Wise v. Brooks Const. Services

Decision Date23 August 2006
Docket NumberNo. 23938.,No. 23943.,23938.,23943.
Citation721 N.W.2d 461,2006 SD 80
PartiesDanny D. WISE, Claimant, Appellee, Cross-Appellant and Appellant, v. BROOKS CONSTRUCTION SERVICES and Acuity, A Mutual Insurance Company, Employer, Insurer, Appellants, Cross-Appellees and Appellees.
CourtSouth Dakota Supreme Court

Bram Weidenaar of Hoy Trial Lawyers, Sioux Falls, South Dakota, Attorney for claimant, appellee, cross-appellant and appellant.

J.G. Shultz, Jennifer L. Wollman of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for employer, insurer, appellants, cross-appellees and appellees.


[¶ 1.] Danny Wise appeals a circuit court decision affirming the South Dakota Department of Labor's (Department) determination denying permanent and total disability benefits pursuant to the odd-lot doctrine. Brooks Construction Services and Acuity Insurance Company (collectively referred to as Employer) appeal the circuit court's decision affirming the Department's determination that Wise proved that his December 5, 2001, injury was a major contributing cause of his need for treatment and surgery to his lumbar spine and that any recovered medical expenses could be paid through Wise's counsel. We affirm.


[¶ 2.] Shortly after graduating from high school in 1974, Wise began working for Employer as a concrete laborer and foreman and remained with the company for the next twenty-seven years. Over the course of his employment, Wise suffered several work-related injuries, including three separate injuries to his back, a knee injury and a neck injury. Wise sought treatment for these injuries from Dr. David Hoversten, an orthopedic surgeon. Dr. Hoversten performed surgery on Wise's back in 1990, 1995, and 1998, including a fusion at the L5-S1 level.

[¶ 3.] This appeal involves two separate injuries Wise suffered in 2001. The first injury occurred on July 5, 2001, when Wise was struck in the head by a fifty-five gallon drum of cement cure. The blow knocked him unconscious, but he was able to finish out the work day. A co-worker drove him home and his wife took him to the emergency room that evening. Wise continued to have pain in his neck and sought treatment from Dr. Fahrendorf, a chiropractor, from July 11, 2001 to December 10, 2001. Wise then sought treatment from Dr. Hoversten who in turn referred Wise to Dr. Wilson Asfora, a neurologist. On May 9, 2002, Dr. Asfora performed an inferior cervical diskectomy with cord decompression followed by a fusion at the C5-6. Dr. Asfora released Wise from active treatment on January 14, 2003. Upon his release, Wise was assigned a fifteen percent permanent partial disability rating by Dr. John Dowdle. Employer paid permanent partial disability benefits for this injury.

[¶ 4.] Subsequent to the July injury, Wise returned to work for Employer and was injured the second time on December 5, 2001, when he slipped on a muddy ramp at the job site, hyper-extending his back. Due to the injury, Wise left the job site without notifying his superiors. The next day, Wise was terminated from his employment for leaving the work site without notifying his superiors. Also that day, Wise completed the South Dakota Employers First Report of Injury.

[¶ 5.] Wise sought treatment from Dr. Hoversten who, after examining him, determined that Wise had sustained an acute back strain with sciatica probably without disk rupture. Although Wise was unemployed, Dr. Hoversten advised him not to engage in any work-related activities for one week. Wise returned to Dr. Hoversten on December 20, 2001, still in pain. Dr. Hoversten noted that there was an appearance of significant disk strain and ordered an MRI. Dr. Hoversten again advised him not to engage in any work-related activities for an additional two weeks. Wise's condition did not improve. Dr. Hoversten saw Wise again on January 3, 2002. Based on the MRI results, Dr. Hoversten noted a right-sided disk bulge with mild pressure on the nerve root to the right at the L3-4 level. He recommended a decompressive laminectomy at the L3-4 level.

[¶ 6.] Initially, Dr. Hoversten thought that the need for treatment and surgery at the L3-4 level was not caused by Wise's work-related injury. His opinion was that the slip in the mud and back hyper-extension was not a major contributing cause of the need for surgery. Dr. Hoversten believed the major cause was chronic degeneration with stenosis at the L3-4 level. Based on Dr. Hoversten's opinion, Employer denied Wise's claim for workers' compensation benefits on January 24, 2002.

