Rank v. Lindblom

459 N.W.2d 247, 1990 S.D. LEXIS 118, 1990 WL 104008
CourtSouth Dakota Supreme Court
DecidedJuly 25, 1990
Docket16924, 16940
StatusPublished
Cited by22 cases

This text of 459 N.W.2d 247 (Rank v. Lindblom) 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
Rank v. Lindblom, 459 N.W.2d 247, 1990 S.D. LEXIS 118, 1990 WL 104008 (S.D. 1990).

Opinions

MILLER, Justice.

In this worker’s compensation case we affirm the circuit court and hold that (1) the Department of Labor was not clearly erroneous in finding claimant permanently and totally disabled, and (2) Department erred in holding employer/insurer liable for preoperative medical care for a preexisting illness not related to the compensable injury-

[248]*248PACTS

Essentially, the facts surrounding claimant’s injury are not in dispute. He began working on employer’s ranch near Rapid City, South Dakota, sometime in 1980 or 1981. His duties consisted of general ranch work: haying, feeding cattle, etc.

On claimant’s 65th birthday, December 31, 1986, while feeding approximately 300 calves, he was injured when they stampeded and ran over him. As a result, his knee was injured. He was taken to and treated at the emergency room of the local hospital. Fluid was drained from underneath the kneecap. He was then given a knee brace and instructed to use crutches. He was advised to go home and stay off the knee.

On January 5, 1987, claimant saw Dr. David Boyer, an orthopedic surgeon. Dr. Boyer x-rayed his knee and informed him that the cartilage had been torn. Dr. Boyer saw claimant again on January 26, 1987, at which time the condition of the knee was improving. On February 9, 1987, Dr. Boyer met with claimant and recommended a knee joint replacement to relieve claimant’s pain. Claimant was scheduled for such surgery on April 1, 1987.

Prior to surgery, it was discovered that claimant was experiencing some pulmonary problems. Dr. Boyer testified that he did not feel that the knee surgery would be safe without first treating this condition. The pulmonary care was under the direction of Dr. Bill Howard, who determined that claimant “had significant lung disease, manifested by elements of bronchitis, asthma and also emphysema, and that this had resulted in a significant low blood oxygen level.” Dr. Howard testified that claimant’s condition would have increased the risk of post-operative complications had the knee surgery been performed prior to treating the pulmonary problems. Claimant’s pulmonary condition was treated and improved to a degree where the knee surgery could be performed.

Ultimately, the knee surgery was performed and Dr. Boyer testified that it went “fine.” Claimant continued consulting with Dr. Boyer after the surgery. Dr. Boyer testified that claimant progressed as expected. He saw claimant on a periodic basis through March, 1988. He testified that although claimant was able to walk, he did experience some discomfort in his knee (described as fatigue-type pain), but the type of pain he had experienced before surgery had subsided, although he did have a limp.

On March 3, 1988, claimant filed a petition with Department seeking worker’s compensation benefits. Department concluded that claimant was entitled to compensation for permanent total disability and further awarded him the costs incurred for the preoperative treatment performed by Dr. Howard. The circuit court affirmed Department’s award of permanent total disability but reversed on the issue of costs incurred for the preoperative treatment. We affirm.

SCOPE OF REVIEW

When the issue is a question of law, the decisions of the administrative agency and the circuit court are fully reviewable. Matter of Change of Bed Category of Tieszen, 343 N.W.2d 97 (S.D.1984); Nash Finch, Co. v. S.D. Dept. of Rev., 312 N.W.2d 470 (S.D.1981). When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous. Matter of S.D. Water Mgmt. Bd., 351 N.W.2d 119 (S.D.1984); State Div. of Human Rights v. Miller, 349 N.W.2d 42 (S.D.1984).

Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113, 116 (S.D.1987) (citing Johnson v. Shelly Oil Co., 359 N.W.2d 130, 132 (S.D.1984)); see also Hanson v. Penrod Const. Co., 425 N.W.2d 396 (S.D.1988).

We review the administrative agency’s decision the same as did the circuit court. We do not substitute our judgment for that of the agency on the weight of evidence pertaining to questions of fact unless clearly erroneous or characterized by an abuse of discretion. Lawler v. Windmill Restaurant, 435 N.W.2d 708 (S.D.1989) (Henderson, J., dissenting); Lee v. South Dakota Dept. of Health, 411 [249]*249N.W.2d 108 (S.D.1987) (Henderson, J., concurring in result).

DECISION

ISSUE I

WHETHER DEPARTMENT CLEARLY ERRED IN FINDING CLAIMANT PERMANENTLY AND TOTALLY DISABLED.

Recently, in Wendel v. Domestic Seed & Supply, 446 N.W.2d 265 (S.D.1989), we reiterated our holding in Barkdull v. Homestake Min. Co., 317 N.W.2d 417 (S.D.1982):

[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income. (Brackets in original.) (Emphasis added.)

446 N.W.2d at 270. See also Hanson, supra. The claimant has the burden of proof to make a prima facie showing that his physical impairment, mental capacity, education, training, and age place him in the odd-lot category. Wendel, supra; 2 Larson, Workmen’s Compensation Law, § 57.51(a) (1986). The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to claimant. Id.

Employer/insurer argue that Department’s finding that claimant was permanently and totally disabled is clearly erroneous. They state that the proper test for such a determination is “whether [claimant’s] injury (in combination with the other factors) prevents him from working at all available types of employment which could bring him an income on anything more than a sporadic basis resulting in an insubstantial income.” (Emphasis in original.) We disagree.

Employer/insurer’s statement of the test would make available a much wider range of employment than was intended in Bark-dull and its progeny. Proof that jobs exist which claimant can perform will not satisfy the employer’s burden. The test is more restrictive. The focus is on employment available in the community where the claimant is already residing. See Wendel, supra; Hanson, supra; and Barkdull, supra. There must be positions actually open providing claimant with the opportunity to work. See Bumble Bee Seafoods v.

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Rank v. Lindblom
459 N.W.2d 247 (South Dakota Supreme Court, 1990)

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Bluebook (online)
459 N.W.2d 247, 1990 S.D. LEXIS 118, 1990 WL 104008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rank-v-lindblom-sd-1990.