Brewer v. Tectum Holdings, Inc.

2025 S.D. 23

• Court: South Dakota Supreme Court
• Decided: April 16, 2025
• Docket: 30403
• Status: Published

Opinion

#30403-aff in pt & rev in pt-JMK 2025 S.D. 23

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

JOSHUA J. BREWER, Claimant and Appellant,

v.

TECTUM HOLDINGS, INC. d/b/a TRUXEDO, Employer and Appellee,

and

BERKSHIRE HATHAWAY HOMESTATE INSURANCE CO., Insurer and Appellee. ****

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

THE HONORABLE CHRISTINA L. KLINGER Judge

JAMI J. BISHOP RONALD A. PARSONS, JR. of Johnson, Janklow & Abdallah LLP Sioux Falls, South Dakota

RENEE H. CHRISTENSEN of Johnson Christensen, Law Office, P.C. Sioux Falls, South Dakota Attorneys for claimant and appellant.

THOMAS J. VON WALD of Boyce Law Firm, LLP Sioux Falls, South Dakota Attorneys for appellees employer and insurer.

CONSIDERED ON BRIEFS APRIL 23, 2024 OPINION FILED 04/16/25 #30403

KERN, Justice

[¶1.] Josh Brewer brought a workers’ compensation claim for permanent

total disability (PTD) benefits against Tectum Holdings, Inc. d/b/a Truxedo and

Berkshire Hathaway (collectively referred to herein as Employer) after he suffered a

work-related injury in September 2015. Employer denied his claim. After a

hearing in front of an administrative law judge (ALJ), the Department of Labor

(Department) denied Brewer’s claim, finding he did not prove that his work-related

injury was a major contributing cause of his current condition and ongoing need for

treatment. Further, the Department denied Brewer’s claim for PTD benefits.

Brewer appealed the Department’s decision and the circuit court affirmed. Brewer

now appeals these decisions. We affirm in part and reverse in part.

Factual and Procedural Background

[¶2.] Brewer grew up in Yankton, South Dakota. He attended high school

until his sophomore year when he dropped out; but he successfully obtained his

GED a year later. Brewer worked at a variety of jobs during his adolescent and

early adult years. He began working in food service, namely Burger King and

Yesterday’s Café in Yankton. By the time he was 18, he was working jobs involving

heavy manual labor. He worked for TMA doing tire rotation; a construction

company doing framing, installing doors and windows, and shingling; a grain

elevator bagging and delivering 50-pound sacks of feed; 1 and for several companies

assembling and delivering furniture. Brewer started a two-year systems

1. Brewer filed a workers’ compensation claim against the elevator and had bilateral carpal tunnel surgeries as a result of a work-related condition.

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administration training program at Southeast Technical Institute (STI) in 2012, but

he left the program after a year-and-a-half in order to work to support his children.

Brewer’s work history

[¶3.] During and following his time at STI, Brewer worked for various

businesses. These positions included jobs at: Century Business Products working

with printers; G&H Distributing producing hydraulic hoses; Casey’s convenience

store; Bow Creek fabricating metal products; and Muller Industries manufacturing

windmills. However, he also experienced intermittent periods of unemployment.

[¶4.] On June 2, 2015, Brewer, who was then 27 years old and living with

his girlfriend and their children, began working at Truxedo located in Yankton.

Truxedo manufactures and distributes “soft roll-up covers for pickup beds,”

sometimes referred to as “tonneau cover[s].” While at Truxedo, Brewer worked ten-

to twelve-hour shifts as a shipping clerk whose responsibilities included processing

and packaging orders to prepare for shipment. His duties often required him to lift

covers and packaging material kits which were five to eight feet long and weighed

anywhere from 28 to 60 pounds. During a typical day Brewer would pull an

average of 65–80 kits from a shelf or nearby pallet. He would then lift and carry

each kit over his shoulder to a staging area where he processed the kit for shipping.

[¶5.] On September 22, 2015, while going about his usual work

responsibilities at Truxedo, Brewer suffered a work injury when he bent down,

lifted a cover kit off a pallet, twisted, and heard a pop. Brewer did not immediately

feel pain and finished the workday. He started to experience “extreme pain” in his

lower back two days later. He continued to work at Truxedo through December

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2015, when his pain levels intensified to such a point that he was unable to

continue working. 2 Thereafter, Brewer began to seek medical care for his work

injury.

[¶6.] After approximately a year of unemployment following his departure

from Truxedo, Brewer obtained a job at Pathways Homeless Shelter on January 11,

2017. His responsibilities at Pathways included tasks such as performing room and

curfew checks, administering PBTs, cleaning, and getting residents their groceries.

He also helped with small renovation projects. Brewer’s position at Pathways

allowed him to sit down for the majority of the shift and take additional breaks to

stretch. Brewer worked at Pathways until May 2018 when the shelter lost a portion

of its federal funding and was required to downsize its staff.

[¶7.] After Pathways, Brewer testified that he struggled to find suitable

employment because of the limitations and pain caused by his work-related injury

and the need for multiple modalities of medical treatment. He worked at Starbucks

in Vermillion (for one month beginning in April 2019) and Domino’s in Vermillion

(for roughly 1.5 months beginning in August 2019), but he quit both positions after

the jobs required him to perform tasks that aggravated his back pain. At the time

of the March 2022 hearing, Brewer was still unemployed.

Brewer’s medical history

[¶8.] Although Brewer received medical care for other conditions prior to his

work-related injury on September 22, 2015, the medical history relevant to this

2. Brewer was still on the payroll at Truxedo in the first part of 2016, but he worked his last shift there in December 2015.

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appeal is limited to five chiropractic appointments prior to the injury. Brewer first

sought chiropractic treatment on May 30, 2015, for “tingling, aching, sharp, burning

and shooting” pain in the right thoracic region. Brewer rated his pain as a 7 out of

10 (7/10). During three follow-up appointments in June, Brewer reported slight

changes in the location of the pain but stated that his pain had decreased. Later at

a July 22, 2015, appointment, Brewer reported that the back pain had been

bothering him recently and that it had now developed in his mid and lower back.

[¶9.] Three days following the September 22, 2015 work injury, Brewer

again sought care from First Chiropractic for complaints of sharp pain, aching, and

stiffness in his lower back. Jim Fitzgerald, DC, diagnosed Brewer with

nonallopathic lesions in the lumbar, sacral, and pelvic levels. Accordingly, Brewer

received chiropractic manipulative therapy, colloquially known as spinal

adjustments, “to the left L5, sacrum and left pelvis spinal level(s).” At a September

29 appointment, Dr. Thomas Stotz, DC, diagnosed Brewer with lumbar

sprain/strain, lumbosacral sprain/strain, myalgia and myositis, and nonallopathic

lesions at the lumbar and sacral levels. Brewer’s treatment plan consisted of

receiving spinal adjustments, other supportive therapies, and prescribed home

exercises.

[¶10.] Brewer continued treatment at First Chiropractic, and through his

first two treatments in October 2015 reported that his pain was alleviating. Dr.

