Megan M. PETERSON, Claimant and Appellant, v. The EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Employer and Appellee, and Sentry Insurance, Insurer and Appellee.
No. 26214.
Supreme Court of South Dakota.
Decided June 27, 2012.
2012 S.D. 52, 816 N.W.2d 843
Considered on Briefs April 17, 2012.
[¶ 48.] In addition, the circuit court observed that Olson had a prior criminal history, which included juvenile convictions for grand theft and third-degree burglary. While under the supervision of the Department of Corrections, he “absconded twice from ... the transitional learning program....” Two weeks after discharge from the Department of Corrections, he was arrested for grand theft. The circuit court noted that Olson had a “[d]ocumented history of failing to appear for court and failure to comply with court orders.” Based upon Olson’s “documented history,” the court found there was a low probability that Olson would be rehabilitated.
[¶ 49.] The circuit court properly considered the gravity of Olson’s offenses, the effect those offenses have on society, Olson’s criminal record, and the likelihood of recidivism. See Steichen, 2009 S.D. 4, ¶ 31, 760 N.W.2d at 394. We do not find that Olson’s sentences are grossly disproportionate to his crimes. As such, no further review is necessary.
[¶ 50.] Affirmed.
[¶ 51.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and WILBUR, Justices, concur.
Michael S. McKnight, Meghann M. Joyce of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellees, employer and insurer.
ZINTER, Justice.
[¶ 1.] Megan Peterson worked at a nursing home owned by The Evangelical Lutheran Good Samaritan Society (Good Samaritan). Peterson alleged that she sustained a work-related injury to her back when assisting a resident with a
Facts and Procedural History
[¶ 2.] Peterson was twenty-two years of age at the time of the Department hearing and had a history of injuries. In 2003, she slipped on wet stairs at her middle school and injured her left ankle. The ankle injury was treated with ice, compression bandages, and crutches. Although the injury resolved, Peterson continued to have occasional flare-ups.
[¶ 3.] In 2007, Peterson began working for Good Samaritan as a certified nursing assistant. On December 9, 2007, she sustained a work-related injury to her lower back while helping move a resident into bed. Dr. Scott D. Tieszen, of Tieszen Chiropractic Clinic, treated Peterson’s hips and back. Following treatment, Dr. Tieszen recommended that Peterson continue to wear a back brace. By January 2008, Peterson returned to work with no restrictions.
[¶ 4.] In early 2009, Peterson experienced an ankle flare-up involving swelling and pain because of the twelve-hour shifts she was working. Peterson received physical therapy at Prairie Rehabilitation, Hartford Therapy Services. She also began wearing a doctor-recommended walking boot. Peterson was wearing the walking boot while working her overnight shift on July 15-16, 2009.
[¶ 5.] Peterson testified that while working that overnight shift, she bent down to help a resident with a wheelchair foot pedal, she stood back up, and she felt a sharp pain go through her lower back. Peterson complained of back pain and asked her supervisor for pain medication. Peterson told her supervisor that Peterson thought she had pinched a nerve. She took Tylenol and completed her shift.
[¶ 6.] After work, Peterson went home to bed. When she awoke, she could not move from the waist down due to pain. An ambulance was called, and Peterson was transported to a hospital emergency room around 4 pm. The emergency room records note that Peterson “plain[ed][of] low back pain 18 hours ago.” Peterson also reported that she was going to physical therapy for her foot and that “last night [she] felt low back pain getting progressively worse.” A CAT scan revealed a disk protrusion at the L5-S1 level. Peterson was medicated and released from the emergency room to bed rest at home. She then treated with her family physician, Dr. Dawn A. Flickema, at the McGreevy Clinic. Dr. Flickema recommended an epidural block, but Good Samaritan’s insurer refused to pay for that procedure.
