Vollmer v. Wal-Mart Store, Inc.

• Citation: 2007 SD 25,729 N.W.2d 377
• Decision Date: 07 March 2007
• Docket Number: No. 23948.,23948.
• Parties: Ginger VOLLMER, Appellant, v. WAL-MART STORE, INC. and National Union Fire Insurance of Pittsburgh, PA, Appellees.
• Court: Supreme Court of South Dakota

729 N.W.2d 377

2007 SD 25

Ginger VOLLMER, Appellant, v. WAL-MART STORE, INC. and National Union Fire Insurance of Pittsburgh, PA, Appellees.

No. 23948.

Supreme Court of South Dakota.

Considered on Briefs May 23, 2006.

Decided March 7, 2007.

Michael J. Simpson of Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys for appellant.

Comet H. Haraldson of Woods, Fuller, Shultz and Smith, Sioux Falls, South Dakota, Attorneys for appellee.

KONENKAMP, Justice.

[¶ 1.] Ginger Vollmer appeals the circuit court's decision affirming the ruling by the Department of Labor dismissing her workers' compensation claim. We reverse and remand.

I.

[¶ 2.] Ginger Vollmer, a pharmacy technician, began working at Wal-Mart in 1992. By all accounts, she was an excellent employee. She was injured at work on September 1, 1999, when she crouched down beside a compact refrigerator to put away a small package of insulin vials. As she held the refrigerator door with her right hand, she reached across her body with the package in her left hand. It weighed less than sixteen ounces. She later testified that at this point she experienced severe pain and could not move her head or left arm. A co-worker assisted her. She left work to see a massage therapist, whom she had been seeing for recurrent headaches. Migraine headaches had been a longstanding problem for her.

[¶ 3.] Two days later, Vollmer visited her regular physician, Dr. Richard Beasley, an internist. She had previously seen him in April and May 1999 for headaches, fatigue, and chest wall pain. On this occasion, Dr. Beasley found no objective explanation for her condition. Nonetheless, he took her off work until September 27, 1999. She then returned to work at Wal-Mart part-time, four to five hours a day. This schedule was not set by any of her treating physicians but was based on what she thought she could physically handle. In October, she developed a "popped out" rib that caused her significant pain, and she saw Dr. Blickensderfer, a chiropractor, for treatment.

[¶ 4.] During two visits with Dr. Beasley in October 1999, Vollmer indicated that she was improving. He expected her to be back to normal by November. In November, however, her condition had only worsened. Dr. Beasley sought a consultation with Dr. Lawlor, a physiatrist and rehabilitation specialist. Dr. Lawlor diagnosed Vollmer with thoracic outlet syndrome and cervical, mechanical, and myofascial pain.¹ Thoracic outlet compression syndrome is a "symptom complex characterized by brachial neuritis with or without vascular or vasomotor disturbance in the upper extremities." Taber's Cyclopedic Medical Dictionary, 1726 (15th ed 1985).

[¶ 5.] Beginning in December 1999, Vollmer saw Dr. Schabauer, a specialist in cardiology and vascular medicine. He found "no clear evidence of a vascular cause for her pain." He referred her to a pain clinic in Chicago where she stayed for a week. In a letter dated March 16, 2001, one of the physicians at the Chicago clinic wrote: "Our medical assessment is bilateral shoulder myofascial pain syndrome left side greater than right, left thoracic outlet syndrome secondary to poor posture and biomechanics." Vollmer later saw other physicians for shoulder and arm pain, which she continued to attribute to the Wal-Mart incident. During the course of her medical care over this extended period of time, Vollmer took physical therapy, massage therapy, chiropractic care, and medications to reduce her pain.

[¶ 6.] Vollmer suffered additional trauma not connected with her employment. Nine days after the injury at Wal-Mart, she was involved in a car accident that caused a neck injury. It was disputed whether her increase in pain was temporary or permanent.² The medical records indicated that the accident resulted in a cervical strain escalating her previous symptoms.³ There was also the "popped out rib" in October, mentioned earlier. On November 8, 2000, she was involved in another automobile accident. This one she characterized as a minor bump from behind.

[¶ 7.] In May 2001, Vollmer began experiencing symptoms from Guillian-Barré Syndrome (GBS). GBS is a rare nerve disorder that causes progressive muscle weakness that sometimes results in paralysis. Vollmer eventually lost all feeling and control of her muscles and was hospitalized for a week. As a result of her acute GBS, she was unable to work at all for six months. She later testified that her GBS symptoms improved for the most part although she still experienced some pain in her extremities. This is consistent with medical opinion that GBS usually affects nerves in the extremities more severely. An EMG taken before the onset of her GBS but after the Wal-Mart incident was found to be normal. Another one taken on June 19, 2001 yielded abnormal results. This latter EMG showed that nerve responses in Vollmer's arms were less than they should have been. Her medical records also noted ongoing residual pain from the GBS. According to her neurologist, Dr. Robert Finley, the normal course for GBS is to gradually improve over time until there are few, if any, symptoms remaining. He anticipated that Vollmer would follow a similar course. It is undisputed that the GBS was in no way related to the Wal-Mart incident.