Stotz noted that Brewer told him at his October 8 appointment that “he has hardly

any pain into his low back anymore and indicates a 95% improvement. He no

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longer experiences sharp pain. Bending, getting in or out of the car, getting up from

a seated position and lifting only bothers on occasion now.”

[¶11.] After the October 8 appointment, Brewer was scheduled for a follow-up

appointment four weeks later; however, he returned to First Chiropractic on

October 28 because he was experiencing pain in his lower back. Dr. Stotz

maintained his previous diagnoses and started Brewer on a renewed series of

treatments. Brewer continued to receive treatment throughout November and

December, during which he reported that his pain waxed and waned. He

consistently described his pain at a 3/10, but experienced pain as high as an 8 or

9/10 at least once a week.

[¶12.] Brewer’s chiropractic treatments continued into January 2016.

However, his progress stalled and Dr. Stotz placed work restrictions on Brewer

until he could be seen by an orthopedist. Brewer sought medical care from Brent

Adams, MD, at the Yankton Medical Clinic (YMC) on January 7, 2016. Brewer

reported pain in his “lower back, left flank and right flank.” He described the pain

as radiating “to the left ankle, left calf, left foot and left thigh,” and feeling “an ache,

numbness and tingling.” Dr. Adams ordered an MRI of Brewer’s lumbar spine and

X-rays of his lumbar spine and pelvis.

[¶13.] Will Eidsness, MD, a radiologist with YMC, examined the MRI and

concluded that Brewer had “[e]ssentially mild multilevel degenerative lumbar

spondylosis.” After reviewing the scans, Dr. Adams determined that Brewer had

“degenerative discs at L4-5 and L5-S1” and discussed the results with Brewer at a

subsequent appointment. Dr. Adams recommended an epidural injection at L4 and

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L5, and it was administered on February 15, 2016. The injection, however, did not

relieve Brewer’s pain. Brewer was seen again by Dr. Adams on March 22, 2016. He

said the pain had not alleviated and he requested another epidural injection.

[¶14.] Dr. Adams referred Brewer to Great Plains Therapy to begin a course

of physical therapy. At Brewer’s first session on April 1, 2016, Justin Siemonsma,

DPT, noted Brewer’s “[i]ntervertebral disc disorders with myelopathy, lumbar

region” diagnoses and gave a treatment diagnosis for a sprain of the sacroiliac (SI)

joint. Brewer had physical therapy sessions twice weekly until discharged in

October 2016 and was given a sacroiliac joint belt to wear. In large part, the

physical therapy improved Brewer’s mobility and allowed him to jog short

distances, lift light to heavy weights, and complete more functional tasks such as

mowing, cooking, and doing laundry.

[¶15.] Employer paid for Brewer’s medical care and pain treatment following

the work injury until sometime in May 2016, when Insurer refused to cover

Brewer’s additional treatment based upon the opinions of an independent medical

examination (IME) conducted on May 16, 2016. At Employers request, Brewer was

seen by Douglas Martin, MD, for the IME at UnityPoint Clinic in Sioux City, Iowa.

In preparing for the IME, Dr. Martin, an occupational medicine doctor, reviewed

Brewer’s medical history, including records from Great Plains, YMC, Avera Sacred

Heart Hospital, First Chiropractic, and Brewer’s MRI scans from 2016. After

examining Brewer, Dr. Martin issued a report indicating that Brewer had “mild,

multilevel degenerative lumbar disk disease.” Regarding the ongoing cause of

Brewer’s pain, he opined that:

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Causation, in this case, is based upon review of the medical documentation as presented, as well as interview with the examinee. It does appear that there was some sort of a work related event that occurred on September 22, 2015, which is probably best described as a strain episode. It is unclear why the gentleman continues to have the degree of subjective complaints that he has currently with respect to this seemingly mild issue. Typically, the reason for that would be better explained by psychosocial issues, rather than physical ones.

[¶16.] In Dr. Martin’s opinion, Brewer had an impairment rating of one

percent of the whole person and had reached maximum medical improvement from

the work injury. He also “strongly suggest[ed]” that Brewer return to normal work

activities and concluded that Brewer “certainly has the capacity to do” the

responsibilities of a shipping clerk.

[¶17.] After receiving Dr. Martin’s report, Employer refused to authorize or

pay for any further treatment for Brewer’s condition. Brewer, nevertheless,

continued to seek medical care for his pain. He continued to treat at YMC with Dr.

Adams, and he received a left sacroiliac injection from Wade Lukken, MD, at

Siouxland Pain Clinic on May 23, 2016. Brewer presented at Lewis and Clark

Clinic on June 20, 2016, and was evaluated by Jeffrey Johnson, MD, who attributed

Brewer’s pain to sacroiliitis. However, Brewer did not receive any treatment at that

time. The following day, Brewer again met with Dr. Adams. Because he was still

experiencing pain, Dr. Adams recommended Brewer obtain a second opinion.

[¶18.] On June 22, 2016, Brewer returned to Lewis and Clark and Peter

Murray, PA-C, ordered X-rays of Brewer’s lumbar spine and SI joint. Thomas

Posch, MD, reviewed the X-rays and noted that Brewer had mild spondylosis on the

lumbar spine and no degenerative changes in his SI joint. Following another

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injection by Dr. Lukken, Brewer was again seen by Dr. Johnson on July 5, 2016.

Dr. Johnson referred Brewer to Dr. Lukken for a nerve ablation procedure.

[¶19.] Brewer also sought help at the Orthopedic Institute (OI) in Sioux Falls

for back and bilateral SI joint pain. Mitchell Johnson, DO, examined Brewer and

noted:

I discussed with Joshua this is somewhat of an [sic] unique occurrence to have bilateral sacroiliac joint issues. It is hard to argue, however the significance of his response to the sacroiliac joint injections. I have suggested he follow up with Dr. Lukken. Otherwise, offered him referral for consideration of sacroiliac joint fusion although certainly indicated this ought to be a last consideration.

[¶20.] As recommended, Brewer followed up with Dr. Lukken at Siouxland on

August 16, 2016. Dr. Lukken administered SI joint injections for “diagnostic and

therapeutic purposes” to determine if radiofrequency ablation could be an effective

course of treatment. Brewer had a follow-up appointment with Dr. Lukken on

September 13, 2016, to discuss the efficacy of the prior injections. Because Brewer

experienced relief from the injections, Dr. Lukken performed a bilateral

radiofrequency ablation of Brewer’s SI joints. Brewer continued experiencing pain

following the ablation, however the pain was more isolated to his lumbar spine area

rather than the SI joints. At a follow-up appointment on October 25, 2016, Brewer

received injections at the L4-5 and L5-S1 regions to attempt to alleviate his pain. 3

While Brewer was able to experience some relief from the injections, his pain

3. Brewer had an appointment at OI on October 28, 2016, to address his work restrictions. Following his appointment, Dr. Mitchell Johnson noted that Brewer was “doing reasonably well” and that it would be appropriate for Brewer to work around 20 hours a week.

