Orth v. Stoebner & Permann Construction, Inc.

2006 SD 99, 724 N.W.2d 586, 2006 S.D. LEXIS 186, 2006 WL 3324920
CourtSouth Dakota Supreme Court
DecidedNovember 15, 2006
Docket23731
StatusPublished
Cited by21 cases

This text of 2006 SD 99 (Orth v. Stoebner & Permann Construction, Inc.) 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
Orth v. Stoebner & Permann Construction, Inc., 2006 SD 99, 724 N.W.2d 586, 2006 S.D. LEXIS 186, 2006 WL 3324920 (S.D. 2006).

Opinions

GORS, Circuit Judge.

[¶ 1.] Dwain Orth appeals from a circuit court decision affirming the South Dakota Department of Labor’s determination that he was not entitled to workers’ compensation benefits. Reversed and remanded.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Dwain Orth (Dwain) was born in Scotland, South Dakota, on February 22, 1942. He graduated from Scotland High School in 1960. He lived and worked in South Dakota his entire life. In 1962 Dwain married Rita. They had two children.

[¶ 3.] After graduating from high school Dwain held a variety of jobs. From 1972 through 1976 Dwain worked for Car-gill Grain Elevator in Scotland, South Dakota. On rare occasions the job required heavy lifting. Dwain did not sustain a work-related injury while at Cargill, but he did at times seek chiropractic treatment for both general maintenance adjustments and also for back pain.

[¶ 4.] From 1976 through 1988 Dwain drove a concrete truck, performed carpentry work, and was responsible for general maintenance at Scotland Redi-Mix in Scotland, South Dakota. In 1978 Dwain injured his ankle while working for Scotland Redi-Mix. His injury was treated as com-pensable. Dwain made a full recovery and returned to work. During the twelve years Dwain was employed by Scotland Redi-Mix he would occasionally seek chiropractic treatment for general maintenance adjustments and back pain.

[¶ 5.] From 1989 through 1994 Dwain performed general carpentry for Slaba Construction in Tripp, South Dakota. While employed by Slaba Construction Dwain continued occasional chiropractic treatment. In 1993 Dwain slipped on a roof while carrying a bundle of shingles and injured his back. He sought treatment from Dr. Merkwan, a chiropractor in Tyndall, South Dakota. Dwain made a full recovery and did not file any workers’ compensation claim while employed by Slaba Construction.

[¶ 6.] Dwain began working for Stoeb-ner & Permann Construction, Inc. (S & P Construction) in March of 1994. S & P Construction was founded in 1980 by Keith Stoebner (Stoebner) and Steven Permann (Permann). The company was involved in various types of construction and remodeling. Stoebner and Permann were hands-on owners who worked side-by-side with their employees.

[¶ 7.] As an employee of S & P Construction Dwain was expected to perform a variety of tasks from pouring concrete to hanging sheetrock to shingling roofs. His work-related duties required bending, stooping, and heavy lifting.

[¶ 8.] When Dwain started working for S & P Construction in 1994 he was in excellent physical condition and was able to perform all work-related tasks. Dwain worked ten-hour days, five days per week. His employers described him as an “exceptional worker” and a “very good employee” who “worked very hard.”

[¶ 9.] Dwain worked for S & P Construction for several years without incident. By the late 1990s, however, Dwain was approaching sixty years of age and his back was starting to give him trouble. He [590]*590found it increasingly more difficult to perform heavy physical labor as an employee of S & P Construction.

[¶ 10.] Dwain asked his employers to be assigned light-duty tasks. S & P Construction valued Dwain as an employee and assigned him to light-duty to keep him on the job. S & P Construction was aware of Dwain’s increasing back trouble, and the decision to relegate Dwain to light-duty tasks was based, in part, on this knowledge. Around this time Dwain started taking pain medication for his back.

[¶ 11.] Later in the Spring of 2000 Dwain asked his employers to reduce his work schedule from five days a week to four. His back condition had continued to worsen, and Dwain believed that an extra day off would help him to recuperate and allow him to continue working for S & P Construction. S & P Construction granted his request. Dwain’s employers understood that this request was made due to Dwain’s worsening back problems.

[¶ 12.] Neither the light-duty nor the shortened work-week alleviated Dwain’s back pain. On the evening of May 15, 2001, Dwain came home from work in intense pain. Dwain’s wife took him to the emergency room. He believed he had a kidney stone. The emergency room personnel questioned Dwain to determine the source of the pain. Dwain indicated that he had not strained his back. Tests revealed degenerative changes in Dwain’s spine. The emergency room doctors concluded this was the most likely cause of his back pain. Dwain did not have a kidney stone.

[¶ 13.] Dwain was unable to work for several weeks after the emergency room visit. On May 30, 2001, Dwain saw Dr. Stolz, a chiropractor in Scotland, South Dakota. Dr. Stolz conducted a physical examination and reviewed Dwain’s x-rays. Dr. Stolz confirmed the existence of degenerative changes in Dwain’s spine.

[¶ 14.] Dwain also sought treatment from Dr. Gail Benson of the Orthopedic Institute in Sioux Falls. Dwain saw Dr. Benson on June 6, 2001. Dwain indicated to Dr. Benson that his back pain began about twenty years earlier, but that it had worsened over time. Dr. Benson recommended an MRI exam and a discography.

[¶ 15.] On June 8, 2001, Dr. Stolz told Dwain he could return to work on the condition that he limit himself to light-duty work and refrain from all heavy lifting. Dwain did in fact return to work, but even with light-duty tasks his back pain was unbearable. Ultimately, Dwain’s back condition became so debilitating that on July 17, 2001, he was forced to quit his job with S & P Construction. Dwain told his employers that his back pain had worsened to the point that he “couldn’t do the work anymore.” Dwain explained that his back pain was caused by “degenerated discs and wore [sic] out.”

[¶ 16.] Dwain continued treatment for his back condition. On August 1, 2001, Dr. Benson noted that Dwain’s MRI and discography confirmed “extensive torn degenerated disc [sic] throughout the lumbar spine.” Dr. Benson indicated that Dwain was not a surgical candidate due to the large number of injured discs. Dr. Benson determined that Dwain should be considered disabled for social security purposes because he could no longer do the physical labor required of a carpenter.

[¶ 17.] Dr. Walter Carlson, another of Dwain’s doctors at the Orthopedic Institute in Sioux Falls, agreed with Dr. Benson’s evaluation, indicating in a clinical note that there was no “surgical treatment that will give [Dwain] predictable improvement in his condition.” Dr. Carlson further noted that Dwain would not “be able to carry out any type of employment that [591]*591he is trained to do — be it standing or sitting.” Dr. Carlson agreed with Dr. Benson’s conclusion that Dwain was totally disabled and should be awarded social security disability benefits.

[¶ 18.] Dwain filed for and was awarded social security total and permanent disability benefits.

[¶ 19.] On March 5, 2002, Dr. Carlson wrote a letter to Russell Janklow, Dwairis attorney. At the time of the hearing Dr. Carlson was a board-certified orthopedic surgeon with over thirty years of experience in his field. He was one of Dwairis treating physicians for over a year. He practiced medicine in the same office as Dr. Benson, one of Dwairis treating physicians. In his letter Dr.

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Orth v. Stoebner & Permann Construction, Inc.
2006 SD 99 (South Dakota Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
2006 SD 99, 724 N.W.2d 586, 2006 S.D. LEXIS 186, 2006 WL 3324920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orth-v-stoebner-permann-construction-inc-sd-2006.