*1 opinion other uses which SD 27 Planning Commission are of the same DAVIDSON, Marie Marie n/k/a general character as those enumerated Myklegard, an Claimant d the B-3 District.” Appellant, dispute There is no v. Tyler used premises computer store for a period considerable time INDUSTRIES, INC., HORTON any problems arising City without with the Employer Appellee, involving the use. The time the issue legality up of use came was when dis putes liability over the regarding lease Sentry Insurance, Appellee. Insurer Therefore, payments surfaced. the bur obviously Tyler on den falls show the No. 21970.
premises could such pur used for Supreme Court of South Dakota. Further, pose. we find that the appropri resolving type ate standard for this Considered on Briefs Nov. dispute is or prem whether not the leased Decided Feb. ises can be used for the purpose intended under the pro lease where the ordinance Rehearing Denied for a possible vides variance or conditional use. in Central States Health & Company, the trial court acknowl
Life
edged prior to trial appropriate
city zoning authorities refused authorize use,
the intended which is not the case
here. See Central States Health & Life
Co., 456 N.W.2d record, In reviewing we find
sufficient genuine indicate that
issues material fact exist. See Tri Assoc.,
County
Inc.
Brule
Landfill
¶ County,
667. Based on our decision on this
it is unnecessary address other Therefore, appeal.
issues
reverse remand to the trial court for a
determination as to whether a violation of zoning ordinances occurred. GILBERTSON, Justice, Chief KONENKAMP,
and SABERS and
Justices, GORS, Justice, Acting
concur.
sembly together repair kits. putting floor or March of Davidson February In working assembly in final area. began claim, Davidson was At time area. This employed assembly final assembling fan clutches and job involved in lifting manipulating weights and excess sixty pounds. May 10, lifting 3.] while [¶ On part, experienced pain clutch Davidson neck and shoulder. Davidson left supervisor informed her and work. by Dr. May Davidson was examined On diagnosed right parascapu- Purintan who strain and inflammation. Dr. Purintan lar medication and recommended a prescribed therapy. He further physical course Davidson return to recommended that duty In Davidson light work. June per work for four to six hours returned to day. improve. did not 4.] Davidson’s
[¶ ap- insurer September Horton’s manager to Davidson pointed nurse case Siegel, Hall of Barnett & Ronald J. Aberdeen, return to Schütz, LLP, Dakota, assist in her treatment and for South manager work. The case noted Davidson’s appellant. claimant and in her complaints tingling of constant Davenport, Ev- Timothy M. Gebhart shoulder, hand, burning and in her arm Smith, Falls, ans, & Hurwitz Sioux South neck. The sharp radiating pains and Dakota, appellees. for to be manager arranged Davidson by another doctor. examined SABERS, Justice. Throughout was re- 5.] [¶ Davidson, Myklegard Marie n/k/a including physicians, ferred numerous (Davidson), appeals deny- from a decision orthopedic surgeon, MacDougall, Dr. an
ing award of workers’ Quinlan, Malek, neurosurgeon, benefits. reverse remand. We orthopedic specialist, upper extremity Blow, of whom physiatrist, all FACTS arm, shoulder diagnosed her with chronic began working Hor- Davidson and neck related overuse. Horton Industries ton Industries varying courses physicians prescribed (Horton) makes fan clutches for trucks and rec- physical therapy medication buses. Davidson worked in several areas duty. only light work David- ommended employed while with Horton. She however, son, improve. still did not janitor, then moved initially employed as period, During this same time September accounting position. into an . to have as- and its insurer offered began working Horton Davidson Mayo permanent examined Clinic. that her partial disability would physicians Two Davidson’s recom- zero-percent. Hor- On clinic, mended that she attend a again ton its insurer terminated her employer pay also offered to for. temporary disability benefits. *3 refused, Davidson mostly personal for rea- Horton again [¶ 11.] offered Davidson sons. position repair kit area and she 24, January 1995, [¶ 7.] On Davidson 30, May returned to work on 1996. After emergency went to the room with severe work, approximately thirty minutes of she right neck and shoulder where she left, complaining pain. re- Davidson by was treated Dr. Small. Davidson later turned to see Dr. Small who recommended returned to see Dr. Small who noted that further no work. Davidson had range a limited motion 1996, In September [¶ 12.] Davidson experienced extreme tenderness at Mayo underwent another FCE Clin- her shoulder. Small recom- ic. The second greater FCE showed re- mended that Davidson not work and re- strictions than the first one and indicated her orthopedic ferred to an surgeon, Dr. she repetitive activities Johnson, at request attorney. of her upper right extremity. her Dr. Bengston Horton did not authorize to Dr. the visit assigned five-percent impair- Davidson a Johnson. rating ment and stated that she had [¶ 8.] Dr. Johnson examined Davidson reached maximum medical improvement. 