Darling v. West River Masonry, Inc.

#25275-aff in pt & rev in pt-GAS

2010 SD 4

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JOEL DARLING, Claimant and Appellant,

v.

WEST RIVER MASONRY, INC., Employer and Appellee,

and

UNITED FIRE & CASUALTY COMPANY, Insurer and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

MICHAEL J. SIMPSON of
Julius & Simpson, LLP
Rapid City, South Dakota Attorneys for appellant.

ERIC C. BLOMFELT
JEREMY D. NAUMAN of
Eric C. Blomfelt & Associates, PC
Denver, Colorado Attorneys for appellees.

* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 16, 2009

OPINION FILED 01/06/10
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SEVERSON, Justice

[¶1.] Joel Darling (Darling) appeals the circuit court judgment that the

South Dakota Department of Labor (the Department) erred in concluding his work-

related injury was a major contributing cause of his disk bulges, nerve

impingement, stress fractures, and disk slippage so that the treatment, including

surgery, related to those conditions was compensable. We affirm in part and

reverse in part.

BACKGROUND

[¶2.] Darling has worked as a stone mason most of his adult life. West

River Masonry, Inc. (West River Masonry) has employed Darling as a stone mason

since 2001. In 1989, Darling strained his back and consequently missed

approximately nine months of work. He recovered and did not have any problems

with his back until January 2005. During that fifteen-year period, Darling never

saw a doctor or missed work for low back pain.

[¶3.] On January 15, 2005, Darling was carrying concrete blocks down a

stairway into the basement of the Adams Museum in Deadwood, South Dakota. It

was cold and snowy that day, so Darling and his co-workers carefully cleaned and

sanded the steps of the stairway. A smooth concrete landing with a nine-inch step

was at the bottom of the stairway. Darling was carrying two concrete blocks

weighing 35 to 40 pounds when he slipped on the concrete landing. His feet came

out from under him and his lower back hit the edge of the nine-inch step. Darling

felt pain immediately, but continued to work because he did not believe his injury

was serious. The pain in his low back, left side, and left leg steadily increased

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throughout the day. When Darling finished work, the pain had progressed to the

point that he could barely walk. Darling’s wife helped him into his house when he

arrived home, and he used his daughter’s crutches to get to the emergency room as

he could not bear any weight on his left leg.

[¶4.] Dr. Vosler treated Darling at the emergency room. Dr. Vosler directed

Darling to take a few days off work and prescribed Percocet to relieve his pain.

Darling again saw Dr. Vosler on January 24, 2005. At that time, Dr. Vosler noted

Darling had bruises across his mid-lumbar spine and left proximal femur. Dr.

Vosler prescribed additional pain medications for Darling, including Ibuprofen and

Vicoden. Shortly thereafter, Dr. Vosler approved Darling’s request to return to

work under certain conditions. Darling later saw Dr. Vosler in March 2005.

Although Darling indicated that his leg pain had subsided, he was still experiencing

pain in his low back. Dr. Vosler prescribed physical therapy or chiropractic

treatment.

[¶5.] Darling saw Dr. Brett Lawlor, a rehabilitation medicine specialist, on

May 27, 2005. Dr. Lawlor diagnosed Darling with discogenic low back pain and

possible SI and facet dysfunction. Dr. Lawlor recommended physical therapy and

pain medication. He also ordered an MRI, which showed degenerative disc disease

at L3-L4, L4-5, and L5-SI, facet hypertrophy at L3-L4 and L4-5, and mild foraminal

stenosis. The radiologist’s report did not mention disk bulges, nerve impingement,

stress fractures, or disk slippage. Over the next year, Dr. Lawlor treated Darling

with facet, epidural, and joint injections, neuromuscular electrostimulation, and

pain medications, but to no avail. On March 14, 2006, Dr. Lawlor discussed surgery

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with Darling, but Darling indicated he was not yet willing to undergo surgery.

Darling underwent a Functional Capacities Evaluation (FCE) on April 10, 2006.

Dr. Lawlor assigned Darling a five-percent whole-person impairment for the lumbar

spine. He also restricted Darling to lifting no more than fifty pounds occasionally or

thirty pounds frequently. The FCE did not preclude Darling from twisting or

bending.

[¶6.] On May 12, 2006, Darling was playing baseball in his yard with his

son. As Darling was demonstrating a swing, though not taking a full swing, he felt

a popping sensation accompanied by sudden and severe pain. Darling immediately

experienced severe left leg pain so that he could barely walk. He used the baseball

bat and a handrail to support his weight as he walked back to his house.