[¶ 7.] On August 25, 2009, Peterson sought medical assistance from Dr. David L. Hoversten, a board certified orthopedic surgeon. Dr. Hoversten performed a physical examination and reviewed Peterson’s medical records from Hartford Therapy Services, the McGreevy Clinic, and the emergency room. Because the emergency room CAT scan was not definitive, Dr. Hoversten ordered an MRI. The MRI revealed a “dark disk” at L5-S1 that was “substantially bulging” and had a thirty percent loss of height. Peterson was ter-
[¶ 8.] Dr. Hoversten later opined by letter that Peterson’s work activities independently caused her back discomfort, pain, and the need for evaluation and treatment. In a subsequent July 20, 2010 deposition, Dr. Hoversten testified that Peterson had a congenitally weak back and the flattened disk was the source of her pain. Dr. Hoversten also testified that both back injuries probably caused the disk problem and pain. Based on Peterson’s history, Dr. Hoversten testified that Peterson suffered a work-related injury on July 15, 2009; he indicated that both back injuries had a substantial part to play in the deterioration of the L5-S1 disk. Dr. Hoversten further testified that Peterson’s ankle problem played no causative role in her July 2009 back injury.
[¶ 9.] Prior to Dr. Hoversten’s physical examination, Good Samaritan’s workers’ compensation insurance company retained Dr. Jerry J. Blow to review Peterson’s medical records. Dr. Blow is a physiatrist practicing rehabilitation medicine. After reviewing some of Peterson’s medical records, he opined by letter (before Dr. Hoversten’s physical examination) that Peterson’s lower back injury was caused by her preexisting ankle problem and resulting impaired balance. He also indicated that general deconditioning and obesity were contributing factors. He opined that her back injury was not caused by her work. Based on Dr. Blow’s letter, Good Samaritan’s insurer denied any workers’ compensation benefits.
[¶ 10.] Peterson filed a claim with the Department. Both physicians testified by deposition. The Department adopted Dr. Blow’s opinion over the opinion of Dr. Hoversten and denied relief. The circuit court affirmed. Peterson now appeals to this Court. She argues that she sustained a work-related injury and that her employment remains a major contributing cause of her condition and need for treatment.
Standard of Review
[¶ 11.] The parties disagree whether the clearly erroneous or de novo standard of review applies to the Department’s findings of fact. Peterson points out that the Department’s findings on causation were based solely on medical records and the depositions of Drs. Hoversten and Blow. Peterson also points out we have often stated that “the matter is reviewed de novo when ‘an agency makes factual determinations on the basis of documentary evidence, such as depositions’ or medical records.” Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 10, 777 N.W.2d 363, 366-367 (quoting Vollmer v. Wal-Mart Store, Inc., 2007 S.D. 25, ¶ 12, 729 N.W.2d 377, 382 (citing Watertown Coop. Elevator Ass‘n v. S.D. Dep‘t of Revenue, 2001 S.D. 56, ¶ 10, 627 N.W.2d 167, 171)); accord Mudlin v. Hills Materials Co., 2005 S.D. 64, ¶ 5, 698 N.W.2d 67, 71; Brown v. Douglas Sch. Dist., 2002 S.D. 92, ¶ 9, 650 N.W.2d 264, 268.
[¶ 12.] On the other hand, Good Samaritan points out that in the initial review of agency findings,
This Court formerly reviewed documentary evidence and deposition testimony under the de novo standard. However,
SDCL 15-6-52(a) , [as amended in 2000], specifically provides that “findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous.”
Stockwell v. Stockwell, 2010 S.D. 79, ¶ 17, 790 N.W.2d 52, 60 (alteration in original) (quoting Gluscic v. Avera St. Luke‘s, 2002 S.D. 93, ¶ 15, 649 N.W.2d 916, 919). Because
[¶ 13.] We are reviewing an appeal from circuit court.
