Wagaman v. Sioux Falls Const.

• Decision Date: 18 March 1998
• Docket Number: Nos. 20078,20082,s. 20078
• Citation: 576 N.W.2d 237,1998 SD 27
• Parties: Michael WAGAMAN, Claimant and Appellant, v. SIOUX FALLS CONSTRUCTION, Employer and Appellee, and Liberty Mutual Insurance Group, Insurer and Appellee.
• Court: South Dakota Supreme Court

Page 237

576 N.W.2d 237

1998 SD 27

Michael WAGAMAN, Claimant and Appellant, v. SIOUX FALLS CONSTRUCTION, Employer and Appellee and Liberty Mutual Insurance Group, Insurer and Appellee.

Nos. 20078, 20082.

Supreme Court of South Dakota.

Argued Jan. 15, 1998.

Decided March 18, 1998.

Michael Abourezk and Alicia D. Garcia of Abourezk Law Office, Rapid City, for claimant and appellant.

Timothy M. Gebhart, Mark W. Haigh, and Susan Jansa Brunick of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for employer, insurer, and appellees.

MILLER, Chief Justice.

¶1 Michael Wagaman appeals the circuit court's affirmance of the Department of Labor's decision denying him workers' compensation benefits. Sioux Falls Construction and its insurer, Liberty Mutual Insurance Group (hereinafter referred to individually or collectively as Employer), appeal the finding by Department that Wagaman's injury was work related. We affirm.

FACTS

¶2 Wagaman was employed as a heavy laborer and driver by Sioux Falls Construction. He suffered an injury to his right shoulder on June 15, 1992, when he fell off a truck he was washing. He went to his supervisor nine days after the accident and was then sent to Central Plains Clinic. He was diagnosed as having a "winged scapula." ¹ He continued to work until June 30, 1992, when he was taken off of work by a doctor.

¶3 Wagaman claimed he had pain in his shoulder and stayed off of work from June 30 until September 30, 1992. Dr. Entwistle saw him in August, 1992 and also diagnosed him as having a winged scapula. He took Wagaman off of work for a month and arranged for a work-hardening program at Sioux Valley Hospital. Wagaman began that program on September 28, 1992, but was released to return to work after two days because he claimed he was asymptomatic.

¶4 Wagaman returned to his old job, but was laid off on November 4, 1992, because of a lack of work. About four weeks later, he went hunting. He subsequently started feeling pain again and went back to see Dr. Entwistle on November 30, 1992. Dr. Entwistle noted that although there may be some winging, it was not a natural progression of the original injury and, therefore, something else must have aggravated it. Wagaman returned to Dr. Entwistle on December 10, 1992, at which time an EMG was performed, the results of which were normal.

¶5 Dr. Entwistle next saw Wagaman on January 13, 1993, and placed him in another work-hardening program. A functional capacities assessment (FCA) was also performed as part of that program. It was determined by the FCA that Wagaman was capable of earning a living with sustained gainful employment. He was released to work again on January 21, 1993.

¶6 Wagaman saw Dr. Entwistle on several occasions until April 26, 1993. He planned on returning to work with Sioux Falls Construction on May 2, 1993, but they would not take him back because of earlier problems he had with a foreman. He returned to Dr. Entwistle for the last time on May 5, 1993. Dr. Entwistle said the winged scapula was not really an issue; the real issue was whether there was nerve damage. He noted no nerve damage at that time.

¶7 Wagaman began seeing Dr. Cho on June 15, 1993. Dr. Cho diagnosed a long thoracic nerve lesion and sent him to a work-hardening program at McKennan Hospital. He was later released from the program because he was not making any progress, was noncompliant, and was not following recommendations. In August of 1993, another FCA was performed on Wagaman which placed him in the sedentary work range.

¶8 In November of 1994, Dr. Robert Suga, an orthopedic surgeon, performed an independent medical examination on Wagaman. Dr. Suga opined that Wagaman's current condition was not related to his work injury, but was rather the result of degenerative changes in his spine.

¶9 Wagaman next saw Dr. Bean, a psychiatrist, who diagnosed him with a probable psychological somatoform disorder. ² Dr. Bean speculated that the hunting incident may have triggered the somatoform disorder, however, he also opined that Wagaman was still employable despite his physical and psychological conditions.

¶10 Wagaman sought either total disability benefits under the odd-lot doctrine, or loss of use benefits under our decision in Cozine v. Midwest Coast Transport, Inc., 454 N.W.2d 548 (S.D.1990). Department found that Wagaman's present condition is causally related to his work injury, but denied him benefits because he was employable. The circuit court affirmed.

