984 N.W.2d 127
S.D.2022Background
- Destiny Schoon injured her right shoulder/neck on May 7, 2015, while mounting a shelf for News America Marketing; she later developed radicular symptoms and a C5-6 herniation on 2015 MRI.
- Schoon had multiple prior neck/shoulder injuries (MVA’s in 2001/2003, slip-and-fall in 2004) and a 2009 cervical MRI showing minimal displacement at C5-6, but reported substantial symptom relief after 2009 facet injections and remained largely active until 2015.
- Treating physicians (Drs. Lawlor, Wilson, Dietrich) testified/tendered opinions that the 2015 work event exacerbated preexisting cervical pathology and made surgery/treatment necessary; Dr. Wilson recommended disc replacement and surgery was performed.
- Employer/Insurer retained non‑treating expert Dr. Nipper (IME) who opined the C5-6 herniation was preexisting and unrelated; Employer/Insurer denied ongoing benefits and surgery payment.
- The Department of Labor awarded permanent partial disability, medical expenses, prejudgment interest, and future treatment; the circuit court affirmed, and Employer/Insurer appealed raising three issues about causation, expert foundation, and relative persuasiveness of medical opinions.
Issues
| Issue | Plaintiff's Argument (Schoon) | Defendant's Argument (Employer/Insurer) | Held |
|---|---|---|---|
| Whether 2015 work injury was and remains a "major contributing cause" of impairment and need for treatment | 2015 event objectively worsened C5-6 versus 2009 MRI and materially caused symptoms and need for surgery | Schoon’s preexisting conditions were longstanding and the 2015 event was merely a tipping point or unrelated to the herniation | Affirmed: Department’s factual findings not clearly erroneous — 2015 injury was a major contributing cause |
| Whether Dr. Dietrich’s opinions should be stricken for inadequate foundation | Treating physician relied on records and personal treatment; admissible under Rule 702/Burley | Opinion unreliable because he relied on counsel’s summary rather than every record | Affirmed: Objections preserved and overruled; admission not an abuse of discretion — objections go to weight, not admissibility |
| Whether treating physicians’ opinions were less persuasive than IME (Dr. Nipper) | Treating physicians’ opinions consistent with objective MRI change and claimant’s testimony; more persuasive | IME more exhaustive and concluded herniation preexisted and was not caused by work | Affirmed: Department reasonably found treating doctors more persuasive given chronology, objective MRI change, and credibility findings |
Key Cases Cited
- Hughes v. Dakota Mill & Grain, Inc., 2021 S.D. 31, 959 N.W.2d 903 (standard of review for Department decisions)
- Armstrong v. Longview Farms, LLP, 2020 S.D. 1, 938 N.W.2d 425 (distinguished — prior progressive deterioration made injury noncompensable in that case)
- Orth v. Stoebner & Permann Const., Inc., 2006 S.D. 99, 724 N.W.2d 586 (employee taken as found; requirement that work injury be "a" major contributing cause)
- Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, 737 N.W.2d 397 (framework for admitting expert testimony under Rule 702)
- McQuay v. Fischer Furniture, 2011 S.D. 91, 808 N.W.2d 107 (distinguishing weight of treating vs non‑treating experts; expert review scope affects persuasiveness)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (federal standard for admissibility of expert testimony referenced for reliability analysis)