1995, 7, February and diagnosed her Horton’s insurer out paid the benefits myofascial pain disorder. Dr. John- available to her rating under this and cut son recommended she a func- undergo off weekly all benefits. (FCE). tional capacity evaluation In late 25, 1996, September [¶ 13.] On Horton February, the FCE was completed at and its arranged indepen- insurer for an Valley Sioux Hospital. The FCE indicated dent medical by exam Dr. Tountas. After perform Davidson could light-medi- exam, Dr. his Tountas was unable to iden- work, um level of but repeti- should avoid any tify underlying causing condition tive use of her upper right extremity. Davidson’s further He stated that 1995, [¶ In May Quinlan 9.] ap- Davidson could return to full-time proved position for Davidson in Horton’s without restrictions and that she did repair kit area. Horton offered her have any permanent partial disability. area, but she refused the offer 1996, October Horton made based on a recommendation from Dr. Davidson another offer to return to work Johnson. As a result of her refusal kit area. attempt- work, temporary disability ben- ed to return in January 1997, to work efits were May terminated after left work after less than one hour because arranged Horton for Davidson to be Beng- examined Dr. ston at the Mayo Clinic. Davidson filed Bengston petition diagnosed hearing Labor, with chronic with the right shoulder myofascial (De- pain syndrome. recom- Division of Labor and Management He. mended that avoid repetitive activity partment) 21, 1995, on September seeking involving shoulder and concluded award of all compen- available workers’ that she benefits, had reached her medical, maximum medi- including sation tempo- improvement. cal He further rary concluded total disability, permanent partial dis-
Ml (quoting Wagaman 679-80 permanent ability benefits and Cozine Constr., 27, 12, Falls SD Sioux the odd-lot benefits under disability total (citations omitted)). was held before hearing A doctrine. review, required “we our are Under 5 and on November Department, give 'great weight to the hearing examin- February On Department on made fac inferences Davidson, denying her against found er (citations omitted). questions.’ tual benefits. claim “ Further, review the ‘[i]fafter careful hearing examiner March On and firm definitely entire record arewe conclusions law findings of entered ly commit convinced a mistake has been *4 judgment. order ted, only then will we reverse.’” conclusions stated examiner’s (additional omitted). citations a credible witness was not that Davidson support her claim for benefits and failed to Belhassen v. John Morrell & ¶ findings. medical filed April Davidson [¶ 16.] On THE DEPART- [¶ WHETHER 18.] Secretary the of petition a for review IN MENT ERRED DETERMINING Secretary affirmed. David- Labor. The ENTITLED TO CLAIMANT WAS NOT her claim to the Fifth appealed son then BENE- WORKERS’ COMPENSATION almost one Davidson filed briefs Circuit. MEDICAL, FITS, INCLUDING TEM- requested that the circuit year later and DISABILITY, PER- PORARY TOTAL Department the to the court remand case AND MANENT PARTIAL DISABILITY light in of its decision for reconsideration AND PERMA- COZINE BENEFITS material The circuit of new and evidence. BENE- NENT DISABILITY TOTAL remand, motion to granted the FITS THE ODD-LOT DOC- UNDER that the new evi- Department determined TRINE. impact and had no dence was not material This Court has stated “ The circuit court original on its decision. n a question of when the issue Depart- of the decision then affirmed law, fully agency are actions entirety April in 2001 and
ment
on
Belhassen,
We
1-26-37,
syndrome and
myofascial pain
issue is a
shoulder
SDCL
when the
fact,
that claimant should
prognosis
reach a
clearly
errone
question of
then
time,
period
agency’s
to the
work for
applied
ous standard
in favor
ignore such evidence
however,
examiner to
when the issue is
findings;
medical exam
law,
very
independent
agen
brief
question of
the actions of
by
hired
Brady
physician
conducted
cy
fully
are
reviewable.’