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returned and on November 22, 2016, he received another set of injections, for both

therapeutic and diagnostic purposes. Because the pain was still present and the

diagnostic information from the prior injections established that they were helpful,

Brewer underwent a radiofrequency ablation procedure on his medial branch nerves

on December 14, 2016. Brewer did experience relief from the ablation procedure,

but noted at an appointment on January 31, 2017, that his SI joint pain had

returned. As such, he received another injection in his SI joint.

[¶21.] Brewer was referred to Corey Rothrock, MD, at OI on April 7, 2017.

During his consultation, Brewer described his prior treatments and his pain level.

Brewer testified that by this time his daily pain was excruciating, rating it at 8/10;

he could stand for less than 20 minutes and was spending up to 8 hours during the

day lying down. Dr. Rothrock, who had reviewed Brewer’s records from OI and the

2016 MRI and X-rays, discussed with Brewer the possibility of undergoing a

bilateral SI joint fusion surgery, but explained that this should be a last resort.

Brewer chose this surgical option which was performed on May 2, 2017.

[¶22.] In the first few months following the surgery, Brewer did well, and his

pain was “significantly improved.” He reported only minor pain and soreness at his

initial post-surgery follow-up appointments. However, in August 2017, Brewer

began experiencing pain in his lower back and buttocks area. To ensure that the

fusion hardware was properly placed and not causing pain, Brewer had an MRI on

February 12, 2018. Dr. Rothrock concluded that the surgical hardware had fused

well in Brewer’s back. He prescribed a course of physical therapy for Brewer’s low

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back pain. Although not addressed by Dr. Rothrock in his report, the radiologist

noted that the scan also showed degenerative disk movement at L4-5 and L5-S1.

[¶23.] After receiving a course of physical therapy at Fyzical Therapy in

Vermillion from March through July, Brewer was seen by Dr. Rothrock on August

29, 2018, for a post-operative follow-up. Brewer noted that he still had some

lingering soreness, especially with certain movements. At a follow-up on September

13, 2018, Dr. Mitchell Johnson ordered lumbar MRI and pelvic CT scans to verify

that the fusion was well healed and that the pain was not originating from

somewhere else. The radiologist concluded that the fusion hardware was correctly

placed and not causing any other problems. The MRI showed that Brewer had

“[d]isc dehydration and slight disc narrowing at L4-5 with mild generalized disc

bulging.” Further, there was evidence of “[m]ild to moderate midline disc

protrusion at L5-S1 with annular fissure, slightly more prominent than [the

previous scan done in] January 2016.”

[¶24.] Dr. Mitchell Johnson related this information to Brewer at a follow-up

in October 2018 and recommended that Brewer receive an epidural injection at the

L5-S1 level. He received the injection but still experienced pain thereafter. Brewer

continued to receive treatment at OI from various doctors and medical

professionals. His treatment at OI from 2019–2021 included: multiple trigger point

and piriformis injections, medial branch blocks, radiofrequency ablations, bilateral

SI joint injections, and L5-S1 steroid injections.

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Procedural History

[¶25.] Brewer filed a petition for hearing with the Department on July 1,

2016, seeking workers’ compensation benefits from Employer. Employer filed an

answer denying Brewer’s entitlement to benefits and requesting a hearing. Prior to

the hearing, and at the request of Employer, Brewer underwent a second IME. This

examination was completed by Wade Jensen, MD, on August 12, 2019, and he

issued a report with his findings thereafter. Brewer also submitted to a functional

capacity evaluation (FCE) on August 4, 2021, performed by assessment specialist

Joan Hansen, DPT, at Sanford Physical Therapy Solutions in Sioux Falls. Hansen

opined that Brewer was capable of work but concluded that Brewer could work at

most six-hour workdays. Hansen found that Brewer could sit for five to six hours a

day in 60-minute increments and could stand for one to two hours a day in 15-

minute intervals. She also determined that Brewer could occasionally walk

“moderate distances” for up to two or three hours. The FCE also set weightlifting,

pulling, and pushing limitations for Brewer.

[¶26.] The hearing was held on March 24, 2022. Five witnesses testified

before the ALJ: Bryan Highland, Brewer, Allissa Llewellyn, Tom Audet, and Katie

Medema. The parties also submitted deposition testimony from their respective

medical experts, Dr. Corey Rothrock and Dr. Wade Jensen. Brewer also introduced

extensive medical records detailing his medical treatment both before and after the

work injury.

[¶27.] Brewer first called Bryan Highland, the operations manager for

Truxedo, who explained the job responsibilities of a shipping clerk and that clerks

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lift kits that “are anywhere from 28 to 36 pounds[,]” but they also may have to

occasionally move items that weigh between 40 and 60 pounds. He also said clerks,

like Brewer, work ten-hour shifts and are standing for approximately 90 percent of

the shift. Highland said he was unaware of Brewer’s work restrictions and that

Brewer never asked for a different position or any type of accommodation. He

testified that Truxedo had multiple positions available that would fit Brewer’s work

restrictions. For instance, the company had a part-time hardware aide position

where attendants “bag nuts and bolts and manuals” which paid $15.75 an hour.

When asked how Brewer was as an employee, Highland testified that Brewer

struggled with work attendance even before his injury, enough to be threatened

with suspension.

[¶28.] Brewer was next to testify at the hearing. He discussed his education

and employment history, and later detailed his experience and job responsibilities

while working at Truxedo. Brewer described his work injury that occurred on

September 22, 2015, and the pop that he felt in his back when he stood up after

lifting a kit off of a pallet on the floor. Brewer said he immediately told one of his co-

workers about the injury and later informed HR and his supervisor.

[¶29.] Brewer also detailed his extensive medical treatment following the

work injury and how the pain eventually developed in his “left and right groin area,

where [his] legs meet[] [his] groin[.]” He explained how he started with chiropractic

care but then transitioned to Dr. Adams. After treatment with Dr. Adams, Brewer

started physical therapy and was later treated at OI, where he underwent a

bilateral SI joint fusion surgery and also received 12 injections, two branch blocks,

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and two radiofrequency ablations. He also completed several courses of physical

therapy.

[¶30.] With respect to his claim for PTD benefits, Brewer described his work

restrictions and how he viewed them as limiting the jobs that were available to him.

He testified that he had not been able to find suitable employment even though he

had created an account on Indeed and applied for many jobs. He acknowledged,

however, that after he received approval for sedentary work in March 2016, he did

not ask Truxedo to accommodate his limitations, nor did he inquire about other

positions that were better suited for him. Furthermore, he admitted that during his

job search he used a résumé that revealed that he sustained a work injury in 2015

and had certain limiting physical restrictions. Regarding his employment history,

he listed only his last three jobs at Pathways, Starbucks, and Domino’s on his

résumé.

[¶31.] Brewer’s girlfriend, Allissa Llewellyn, also testified at the hearing

regarding Brewer’s pain during the relevant time frames. She explained that since

the injury, Brewer has been unable to do many household tasks such as laundry,

carrying groceries into the house, and yardwork. She testified that Brewer spends

multiple hours per day lying in bed and that she rubs his back one or two times

each night when he wakes up in pain.

