APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA, HONORABLE LORI S. WILBUR, Judge.
The opinion of the court was delivered by: Severson, Justice
CONSIDERED ON BRIEFS ON NOVEMBER 16, 2009
[¶1.] Joel Darling (Darling) appeals the circuit court judgment that the South Dakota Department of Labor (the Department) erred in concluding his work-related injury was a major contributing cause of his disk bulges, nerve impingement, stress fractures, and disk slippage so that the treatment, including surgery, related to those conditions was compensable. We affirm in part and reverse in part.
[¶2.] Darling has worked as a stone mason most of his adult life. West River Masonry, Inc. (West River Masonry) has employed Darling as a stone mason since 2001. In 1989, Darling strained his back and consequently missed approximately nine months of work. He recovered and did not have any problems with his back until January 2005. During that fifteen-year period, Darling never saw a doctor or missed work for low back pain.
[¶3.] On January 15, 2005, Darling was carrying concrete blocks down a stairway into the basement of the Adams Museum in Deadwood, South Dakota. It was cold and snowy that day, so Darling and his co-workers carefully cleaned and sanded the steps of the stairway. A smooth concrete landing with a nine-inch step was at the bottom of the stairway. Darling was carrying two concrete blocks weighing 35 to 40 pounds when he slipped on the concrete landing. His feet came out from under him and his lower back hit the edge of the nine-inch step. Darling felt pain immediately, but continued to work because he did not believe his injury was serious. The pain in his low back, left side, and left leg steadily increased throughout the day. When Darling finished work, the pain had progressed to the point that he could barely walk. Darling's wife helped him into his house when he arrived home, and he used his daughter's crutches to get to the emergency room as he could not bear any weight on his left leg.
[¶4.] Dr. Vosler treated Darling at the emergency room. Dr. Vosler directed Darling to take a few days off work and prescribed Percocet to relieve his pain. Darling again saw Dr. Vosler on January 24, 2005. At that time, Dr. Vosler noted Darling had bruises across his mid-lumbar spine and left proximal femur. Dr. Vosler prescribed additional pain medications for Darling, including Ibuprofen and Vicoden. Shortly thereafter, Dr. Vosler approved Darling's request to return to work under certain conditions. Darling later saw Dr. Vosler in March 2005. Although Darling indicated that his leg pain had subsided, he was still experiencing pain in his low back. Dr. Vosler prescribed physical therapy or chiropractic treatment.
[¶5.] Darling saw Dr. Brett Lawlor, a rehabilitation medicine specialist, on May 27, 2005. Dr. Lawlor diagnosed Darling with discogenic low back pain and possible SI and facet dysfunction. Dr. Lawlor recommended physical therapy and pain medication. He also ordered an MRI, which showed degenerative disc disease at L3-L4, L4-5, and L5-SI, facet hypertrophy at L3-L4 and L4-5, and mild foraminal stenosis. The radiologist's report did not mention disk bulges, nerve impingement, stress fractures, or disk slippage. Over the next year, Dr. Lawlor treated Darling with facet, epidural, and joint injections, neuromuscular electrostimulation, and pain medications, but to no avail. On March 14, 2006, Dr. Lawlor discussed surgery with Darling, but Darling indicated he was not yet willing to undergo surgery. Darling underwent a Functional Capacities Evaluation (FCE) on April 10, 2006.
Dr. Lawlor assigned Darling a five-percent whole-person impairment for the lumbar spine. He also restricted Darling to lifting no more than fifty pounds occasionally or thirty pounds frequently. The FCE did not preclude Darling from twisting or bending.
[¶6.] On May 12, 2006, Darling was playing baseball in his yard with his son. As Darling was demonstrating a swing, though not taking a full swing, he felt a popping sensation accompanied by sudden and severe pain. Darling immediately experienced severe left leg pain so that he could barely walk. He used the baseball bat and a handrail to support his weight as he walked back to his house.
[¶7.] Darling returned to Dr. Lawlor who prescribed physical therapy and ordered a second MRI. The radiologist's report for this second MRI noted stress fractures at L4-5 with disk slippage of L4 and L5, moderate canal stenosis and left lateral stenosis, mid-grade I degenerative anterior stress fracture at L5-SI bilaterally, and disk bulges and facet athrosis with obvious neural impingement. Dr. Lawlor recognized that the disk bulges, nerve impingement, and stress fractures were not noted on the June 2005 MRI report. Dr. Lawlor felt the current course of treatment was not adequate and referred Darling to Dr. Rand Schleusener, an orthopedic surgeon, for surgical consultation. Dr. Schleusener recommended surgery to decrease pain and nerve impingement associated with the disk narrowing and bulging, as well as the disk slippage caused by the stress fractures.
[¶8.] A hearing on Darling's workers' compensation claim was held before the Department on November 13, 2007. At that hearing, Darling testified and presented the deposition testimony of Drs. Lawlor and Schleusener. Drs. Lawlor and Schleusener believed Darling's January 2005 injury was a major contributing cause of his current condition and need for treatment, including surgery. West River Masonry presented the deposition testimony of Dr. Greg Reichhardt. Dr. Reichhardt believed the January 2005 injury was not a major contributing cause of Darling's current condition and need for surgery. He testified the surgery was needed to treat disk bulges, nerve impingement, and stress fractures, injuries not present prior to the May 2006 incident as demonstrated by the June 2005 MRI report. He concluded Darling was not entitled to workers' compensation benefits for any treatment related to those conditions. On June 5, 2008, the Department found West River Masonry responsible for Darling's ongoing medical expenses, including the cost of surgery. West River Masonry filed a notice of appeal with the Sixth Judicial Circuit Court on July 7, 2008.
[¶9.] The circuit court, per the Honorable Lori S. Wilbur, affirmed in part and reversed in part. The circuit court affirmed the Department to the extent the Department found a causal relationship between Darling's January 2005 injury and his general current condition. However, the circuit court reversed to the extent the Department found a causal relationship between Darling's January 2005 injury and his disk bulges, nerve impingement, stress fractures, and disk slippage. The circuit court concluded Darling ...