Wellman v. Schad Excavation, LLC, 25013.

CourtSupreme Court of South Dakota
Citation2009 SD 46,768 N.W.2d 149
Docket NumberNo. 25013.,25013.
PartiesLance WELLMAN, Claimant and Appellant, v. SCHAD EXCAVATION, LLC, Employer and Appellee, and General Casualty Co. of Wisconsin, Insurer and Appellee.
Decision Date17 June 2009

Frank Driscoll of Driscoll Law Office, P.C., Rapid City, South Dakota, Attorneys for appellant.

Michael S. McKnight, Charles A. Larson of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellees.

SEVERSON, Justice.

[¶ 1.] Lance Wellman appeals the denial of temporary partial disability benefits. We affirm.


[¶ 2.] Wellman suffered a compensable injury when he fractured his left fibula while working for Schad Excavation, LLC (Employer) on May 3, 2005. At the time, he was earning $15 per hour. Wellman received medical treatment from Dr. Stewart Fromm and was off work until May 23, 2005. Wellman's benefit rate was $400 per week, and he received temporary total disability (TTD) benefits from May 4, 2005 through May 31, 2005.

[¶ 3.] On May 23, 2005, Dr. Fromm released Wellman to return to work, with restrictions. Wellman returned on June 1, 2005, at the same hourly pay rate. Cody Schad, Wellman's supervisor, terminated Wellman's employment with Employer on June 20, 2005, due to attendance issues. Wellman testified that he left work early on several occasions between June 1 and June 20, 2005, because there was insufficient work, but always received permission from either Schad or the supervisor at the job site. Schad testified that Wellman never received his permission to leave work early, except on two occasions when Wellman's leg was bothering him. He further insisted there was full-time work available for Wellman, but Wellman chose to leave early. After being terminated, Wellman did not seek other employment or register with Job Services. He testified that he did not seek other employment because he was unable to perform manual labor. He did, however, complete three excavation jobs using his own track hoe, but testified that these jobs did not require manual labor.

[¶ 4.] On November 7, 2005, Wellman was examined by Dr. Cederberg, who assessed Wellman at maximum medical improvement and having a permanent partial impairment. General Casualty (Insurer) subsequently paid Wellman his permanent partial disability (PPD) benefit. Wellman's eligibility for temporary partial disability (TPD) ended on that date.

[¶ 5.] Wellman brought a claim against Employer and Insurer for TPD benefits. He acknowledged that all TTD and PPD benefits had been paid, but maintained he was entitled to TPD from the time he returned to work for Employer on June 1, 2005, until he received his impairment rating on November 7, 2005. His claim amounted to approximately $7,500, plus prejudgment interest, and was based upon the difference between the statutory floor of his compensation rate of $400 per week and his actual earnings during that time.

[¶ 6.] A hearing was conducted on November 28, 2006, by the South Dakota Department of Labor, Division of Labor and Management (Department). The Department found Schad to be a credible witness, while rejecting much of Wellman's testimony.1 The Department found that Wellman earned his pre-injury wage per hour between June 1 and June 20, 2005. It further found that Wellman was "able to earn" an income between June 20, 2005 and November 7, 2005, but chose not to even though suitable work was available. Therefore, the Department ruled that Wellman was not entitled to TPD benefits.

[¶ 7.] Wellman appealed to the circuit court. The circuit court affirmed the Department's decision, concluding that Wellman refused suitable employment and failed to meet his burden of proving either that his termination of employment or inability to find subsequent employment was caused by the compensable injury. Wellman appeals to this Court, raising two issues, which we restate as follows:

Whether Wellman was entitled to temporary partial disability benefits even though he was terminated for cause and did not seek other employment.


[¶ 8.] The standard of review in administrative appeals is governed by SDCL 1-26-36. An administrative agency's conclusions of law are reviewed de novo, while questions of fact are reviewed under the clearly erroneous standard. Clausen v. N. Plains Recycling, 2003 SD 63, ¶ 7, 663 N.W.2d 685, 687 (citations omitted).

[¶ 9.] Whether Wellman was entitled to temporary partial disability benefits even though he was terminated for cause and did not seek other employment.

