Engel v. Prostrollo Motors

2003 SD 2, 656 N.W.2d 299, 2003 S.D. LEXIS 1
CourtSouth Dakota Supreme Court
DecidedJanuary 8, 2003
DocketNone
StatusPublished
Cited by5 cases

This text of 2003 SD 2 (Engel v. Prostrollo Motors) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Engel v. Prostrollo Motors, 2003 SD 2, 656 N.W.2d 299, 2003 S.D. LEXIS 1 (S.D. 2003).

Opinion

ERICKSON, Circuit Judge.

[¶ 1J Mary Engel (Engel) was awarded odd-lot benefits under the Workers Compensation Act. Prostrollo Motors (Employer) appeals that decision. We affirm.

FACTS

[¶ 2.] At the time of the hearing Engel was forty years old. She was a high school graduate, but had been a below average student. She had attended Mitchell Vo-tech for one year, completing a course in meat cutting. She has never been employed as a meat cutter. Her work history consists of unskilled positions involving heavy-duty labor.

[¶ 3.] Engel began working for Employer in August 1990 detailing cars. She was also responsible for snow removal. On January 2, 1996, she suffered a work-related injury while pushing a four-wheel drive vehicle out of a snowdrift. Engel sought medical treatment and a diagnostic laparoscopy was performed and an adhesion in her abdomen region was repaired. Following surgery she continued to experience pain in her abdominal area, and could not return to work due to pain. Surgery was then performed repairing a ventral hernia.

[¶ 4.] Following this second surgery, Engel experienced significant pain relief and returned to work with restrictions to do light duty. Two days later she began to experience additional pain and under doctor’s orders began exercises to strengthen her abdominal wall muscle. She eventually returned to work doing light duty. In August 1996 she resumed her former duties. However, pain again began to bother her and she quit work in August 1996.

[¶ 5.] Engel then began work at Huron Regional Medical Center, but was fired for insubordination. From April 1997 through December 7, 1999, she worked as a garment inspector and packer at Raven Industries in Huron. During part of this time period she also worked part-time as a nurse’s aide at the Huron Nursing Home and later as a waitress at the Barn Restaurant in Huron.

[¶ 6.] Engel was laid off from Raven from December 8, 1999 to February 14, 2000. She was called back to work in March 2000, but refused because of pain.

*301 [¶ 7.] During all this period of time, Engel received conservative pain control treatment. She received pain medication, physical therapy and, after February 1997, seven trigger point injections for abdominal pain.

[¶ 8.] An impairment rating was conducted in February 1998 and Engel was given fifteen-percent whole person impairment rating because of significant pain syndrome.

[¶ 9.] In September 1999, Engel was referred to Dr. Gregory Wiedel, a specialist in internal medicine. He diagnosed chronic pain, although he acknowledged he could not attribute her pain to any anatomic ideology. Dr. Wiedel agreed with the fifteen percent impairment rating. He also agreed with the opinion of Dr. Cho (who performed the impairment rating) that any dramatic improvement would be medically unlikely and that in the absence of an active lifestyle she would be further hindered.

[¶ 10.] In October 1999, Engel was treated for a gastric ulcer caused in part by the pain medicines she was taking. The ulcer was treated and cleared up. She continued to see Dr. Wiedel, tried less evasive pain control measures, but found that only lidoeaine injections for pain relief were successful. Dr. Wiedel testified that these injections could continue for a lifetime.

[¶ 11.] In June 2000, Engel participated in a Functional Capacity Evaluation. The occupational therapist concluded that she exhibited symptom/disability exaggeration behavior and indicated that Engel made a poor effort.

[¶ 12.] Dr. Jerry Blow then examined Engel in September 2000. Dr. Blow concluded that the source of the pain was her original abdomen pain and that she had now developed chronic pain from that injury. He also felt there was some symptom magnification.

[¶ 13.] Engel has not been employed since December 1999. However, she has completed basic computer courses and clerical courses. Her career counselor, rehabilitation counselor and instructor all described her as motivated, diligent and have concluded that she has completed all courses necessary for a job within her limitations. She has made extensive job contacts. For example, from April through October 2000, she made over 200 job contacts. To date, she has been unable to secure employment. Lay testimony indicates that prior to her injury Engel was a very active, hard-working person.

[¶ 14.] No doctor has ever opined that Engel cannot work.

STANDARD OF REVIEW

[¶ 15.] “The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo; unaided by any presumption that the trial court is correct.” Brown v. Douglas School Dist., 2002 SD 92 ¶ 17, 650 N.W.2d 264. “Our task on appeal is to determine if there is substantial evidence to support the agency’s decision, and not to determine if there is substantial evidence that contradicts the agency’s decision.... We will reverse only if we are definitely and firmly convinced that a mistake has been made.” Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 16, 571 N.W.2d 376

ISSUE ONE.

[¶ 16.] Whether under the odd-lot doctrine of the Workmens’ Compensation Act the hearing officer erred when determining that Engel’s evidence was persuasive that she was obviously unemployable due to continuous, severe and debilitating pain?

*302 [¶ 17.] Employer argues that the hearing examiner erred in finding that Engel was permanently and totally disabled. “There are two ways in which a claimant can make out a prima facie case. One way is if the claimant is ‘obviously unemployable.’” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381. The hearing examiner found this method was not applicable. En-gel is not “obviously unemployable.” The hearing examiner found that she was capable of performing some light work.

[¶ 18.] A claimant can establish obvious unemployability by convincing the trier of fact that she suffers “continuous, severe, and debilitating pain.” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381. It was under this method that the hearing examiner concluded that Engel had permanent total disability benefits under the odd-lot doctrine.

[¶ 19.] Employer argues that the hearing examiner’s decision betrays a fundamental misunderstanding of the odd-lot doctrine because no South Dakota case has ever accepted a claim for odd-lot status when medical evidence shows a claimant can work. Employer cites Tiensvold v. Universal Transport, Inc., 464 N.W.2d 820 (S.D.1991) for this proposition. It is true that in Tiensvold we articulated the fact that “[n]o physician placed physical restraints on Tiensvold’s activities.” Tiensvold, 464 N.W.2d at 823. However, this statement did not establish a bright-line standard for determining permanent total disability. Rather, the standard is that “[a] claimant may show obvious unemploy-ability by ... convincing the trier of fact that [s]he suffers the kind of continuous, severe and debilitating pain which [s]he claims.” Kester, 1997 SD at ¶ 29, 571 N.W.2d at 381.

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Bluebook (online)
2003 SD 2, 656 N.W.2d 299, 2003 S.D. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/engel-v-prostrollo-motors-sd-2003.