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Lends His Horse v. Myrl & Roy's Paving11/21/2000
laimant's medical impairment is so limited or specialized in nature that he is not obviously employable or regulated to the odd-lot category,' then the burden remains with the claimant to demonstrate the unavailability of suitable employment by showing that he has made [ ] 'reasonable efforts' to find work" and was unsuccessful. Id. If the claimant makes a prima facie showing based on the second avenue of recovery, the burden shifts to the employer to show that "some form of suitable work is regularly and continuously available to the claimant." Id. (citing Wendell v. Domestic Seed & Supply, 446 NW2d 265 (SD 1989)). Even though the burden of production may shift to the employer, however, the ultimate burden of persuasion remains with the claimant. Shepherd, supra, at 918.
ISSUE
[ ] Whether the circuit court erred in reversing the Department's decision to deny odd-lot benefits.
[ ] Based on the history of this case, there appears there is a problem distinguishing between the burden of production and the burden of persuasion. There is no question that Claimant has the ultimate burden to show that he is entitled to odd-lot benefits. Therefore, the central issue is whether Claimant has ultimately met its burden of persuasion: that he or she has proven injury to the degree where odd-lot benefits are an appropriate remedy. Here, Claimant has not met this burden. Though Claimant may have met his burden of production, it cannot be said, in light of the Department's findings, that he has met his ultimate burden of persuasion.
[ ] In a workers compensation case, where the claimant's subjective experience of pain is central to the issue of whether recovery is warranted, the credibility of the claimant is always at issue. Johnson v. Albertson's, 2000 SD 47, 610 NW2d 449; Wagaman v. Sioux Falls Const., 1998 SD 27, 576 NW2d 237; Peterson v. Hinky Dinky, 515 NW2d 226 (SD 1994). Nowhere in our prior case law have we held that credibility cannot be attacked at the prima facie stage. To the contrary, we have on several occasions pronounced that credibility of the claimant can be attacked at the prima facie stage. Baker v. Dakota Mining & Constr., 529 NW2d 583 (SD 1995); Wagaman, supra; Peterson, supra. If we were to hold otherwise, cross-examination would be an exercise in futility, and the truth as to credibility of the claimant may go unchallenged. This Court has never endorsed such an illogical process.
[ ] "It is incumbent upon [the circuit court] to be duly aware of the opportunity of the [Department] to judge at first hand the credibility of the witnesses." Matter of J.M.V.D., 285 NW2d 853, 855 (SD 1979). The Department is in a better position than the circuit court to evaluate the persuasiveness of their testimony. Id. If the credibility determinations made by the Department are flawed, the circuit court should review those determinations and set forth its reasons for rejecting them.
[ ] Moreover, these findings were never specifically addressed at the circuit court level in its reversal of the Department's decision. The circuit court did not make any Findings of Fact or Conclusions of Law based on the hearing examiner's credibility determinations. The circuit court also forewent any analysis into whether Claimant met his ultimate burden of persuasion that he was totally and permanently disabled. Rather, the circuit court treated the earlier finding made by another circuit court judge that Claimant met his burden of production to make a prima facie case as conclusive proof that Claimant satisfied his ultimate burden of persuasion.
[ ] It is plain that the Department is to weigh the evidence and determine the credibility of witne
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