[¶ 8.] Vollmer was discharged from Wal-Mart in March 2000. She had refused to sign a form placing her on an extended leave of absence. Thereafter, she obtained employment with Medicap Pharmacy where she continued to work four hour days. Vollmer testified that she enjoyed her work at Medicap and that they would accept her for more work hours. However, she felt that working more than four hours a day was too painful. After trying to work an extra hour one day, she had "raging" pain and could not continue. In explaining her daily routine, Vollmer testified that when she finishes work she runs errands, does household chores, and relaxes. Wal-Mart introduced a surveillance video showing Vollmer engaging in activities such as shopping, getting gas for her automobile, picking up her children, and other daily living tasks, all after her half-day at work.

[¶ 9.] Two of Vollmer's treating physicians testified that the incident at Wal-Mart was a major contributing cause of her current medical condition. On the other hand, Dr. Michael D. Smith, an independent medical examiner hired by the employer, testified that the incident at Wal-Mart was not a major contributing cause of her injuries. He found no reason she could not return to work full time. Dr. Smith believed that Vollmer suffered from chronic myofascial pain and her subsequent complaints were not consistent with a particular traumatic event like the Wal-Mart incident.

[¶ 10.] Vollmer's workers' compensation claim was initially accepted and benefits were paid. A dispute later arose concerning whether the continued treatments were causally related to the Wal-Mart incident. After a hearing, the Department ruled that Vollmer failed to prove a causal connection between her injury and her employment. When the case moved to circuit court, Judge A.P. Fuller ordered that the matter be remanded to the Department for further findings on (1) causation, (2) Vollmer's credibility, and, if necessary, (3) the nature and extent of her disability. Judge Fuller concluded that the Department's decision was erroneous because the Administrative Law Judge (ALJ) placed undue emphasis on Dr. Smith's independent medical examination and failed to make any determination on Vollmer's credibility. Judge Fuller labeled as "simplistic" Dr. Smith's axiom for analyzing causation of pain: "if you can't name it, you can't cut it." Relying on this axiom, the ALJ found lack of causation because there were no objective medical findings to support Vollmer's complaints and her condition could have been the result of her GBS or her automobile accidents.

[¶ 11.] On remand, the Department again ruled that the work related incident was not a major contributing cause of her current condition. The Department also determined that Vollmer was not a credible witness because of inconsistencies between her reported disabilities and her activities as seen in the surveillance videos. On the second appeal to circuit court, Judge James W. Anderson affirmed the Department. In her appeal to this Court, Vollmer contends that her work injury was a major contributing cause of her current condition, that she is permanently and totally disabled under the odd-lot doctrine, and that she is entitled to compensation for unpaid medical expenses.

II.

[¶ 12.] In workers' compensation cases, our standard of review is controlled by SDCL 1-26-37. Witness credibility is a question of fact. Kuhle v. Lecy Chiropractic, 2006 SD 16, ¶ 15, 711 N.W.2d 244, 247 (citing Enger v. FMC, 1997 SD 70, ¶ 10, 565 N.W.2d 79, 83) (quoting Tieszen v. John Morrell & Co., 528 N.W.2d 401, 403-04 (S.D.1995)). When an issue is a question of fact, then the clearly erroneous standard applies to the agency's findings. Id. We will reverse only when we are firmly convinced a mistake has been made. Id. (citing Gordon v. St. Mary's Healthcare Center, 2000 SD 130, ¶ 16, 617 N.W.2d 151, 157). Whether a claimant makes a prima facie case to establish odd-lot total disability inclusion is a question of fact. Lagge v. Corsica Co-op., 2004 SD 32, ¶ 14, 677 N.W.2d 569, 573 (citation omitted). All the medical testimony in this matter was provided by deposition. When an agency makes factual determinations on the basis of documentary evidence, such as depositions, the matter is reviewed de novo. Watertown Coop. Elevator Ass'n v. S.D. Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171 (citations omitted). Accordingly, we consider anew the medical evidence on causation.

III.

[¶ 13.] The primary question here is whether Vollmer's injury at Wal-Mart was a major contributing cause of her current condition. To prevail on a workers' compensation claim, a claimant must establish "a causal connection...