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Titus v. Sioux Valley Hospital2/26/2003
rmatively state that the Claimant's continued employment did not contribute to her disability[.]" This is supported by the record. The depositions of Doctors Schneider, Zimmerman and McMartin all reflect equivocation on the issue of independent contribution. Dr. Schneider testified that "I don't think the work out here [in Idaho] contributed any more to it than her going to the grocery store and getting something." (emphasis added). Later he testified, "I think that just normal daily activities did contribute to this. And some of the things she did at work might have contributed somewhat to it just as some of the things at home would have contributed to it." (emphasis added). And further, "I think that just life in general contributed to it. What she did at work may have played a little part, but if she didn't have the job at the hospital, she may have ended up where she did today anyway." (emphasis added). And finally, "I just can't put my finger on any one particular thing that has caused this. And I don't think the work she was doing here played any more of a part than just her normal day-to-day living." (emphasis added).
[ .] Dr. Zimmerman similarly testified that, "I would have to say because of the fact that she works, sure, it contributed to the natural progression. I mean, my response is somewhat contradictory when you look at it." Finally Dr. McMartin was simply inconclusive on the issue of independent contribution. He testified, "It's indeterminate whether her surgical technician work at West Valley [in Idaho] contributed to the progress of her symptomatology, likewise it's indeterminate in my mind as to whether or not it contributed to her need for surgery."
[ .] As I weigh the foregoing testimony, I find three doctors affirmatively representing that Titus' subsequent employment independently contributed to her disability, two doctors conceding that the employment could have contributed to the disability and one doctor declining to express an opinion one way or the other. De novo review in a case does not necessitate reversal. If findings are supported by substantial evidence, they are entitled to our consideration. In Paulson, 1996 SD 118 at , 554 NW2d at 197, we observed that the trial court's findings applying the last injurious exposure rule were "well reasoned, substantially supported by the evidence and . . . persuasive." Relying on those findings, we affirmed the court's determination that the Department of Labor erred in its application of the rule. Id. De novo review of the record here leads to a like conclusion. How can it be said on this record that Titus sustained her burden of proving by a preponderance of the evidence with conclusive medical evidence that her disability was the result of a recurrence rather than an aggravation of her initial injury ? In my view, on this record, the trial court reached an appropriate result based upon the standards and burdens of proof propounded by this Court and I would affirm its well reasoned decision.
[ .] ECKRICH, Circuit Judge, joins this dissent.
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