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Lends His Horse v. Myrl & Roy's Paving11/21/2000
rcuit court erred in reversing the Department's decision to deny odd-lot benefits.
STANDARD OF REVIEW
[ ] This Court's scope of review from decisions of administrative agencies is controlled by SDCL 1-26-37, which provides:
An aggrieved party of the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.
[ ] Our standard of review for administrative decisions is found in SDCL 1-26-36, and is well established. We will overrule an agency's factual determinations only if we find them to be "clearly erroneous" in light of the entire evidence. Conclusions of Law, however, are fully reviewable. Permann v. Department of Labor, Unemployment Ins. Div., 411 NW2d 113 (SD 1987). "Whether the claimant made a prima facie case that he belongs in the odd lot total disability category is a question of fact." Shepherd v. Moorman Mfg., 467 NW2d 916, 919 (SD 1991). Thus, the "Department's determination that claimant failed to make the required prima facie showing will not be overturned unless we find that the determination was clearly erroneous." Id. "The test is whether after reviewing all the evidence we are left with a definite and firm conviction that a mistake has been made." Sopko v. C & R Trans. Co. Inc., 1998 SD 8, , 575 NW2d 225, 228; See also Day v. John Morrell & Co., 490 NW2d 720, 723 (SD 1992). Due to the deference given the Department, " e do not substitute our judgment for that of [Department] on the weight of the evidence." Shepherd, 467 NW2d at 919.
[ ] To qualify for odd-lot worker's compensation benefits, a claimant must show that he or she suffers a temporary or permanent "total disability." Our definition of "total disability" has been stated thusly:
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 insubstantial income. Barkdull v. Homestake Mining Co., 317 NW2d 417 (SD 1982); Shepherd, 467 NW2d at 918; Tiensvold v. Universal Transport, Inc., 464 NW2d 820, 822 (SD 1991).
Under the odd-lot doctrine, the ultimate burden of persuasion remains with the claimant to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in the odd-lot category. If the claimant can make this showing, the burden shifts to the employer to show that some suitable work is regularly and continuously available to the claimant. Shepherd, supra; Tiensvold, supra.
[ ] We have recognized two avenues in which a claimant may pursue in making out the prima facie showing necessary to fall under the odd-lot category. First, if the claimant is "obviously unemployable," then the burden of production shifts to the employer to show that some suitable employment will accommodate claimant's limitations is actually available in the community. Shepherd, 467 NW2d at 918; Tiensvold, 464 NW2d at 823. A claimant may show "obvious unemployability" by: 1) showing that his "physical condition, coupled with his education, training and age make it obvious that he is in the odd-lot total disability category," or 2) "persuading the trier of fact that he is in the kind of continuous, severe and debilitating pain which he claims." Shepherd, supra, at 918-19. Second, if "'the c
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