[¶32.] Brewer also called Tom Audet, a certified vocational rehabilitation

counselor and expert with 44 years of experience in the field. Audet described his

work in conducting assessments as trying to determine “vocationally how a

disabling condition or an injury might impact a person’s ability to work and earn a

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living.” Audet performed an evaluation on Brewer and reviewed his medical records

as well as the depositions from Highland, Dr. Jensen, and Dr. Rothrock.

[¶33.] During his examination of Brewer, Audet assessed how long Brewer

could work in one session, how long he could sit or stand, and his ability to lift or

push items of a certain weight. He opined that Brewer needed a “sit-down kind of

job[,]” which could accommodate his physical restrictions, working 30 hours a week

with a pay rate of at least $12.90 per hour in order to equal his workers’

compensation benefit rate. When asked if there were jobs available to Brewer

within his limitations, Audet said, “[T]here are jobs I think that he could do if he

can maintain the job at a sedentary level. He’s got to get hired, obviously.” Audet

also noted that, based on Brewer’s studies at STI, he believed Brewer was

retrainable.

[¶34.] In addition to Audet’s testimony, Brewer offered the deposition of Dr.

Rothrock and, by stipulation, all of Brewer’s medical records. Dr. Rothrock

graduated from the University of Nebraska Medical School and completed an

orthopedic residency at Orlando Regional Medical Center. As one of Brewer’s

treating physicians, Dr. Rothrock testified about his treatment of Brewer following

the work injury. He stated that he began treating Brewer as a referral from a

colleague after Brewer had exhausted many other conservative treatments.

[¶35.] Dr. Rothrock reviewed Brewer’s medical history as relayed to him at

Brewer’s intake and the records held by OI. The records revealed that Brewer had

previously received intra-articular SI joint injections which provided 80 percent

relief and a nerve ablation which Brewer reported provided 80–90 percent relief.

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Brewer had also tried physical therapy, chiropractic treatment, pain medications,

and anti-inflammatory medication. While many of Brewer’s medical records

indicated that he suffered from degenerative disk disease, Dr. Rothrock did not

agree that the pain originated from this condition. Rather, in Dr. Rothrock’s

opinion, based on the results of numerous tests performed on Brewer, his pain was

isolated to his SI joint. Specifically, Dr. Rothrock noted that SI joint injections are

“[o]ne of the best diagnostic tests” because they only target pain originating from

the SI joint. Dr. Rothrock also performed the FABER test, which includes flexion,

abduction, and external rotation with stress on the SI joint. Dr. Rothrock testified

in his deposition that the results of that test localized Brewer’s pain to the SI joint.

[¶36.] In Dr. Rothrock’s view, fusion surgery was an appropriate course of

action because Brewer had exhausted most of the conservative treatment options

available to him. He described the fusion surgery he performed on Brewer, which

he considered successful in that Brewer had significant relief from his pain, even

though Brewer’s pain returned in the months following the surgery.

[¶37.] Based on his treatment of Brewer and the medical history relayed to

him by Brewer, Dr. Rothrock opined to a reasonable degree of medical certainty

that the work accident on September 22, 2015, was a major contributing cause of

Brewer’s current diagnosis and disability. He also concluded that Brewer’s work

injury was a major contributing cause of the work restrictions placed on Brewer

during the FCE.

[¶38.] Employer’s case consisted of the hearing testimony of Katie Medema, a

mental health counselor and certified vocational rehabilitation consultant with

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OHARA Managed Care, the deposition testimony of Dr. Jensen, and the previously

referenced FCE report of Joan Hanson. Medema performed a vocational analysis on

Brewer, during which she reviewed Brewer’s education, work history and

restrictions, the FCE, his medical history, and a 2017 report prepared by vocational

specialist, Jim Carroll, also with OHARA.

[¶39.] After considering Brewer’s ability to work, Medema concluded in her

report that, “It is my vocational opinion based on the available information that

because Mr. Brewer does not have permanent work restrictions, he could return to

any occupation or position that he held previously.” Because Brewer had no

restrictions, Medema noted that he was also free to “explore any new occupation or

position that he would otherwise be qualified for considering his education and

work history.” Further, in Medema’s opinion Brewer had “retraining options such

as completing the Network Administrator degree program that he had been

working toward and which is still offered at [STI]. Or he could consider completing

an online Information Technology degree program that is offered at [STI].”

[¶40.] In order to analyze the job market truly available to Brewer, Medema

completed three distinct employment searches: 1) a job search with no restrictions,

2) a job search with the “six hours per day restriction within the light physical

demand,” and 3) a job search based on Brewer’s subjective feelings for what “he

thought he could work in a day as far as length, sitting, standing, that kind of

thing.” Each of the three job searches yielded jobs available for Brewer. The second

search, using the restrictions established in the FCE, resulted in multiple job

opportunities, most of which were work-from-home positions. The search using all

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of Brewer’s subjective criteria revealed three open positions. Medema testified that

all of these jobs would have met or eclipsed the workers’ compensation rate

available to Brewer.

[¶41.] Medema was also asked to critique Brewer’s search for employment.

She reported that Brewer completed a handful of job searches in late 2021 and

allegedly applied for a number of positions. She testified that she went through

each job Brewer applied for and determined whether the employer was hiring and if

Brewer complied with the application requirements. She also contacted some of the

employers. Based on this information, she indicated in her report that Brewer’s job

search was inadequate.

[¶42.] Medema also expressed reservations about the content of Brewer’s

résumé. In Medema’s opinion, it is a “red flag” for employers when an applicant

lists what they are not able to do on a résumé rather than listing their skills and

positive attributes. Medema felt the focus of Brewer’s résumé was “all on what he

can’t do, not what he can do.”

[¶43.] Employer introduced the April 2021 deposition testimony of Dr.

Jensen, a board-certified orthopedic spine surgeon currently employed at the Center

for Neurological and Orthopedic Sciences in Dakota Dunes. Dr. Jensen testified

that he graduated from the University of Washington in Seattle, followed by a five-

year orthopedic residency, after which he focused on spinal surgeries at the

University of Utah.

[¶44.] Prior to completing his August 2019 IME, Dr. Jensen reviewed

Brewer’s medical history, the imaging studies, and Dr. Martin’s IME report. He

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also reviewed the records created after the 2019 IME, except for Brewer’s December

2020 MRI and the 2015 first report of injury.

[¶45.] In his assessment of Brewer’s injury and pain, Dr. Jensen first

highlighted the back pain Brewer was reporting before the September 2015 work

injury, specifically noting that Brewer rated his worst pain at 7/10. Dr. Jensen

classified this rating as “pretty extreme” and noted that it was higher than the pain

Brewer was experiencing when he was examined for the IME. When asked whether

he agreed that Brewer had no significant history of back pain before the work

injury, Dr. Jensen replied, “[n]o” and referred to the chiropractic records and

Brewer’s 7/10 pain rating on May 30, 2015.

[¶46.] Turning to Brewer’s post-injury pain, Dr. Jensen testified that most

individuals who experience pain similar to Brewer develop such pain from either

acute injuries or degenerative disease, both of which are generally treated

conservatively. In Brewer’s case, Dr. Jensen opined that based on the imaging

studies he reviewed, Brewer suffers from degenerative disc disease—more than the

typical 30-year-old—in his lower back, which can cause painful muscle spasms. Dr.

