvold had not made reasonable efforts to find work and thus he failed to make a prima facie case for odd-lot permanent total disability.

On appeal to the circuit court Tiensvold sought a remand to the Department to present additional evidence, namely: Tiensvold's aptitude test results in order to establish a further factual basis for Kaul's opinion. The court granted the request pursuant to SDCL 1-26-34.

At the second hearing before a different hearing examiner, Debra Norberg, Kaul testified that the test results supported his original opinion. Employer-Insurer objected to Kaul's testimony, interpreting the court's remand order as allowing only the raw test results to be offered. Ms. Norberg overruled the objection. Ms. Norberg thereafter concluded that Tiensvold was indeed totally and permanently disabled under the odd-lot doctrine. The circuit court disagreed, reversing the Department of Labor.

DECISION

The Department of Labor's finding that Tiensvold was permanently and totally disabled was clearly erroneous.

At the outset, it should be noted that our standard of review for administrative decisions is quite well established. This Court will overrule a decision only when the agency's factual determinations are "clearly erroneous." However, an agency's legal conclusions are freely reviewable. Permann v. Department of Labor, 411 N.W.2d 113 (S.D.1987).

Tiensvold claims that the Department of Labor's decision that he was permanently and totally disabled was not clearly erroneous. He argues that a prima facie case for "odd-lot" benefits was established.

We have stated that:

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 (S.D.1989); Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988) (quoting Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 133-134 (1967)). Under this "odd-lot" test, the claimant has the burden to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in an odd-lot category. SDCL Sec. 62-8-1(4); 62-8-2; Kraft v. Kohlberg Mfg. Co., 88 S.D. 140, 215 N.W.2d 844 (1974). The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant. Wendel, supra. However, the burden only shifts when a worker makes a prima facie case of total disability by producing substantial evidence that the claimant is not employable in the competitive market.

In Guyton v. Irving Jensen Co., 373 N.W.2d 101, 105 (Iowa 1985), the Iowa Supreme Court adopted the following from 2A Larsen, The Law of [Worker's] Compensation, section 57.51 at 10-164.95 to 10-164.113:

A suggested general-purpose principle on burden of proof in this line of cases would run as follows: If the evidence of degree of obvious physical impairment coupled with other facts such as claimant's mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant.

Id.

The Iowa Supreme Court further stated: "It is triggered only when the worker makes a prima facie case for inclusion in the odd-lot category." 373 N.W.2d at 105.

It is normally incumbent upon an injured [worker], at a hearing to determine loss of earning capacity to demonstrate a reasonable effort to secure employment in the area of ... residence. Where testimony discloses that a reasonable effort was made, the burden of going forward with evidence to show the availability of suitable employment is on the employer and carrier.

Id. (Citation omitted).

The circuit court quoted Valley Mould & Iron Co. v. Industrial Commission, 84 Ill.2d 538, 50 Ill.Dec. 710, 419 N.E.2d 1159 (1981) as authority of that which a claimant must show to meet his burden of proving inclusion in the odd-lot category:

This burden may be met by a showing of diligent but unsuccessful attempts to find work (A.M.T.C. of Illinois, Inc. v. Industrial Commission, 397 N.E.2d 804 (Ill.1979), 77 Ill.2d 482, 490, 34 Ill.Dec. 132, 397 N.E.2d 984), or by proof that because of the above mentioned qualities he is unfit to perform any but the most menial tasks for which no stable market exists (Sterling Steel Casting Co., v. Industrial Com., (1979), 74 Ill.2d 273, 278, 24 Ill.Dec. 168, 384 N.E.2d 1326; Interlake Steel Corp. v. Industrial Com. (1975), 60 Ill.2d 255, 259, 326 N.E.2d 744).

Initially, it should be pointed out that, if Tiensvold is "obviously unemployable," he does not have to prove he sought work. The question then becomes was Tiensvold "obviously unemployable." The circuit court thought not, and we agree. Its finding that Tiensvold was not permanently disabled and capable of returning to gainful employment was based on the assessment of medical evidence. No physician placed physical restraints on Tiensvold's activities. Dr. Berkebile was the only medical doctor to offer testimony and he testified that Tiensvold should not return...