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Lends His Horse v. Myrl & Roy's Paving11/21/2000
Appeal from the Sixth Judicial Circuit, Hughes County, SD
Hon. Lori S. Wilbur, Judge
Reversed
Argued Sep 20, 2000;
[ ] Myrl & Roy's Paving Inc. appeals the trial court's reversal of the Department of Labor's decision to deny Joe Lends His Horse, Jr. permanent total disability benefits under the Worker's Compensation Act. We reverse.
FACTS
[ ] In 1993, Myrl & Roy's Paving, Inc. employed Joe Lends His Horse Jr. as a truck driver in Sioux Falls, South Dakota. Besides driving truck, his duties included helping load and unload the truck, run errands, and other various odd jobs. In May of 1994, Lends His Horse sustained an injury to his back while filling a five-gallon bucket. Initially, Lends His Horse went to Dr. Cass at McKennan Hospital in Sioux Falls. Dr. Cass' initial conclusion was that Lends His Horse suffered an acute temporary injury and prescribed physical therapy. After this initial consultation, he received no other medical treatment for his back in Sioux Falls. He returned to his job a week after the injury and resumed full job duties with no modifications. In August of that same year, Lends His Horse left his job without giving any notice or reason to his employer.
[ ] After leaving his job , Lends His Horse moved to Rapid City. Shortly thereafter, he received medical treatment through the Public Health Service at Sioux San Hospital. There he saw Dr. Sabow twice, and upon Dr. Sabow's request, Lends His Horse also saw Dr. Ertz, a psychologist. Although Dr. Sabow believed Lends His Horse' employment potential was somewhat limited, he did not place any specific limitations or restrictions on Lends His Horse. No further medical treatment was sought by Lends His Horse.
[ ] Prior to his back injury in 1994, Lends His Horse had other physical limitations which required surgery including a disk rupture in his lower back in 1992, and a foot drop due to weakness in one of his ankles. In addition to his physical limitations, he also suffers from mental maladies, including anxiety, panic attacks, and depression. Since 1984, he has regularly taken prescribed medication for depression. With all these known problems, however, Lends His Horse has never been medically restricted from performing manual labor. Lends His Horse filed a petition for permanent total disability benefits in December of 1994.
[ ] The Department of Labor denied Lends His Horse' claim for benefits. The Department found that Claimant's "testimony regarding his pain was not credible." The Department also rejected the testimony of Dr. Ertz as "lacking foundation insofar as it relies upon Claimant's testimony concerning his pain which has been rejected." Likewise, the Department found that employer met its burden of production of showing regularly and continuously available work for persons of his physical ability.
[ ] The circuit court, the Honorable Steven L. Zinter presiding, reversed and remanded for further proceedings consistent with its prior order in Johnson v. Albertsons (Civ. No. 93-947, September 15, 1997) that credibility evidence cannot be weighed at the prima facie stage. The Department again denied Lends His Horse benefits as it found him not credible and that he failed to satisfy his ultimate burden of persuasion.
[ ] Upon the second appeal to the circuit court level, the Honorable Lori Wilbur presiding, reversed the Department's decision based solely on the finding that employer failed to satisfy its burden of production on the issue of regular and continuous available employment. Myrl & Roy's Paving appeals. The issue to be decided on appeal is:
Whether the ci
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