Jensen testified that Brewer most likely suffered a muscle strain from the work

injury, which would explain the later onset of pain he experienced. However, in Dr.

Jensen’s view, the muscle strain and accompanying pain were resolved by October

2015, as demonstrated in Brewer’s chiropractic treatment records.

[¶47.] Dr. Jensen did not dispute that Brewer experienced pain originating

from his SI joint. However, Dr. Jensen opined that, aside from the muscle strain,

the September 2015 work injury was not a major contributing cause of Brewer’s

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continuing medical problems and pain. In Dr. Jensen’s opinion, Brewer had a

progressive “underlying degenerative disk disease in the lumbar spine, specifically

two levels, you know, that tells you that this is a genetically-linked problem.” Dr.

Jensen determined that the pain Brewer was describing in his SI joint was not

caused by the work injury but rather would be typical of “[a] pretty traumatic injury

such as [a] massive car accident and injuries[.]” He also noted that “bilateral SI

joint problems are incredibly uncommon, [and] almost always associated with some

sort of inflammatory condition, ankylosing spondylitis or other condition that would

not be work related.”

[¶48.] On cross-examination, Dr. Jensen acknowledged that Brewer had

received additional treatment after Dr. Jensen’s IME. With the exception of the

December 2020 MRI which he had not seen, Dr. Jensen indicated that he reviewed

the new records before his deposition, and nothing contained therein changed his

initial opinion regarding causation. When the results of the 2020 MRI findings

were relayed to Dr. Jensen during his deposition, he concluded that they were

further evidence of Brewer’s degenerative spinal issues and their progression from

2016 through 2020.

[¶49.] Following the hearing and consideration of post-hearing briefs, the

ALJ issued a decision, findings of fact, conclusions of law and an order denying

Brewer’s claim. The ALJ found that Brewer failed to prove the work injury was a

major contributing cause of his current condition and that he was not entitled to

PTD benefit payments. Brewer appealed the Department’s decision to the circuit

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court. The circuit court affirmed the Department’s decision, concluding Brewer did

not prove causation and did not establish his claim for PTD compensation.

[¶50.] Brewer appeals raising the following issues:

1. Whether the Department erred when it determined the 2015 work injury was not a major contributing cause of Brewer’s condition.

2. Whether the Department erred when it denied Brewer’s claim for permanent total disability.

Standard of Review

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

circuit court.” Hughes v. Dakota Mill & Grain, Inc., 2021 S.D. 31, ¶ 12, 959 N.W.2d

903, 907 (citing SDCL 1-26-37). “The Department’s factual findings are given great

weight and will be overturned only if they are clearly erroneous.” Id. (citations

omitted). “The test is whether after reviewing the evidence we are left with a

definite and firm conviction that a mistake has been made.” Id. (citation omitted).

However, “[w]e review the Department’s factual determinations based on

documentary evidence, such as depositions and medical records, de novo.” Id.

(citation omitted). “The Department’s conclusions of law are fully reviewable.” Id.

(citation omitted).

Analysis

1. Whether the Department erred when it determined the 2015 work injury was not a major contributing cause of Brewer’s condition.

[¶52.] Brewer’s first claim on appeal is that the Department incorrectly

determined that the 2015 work injury was not a major contributing cause of his

current condition and need for treatment. It is largely undisputed—both by the

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parties and by the expert witnesses—that Brewer suffered a work injury on

September 22, 2015. The dispute rests on the type and extent of the injury Brewer

suffered. Whether Brewer’s work injury was a major contributing cause of his

condition centers on review of the documentary evidence contained in Brewer’s

medical records and Dr. Rothrock’s and Dr. Jensen’s deposition testimonies. As

such, we review the Department’s conclusions de novo and afford no deference. See

id.

[¶53.] “A claimant who wishes to recover under South Dakota’s Workers’

Compensation Laws must prove by a preponderance of the evidence that [they]

sustained an injury arising out of and in the course of the employment.” Fair v.

Nash Finch Co., 2007 S.D. 16, ¶ 9, 728 N.W.2d 623, 628 (cleaned up). However, we

have recognized that just because an individual suffers a work injury “does not

automatically establish entitlement to [workers’ compensation] benefits[.]” Haynes

v. Ford, 2004 S.D. 99, ¶ 17, 686 N.W.2d 657, 661. The claimant must prove the

work injury was “a major contributing cause of [their] current claimed condition.”

Id. But “a claimant is ‘not required to prove that his employment was the

proximate, direct, or sole cause of his injury.’” Hughes, 2021 S.D. 31, ¶ 20, 959

N.W.2d at 909 (emphasis added) (citation omitted). Stated another way, “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.” Id. (emphasis added)

(cleaned up).

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

established by medical evidence[.]’” Id. ¶ 21 (alterations in original) (citing SDCL

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62-1-1(7)). Further, “[c]ausation must be established to a reasonable degree of

medical probability, not just possibility.” Id. (citation omitted). Brewer’s claim of

causation ultimately turns on which expert’s opinion is most credible regarding the

extent of Brewer’s work-related injury on September 22, 2015. The two expert

opinions in this case were disclosed through deposition transcripts. Accordingly,

“we do not apply the clearly erroneous rule but review that testimony as though

presented here for the first time.” Arneson v. GR Mgmt., LLC, 2024 S.D. 61, ¶ 19,

13 N.W.3d 206, 213 (citation omitted). After a detailed review of the record, we

conclude that Brewer met his burden of proving that his work injury was a major

contributing cause of his current condition and need for treatment.

[¶55.] Dr. Rothrock opined to a reasonable degree of medical probability that

the work injury was a major contributing cause of Brewer’s current condition and

need for treatment. Dr. Rothrock was familiar with Brewer’s records at OI,

including all of Brewer’s examinations and the treatments performed by Dr.

Rothrock’s colleague, Dr. Johnson. Although Brewer’s records at OI did not include

an exhaustive medical history, Dr. Rothrock was aware of the injections and nerve

ablation Brewer received, and that these treatments “provided significant relief” to

Brewer. Dr. Rothrock also reviewed Brewer’s chiropractic records during his

deposition and subsequently testified that, “It looks that . . . [Brewer] was receiving

care earlier that year for kind of general spinal dysfunction, but nothing related to

the injury.” Dr. Rothrock firmly maintained his causation opinion even after

reviewing Brewer’s chiropractic records.

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[¶56.] Aside from the experts’ awareness of Brewer’s various medical records,

the main point of contention before the ALJ was whether Brewer’s work injury

caused his SI joint pain or whether the pain was a result of Brewer’s naturally

occurring degenerative disease. Dr. Rothrock determined that Brewer’s

degenerative issues were not the cause of the SI joint pain and opined that Brewer

had a normal amount of degenerative damage for a person of his age. In Dr.

Rothrock’s opinion, Brewer’s pain was consistent with a non-degenerative SI joint

injury. During Dr. Rothrock’s deposition, he was informed that Brewer was able to

obtain pain relief when he would lie down, apply ice, exercise, and walk. Dr.

Rothrock confirmed that this was consistent with the type of injury Brewer

sustained.

