APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. HONORABLE A. PETER FULLER Judge.
The opinion of the court was delivered by: Severson, Justice
CONSIDERED ON BRIEFS ON APRIL 27, 2009
[¶1.] Lance Wellman appeals the denial of temporary partial disability benefits. We affirm.
[¶2.] Wellman suffered a compensable injury when he fractured his left fibula while working for Schad Excavation, LLC (Employer) on May 3, 2005. At the time, he was earning $15 per hour. Wellman received medical treatment from Dr. Stewart Fromm and was off work until May 23, 2005. Wellman's benefit rate was $400 per week, and he received temporary total disability (TTD) benefits from May 4, 2005 through May 31, 2005.
[¶3.] On May 23, 2005, Dr. Fromm released Wellman to return to work, with restrictions. Wellman returned on June 1, 2005, at the same hourly pay rate. Cody Schad, Wellman's supervisor, terminated Wellman's employment with Employer on June 20, 2005, due to attendance issues. Wellman testified that he left work early on several occasions between June 1 and June 20, 2005, because there was insufficient work, but always received permission from either Schad or the supervisor at the job site. Schad testified that Wellman never received his permission to leave work early, except on two occasions when Wellman's leg was bothering him. He further insisted there was full-time work available for Wellman, but Wellman chose to leave early. After being terminated, Wellman did not seek other employment or register with Job Services. He testified that he did not seek other employment because he was unable to perform manual labor. He did, however, complete three excavation jobs using his own track hoe, but testified that these jobs did not require manual labor.
[¶4.] On November 7, 2005, Wellman was examined by Dr. Cederberg, who assessed Wellman at maximum medical improvement and having a permanent partial impairment. General Casualty (Insurer) subsequently paid Wellman his permanent partial disability (PPD) benefit. Wellman's eligibility for temporary partial disability (TPD) ended on that date.
[¶5.] Wellman brought a claim against Employer and Insurer for TPD benefits. He acknowledged that all TTD and PPD benefits had been paid, but maintained he was entitled to TPD from the time he returned to work for Employer on June 1, 2005, until he received his impairment rating on November 7, 2005. His claim amounted to approximately $7,500, plus prejudgment interest, and was based upon the difference between the statutory floor of his compensation rate of $400 per week and his actual earnings during that time.
[¶6.] A hearing was conducted on November 28, 2006, by the South Dakota Department of Labor, Division of Labor and Management (Department). The Department found Schad to be a credible witness, while rejecting much of Wellman's testimony.*fn1 The Department found that Wellman earned his pre-injury wage per hour between June 1 and June 20, 2005. It further found that Wellman was "able to earn" an income between June 20, 2005 and November 7, 2005, but chose not to even though suitable work was available. Therefore, the Department ruled that Wellman was not entitled to TPD benefits.
[¶7.] Wellman appealed to the circuit court. The circuit court affirmed the Department's decision, concluding that Wellman refused suitable employment and failed to meet his burden of proving either that his termination of employment or inability to find subsequent employment was caused by the compensable injury. Wellman appeals to this Court, raising two issues, which we restate as follows:
Whether Wellman was entitled to temporary partial disability benefits even though he was terminated for cause and did not seek other employment.
[¶8.] The standard of review in administrative appeals is governed by SDCL 1-26-36. An administrative agency's conclusions of law are reviewed de novo, while questions of fact are reviewed under the clearly erroneous standard. Clausen v. N. Plains Recycling, 2003 SD 63, ¶7, 663 NW2d 685, 687 (citations omitted).
[¶9.] Whether Wellman was entitled to temporary partial disability benefits even though he was terminated for cause ...