Hughes v. Dakota Mill & Grain

#29091-a-DG
2021 S.D. 31

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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TAYLOR HUGHES, Claimant and Appellee,

v.

DAKOTA MILL AND GRAIN, INC.
and DAKOTA TRUCK UNDERWRITERS, Employer, Insurer and
Appellants.

****

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

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THE HONORABLE CHRISTINA L. KLINGER
Judge

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BRAD J. LEE of
Beardsley, Jensen & Lee, Prof. PLLC
Rapid City, South Dakota Attorneys for claimant and
appellee.

CHARLES A. LARSON
LAURA K. HENSLEY of
Boyce Law Firm, LLP
Sioux Falls, South Dakota Attorneys for employer, insurer,
and appellants.

****

CONSIDERED ON BRIEFS
APRIL 20, 2020
OPINION FILED 05/12/21
#29091

GILBERTSON, Retired Chief Justice

[¶1.] Taylor Hughes filed a workers’ compensation claim for an alleged

work-related back injury. The Department of Labor (Department) denied his claim

because he failed to meet his burden of proof. The circuit court reversed the

Department’s decision. It held Hughes was entitled to recover for his injury. The

employer and its insurer appeal. We affirm.

Facts and Procedural History

[¶2.] Hughes worked various construction and heavy labor jobs from the

time he left high school in ninth grade (2004) until his employment with Dakota

Mill & Grain in 2017. In 2010, he began having back pain after three years of doing

general construction and operating heavy machinery for Rose Construction.

Hughes testified that he became aware of his first back injury after he woke up one

morning and experienced serious back pain. For this injury, he saw a doctor after a

few weeks when the pain started radiating down his left leg. In January 2011,

Hughes had a lumbar microdiscectomy. He had to have another microdiscectomy in

August 2011, because a painful cyst grew over the site of the first surgery.

[¶3.] Hughes reported that he experienced no back problems after the

second surgery. However, his medical records reflected that he had an injection in

August 2012 for pain in his back and left leg, and he refilled his hydrocodone

prescription periodically in 2012 and 2013. Hughes was also electrocuted on a job in

2014 and reported some temporary back pain from the incident. Hughes testified

that he had no real symptoms from 2014 to 2017 but would occasionally slow down

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at work to avoid another back injury when his left leg or toes would start feeling

numb.

[¶4.] Hughes completed a physical before starting work with Dakota Mill &

Grain in 2017. During the physical, he reported no symptoms, and the examining

doctor approved Hughes to work with no restrictions. Hughes’s job with Dakota

Mill & Grain involved heavy labor, including: unloading trucks, dumping grain into

grain bins or train cars, maintaining belts and equipment, pouring concrete,

landscaping, and performing other activities as needed. During the two weeks

leading up to the at-issue incident, Hughes was removing a concrete floor in order to

move pipes underground. To complete the project, Hughes used a concrete saw,

jackhammer, and a Bobcat.

[¶5.] Hughes claimed that on Thursday, June 22, 2017, as he was finishing

the project, he exited the Bobcat and fell, feeling a pain in his back. He testified

that the Bobcat jostles a person around because it has no shock absorbers. Hughes

told his supervisor, Jeremy Hand, and the office manager, Brittany Huber, that he

was sore and requested to take some time off to recuperate. He went home for a few

hours then felt well enough to return to work and performed light-duty work for the

remainder of the day. That day, Hughes did not document the injury or seek

medical attention. The following day, he did light-duty work for a full 9.5-hour day

and then took the weekend off. He attended Oahe Days in Pierre that weekend,

listening to the bands and watching the rodeo. He testified that his soreness

increased over the weekend, but not greatly.

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[¶6.] On Monday, June 26, Hughes woke up and got ready for work. He

testified that around 7 a.m. he tried to get off his couch and his legs collapsed.

Hughes claimed the pain prohibited him from getting up, and he had to call his

mother to take him to the emergency room. The emergency room record contains

Hughes’s statement of the events but does not mention that he fell out of the

Bobcat. It also reflects the date his pain started as June 26.