[¶57.] Further, when asked why Brewer did not experience immediate pain

following his work injury, Dr. Rothrock, acknowledging he did not “have a perfect

explanation,” testified that “isolated SI joint pain tends to be more chronic and

insidious in its onset for most patients and takes longer to truly diagnose.” He

testified that it was rare to see an SI joint injury that was not trauma-based, but “in

acute settings it’s generally a lifting, twisting event which puts stress on the SI

joint that causes pain in that location.” He also testified that the SI joint fusion

surgery was a last resort and was not considered until Brewer exhausted other

conservative treatment options. Dr. Rothrock explained that continued or residual

joint pain after surgery is not uncommon, even when the surgery is deemed a

success.

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[¶58.] Employer asserts that Dr. Rothrock’s opinion on causation is based on

temporal sequencing. That is, Employer argues that Dr. Rothrock relied solely on

the fact that Brewer began experiencing pain approximately two days after the

work injury. As Brewer acknowledges, Dr. Rothrock’s opinion, at least to a certain

extent, factors in the timing between the work injury and the onset of pain. This

Court has held that “[a]rguments relying solely on temporal sequence have ‘little

value in the science of fixing medical causation.’” Darling v. W. River Masonry, Inc.,

2010 S.D. 4, ¶ 18, 777 N.W.2d 363, 369 (emphasis added) (citation omitted). But a

careful review of Dr. Rothrock’s deposition reveals that his opinion was formed as a

result of his personal treatment of Brewer, in addition to temporal sequencing.

[¶59.] Dr. Rothrock testified during his deposition that his opinion was based

“off of [Brewer’s] history, the physical exam, the severe pain he had, the therapeutic

and diagnostic injections that he had related to that area, and subsequent

treatment.” Dr. Rothrock also testified that he based his opinion, in part, on

whether Brewer’s description of the work injury was “enough to explain the pain

that he had” and Dr. Rothrock believed that it was. Dr. Rothrock’s reliance on his

examination, diagnosis, and surgical treatment of Brewer’s injury garners sufficient

support for his determination that the September 2015 work injury was a major

contributing cause of Brewer’s injury and condition.

[¶60.] Still, Employer argues that Dr. Jensen’s opinion is more persuasive

than Dr. Rothrock’s. Based on our review of the record, we disagree. 4 Although Dr.

4. Brewer argues that Dr. Jensen’s qualifications are lacking and his opinion is unpersuasive because he has never performed a bilateral SI joint fusion (continued . . .) -24- #30403

Jensen reviewed most, but not all, of Brewer’s medical history and completed an

IME on Brewer, he was not one of Brewer’s treating physicians. We recently

acknowledged that the opinions of a treating physician may, in some cases, be more

persuasive than those of a non-treating physician because of the knowledge gained

through the claimant’s treatment and more generally through treatment of the

specific ailment that the claimant suffers. See Arneson, 2024 S.D. 61, ¶ 34, 13

N.W.3d at 217.

[¶61.] Dr. Jensen, in line with Dr. Martin’s earlier IME report, concluded

that Brewer suffered a muscle strain during the work injury and attributed most of

Brewer’s lingering pain to degenerative disease. Dr. Jensen agreed that the results

of the SI joint injections suggested that Brewer’s pain was localized to the SI joint

and testified that the SI joint fusion was necessary. However, aside from vague

references to degenerative disk disease, Dr. Jensen was not able to articulate an

explanation for what was causing Brewer’s SI joint pain. He also posited that, “I

think you can either say there are some psychological issues or there’s some

symptom overlay or there’s some secondary gain” that could explain Brewer’s

ongoing symptoms.

[¶62.] Dr. Jensen heavily relied on the records from Brewer’s five chiropractic

appointments from May through July 2015 where Brewer reported pre-work-injury

________________________ (. . . continued) surgery. Although Dr. Jensen has never performed the surgery, he was familiar with this type of surgery, and even a quick review of Dr. Jensen’s training, experience, and education validates his ability to knowledgeably discuss the surgery. Regardless, our opinion of which expert is more credible does not turn solely on a doctor’s educational background or training.

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back pain to support his causation opinion. However, a careful review of the

records illustrates that Brewer’s pre-injury pain was not the same in character or

severity as his post-injury pain. Brewer sought chiropractic care at First

Chiropractic on May 30, 2015, where he reported his pain at 7/10 in the right

thoracic region and described “aching” pain in the lumbar region. After receiving

treatment, Brewer “commented that [he] felt immediate relief while still in the

office.” During three appointments in June 2015, Brewer’s symptoms improved

before Brewer experienced heightened pain in both the thoracic and lumbar spine

at the end of July. However, following the July appointment, Brewer did not seek

additional chiropractic treatment until after the work injury. At that time, Brewer

did not report his pain in the thoracic region as he did before the work injury,

rather he reported pain in the lumbo-sacral and sacroiliac region.

[¶63.] In News America Marketing v. Schoon, we concluded that a claimant

met her burden to prove causation despite a history of injury to the area when the

symptoms from the other injuries had largely resolved before the work injury. 2022

S.D. 79, ¶¶ 26–27, 984 N.W.2d 127, 135–36. Although the record before us does not

establish that Brewer’s pre-work injury pain had completely resolved before the

incident, it is clear that Brewer’s pain had been steadily improving. Further,

Brewer reported an entirely different type of pain that originated from a different

location following the work injury than he had reported pre-injury. Therefore, the

extensive weight accorded to Brewer’s pre-injury chiropractic records renders Dr.

Jensen’s opinion less reliable.

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[¶64.] Dr. Jensen attributed Brewer’s ongoing pain to degenerative disc

disease. Specifically, Dr. Jensen noted that Brewer’s 2016, 2018, and 2020 MRIs

showed degeneration of the L4-L5 disc and L5-S1 disc which Dr. Jensen testified

would cause low back pain. However, Dr. Jensen also testified that epidural

injections are a helpful diagnostic tool and explained that “if you have an epidural

and you’re concerned that it could be from maybe the small little disc bulge at the

very bottom of his back and you get no response, that tells you it’s probably not the

right area. That’s not what’s causing the symptoms.” Here, Brewer received an

epidural injection at L4-L5, but reported that it provided little relief. Therefore,

based on Dr. Jensen’s own testimony, the degenerated disc was not the cause of

Brewer’s pain as evidenced by the ineffectiveness of the epidural injection.

[¶65.] After considering the competing expert deposition testimony and

reviewing Brewer’s extensive medical records, we conclude that Dr. Rothrock

provided a more credible causation opinion that was supported by Brewer’s ongoing

treatment and symptoms. Therefore, Brewer has established that his September

2015 work injury was, and remains, a major contributing cause of his condition and

need for treatment. We reverse the Department’s determination that Brewer did

not prove his work injury was a major contributing cause of his current condition

and need for treatment.