[¶7.] Darling returned to Dr. Lawlor who prescribed physical therapy and

ordered a second MRI. The radiologist’s report for this second MRI noted stress

fractures at L4-5 with disk slippage of L4 and L5, moderate canal stenosis and left

lateral stenosis, mid-grade I degenerative anterior stress fracture at L5-SI

bilaterally, and disk bulges and facet athrosis with obvious neural impingement.

Dr. Lawlor recognized that the disk bulges, nerve impingement, and stress

fractures were not noted on the June 2005 MRI report. Dr. Lawlor felt the current

course of treatment was not adequate and referred Darling to Dr. Rand

Schleusener, an orthopedic surgeon, for surgical consultation. Dr. Schleusener

recommended surgery to decrease pain and nerve impingement associated with the

disk narrowing and bulging, as well as the disk slippage caused by the stress

fractures.

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[¶8.] A hearing on Darling’s workers’ compensation claim was held before

the Department on November 13, 2007. At that hearing, Darling testified and

presented the deposition testimony of Drs. Lawlor and Schleusener. Drs. Lawlor

and Schleusener believed Darling’s January 2005 injury was a major contributing

cause of his current condition and need for treatment, including surgery. West

River Masonry presented the deposition testimony of Dr. Greg Reichhardt. Dr.

Reichhardt believed the January 2005 injury was not a major contributing cause of

Darling’s current condition and need for surgery. He testified the surgery was

needed to treat disk bulges, nerve impingement, and stress fractures, injuries not

present prior to the May 2006 incident as demonstrated by the June 2005 MRI

report. He concluded Darling was not entitled to workers’ compensation benefits for

any treatment related to those conditions. On June 5, 2008, the Department found

West River Masonry responsible for Darling’s ongoing medical expenses, including

the cost of surgery. West River Masonry filed a notice of appeal with the Sixth

Judicial Circuit Court on July 7, 2008.

[¶9.] The circuit court, per the Honorable Lori S. Wilbur, affirmed in part

and reversed in part. The circuit court affirmed the Department to the extent the

Department found a causal relationship between Darling’s January 2005 injury and

his general current condition. However, the circuit court reversed to the extent the

Department found a causal relationship between Darling’s January 2005 injury and

his disk bulges, nerve impingement, stress fractures, and disk slippage. The circuit

court concluded Darling was not entitled to workers’ compensation benefits for any

treatment, including surgery, related to those conditions. Darling appeals.

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STANDARD OF REVIEW

[¶10.] The standard of review in administrative appeals is established by

SDCL 1-26-37. Under this statute, “the applicable standard of review ‘will vary

depending on whether the issue is one of fact or one of law.’” Orth v. Stoebner &

Permann Constr., Inc., 2006 SD 99, ¶27, 724 NW2d 586, 592 (quoting Tischler v.

U.P.S., 1996 SD 98, ¶23, 552 NW2d 597, 602). The actions of the agency are judged

by the clearly erroneous standard when the issue is a question of fact. Id. The

actions of the agency are fully reviewable when the issue is a question of law. Id.

“Mixed questions of law and fact require further analysis.” McNeil v. Superior

Siding, Inc., 2009 SD 68, ¶6, 771 NW2d 345, 347 (citing Permann v. S.D. Dep’t of

Labor, 411 NW2d 113, 119 (SD 1987)).

If application of the rule of law to the facts requires an inquiry
that is “essentially factual” – one that is founded “on the
application of the fact-finding tribunal’s experience with the
mainsprings of human conduct” – the concerns of judicial
administration will favor the district court, and the district
court’s determination should be classified as one of fact
reviewable under the clearly erroneous standard. If, on the
other hand, the question requires us to consider legal precepts in
the mix of fact and law and to exercise judgment about the
values that animate legal principles, then the concerns of
judicial administration will favor the appellate court, and the
question should be classified as one of law and reviewed de novo.

Id. ¶6, 771 NW2d at 347-48 (quoting United States v. McConney, 728 F2d 1195,

1202 (9th Cir 1984)) (internal citations omitted). See In re Dorsey & Whitney Trust

Co., LLC, 2001 SD 35, ¶¶5-6, 623 NW2d 468, 471. Finally, the matter is reviewed

de novo when “an agency makes factual determinations on the basis of documentary

evidence, such as depositions” or medical records. Vollmer v. Wal-Mart Store, Inc.,

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2007 SD 25, ¶12, 729 NW2d 377, 382 (citing Watertown Coop. Elevator Ass’n v. S.D.

