871 N.W.2d 851
S.D.2015Background
- Sorensen injured at the Harbor Bar in the scope of her employment on Dec 31, 2009.
- About one week later she developed severe headaches and vomiting leading to brain surgery.
- The Department found the workplace assault a major contributing cause; first two surgeries were compensable, third not due to moyamoya disease.
- Employer challenged the Department’s causation and damages rulings; credibility and timing of a supposed second incident were contested by witnesses and police investigation.
- Sorensen offered medical opinions from Dr. Packard and Dr. Asfora supporting causation; Employer offered Dr. Starzinski; Dr. Sabow testified as rebuttal with undisclosed status; the Department later allowed additional mock testimony from Dr. Howard.
- Circuit Court remanded for damages clarification and ultimately affirmed the Department’s findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second incident occurred before the workplace incident | Sorensen’s injury timing supported by police/photos and witnesses | Second incident may have occurred after the workplace incident | Department findings on timing were not clearly erroneous |
| Whether the work-related injury was a major contributing cause of the hemorrhage | Work injury causally contributed to hemorrhage despite moyamoya | Preexisting moyamoya could explain the hemorrhage | Department’s finding of major contributing cause was not clearly erroneous |
| Whether the Department abused its discretion by admitting undisclosed testimony of Dr. Sabow | Admission aided truth-seeking; not bad faith | Undisclosed testimony should be excluded | Department did not abuse discretion; no reversible prejudice |
Key Cases Cited
- Schrader v. Tjarks, 522 N.W.2d 205 (S.D. 1994) (discretion in admitting rebuttal evidence; sanctioning for discovery)
- Midcom, Inc. v. Oehlerking, 722 N.W.2d 722 (S.D. 2006) (final judgment requires fully adjudicating issues to be appealable)
- Wagaman v. Sioux Falls Constr., 576 N.W.2d 237 (S.D. 1998) (great weight given to agency findings of fact)
- Isack v. Acquity, 850 N.W.2d 822 (S.D. 2014) (clear error standard for agency factual findings)
- Gerlach v. State, 747 N.W.2d 662 (S.D. 2008) (deference to Department on factual credibility)
- McDowell v. Citibank, 734 N.W.2d 1 (S.D. 2007) (abuse of discretion standard; prejudice required for reversal)
- Schrader v. Tjarks, 522 N.W.2d 205 (S.D. 1994) (sanctions and rebuttal witness disclosure principles)
- Foley v. State ex rel. S.D. Real Estate Comm’n, 1999 S.D. 101, 598 N.W.2d 217 (S.D.) (standard of review guidance for agency decisions)