[¶7.] An MRI reflected a herniated disc creating a bulge in his lower back.

To treat the pain, he received multiple steroid injections in his spine. He also

received physical therapy and medications, with surgery being a future option.

Hughes testified that his pain was in a similar area as his 2010 and 2011 pain, but

the at-issue pain radiates with more intensity, and he now feels pain in both his

right and left leg. On June 29, Hughes filed a report of injury with Dakota Mill &

Grain and made a workers’ compensation claim.

[¶8.] Hughes consulted Dr. James MacDougall in July 2017 and October

2017. Dr. MacDougall compared Hughes’s MRIs from 2011 and 2012 to his 2017

MRI. He found that the MRIs showed an increased herniation at L4-5 in Hughes’s

spine. In his deposition, Dr. MacDougall testified that Hughes’s pain in one leg

changing to pain in both his legs offered more indication of the injury’s occurrence

than the slight change in the MRIs. He also stated that the type of work Hughes

had been performing supported that work activities could have caused the injury.

Dr. MacDougall based his opinion on Hughes’s recitation of the events, Hughes

being asymptomatic prior to employment at Dakota Mill, and Hughes’s medical

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records. His overall opinion was that “work could be considered a major

contributing factor in this current problem.”

[¶9.] Dr. Grant Shumaker examined Hughes and his medical records on

behalf of Dakota Mill & Grain and its insurer, Dakota Truck Underwriters

(collectively Dakota Mill). Dr. Shumaker based his opinion on Hughes’s reported

pain symptoms beginning June 26, whereas Dr. MacDougall relied on Hughes’s

symptoms starting June 22. Dr. Shumaker concluded that work was not clearly a

major contributing factor of Hughes’s injury, because he believed Hughes’s story

differed from the documentation of his injury and his medical records. However, he

stated that work activities “may have been a contributing cause, but I can’t say that

they were the major contributing cause given his story.” He noted the change in

Hughes’s MRIs between 2012 and 2017 could show a natural progression of a

degenerative back condition rather than a specific injury. Dr. Shumaker could not

say with medical certainty which caused Hughes’s injury.

[¶10.] After a hearing, the Department concluded that Hughes had not

proven by a preponderance of the evidence that his disability “was caused by a work

place injury” and that his work activities were “a major contributing cause” of his

disability. The Department found that Hughes’s version of the events was not

credible in comparison to the medical records. It also rejected Dr. MacDougall’s

opinion because it was based on Hughes’s version of events and was not persuasive.

The Department determined that other factors contributed to Hughes’s injury so

that Hughes’s work activities could not qualify as a “cause which cannot be

exceeded[.]” Hughes appealed to the circuit court.

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[¶11.] The circuit court reversed the Department’s decision. It determined

that the Department erred as a matter of law by applying the incorrect standard to

the causation of the injury, and the Department’s finding that Hughes failed to

establish causation was clearly erroneous. It also determined that the Department

committed an error of law by applying the wrong definition to “a major contributing

cause,” and the Department’s finding that Hughes did not establish that his work

activities were a major contributing cause was clearly erroneous. It based its

decision on the medical experts’ depositions, medical records, and hearing

testimony. Dakota Mill appeals, raising four issues which we condense and

restate:∗

1. Whether the Department erred in determining Hughes
had not established an injury arising out of his
employment.

2. Whether the Department erred in determining Hughes
had not established that his work activities were a major
contributing cause of his condition.