Dep’t of Rev. and Reg., 2001 SD 56, ¶10, 627 NW2d 167, 171).

DECISION

[¶11.] In a workers’ compensation dispute, a claimant must prove all

elements necessary to qualify for compensation by a preponderance of the evidence.

Titus v. Sioux Valley Hosp., 2003 SD 22, ¶11, 658 NW2d 388, 390 (citation omitted).

The fact that an employee may have suffered a work-related injury does not

automatically establish entitlement to benefits for his current claimed condition.

Haynes v. McKie Ford, 2004 SD 99, ¶17, 686 NW2d 657, 661. The claimant must

establish that his work-related injury is a major contributing cause of his current

claimed condition and need for treatment. Vollmer, 2007 SD 25, ¶14, 729 NW2d at

382-83 (citation omitted). An employee need only prove his work-related injury is

“a” major contributing cause of his current claimed condition. Brown v. Douglas

Sch. Dist., 2002 SD 92, ¶23, 650 NW2d 264, 271.

[¶12.] A claimant need not prove his work-related injury is a major

contributing cause of his condition to a degree of absolute certainty. Brady Mem’l

Home v. Hantke, 1999 SD 77, ¶16, 597 NW2d 677, 681 (citations omitted).

Causation must be established to a reasonable degree of medical probability, not

just possibility. Truck Ins. Exch. v. CNA, 2001 SD 46, ¶19, 624 NW2d 705, 709

(citing Enger v. FMC, 1997 SD 70, ¶18, 565 NW2d 79, 85). The evidence must not

be speculative, but must be “precise and well supported.” Vollmer, 2007 SD 25, ¶14,

729 NW2d at 382 (quoting Horn v. Dakota Pork, 2006 SD 5, ¶14, 709 NW2d 38, 42).

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[¶13.] The testimony of medical professionals is crucial in establishing the

causal relationship between the work-related injury and the current claimed

condition “because the field is one in which laypersons ordinarily are unqualified to

express an opinion.” Id. (quoting Rawls v. Coleman-Frizzell, Inc., 2002 SD 130, ¶21,

653 NW2d 247, 252 (quoting Day v. John Morrell & Co., 490 NW2d 720, 724 (SD

1992))). No recovery may be had where the claimant has failed to offer credible

medical evidence that his work-related injury is a major contributing cause of his

current claimed condition. SDCL 62-1-1(7). Expert testimony is entitled to no more

weight than the facts upon which it is predicated. Schneider v. S.D. Dep’t of

Transp., 2001 SD 70, ¶16, 628 NW2d 725, 730 (citations omitted).

[¶14.] We consider anew the medical expert testimony on causation in this

case because it was presented through deposition. Vollmer, 2007 SD 25, ¶12, 729

NW2d at 382 (citation omitted). Darling argues the January 2005 injury is a major

contributing cause of his current condition and need for treatment, including

surgery. He offered the opinions of Drs. Lawlor and Schleusener in support of this

contention. West River Masonry argues Darling has not proven to a reasonable

degree of medical probability that the January 2005 injury is a major contributing

cause of his current condition and need for surgery. Dr. Reichhardt testified the

surgery is needed to treat disk bulges, nerve impingement, and stress fractures,

injuries not present prior to the May 2006 incident as demonstrated by the June

2005 MRI report. He concluded Darling is not entitled to workers’ compensation

benefits for any treatment related to those conditions.

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[¶15.] We must first consider whether the January 2005 injury is a major

contributing cause of Darling’s general current condition. The testimony of Drs.

Lawlor and Schleusener demonstrates that the May 2006 incident was an

exacerbation of Darling’s January 2005 injury. While Darling was assigned

maximum medical improvement in April 2006, he was still experiencing severe pain

at that time. Darling’s description of the pain experienced after the May 2006

incident is similar to his description of the pain experienced after the January 2005

injury. In Darling’s words, after the May 2006 incident, he experienced the “same

kind of pain, same location, same intensity.” He “didn’t think it was anything new,

just a continuation or flare-up” since it “mimicked the symptoms of the earlier

injury.” Drs. Lawlor and Schleusener noted Darling’s pain initially worsened after

the May 2006 incident, but eventually subsided to the same degree as before the

incident. Dr. Reichhardt disputed this fact, but did not review Darling’s medical

records after June 2006. He thus cannot know Darling’s condition after that date.

Darling has demonstrated to a reasonable degree of medical probability that the

January 2005 injury is a major contributing cause of his general current condition.