[¶ 7.] Subsequently, Dr. Hoversten changed his opinion as to what caused the need for Wise's surgery. While performing a decompressive laminectomy at the L3-4 level on September 22, 2002, Dr. Hoversten discovered a fracture of the inferior facet on the left at the L3-4 level. After making this discovery, Dr. Hoversten no longer believed that the problems Wise was experiencing were degenerative in nature. He, instead, acknowledged that the slip and hyper-extension on December 5, 2001, was the mechanism of injury leading to the need for the surgery. He noted that "this stenosis was not the typical old-age stenosis but is an injury stenosis due to the facet fracture, and for that reason work comp should be responsible for that coverage."

[¶ 8.] Although Wise was released from care and allowed to return to work in November 2002, he continued to experience neck pain. He again saw Dr. Asfora who prescribed physical therapy which Wise completed in February 2003. In March 2003, Dr. Hoversten concluded that Wise had reached maximum medical improvement. Wise has not sought or received any medical treatment for his neck or back since March 2003.

[¶ 9.] After his termination from Employer and since his recovery, Wise attempted to obtain suitable employment. Wise was employed by Jans Corporation as a construction worker for three days in August 2002. Wise left this employment as the work was outside his physical restrictions. Wise was then employed by Jay McDonald Construction for six weeks as a cut man f. or a siding crew. After the siding jobs were completed, the crew went on to framing jobs. Wise was forced to quit as the work again fell outside of his physical restrictions.

[¶ 10.] In April 2003, Wise undertook a more extensive employment search by looking at the classifieds in the paper, contacting people he knew in the industry and contacting the Career Service Center. Wise also contacted the South Dakota Division of Vocational Rehabilitation. He was referred to the Volunteers of America program for a functional capacities evaluation (FCE). The FCE showed that Wise was capable of performing light to medium level work. He could work an eight hour day. He could sit for four hours at forty-five minute durations, stand for six hours at sixty minute durations, and walk six hours frequently. The FCE indicated that occasionally Wise could lift 30.2 pounds above his shoulders, 30.2 pounds off the floor, carry 32 pounds and push/pull 56.3 pounds.

[¶ 11.] Wise next obtained employment with Austad's Golf in April 2004. While the job was described as temporary, Wise had been employed for nineteen weeks at the time of the hearing. Wise worked as an order packer twenty-two to twenty-five hours a week and was paid $7.00 an hour. This wage was less than his workers' compensation rate of $468 per week.

[¶ 12.] Wise filed for workers' compensation benefits and a hearing was held on August 12, 2004. The only medical evidence provided was Wise's medical records and the deposition testimony of Dr. Hoversten. Both sides presented expert testimony relating to Wise's ability to find comparable work in the Sioux Falls area and his ability to benefit from vocational retraining. Wise's expert, Thomas Audet, testified that Wise was physically able to perform light duty work, the occupations identified as being suitable for Wise would pay less than his temporary total disability rate and that Wise's academic aptitude and orientation would preclude him from competing in any sort of vocational rehabilitation program. Overall, Audet was of the opinion that Wise was permanently and totally disabled pursuant to the odd-lot doctrine.

[¶ 13.] Employer's expert, Thomas Karrow, disagreed. Karrow identified several potential employers in Sioux Falls that may have positions that were the same or similar to Wise's job with Employer. He further testified that Wise would benefit from vocational rehabilitation programs and specifically identified programs at Southeastern Technical Institute (STI) that he believed were appropriate for Wise.

[¶ 14.] After having heard and considered the testimony of the witnesses and the exhibits and evidence presented by the parties, the Department deemed the lower back injury sustained by Wise on December 5, 2001, to be compensable and ordered that Employer pay Wise's medical expenses directly to counsel for Wise. Further, the Department found that Wise had not shown that he was unemployable and denied Wise's permanent and total disability benefits pursuant to the odd-lot doctrine.

[¶ 15.] Employer appealed the Department's decision that Wise's injury on December 5, 2001, was a major contributing cause for his need of treatment and surgery. Employer further appealed the Department's decision that Wise's medical expenses be paid through his counsel's office. Wise filed a cross-appeal, claiming the Department erred in denying permanent and total disability benefits pursuant to the odd-lot doctrine. The circuit court affirmed the Department's decision in all respects. Wise filed this appeal raising one issue:

Whether the circuit court erred as a matter of law in affirming the Department's denial of permanent and total disability benefits pursuant to the odd-lot doctrine.

Employer filed a notice of review raising two issues:

1. Whether...

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