Mem’l
¶ 8,
enough
Hantke,
employer.1
claimant’s
Home v.
"at
least
length of
that he saw Davidson
dispute as to the
claimed
1. There is some
hearing,
testified
At the
Davidson
deposition, Dr. Tountas
minutes.”
examination.
his
ignore
ment
judgment
the substantial evidence
be-
with a direction to enter
cause the cause cannot be
favor
determined.
of the claimant. Id. at 347.
recognize
an agency may
While we
This
presents
similar is-
disregard
expert’s
opinion
one
favor of
key
sue. The
issue is whether Davidson
another,
disregard
it cannot
the similar
unemployability
established
because of her
of numerous medical
upon
This issue
dependent
both
favor of
one
hired
insurer
credibility
the medical
Upon
under these circumstances.
review
evidence offered to
her claims of
record,
of the entire
are firmly
con-
Department
denied
award of
the Department’s
vinced that
action consti-
benefits because it
tutes
in a
error
conclusion of law. Be-
found that Davidson
“not a
credible
cause we believe basic errors have been
witness.” The
stated that
by ignoring
made
similar
seven
Davidson “has not established that she is
reports, Davidson was denied a fair hear-
continuous,
obviously unemployable due to
ing and we reverse and remand.
severe
debilitating pain.
there
*5
Furthermore,
case,
sig
[¶ 20.]
explain
is no
basis
record to
Claim-
nificant portion
expert
of the
testimony
significant pain
ant’s
In
complaints.”
the
presented by
deposition,
means of
affi
Department’s findings of
the examin-
davit and exhibit. This
has
Court
stated
er
primarily
deposition
focused
on the
tes-
that
reviewing
“[w]hen
evidence
timony
Tountas,
of Horton’s
Dr.
by deposition, we
apply
clearly
do not
who claimed he was
unable
reach a
rule but
erroneous
review that testimony
diagnosis
as
Davidson’s condition be-
though presented
as
here for the first
cause
findings.
of lack
time.” Foltz v.
Transp.,
Warner
516
(S.D.1994)
N.W.2d
340
(quoting Day
The
of fact contain little
John Morrell &
490 N.W.2d
hearing testimony
Small,
about the
of Dr.
(S.D.1992)) (citations omitted).
and nothing
See
about
the sworn affidavits
also,
CNA,
Truck Ins. Exchange v.
Johnson,
2001 from Dr. MacDougall, Dr.
and
¶46, 6,
SD
708 (stating
Again,
Department
Blow.
stated
this Court
“findings
reviews
based
that
“weight
on de
of the medical testimony”
position testimony
documentary
and
evi
indicated “there is no basis in the record to
dence under a de
explain
novo standard of re
significant pain
Claimant’s
com-
view”).
Foltz,
In
this Court
plaints.”
reversed the
disagree.
We
Our review of the
Department of Labor’s
denial
record
reveals there is
supporting
compensation benefits because it disagreed
Davidson’s claims of
their sworn
Department’s
review of
affidavits,
the evi
MacDougall,
Johnson
dence.