[¶16.] We must next consider whether the January 2005 injury is a major

contributing cause of Darling’s need for surgery. The testimony of Drs. Lawlor and

Schleusener demonstrates that the stress fractures were caused by the January

2005 injury. The June 2006 MRI report noted Darling had a stress fracture at two

levels. Dr. Schleusener testified that a stress fracture at one level is often

indicative of a degenerative condition, while a stress fracture at two levels is often

the result of a single traumatic event. Dr. Schleusener did not believe the May

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2006 incident contributed enough force to cause a stress fracture at two levels.

Rather, the hyperextension injury Darling suffered in January 2005 was a single

traumatic event likely to have caused a stress fracture at two levels. Additionally,

Drs. Lawlor and Schleusener noted bridging osteophytes, attempts by the body to

heal stress fractures, in the June 2006 MRI. Bridging osteophytes take years to

develop. The presence of the bridging osteophytes in the June 2006 MRI indicates

the stress fractures were present before the May 2006 incident. It is undisputed the

stress fractures have resulted in disk slippage. Therefore, Darling has

demonstrated to a reasonable degree of medical probability that the January 2005

injury is a major contributing cause of his stress fractures and disk slippage.

[¶17.] West River Masonry contends Darling has not presented credible

medical evidence that the January 2005 injury is a major contributing cause of the

disk bulging or stress fractures so that he is not entitled to workers’ compensation

benefits for the treatment of those conditions, namely surgery. However, surgery is

necessary not only to treat nerve impingement caused by disk bulging, but also disk

slippage caused by stress fractures. Darling has demonstrated to a reasonable

degree of medical probability that the January 2005 injury is a major contributing

cause of the stress fractures and disk slippage. Significantly, Darling and Dr.

Lawlor discussed the possibility of corrective surgery two months before the May

2006 incident. For these reasons, Darling has demonstrated to a reasonable degree

of medical probability that the January 2005 injury is a major contributing cause of

his current condition and need for treatment, including surgery.

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[¶18.] West River Masonry argues that because the disk bulges, nerve

impingement, stress fractures, and disk slippage were not noted in the June 2005

MRI report, they did not then exist and must have been caused by the May 2006

incident. This argument relies on a “false connection between causation and

temporal sequence.” Rawls, 2002 SD 130, ¶20, 653 NW2d at 252 (citation omitted).

Arguments relying solely on temporal sequence have “little value in the science of

fixing medical causation.” Id. That these conditions were not noted in the June

2005 MRI report does not mean they did not then exist. This is especially true

because the MRI reports were prepared by two different radiologists. Additionally,

even if these conditions had not yet manifested in June 2005, the January 2005

injury was still likely a major contributing cause of those conditions. Dr.

Schleusener testified that the fact the June 2005 MRI did not show disk bulges

would not change his opinion that the January 2005 injury was a major

contributing cause of Darling’s current condition. Ultimately, West River Masonry

advances a very limited evaluation of the causation requirement.

[¶19.] West River Masonry similarly makes much of the fact that Drs. Lawlor

and Schleusener did not examine the films of the June 2005 and June 2006 MRIs.

They assert Darling has not presented “precise and well supported” medical expert

testimony and cannot meet his burden. See Vollmer, 2007 SD 25, ¶14, 729 NW2d at

382 (citation omitted). We decline to judge the weight and credibility of the medical

expert testimony on such a limited basis. Indeed, the record indicates Dr.

Reichhardt, like Drs. Lawlor and Schleusener, did not view the films of the June

2005 and June 2006 MRIs. He, like Drs. Lawlor and Schleusener, reviewed the

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radiologists’ reports. Dr. Reichhardt’s opinions regarding the MRI reports,

therefore, should be given no more weight than the opinions offered by Drs. Lawlor

and Schleusener. To the contrary, the opinions of Drs. Lawlor and Schleusener,

Darling’s treating physicians, should be given substantial weight when compared to

the opinion of Dr. Reichhardt, which was prepared after a review of medical records.

[¶20.] We have engaged in a comprehensive analysis of the expert medical

testimony in this case. In affording the appropriate weight to the expert medical

testimony of Drs. Lawlor, Schleusener, and Reichhardt, we affirm the circuit court’s

grant of benefits for treatment of Darling’s general condition, but reverse the circuit

court’s denial of benefits for treatment, including surgery, relating to Darling’s disk

bulges, nerve impingement, stress fractures, and disk slippage.

[¶21.] Affirmed in part, reversed in part.

[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

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