2. Whether the Department erred when it denied Brewer’s claim for permanent and total disability benefits.

[¶66.] Brewer also asserts that the Department erred by denying his claim for

PTD benefits. “Whether a claimant makes a prima facie case to establish odd-lot

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total disability inclusion is a question of fact.” Billman v. Clarke Mach., Inc., 2021

S.D. 18, ¶ 29, 956 N.W.2d 812, 820 (citation omitted). “The test to determine

whether a prima facie case has been established is whether there ‘are facts in

evidence which if unanswered would justify persons of ordinary reason and fairness

in affirming the question which the plaintiff is bound to maintain.’” Id. ¶ 29, 956

N.W.2d at 820–21 (citation omitted). The ALJ formulated its decision regarding

Brewer’s claim for PTD benefits after hearing testimony from Highland, Brewer,

Audet, and Medema. The ALJ weighed the testimony from the competing vocational

experts, and we will defer to those determinations on witness credibility and the

weight of the evidence. “Even where specific credibility findings are absent, we defer

to the Department’s overall assessment of the weight of the evidence when it is

based upon live witness testimony.” Id. ¶ 28, 956 N.W.2d at 820. “Nevertheless, we

still review the Department’s factual findings for clear error.” Id.

[¶67.] A determination of odd-lot disability benefits is governed by SDCL 62-

4-53. “This Court recognizes two avenues by which a claimant can meet his or her

prima facie showing of entitlement to odd-lot disability benefits—(1) claimant is

obviously unemployable due to his or her physical condition, coupled with his or her

age, training, and experience, or (2) unavailability of suitable employment by

showing that he or she has made reasonable efforts to find work and was

unsuccessful.” Id. ¶ 25 (citation omitted). If the claimant makes a prima facie

showing of obvious unemployability, “the burden of production shifts to the

employer to show that some suitable employment within claimant’s limitations is

actually available in the community.” Id. ¶ 30, 956 N.W.2d at 821. “[I]f a claimant

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is unable to show obvious unemployability, the claimant must present evidence of

‘the unavailability of suitable employment by showing that he has made reasonable

efforts to find work and was unsuccessful.’” Baker v. Rapid City Reg’l. Hosp., 2022

S.D. 40, ¶ 32, 978 N.W.2d 368, 378 (citation omitted).

[¶68.] Brewer contends that he is “obviously unemployable under both

avenues of establishing a prima facie case.” He argues that his severe, disabling

back pain and work limitations, “[c]oupled with his lack of education and training,”

makes him obviously unemployable. But these claims are refuted by significant

evidence in the record. Brewer’s time working at Pathways is sufficient to rebut his

claim. He began working at Pathways in 2017 and worked there for approximately

14 months. While there, he worked shifts shorter in duration to reduce the chance

of back pain flareups, and he also received accommodations that allowed him to

relieve any onsets of pain—all while completing a variety of tasks. His job ended at

Pathways only because the organization stopped receiving federal funding.

Further, Brewer is articulate, has a GED, completed three semesters of course work

at STI, and has developed computer skills. Because of this, Medema testified that

she believed Brewer was readily retrainable, did not have permanent work

restrictions, and could return to any occupation he previously held.

[¶69.] Brewer also testified that after working at Pathways he would

frequently watch his children who ranged in ages from two to six. He testified that

he would take the children swimming and fishing, and that he also went deer

hunting. The ALJ took this information regarding his capacities into account when

considering Brewer’s claim for odd-lot benefits.

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[¶70.] While Brewer may experience pain after standing or sitting for certain

periods of time, he did not persuade the ALJ that he was obviously unemployable in

light of his young age, work experience, training, and technical education at STI.

After a review of the record, the ALJ’s finding regarding the first avenue to

establish odd-lot benefits is not so contrary to the evidence as to render the finding

clearly erroneous.

[¶71.] Brewer also argues that he “clearly established the unavailability of

suitable employment by showing that he . . . made reasonable efforts to find work

and was unsuccessful.” Brewer characterizes his effort in looking for a job as

“exceptional” because he “registered with Indeed, he looked on his own for work,

and he tried to apply for every position identified by Audet and Medema.” But

there was sufficient evidence from which the ALJ could have concluded otherwise.

[¶72.] In fact, although Brewer registered with Indeed and applied for dozens

of jobs, there is evidence in the record that he did not make a good faith search for

work. Medema’s unrefuted testimony reveals that on many occasions, Brewer did

not follow the employer’s application instructions, did not respond when employers

asked for further information, and made his physical limitations the focal point of

his résumé. In fact, Brewer’s own vocational expert agreed that highlighting

physical limitations in the manner that Brewer did on his résumé would be a “red

flag” for employers and that Audet “wouldn’t have recommended he do that.” Audet

also acknowledged that Brewer had “sizable” periods of unemployment and that

many of his jobs were short-lived, which could be concerning to employers.

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[¶73.] We have long applied a reasonableness standard to an odd-lot

claimant’s job search efforts. See, e.g., Spitzack v. Berg Corp., 532 N.W.2d 72, 75

(S.D. 1995). And, as the ALJ found, “[m]any actions by Brewer in his search for

employment show his job search was not reasonable.” There is evidence in the

record to support this finding, and therefore, it was not clearly erroneous.

[¶74.] But even if Brewer could make a prima facie showing under either

method of establishing odd-lot benefits, Employer presented sufficient evidence to

show that there was suitable employment available to Brewer. We have held that

“[w]hile it is not required that an employer actually place a claimant in an open job

position, more than the mere possibility of employment must be shown; the

employer must establish that there are positions actually open and available.”

Billman, 2021 S.D. 18, ¶ 43, 956 N.W.2d at 823 (citation omitted). Not only did

Highland say that Truxedo could have made accommodations for Brewer within his

limitations, he identified three openings at Truxedo that were immediately

available that would accommodate Brewer’s physical restrictions and meet or

exceed his workers’ compensation rate.

[¶75.] Medema also testified that she made multiple job searches with

varying degrees of limitations and found work available for Brewer in each

category. Her search using the restrictions implemented in Brewer’s FCE identified

several positions that would have satisfied all of Brewer’s requirements. She also

conducted a search using all of Brewer’s subjective complaints and restrictions and

was still able to locate several available job opportunities for Brewer that would

have satisfied his requirements. As the ALJ determined, “Employer and Insurer

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have shown that there are specific positions in Brewer’s community that are

available to him, fit his FCE requirements, and meet his compensation rate.”

[¶76.] After reviewing the record, we cannot say the ALJ’s findings regarding

Brewer’s claim for odd-lot benefits were clearly erroneous.

Conclusion

[¶77.] Because Brewer established that his work injury was a major

contributing cause of his current condition and need for treatment, we reverse the

ALJ’s holding to the contrary and remand for further proceedings consistent with

this opinion. We affirm the Department’s denial of permanent total disability

benefits.

[¶78.] JENSEN, Chief Justice, and SALTER, Justice, concur.

[¶79.] DEVANEY and MYREN, Justices, dissent.

MYREN, Justice (dissenting).

[¶80.] I would affirm the Department’s determination that Brewer failed to

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

condition. Brewer had the burden to “prove all elements necessary to qualify for

compensation by a preponderance of the evidence.” Arneson v. GR Mgmt., LLC,

2024 S.D. 61, ¶ 16, 13 N.W.3d 206, 213 (citation omitted), reh’g denied (Dec. 5,

2024). However, it is not enough to prove that an injury was work-related; “the

claimant must prove that the work-related injury is a major contributing cause of

his claimed condition and need for treatment.” Id. (citation omitted).