examiner and and, thus, King was not credible witness Johnson Bros. Constr. ant] S.D. (1967)). 69, 73, testimony could subjective her as to 155 N.W.2d This not to be credible.” has that: be determined stated ¶ hearing Id. at 26. The examiner found Having recognized prov- the burden of that there was evidence that claimant was ing all the of his essential facts claim malingering, discrepancy that there was a claimant, necessary on the it becomes injury objec- between claimant’s evaluate the evidence to determine comply tive that claimant failed to findings, whether the claimant fact met treatment, with her prescribed proof burden. should be noted testimony at hearing conflicted need not arise to a of degree absolute Id. statements made at earlier dates. certainty, may award not be ¶¶ 27-33. Because the substantial upon possibility based mere or specula- record, evidence in the this Court stated tive evidence. hearing examiner was correct in Foltz, 516 (citing Mehlum v. rejecting doc- opinions five Ass’n, Nunda Coop. S.D. supported tors com- who the claimant’s (1952)). Expert ¶ plaints injury. Id. at This Court of probability couched terms agreed “with examiner’s find- is sufficient to compen sustain workers’ ing lacking [claimant] that since sation claimant’s burden proof. Hanten credibility and ‘the opinions because Builders, Inc., v. Palace expert witnesses regarding [claimant’s] in large part condition were based [¶ 29.] Davidson them, what she told those prove compensation facts essential to un- adequate lack an foundation.’ der workers’ law. The De- partment erred when it ignored this evi- Again, the Johnson case is dence. We conclude for all of the reasons clearly distinguishable from the one at stated above that Davidson was denied a *7 hand. examiner’s determina hearing. fair Because Davidson has made tion sup that Davidson is incredible is not prima showing, a facie the burden now ported by substantial evidence. Further employer shifts to the to show some more, of Davidson’s regularly form suitable work is were not merely based Davidson’s com continuously available to the claimant. See plaints and cannot be lack said to Custer, v. Kester Colonial Manor 1997 an adequate foundation. De Because the ¶¶ 127, 28-30, 376, SD 571 N.W.2d 381 partment does not support determina (holding that after claimant establishes tion that is incredi prima face case disability, burden ble, reject it justifiably cannot employer shifts to the to show that some opinions of in numerous doctors favor of available). suitable work is Accordingly, one hired cir insurer under these we reverse and remand proceedings for cumstances. opinion. consistent with this [¶ 28.] The burden of in proof GILBERTSON, Justice, Chief cases lies with the GORS, Justice, Acting “ concur. claimant. The ‘claimant has the burden of proving all facts to compensa essential [f 31.] AMUNDSON and Phillips KONENKAMP, Justices, tion[.]’ v. John Morrell & dissent.
145 Claim- 15. Dr. Blow also recommended AMUNDSON, (dissenting). Justice Quinlan a clinic. Dr. ant attend pre this Court’s is clear from sever- a similar recommendation made given to regard due should cedent that al earlier. refused months Claimant determination, credibility a finder’s fact though to clinic even attend opinions of respect should and we pro- offered to for the pay Insurer firsthand, seen, de have who those gram. Schneider, 2001 See meanor of witnesses. to referred Dr. Small Claimant ¶ 728; 14, at John 628 N.W.2d SD 70 at Johnson, surgeon an orthopedic Philip ¶ 449, 47, son, 22, N.W.2d 610 2000 SD This refer- North Dakota. Fargo, Mathis, 59, 453-54; v. 2000 SD Mathis request ral at the of Claimant’s was Belhassen, ¶ 776; 11, 773, 2000 609 N.W.2d “I attorney. Dr. Small noted: have ¶ 536; 17, at Hen 613 N.W.2d SD 82 touch with attor- ¶ [Claimant’s] been in 130, Harris, 7, 600 dricksen v. ney opin- a second and he wants SCI, 181; 180, SD v. 1998 N.W.2d Kurtz physician.” an out of ion from state 882; 37, 878, v. Petersen 576 N.W.2d (S.D. 235 Quinlan pro- 515 Dinky, May N.W.2d Hinky (Amund Foltz, 1994); analysis 516 at 347 two-page N.W.2d vided with a de- son, J., dissenting), v. job Wendel the duties scribing for Domestic (S.D. Supply, Quinlan approved N.W.2d kit area. Dr. Seed & Moreover, 1989). job it this Court’s May 0]n is not for position Claimant[. 15, 1995, reverse lower for to offer to search reasons Claimant received Subsequent In posi- See S.D. Employer court’s decision. from Exch., 1999 Reciprocal tion, v. Cas. refused return to work jury Fund ¶ (finding Dr. Johnson. SD on a note from based not search for reasons arranged Employer Insurer Inc., Transp., reverse); v. Fenner Trimac Mayo to be Claimant seen 485, 489 Bengt- Keith 1996. Dr. Clinic look for reasons (stating “[w]e physi- That son Claimant. examined reverse, if made a not have even would ex- totally normal cal examination was ... our review similar decision but confine range cept “slightly decreased” whether record to a determination of and tenderness of motion substantial evidence contains Bengtson di- and neck. Dr. shoulder Beck, decision”); Peterson agency’s group chronic shoulder agnosed (S.D.1995) (finding syndrome. sug- He myofascial pain *8 out” reasons this