Even if we apply
[¶ 14.] Thus,
[¶ 15.] Under
[¶ 16.] The 2000 amendment to
[¶ 17.] Biwabik was a split decision. The minority, based on Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985), argued for clearly erroneous review of all findings, including those based on documentary evidence. The minority pointed out that the Supreme Court had interpreted the identical Federal Rule of Civil Procedure to require clearly erroneous review regardless of the form of the evidence presented. Biwabik, 535 N.W.2d at 869 (Timm, Cir. J., dissenting) (citing Anderson, 470 U.S. at 573-74, 105 S. Ct. at 1511-12). Nevertheless, this Court declined to adopt the Supreme Court’s interpretation. The majority explained that appellate courts were “as capable of reviewing the record as the trial court. A trial judge’s superior fact-finding abilities relate to his opportunity to observe and evaluate live testimony; when physical or documentary evidence is of-
[¶ 18.] In response to Biwabik, the 2000 Legislature enacted 2000 Session Laws chapter 91, § 1. This measure was introduced as House Bill 1060. Section 1 of House Bill 1060 amended
[¶ 19.] In this case, the Department entered its causation findings on medical records and depositions, and the circuit court affirmed. Therefore, notwithstanding the amendments to
Decision
[¶ 20.] In a workers’ compensation dispute, a claimant must prove the causation elements of
[¶ 21.] The parties here do not specifically identify which subpart of the “condition” element applies in this case. The doctors’ answers to the attorneys’ questions use the language of all three subdivisions of
[¶ 22.] Peterson argues that the Department and circuit court erred in adopting the expert testimony of Dr. Blow over the testimony of Dr. Hoversten. Peterson contends that Dr. Hoversten’s causation opinion should have been adopted because he was the physician who actually examined Peterson, Dr. Hoversten’s credentials were superior to Dr. Blow’s, and Dr. Hoversten had a better understanding of the facts of the incident and Peterson’s medical history. We agree.
[¶ 23.] The opinion of an examining physician should be given substantial weight when compared to the opinion of a doctor who only conducts a review of medical records. See Darling, 2010 S.D. 4, ¶ 19, 777 N.W.2d at 369. In this case, only Dr. Hoversten examined, treated, and personally took a history from Peterson. That is significant because Peterson’s history was the major reason for the difference in the doctors’ opinions. Dr. Hoversten’s credentials were also superior to those of Dr. Blow. Dr. Hoversten is an orthopedic surgeon who has been board certified for almost twenty years. Dr. Blow was trained in physical medicine and rehabilitation, but had been unable to pass his board certification examinations on three occasions. At the time of his deposition, his only board certification was in independent medical examinations, a certification that involved a week-long course. Finally, as described below, Dr. Hoversten’s opinion was more persuasive because his understanding of the facts of the incident was corroborated by other evidence, and he had a better understanding of Peterson’s medical history. See Engel v. Prostrollo Motors, 2003 S.D. 2, ¶¶ 20-22, 656 N.W.2d 299, 302 (stating that of two expert doctors’ opinions, one doctor’s opinion was “more persuasive based on his credentials, his interaction with [the claimant], the clarity of his reasoning and the fact [his opinion was] substantiated by other evidence”).
[¶ 24.] Both parties argue that the opposing physician expressed opinions based on incomplete medical information or faulty facts. “[A]n expert’s opinion is entitled to no more weight than the facts it stands upon.” Jewett v. Real Tuff, Inc., 2011 S.D. 33, ¶ 29, 800 N.W.2d 345, 352. In this case, both physicians were unaware of certain facts and history when issuing their written opinions. Nevertheless, they adhered to their written opinions when
[¶ 25.] From our review of the record, however, we believe Dr. Blow adhered to an incorrect view of the incident at work and failed to give sufficient consideration to significant aspects of Peterson’s medical history. In preparing his records review report, Dr. Blow only reviewed records involving Peterson’s history from May 15, 2009, through August 17, 2009. Consequently, at the time Dr. Blow prepared his written report, he was not aware that Peterson had suffered a prior work-related injury to the same disk while lifting a patient in 2007. He also did not have Dr. Hoversten’s records, which included a physical examination. Those records also included an MRI that reflected Schmorl’s nodes showing a congenitally weak back and the flattening and bulging of the L5-S1 disk. At the time of his deposition, Dr. Blow became aware of this information and did not change his opinion. But he admitted that the 2007 incident was a work-related injury. This was significant because, as Dr. Hoversten explained, the 2007 work-related injury involved the same disc that “had an injury and started to deteriorate.”