Analysis and Decision

[¶12.] We review the Department’s decision in the same manner as the

circuit court. SDCL 1-26-37. The Department’s factual findings are given great

weight and will be overturned only if they are clearly erroneous. SDCL 1-26-36;

∗ Dakota Mill sought review of the Department’s finding on Hughes’s
credibility. We need not address this issue because we support our holding
with evidence independent of Hughes’s statement of the events, such as the
unchallenged testimony of his co-workers Hand and Huber who testified to
the events on June 22. Dakota Mill also requested review of whether the
Department erred in determining Hughes’s expert’s testimony was
insufficient to meet his burden of proof. We address this matter under issue
two.
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Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 10, 777 N.W.2d 363, 366. “The

test is whether after reviewing the evidence we are left with a definite and firm

conviction that a mistake has been made.” Schneider v. S.D. Dep’t of Transp., 2001

S.D. 70, ¶ 10, 628 N.W.2d 725, 728 (quoting Truck Ins. Exch. v. Kubal, 1997 S.D. 37,

¶ 9, 561 N.W.2d 674, 676). We review the Department’s factual determinations

based on documentary evidence, such as depositions and medical records, de novo.

Peterson v. Evangelical Lutheran Good Samaritan Soc’y, 2012 S.D. 52, ¶ 19, 816

N.W.2d 843, 849. The Department’s conclusions of law are fully reviewable.

Darling, 2010 S.D. 4, ¶ 10, 777 N.W.2d at 366.

1. Whether the Department erred in determining
Hughes did not establish an injury arising out of his
employment.

[¶13.] A workers’ compensation claimant has the burden of proving all

necessary elements for qualification by a preponderance of the evidence. Id. ¶ 11,

777 N.W.2d at 367. An injury is compensable only if it is an “injury arising out of

and in the course of the employment[.]” SDCL 62-1-1(7). Both factors, which we

construe liberally, must be established, and “the strength of one factor [may] make

up for the deficiencies in strength of the other.” Fair v. Nash Finch Co., 2007 S.D.

16, ¶ 9, 728 N.W.2d 623, 628 (citation omitted).

[¶14.] For an “injury to ‘arise out of’ the employment, the employee must

show that there is a ‘causal connection between the injury and the employment.’”

Id. ¶ 10, 728 N.W.2d at 629 (quoting Bender v. Dakota Resorts Mgmt. Grp., Inc.,

2005 S.D. 81, ¶ 10, 700 N.W.2d 739, 742). “The injury ‘arose out of the’ employment

if: 1) the employment contributes to causing the injury; 2) the activity is one in

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which the employee might reasonably engage; or 3) the activity brings about the

disability upon which compensation is based.” Id. (quoting Bender, 2005 S.D. 81, ¶

10, 700 N.W.2d at 742). “[T]he employee must show that [his] employment was a

‘contributing factor’ to [his] injury.” Orth v. Stoebner & Permann Constr., Inc., 2006

S.D. 99, ¶ 32, 724 N.W.2d 586, 592-93 (quoting Brown v. Douglas Sch. Dist., 2002

S.D. 92, ¶ 19, 650 N.W.2d 264, 270) (second and third alterations in original)

(emphasis in original).

[¶15.] The phrase “‘in the course of employment’ refer[s] to the time, place

and circumstances of the injury.” Bender, 2005 S.D. 81, ¶ 11, 700 N.W.2d at 742

(quoting Bearshield v. City of Gregory, 278 N.W.2d 166, 168 (S.D. 1979)). “An

employee is considered within his course of employment if he is doing something

that is either naturally or incidentally related to his employment or which he is

either expressly or impliedly authorized to do by the contract or nature of the

employment.” Id. (citation omitted) (internal quotation marks omitted).

[¶16.] In its analysis of whether Hughes’s injury arose out of and in the

course of his employment, the Department concluded that Hughes “failed to prove

by a preponderance of the evidence that his disability was caused by a work place

injury.” (Emphasis added.) As the circuit court correctly noted, however, the

Department applied the incorrect standard. This was an error of law. The correct

standard is whether Hughes’s work activities contributed to his injury. See Orth,

2006 S.D. 99, ¶ 32, 724 N.W.2d at 592-93.

[¶17.] After examining the Department’s findings under the correct standard,

it is clear that Hughes established by a preponderance of the evidence that his

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injury arose out of and in the course of his employment. First, prior to Hughes

starting employment with Dakota Mill, Hughes underwent a physical examination.

