Vetter v. Town of Bison, 12377

• Decision Date: 26 April 1979
• Docket Number: No. 12377,12377
• Citation: 278 N.W.2d 202
• Parties: Laura VETTER, Claimant and Appellant, v. TOWN OF BISON and Sunshine Mutual Insurance Company, Defendants andRespondents.
• Court: South Dakota Supreme Court

Page 202

278 N.W.2d 202

Laura VETTER, Claimant and Appellant, v. TOWN OF BISON and Sunshine Mutual Insurance Company Defendants andRespondents.

No. 12377.

Supreme Court of South Dakota.

April 26, 1979.

David A. Gerdes, of May, Adam, Gerdes & Thompson, Pierre, for claimant and appellant.

Curtis D. Ireland, Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for defendants and respondents.

YOUNG, Circuit Judge.

This action originated before the South Dakota Division of Labor and Management Relations. The Deputy Director found in favor of defendants-respondents and his ruling was upheld by the Court of the Sixth Judicial Circuit on appeal.

The only issue on appeal is whether the Deputy Director's opinion is supported by substantial evidence on the whole record. It is the holding of this Court that there is not substantial evidence on the whole record to support the Deputy Director's findings of fact and conclusions of law.

In 1970, while Mrs. Vetter was employed by the Bison Food Store, she injured her right knee and underwent surgery on it in April of that year. Dr. H. L. Ahrlin performed that operation and in January of 1971, rated her as having a fifteen percent permanent partial disability. His report notes that the disability due to arthritis cannot be cured and "will get progressively worse." Overall, the operation was apparently quite successful. Mrs. Vetter testified that after a year-long recovery, she was able to work and dance and had no trouble with the knee.

Dr. Ahrlin's records show that in August 1975, Mrs. Vetter again visited his office. Her complaint was of pain in her right thigh between the knee and hip. Dr. Ahrlin could find no reason for the pain in her thigh. His report indicates that he told Mrs. Vetter at the time of the operation in 1970 that she might have further trouble and his diagnosis was "degenerative changes in the right knee." Dr. Ahrlin prescribed a medication and wanted to see her again in six weeks.

In 1975, Mrs. Vetter and her husband were under contract with the Town of Bison to manage the liquor store and bar. While so employed on October 21 of that year, Mrs. Vetter slipped and fell on the premises, injuring her right knee. Three days after this mishap she consulted Dr. Sailer who gave her cortisone shots and prescribed medication. In November of 1975, Mrs. Vetter again saw Dr. Ahrlin concerning the pain in her right knee. He noted further degenerative processes. His conclusion was that cortisone had failed her and that a total knee replacement was necessary. That operation was performed in December of 1975.

After the operation, Mrs. Vetter was unable to work for any period of time and up to and even after the time of hearing could not engage in activities which required her to be on her feet, including housework and waiting on customers. In his second deposition, Dr. Ahrlin indicated that Mrs. Vetter suffered an eighty-five percent disability of her leg.

The parties stipulated that the injury to Mrs. Vetter's knee was accidental and occurred in the course of employment. The question for the hearing examiner then was whether Mrs. Vetter had met her burden of proof that her fall aggravated her preexisting condition of degenerative arthritis and thus resulted in a compensable accident.

Citing Piper v. Neighborhood Youth Center, S.D., 241 N.W.2d 868 (1976), this Court in City of Brookings v. Department of Environmental Protection, S.D., 274 N.W.2d 887, 889 (1979), set out the scope of review of an administrative decision under the former working of the statute:

In reviewing an administrative decision, we must examine the record to determine whether the decision is supported by substantial evidence on the whole record. SDCL 1-26-36. In addition, we review in the same manner as the circuit court, unaided by any presumption of the correctness of the circuit court's determination.

The reviewing court must consider all the evidence in the record, not just that supporting the agency determination. The requirement that the reviewing court look at the whole record does not, however, allow the reviewing court to substitute its own judgment for that of the Deputy Director as to the weight of the evidence on questions of fact. City of Brookings,...