[¶ 26.] Dr. Blow’s opinion was also based partially on his assertion that Peterson may not have suffered a work-related injury. Dr. Blow believed Peterson did not report either the work incident or the related onset of pain when Peterson was treated in the emergency room and by Dr. Flickema. Dr. Blow opined that if a person had developed acute back and leg pain from bending over to move a wheelchair pedal, the person would have related that work incident in the patient’s subsequent treatment.
[¶ 27.] Contrary to Dr. Blow’s belief, Peterson did report the work incident. When asking her supervisor for pain medication immediately after the incident, Peterson mentioned that she hurt her back: she indicated she thought she pinched a nerve. Additionally, the emergency room records reflect that Peterson “plain[ed][of] low back pain 18 hours ago,” which would have been during her night shift at Good Samaritan. Those records also reflect Peterson reported that during the night of the injury, “[she] felt low back pain getting progressively worse.” Even Dr. Blow’s own records review reflects a physical therapy call while Peterson was in the emergency room where it was stated that Peterson hurt her back as Peterson claimed. That record indicated the injury occurred as Peterson “[b]ent over helping resident with foot pedal.” Therefore, the injury and pain were reported, and a critical factual assumption underlying Dr. Blow’s opinion was incorrect.
[¶ 28.] Finally, the record suggests that Dr. Hoversten based his opinion on more complete facts and a more reliable medical history. Before coming to the diagnosis expressed in his September 2009 letter opinion, Dr. Hoversten: performed a physical examination of Peterson; reviewed Peterson’s records from Hartford Therapy Services, the McGreevy Clinic, and the emergency room; reviewed the CAT scan taken in the emergency room; and, ordered and reviewed an MRI of Peterson’s back. We acknowledge that Dr. Hoversten did not at this point know that Peterson had been experiencing pain in her left ankle, that she had been wearing the walking boot while working her shift on July 15, 2009, or that she had been wearing that boot for nearly two days when she was injured. But, before Dr. Hoversten’s deposition was taken, he became aware of those facts. He reviewed Dr. Blow’s report and deposition opinion as well as the medical records from Tieszen Chiropractic Clinic. Thereafter, Dr. Hoversten capably explained why Dr. Blow’s opinion was incorrect under the medical history and facts of this case.
[A]n employee does not have to have an accident or experience any trauma to his person before a medical condition will qualify as a compensable injury. It is sufficient that the disability was brought on by strain or overexertion incident to the employment, though the exertion or strain need not be unusual or other than that occurring in the normal course of employment.
Schuck v. John Morrell & Co., 529 N.W.2d 894, 899 (S.D. 1995) (alteration in original). Dr. Hoversten also explained why Peterson’s ankle problem could not have played a causative role in the deterioration of her L5-S1 disk. Dr. Hoversten finally opined that the July 15, 2009 injury was a major contributing cause of her condition: “I think both of these [back injuries affecting the same place in the back], if they are correct, are work-related injuries, and I believe they have a substantial part to play in the deterioration of the L5-S1 disk, yes.” We conclude Dr. Hoversten’s opinion was sufficient to meet Peterson’s burden of proving that her employment caused a work-related injury and that is and remains a major contributing cause of her back condition and need for treatment.
[¶ 30.] Reversed and remanded for further proceedings before the Department.
[¶ 31.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.
Notes
The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in light of the entire evidence in the record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
A court shall enter its own findings of fact and conclusions of law or may affirm the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.