As the Department found, the examination reported that Hughes had no symptoms

and felt “100 percent[.]” The Department then found that on June 22, the day of the

incident, Hughes informed Hand and Huber, his supervisor and the office manager,

that he was sore and needed to take time off. Both testified at the hearing as to

these events and their credibility has not been challenged in these proceedings. The

report from the insurance adjuster also confirmed that Hughes informed Hand and

Huber on June 22 that his back was sore. The Department further found that when

Hughes returned to work at Dakota Mill, on June 22, he performed only light-duty

work that day and the following day. This work, the Department determined,

required bending, twisting, and turning, which are activities that would aggravate

one’s back, and Hughes reported feeling some pain in performing these tasks. On

June 26, after Hughes’s legs collapsed and his mother took him to the emergency

room, the emergency room records revealed that Hughes’s activities on June 22

included the heavy work of jack hammering and a lot of lifting. Finally, Dr.

Shumaker conceded that the activities of landscaping and concrete work could have

been a contributing cause to the injury Hughes sustained. Therefore, based on the

Department’s findings and the presented evidence, Hughes met his burden of proof

as to this issue.

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2. Whether the Department erred in determining
Hughes did not establish that his work activities
were a major contributing cause of his condition.

[¶18.] Both the Department and the circuit court noted, and neither party

disputes, that Hughes had a preexisting back condition at the time of his most

recent work injury. Under SDCL 62-1-1(7)(b), “[i]f the injury combines with a

preexisting disease or condition to cause or prolong disability, impairment, or need

for treatment, the condition complained of is compensable if the employment or

employment related injury is and remains a major contributing cause of the

disability, impairment, or need for treatment[.]”

[¶19.] “Issues of causation in workers[’] compensation cases are factual issues

that are best determined by the Department.” Holscher v. Valley Queen Cheese

Factory, 2006 S.D. 35, ¶ 29, 713 N.W.2d 555, 564 (citation omitted). However, here,

the circuit court correctly held that the Department used the incorrect definition for

determining whether Hughes’s work activities were a major contributing cause of

his condition. It then correctly reversed the Department’s decision that Hughes had

not met his burden on this point. We agree that the Department incorrectly used a

statement from Orth as a basis for defining a major contributing cause as “[a] cause

which cannot be exceeded[.]” 2006 S.D. 99, ¶ 42, 724 N.W.2d at 596. The

Department used this statement to reach its conclusion that “[a] forty percent cause

does not meet this threshold because sixty percent of Claimant’s condition was

caused by other factors; any of which could have exceeded forty percent.” This

percentage appears to have come from a hypothetical question, not based on

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applicable percentages, posed by the questioning party to Dr. MacDougall during

his deposition. Thus, the record does not support the percentages.

[¶20.] A claimant is not required to prove that his or her work activities are

at least 50% attributable to his or her condition in order to show that those

activities were a major contributing cause of the condition. A claimant also does not

need to show that there was a single cause of injury. Accordingly, a claimant is “not

required to prove that his employment was the proximate, direct, or sole cause of

his injury.” Smith v. Stan Houston Equip. Co., 2013 S.D. 65, ¶ 16, 836 N.W.2d 647,

652. Further, the claimant’s work activities do not have to be ‘“the’ major

contributing cause” of the injury; they only have to be “‘a’ major contributing cause.”

Peterson, 2012 S.D. 52, ¶ 21, 816 N.W.2d at 850 (citation omitted).

[¶21.] It is well settled that “[a]n injury is compensable only if it is

established by medical evidence[.]” SDCL 62-1-1(7). “Causation must be

established to a reasonable degree of medical probability, not just possibility.”

Darling, 2010 S.D. 4, ¶ 12, 777 N.W.2d at 367 (citation omitted). Dr. Shumaker

concluded that he could not determine to a reasonable degree of medical certainty

that Hughes’s work activities were a major contributing cause of his condition. In

contrast, Dr. MacDougall determined that Hughes’s work activities were a major

contributing factor in causing his current condition. The Department found Dr.