should not “search repeti- from gested refrain Claimant reversal, rather, should confine its upper ex- activity right tive with the if there is evidence review to determine agreed with but otherwise tremity, decision). lower court’s support Valley performed by Sioux FCE Dr. On Hospital. in this A review the record wrote, “I [Claim- Bengtson agree following findings of fact shows medical reached maximum ant] judge: law by the administrative entered partial permanent Her improvement. Quinlan Dr. examined Claim- 11. After according be disability would 0% ant, Employer Insurer offered to guidelines.” AMA the Mayo have Claimant examined addition, noted Dr. Tountas In refused that re- Claimant Clinic. neck or any not have Claimant did quest. upper spasm. back Dr. Tountas stat- causes this much expected “right ed he Claimant’s arm disability impairment or any or ina- given to be fact that small to work. bility demonstrated motion with limited Dr. any Tountas could not find pain complaints period over a anatomical reason for Claimant’s years.” two of over Dr. Tountas ex- complaints. plained: again Employer offered Claimant Well, if were sufficient repair area. posi- kit This magnitude patient so that can receptionist tion included duties and hardly use the upper extremity to was within the restrictions set degree, any then one would expect at Mayo FCE done Clinic. is, atrophy either visible you —that objective 39 All the doctors agree frequently wasting can see of mus- reveal that can nothing explain tests you
cles if look at a hand or extrem- complaints Claimant’s Under ity if change, it’s subtle then —or -62-1-15, concerning SDCL “evidence you be should able measure it. injury any given shall greater again, by just And this is done tak- weight supported by objective [sic] tape ing a measure. And I’ve done findings.” support No such you this thousands of times. And exists here. compare can one other and get idea as to whether there is 41. Employer surveillance atrophy or wasting of the muscle showing videos engaged Claimant that would account for the inability certain activities. The videos show it; is, to use the disuse. pulling garden Claimant weeds her However, case, . Tountas did times, and at other carrying items any not find atrophy evidence of toas arm. Claimant Claimant’s upper extremity. moving shown with ease and at no examination, Based his time does she appear any be in was diagno- Tountas unable to reach a physical discomfort. sis as to Claimant’s condition. Dr. addition, when Claimant at- opined
Tountas “the to return tempted January to work on do diagnosis.” 30,1997, in the kit area she was Tountas stated: videotaped performing the duties of may There have been some refer- job. Claimant able to work at to [trigger points ences or muscle pace her own and moved with ease. spasms], but I don’t find those to be did Claimant not show outward enough explain consistent signs of Claimant was instruct- bizarre, very sensory nonanatomic ed that she get up and move I FCEs, deficit.... that in find every around twenty minutes. Claim- have great of exagger- deal ant testified that return to work *9 pain ated behavior. There has been effort “didn’t go very well” and she no testing had to leave approximately forty after that can account for this much impossible minutes. is accept pain.... testimony Claimant’s that she was ex- I, therefore,
So feel that periencing there are such extreme after insufficient to make viewing the video. 455) (other ¶ 25, at N.W.2d citations treated physician who Every
43. omitted). Small, opinion “The value of the of an including Claimant before no than facts expert better capable witness felt she was three specialists, they are based.” The De upon which then saw working. Claimant fed held that the facts to the partment Small, work. took her off Not who originated from a non- experts returned to not has Claimant Therefore, join I cannot credible source. since, returned to she has not sought out majority opinion who said could any of the doctors reasons reverse an administrative deci go back to work. firmly supported by I feel is sion that not a credible Witness. Claimant is 48. I might a case record. This where majority’s finding Despite a different personally would have chosen I distinguishable, find it Johnson ease decision, purpose but findings of point. much on As the very review. appellate demonstrate, above there “sub fact determina stantial Justice, KONENKAMP, joins hearing examiner and De tions of the this dissent. ... was not [Davidson] partment witness, and, thus, subjective credible could also be deter as credible[,]” just like Johnson.
mined ¶ 26, 455.
edging Davidson rather, it look at whether inca Dakota. Court of South Supreme Furthermore, “long- it is a her. pacitated Argued Jan. purpose of accepted premise ... that the 6, 2002. Decided March the trier of testimony is assist expert ¶at it.” Id. supplant fact and not to Rehearing Denied credibility.” “Experts not determine focus on whether record
Id. We should
“definitely firmly” demonstrates that a mistake. Bel has made ¶82,
hassen, omitted). (citation It has not. Fur
ther, testimony reviewed in this rise above its foundation.”
case “cannot ¶ 16,
Schneider,
70 at
Johnson,