[¶ 10.] There is no dispute that Wellman suffered a compensable injury in the course of his employment with Employer. In addition, there is no dispute Wellman was paid TTD and PPD benefits. The only dispute is whether Wellman is due TPD benefits under the facts of this case. Wellman contends that SDCL 62-4-5 does not permit a denial of TPD benefits simply because he was terminated for cause. Moreover, he submits that his lack of income between his termination and receipt of his impairment rate justifies a benefit award. Employer maintains that Wellman's loss of income stems from his misconduct, not his injury; therefore, it was appropriate to deny TPD benefits to Wellman. Whether a claimant is entitled to temporary partial disability benefits even though he was terminated for cause and did not seek other employment is an issue of first impression in South Dakota.

[¶ 11.] "The purpose of workers' compensation is to provide for employees who have lost their ability to earn because of an employment-related accident, casualty, or disease." Dudley v. Huizenga, 2003 SD 84, ¶ 11, 667 N.W.2d 644, 648 (citations omitted). TPD benefits in South Dakota are governed by SDCL 62-4-5 (compensation for partial disability), which provides:

If, after an injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing the employee's usual and customary line of employment, or if the employee has been released by the employee's physician from temporary total disability and has not been given a rating to which § 62-4-6 would apply, the employee shall receive compensation, subject to the limitations as to maximum amounts fixed in § 62-4-3, equal to one-half of the difference between the average amount which the employee earned before the accident, and the average amount which the employee is earning or is able to earn in some suitable employment or business after the accident. If the employee has not received a bona fide job offer that the employee is physically capable of performing, compensation shall be at the rate provided by § 62-4-3. However, in no event may the total calculation be less than the amount the claimant was receiving for temporary total disability, unless the claimant refuses suitable employment.

By its very nature, this statute carries at least two logical implications: first, that the claimant realized a loss of income or earning ability after suffering a compensable injury; and second, the loss of income or earning ability was attributable to the compensable injury.

[¶ 12.] Wellman was hired by Employer at a pay rate of $15 per hour. In the course of employment, Wellman suffered a compensable injury and was unable to work. During this time, he received $400 per week for TTD. Three weeks later, Dr. Fromm approved Wellman to return to work, but with restrictions. Employer provided work for Wellman within his restrictions and continued to pay him $15 per hour, the same rate of pay he was receiving prior to the injury. Thereafter, Wellman was terminated for violating the employee absentee policy. In denying TPD benefits, the Department reasoned: "From and after June 1, 2005 [the date Wellman returned to work], Employer had suitable work available for Claimant, as evidenced by the wages Claimant admits he earned. Claimant was able to earn his preinjury wage per hour. If he put forth the effort, he could have earned his preinjury wage."

[¶ 13.] Professor Larson's treatise on workers' compensation provides: "If the record shows no more than that the employee, having resumed regular employment after the injury, was fired for misconduct, ... with the impairment playing no part in the discharge, it will not support a finding of compensable disability." 4 A. Larson, Workers' Compensation Law § 84.04[1] (2007). Here, Wellman's loss of income was not due to his injury, but rather due to his misconduct-he failed to show up to work or left work early without permission on several occasions during a short period of time. See Beckman v. John Morrell & Co., 462 N.W.2d 505, 509-10 (S.D.1990) (affirming the denial of claimant's request for TTD benefits because the claimant's "strike participation, rather than a medical problem, precluded him from being offered light duty or favored work"). Furthermore, Wellman's return to work for Employer after the injury supports the determination that he maintained his ability to earn an income, and would have maintained the same income had he worked the requisite hours and not violated the attendance policy. However, the analysis does not end there.

[¶ 14.] Professor Larson continues, "But if to this record there is added evidence that the claimant has been hampered by the impairment in obtaining or holding other employment, the question is not quite so one-sided." Larson, supra, at § 84.04[1]. In some jurisdictions, compensation is denied based solely on the termination for cause, while in others it is allowed upon evidence of a diminution in earning power attributable to the work injury. See generally id. at § 84.04[1] nn. 1, 2 and accompanying text.

[¶ 15.] The North Dakota Supreme Court was presented with facts similar to this case in Wendt v. ND Workers Compensation Bureau, 467 N.W.2d 720 (ND 1991). The claimant suffered a work-related injury, but was allowed to return to work, with restrictions. Id. at 721-22. Employer...

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