¶11 Wagaman appeals, claiming:

I. Department erred in determining Wagaman was not permanently and totally disabled.

II. Department erred in determining Wagaman was not entitled to Cozine benefits.

By notice of review, Employer appeals, claiming:

Department erred in determining that Wagaman's condition is causally related to his work injury.

STANDARD OF REVIEW

¶12 Our standard of review in workers' compensation cases requires us to give great weight to the findings and inferences made by Department on factual questions. Sopko v. C & R Transfer Co., Inc., 1998 SD 8, p 6, 575 N.W.2d 225 (citing Helms v. Lynn's, Inc., 1996 SD 8, pp 9-10, 542 N.W.2d 764, 766; Finck v. Northwest Sch. Dist. No. 52-3, 417 N.W.2d 875, 878 (S.D.1988)). Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency's findings; however, when the issue is a question of law, the actions of the agency are fully reviewable. Loewen v. Hyman Freightways, Inc., 1997 SD 2, p 6, 557 N.W.2d 764, 766 (citing Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992); Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991)). When reviewing agency findings, we will reverse only if, after careful review of the entire record, we are definitely and firmly convinced a mistake has been made. Sopko, 1998 SD 8, p 6, 575 N.W.2d at 228 (citing Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)) (other citations omitted). We review findings based on deposition testimony and documentary evidence under a de novo standard of review. Hanten v. Palace Builders, Inc., 1997 SD 3, p 8, 558 N.W.2d 76, 78 (citing Caldwell, 489 N.W.2d at 357).

DECISION

¶13 I. Whether Department erred in determining that Wagaman's present condition is causally related to his work injury.

¶14 We will consider Employer's notice of review issue first because, if it is determined that there is no causal relationship between Wagaman's condition and the work injury, then further analysis is unnecessary.

¶15 Before Wagaman can collect workers' compensation benefits he must establish a causal connection between his injury and his employment. Caldwell, 489 N.W.2d at 357. It is not necessary to prove his employment was the proximate, direct, or sole cause of his injury, but only that it was a contributing factor to the injury. Id. at 358 (citing Sudrla v. Commercial Asphalt & Materials, 465 N.W.2d 620, 621 (S.D.1991)) (other citations omitted); see also Tischler v. United Parcel Serv., 1996 SD 98, p 27, 552 N.W.2d 597, 602. "Issues of causation in workers' compensation cases are factual issues that are best determined by the Department." Therkildsen v. Fisher Beverage, 1996 SD 39, p 8, 545 N.W.2d 834, 836 (citations & internal quotations omitted).

¶16 Employer argues Department incorrectly determined that Wagaman's condition is causally related to his work injury. Department relied on the opinion of Dr. Cho to make a finding as to causation. Employer claims that Dr. Cho's opinion must be discounted for three reasons. First, Dr. Cho stated Wagaman had a long thoracic nerve injury and a resultant winged scapula. Employer claims that the reports of Drs. Entwistle and Suga show there was no evidence of a winged scapula in 1993 or 1994, and that Wagaman was fully recovered from any nerve injury. Second, it is claimed that Dr. Cho's opinion should be discounted because it is inconsistent with the EMG nerve conduction studies performed on Wagaman. Third, there is evidence that Wagaman's complaints of pain are consistent with a degenerative cervical problem as diagnosed by Dr. Suga.

¶17 Department relied on Dr. Cho's opinion because she was involved with Wagaman early in his therapy and was also the last physician to examine him in 1995. Dr. Cho noted a long thoracic nerve injury and winged scapula. She also stated that it was possible that the EMG would not show the injury and that other EMG's should have been performed.

¶18 Because the issue of causation in this case is not clear, the testimony of a medical expert is necessary. Howe v. Farmers Coop. Creamery, 81 S.D. 207, 212, 132 N.W.2d 844, 846 (1965); see also Hanten, 1997 SD 3, p 10, 558 N.W.2d at 78. When presented with medical expert testimony, Department is "free to accept all of, part of, or none of, an expert's opinion." Hanson v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D.1988) (citations omitted). There was testimony from Dr. Cho that Wagaman's condition is work related. Department could rely on Dr. Cho's opinion, even though there was contradictory testimony. Therefore, Department's findings on this issue were not clearly erroneous, and we affirm.

¶19 II. Whether Department erred in determining Wagaman was not permanently and totally disabled.

¶20 Wagaman asserts that he is entitled to permanent and total disability benefits under the odd-lot doctrine and Department erred in deciding otherwise. We disagree.

¶21 The following test is applied to determine if a claimant is qualified for permanent total odd-lot disability: "[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 insubstantial income." Shepherd v. Moorman Mfg., 467 N.W.2d 916, 918 (S.D.1991) (citations & internal quotations omitted); Bonnett v. Custer Lumber Corp., 528 N.W.2d 393, 395 (S.D.1995). The burden is...