[¶81.] This case involved the classic battle of the experts. Brewer’s medical

expert was Dr. Rothrock. The Employer’s expert was Dr. Jensen. Neither testified

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live before the Department. Instead, their testimony was presented through their

deposition transcripts and reports. Where the Department’s factual findings are

based on documentary evidence, our standard of review is de novo. Id. ¶ 15, 13

N.W.3d at 213 (citation omitted).

[¶82.] After carefully reviewing the evidence before it, the Department

determined that Brewer had not sustained his burden. Specifically, the

Department concluded that Dr. Rothrock’s opinion was less reliable because it was

not based on a review of Brewer’s complete medical records. After a careful de novo

review of the same record, the circuit court reached the same conclusion: Dr.

Rothrock’s opinion was less reliable. The majority reaches the opposite conclusion,

accepting Dr. Rothrock’s opinion as the most reliable. I disagree with the majority’s

assessment of this battle of the experts for the following reasons.

[¶83.] “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.” Hughes v.

Dakota Mill & Grain, Inc., 2021 S.D. 31, ¶ 23, 959 N.W.2d 903, 910 (citation

omitted) (noting that a “fail[ure] to examine key information” rendered an expert’s

opinion less reliable).

[¶84.] Dr. Rothrock admitted at his deposition that he had not reviewed

Brewer’s medical records from four medical institutions: Yankton Medical Clinic,

Great Plains Therapy, Fyzical Therapy, and Sanford Health. He also admitted that

he did not review the IME reports completed by Dr. Jensen and Dr. Martin. Dr.

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Rothrock, like the expert in Hughes, failed to examine the pertinent medical

records.

[¶85.] Perhaps most significant was Dr. Rothrock’s failure to review Dr.

Jensen’s IME report. To complete that report, Dr. Jensen reviewed all of Brewer’s

medical records, including his imaging studies. According to Dr. Jensen, those

imaging studies revealed that Brewer suffers from degenerative disc disease. Dr.

Jensen compared Brewer’s MRIs from 2016 and 2018 and noted degenerative

changes in that period. Dr. Jensen also noted that Brewer had been experiencing

back pain and was receiving chiropractic care prior to the work injury.

[¶86.] Dr. Jensen opined that Brewer’s work injury caused only a muscle

sprain, which had resolved in six to eight weeks. Dr. Jensen found support for that

opinion in Brewer’s chiropractic records, which reflect that Brewer’s pain began

improving in early to mid-October 2017. Dr. Jensen explained that the strain would

have resolved by May 16, 2016, and any pain present after that was attributable to

degenerative disc disease established by the diagnostic scans and medical records

from before the work injury.

[¶87.] Dr. Jensen also opined that bilateral sacroiliac (SI) joint pain was

uncommon and generally caused by a traumatic event, like a major car accident.

Indeed, he noted that such pain was so unusual that it would be “reportable” in

scientific journals if it were sustained from an injury like the one described by

Brewer. Dr. Jensen concluded that Brewer suffered “a sprain/strain from which he

resolved and predominantly got better, and based on the records, his MMI date for

that injury would have been 05/16/2016, as assigned by Dr. Martin.” Based on his

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comprehensive review of all of Brewer’s medical records, Dr. Jensen opined that

Brewer’s work injury was not a major contributing cause of Brewer’s condition.

[¶88.] Dr. Martin also conducted an IME of Brewer in May 2016. He

performed a physical examination of Brewer and reviewed his medical records

(including those Dr. Rothrock did not review). Dr. Martin explained his assessment

in his report:

Although I would state that the treatment of this condition certainly should be conservative in its nature, it is difficult for me to explain why he continues to have the degree of subjective symptoms that he has, given the objective findings. Thus, there is a strong possibility here that the gentleman is having outside psychosocial factors that are interfering with his recovery.

Ultimately, Dr. Martin opined:

Causation, in this case, is based upon review of the medical documentation as presented, as well as [an] interview with the examinee. It does appear that there was some sort of a work related event that occurred on September 22, 2015, which is probably best described as a strain episode. It is unclear why the gentleman continues to have the degree of subjective complaints that he has currently with respect to this seemingly mild issue. Typically, the reason for that would be better explained by psychosocial issues, rather than physical ones.

[¶89.] Brewer’s other providers also attributed Brewer’s pain to degenerative

disc disease. For example, the conclusion from the January 2016 MRI was that

Brewer had “[e]ssentially mild multilevel degenerative lumbar spondylosis.” The

result of Brewer’s February 2018 MRI was similar—mild to moderate disc

degeneration.

[¶90.] In the chiropractic records that Dr. Rothrock failed to review, Dr. Stotz

noted on October 8, 2015, that Brewer “has hardly any pain into his low back

anymore and indicates a 95% improvement. He no longer experiences sharp pain.

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Bending, getting in or out of the car, getting up from a seated position and lifting

only bothers on occasion now.” Similarly, the physical therapy records (not

reviewed by Dr. Rothrock) reflect that as of October 2016, Brewer had improved

mobility, and he was able to jog short distances, lift light to heavy weights, and

complete more functional tasks such as mowing, cooking, and doing laundry.

Brewer was discharged from physical therapy with Great Plains on October 7, 2016.

In July 2018, additional physical therapy notes stated that Brewer was “doing well

with everything and has no complaints of any SI pain with exercise.”

[¶91.] In addition to the fact that Dr. Rothrock’s opinion was not based on a

complete picture, it was also based partially on Dr. Rothrock’s acceptance of

Brewer’s report that the pain followed the work injury. Dr. Rothrock testified that

he “chatted with [Brewer] about his back and his injury, and he said prior to this

one episode where things started on this day that he remembers doing this, he did

not struggle with back pain or have any other issues related to his low back[.]” The

record clearly establishes that Brewer’s reporting was not accurate because his

medical records demonstrate that he received treatment for back pain before the

work injury occurred. Essentially, Dr. Rothrock accepted the temporal sequencing

reported to him by Brewer. Not only was this reported temporal sequencing

inaccurate, but this Court has previously observed that opinions “relying solely on

temporal sequence have ‘little value in the science of fixing medical causation.’”

Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 18, 777 N.W.2d 363, 369 (citation

omitted). Dr. Rothrock’s opinion is undermined by his reliance on Brewer’s

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inaccurate report of temporal sequencing, coupled with his lack of knowledge

regarding Brewer’s pre- and post-injury medical records.

[¶92.] In sum, Dr. Rothrock’s failure to review and consider the totality of

Brewer’s medical history undermines the reliability of his causation opinion. Both

Dr. Jensen and Dr. Martin completed a comprehensive review of all of Brewer’s

pertinent medical records. They reached the same conclusion: degenerative changes

caused Brewer’s condition, and his work injury did not cause it. I would affirm the

Department’s causation decision. Because a work-related injury did not cause

Brewer’s present condition, it is unnecessary to address whether the condition

disables him.

[¶93.] DEVANEY, Justice, joins this writing.

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