Shumaker’s testimony more persuasive than Dr. MacDougall’s. Because both

doctors presented their testimony through depositions, we review the medical

evidence under the de novo standard of review. See Peterson, 2012 S.D. 52, ¶ 19,

816 N.W.2d at 849. After our independent review of the medical experts’ testimony,

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contrary to the Department’s determination, we believe the testimony of Dr.

MacDougall to be more reliable for several reasons.

[¶22.] Based upon our review of the record, it is apparent that Dr. Shumaker

applied an incorrect standard to determine the causation a claimant must show. He

required Hughes to show that his employment was the “predominate cause” or the

“major contributing cause” of his current condition and need for treatment. On the

other hand, Dr. MacDougall understood the appropriate standard. When asked

what is “a major contributing cause,” Dr. MacDougall responded, “the factor that is

a major contributing cause has to be . . . not the only cause, not the most significant

cause, just a major contributing cause[.]” Dr. MacDougall applied the appropriate

standard. A claimant’s work activities must be “‘a’ major contributing cause.” Id. ¶

21, 816 N.W.2d at 850.

[¶23.] In reaching his conclusions, Dr. Shumaker also failed to examine key

information. “The value of the opinion of an expert witness is no better than the

facts upon which it is based. It cannot rise above its foundation and proves nothing

if its factual basis is not true. It may prove little if only partially true.” Johnson v.

Albertson’s, 2000 S.D. 47, ¶ 25, 610 N.W.2d 449, 455 (citation omitted). Dr.

Shumaker did not review the record from Hughes’s employment physical, which

showed that Hughes had no complaints of pain prior to his employment with

Dakota Mill, or the information from his supervisor and co-worker stating that

Hughes reported pain or soreness on June 22.

[¶24.] Further, Dr. Shumaker’s determination that Hughes’s pain started on

June 26 and his finding that Hughes’s work activities were not a major contributing

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cause go against the presented evidence. As noted above, Hughes began work in

2017 with Dakota Mill symptom free. His last injection for back pain was August

2012, and he last refilled his hydrocodone prescription in 2013. For roughly five

months, Hughes routinely worked fifty to sixty hours per week with Dakota Mill

and reported no back pain. His manager reported that he volunteered for extra

work, routinely put in long hours, and, prior to the incident, had not asked to take

time off during the work day for back pain. Further, both Hughes’s manager and

Dakota Mill’s insurer reported that Hughes experienced back pain or soreness on

June 22. Contrary to Hughes’s normal work habits, he requested to take a break.

He was then only able to perform light-duty work for the remainder of the day and

the following day. As the Department found, Hughes “continued to experience some

pain[.]” Both experts agreed: Hughes’s MRIs from 2012 to 2017 show an increase in

the bulge at L4-5, Hughes’s pain increased from running down one leg to both legs,

and Hughes last received treatment for back pain in 2014. Finally, Dr. Shumaker

stated that, while he had difficulty assuming the pain started on June 22, if he

assumed that fact and that Hughes had performed heavy work the two weeks prior

to the incident then he “believe[d] that you could potentially make a fairly solid

claim that the work exposure was the major contributing cause.”

[¶25.] The testimony of Dr. MacDougall, which established that Hughes’s

work activities were a major contributing cause of his current condition and need

for treatment, was supported by documentary evidence and the testimony of

Hughes’s co-workers. Accordingly, the circuit court correctly determined that the

Department committed an error of law by applying the incorrect standard and in

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entering a clearly erroneous finding that Hughes failed to prove by a preponderance

of the evidence that his work injury was a major contributing cause of his current

condition.

Conclusion

[¶26.] The circuit court properly overturned the Department’s decision.

Hughes proved by a preponderance of the evidence that his injury arose out of and

in the course of his employment and that his employment was a major contributing

cause of his current condition. We affirm.

[¶27.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,

Justices, concur.

[¶28.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

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