APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA HONORABLE MARK BARNETT Judge
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON APRIL 25, 2011
[¶1.] Carlin Jewett, Sr. sought workers' compensation benefits for a right knee replacement and for diagnostic treatment of his left knee. Jewett relied on two theories. He first contended that work-related injuries to both knees were a major contributing cause of the need for the medical treatment. Under his second (alternative) theory, Jewett acknowledged that he had pre-existing bilateral patellofemoral osteoarthritis that caused the need for the medical treatment. However, he contended that the cumulative effect of his work-related activities for Real Tuff, Inc. was a major contributing cause of the osteoarthritis. The South Dakota Department of Labor (Department) and circuit court ruled that Jewett failed to sustain his burden of proof on both theories. We affirm.
Facts and Procedural History
[¶2.] Jewett is a forty-nine-year-old welder. He worked for Real Tuff from 1996 to 2009, with the exception of a six month period in 2002. Jewett's work involved the manufacture of livestock bale feeders, feed bunks, corral panels, gates, trailers, and other products used by cattlemen. Jewett's work often required him to kneel on a concrete floor to weld components of the bale feeders, to bend metal skirts, and to weld other products.
[¶3.] According to Jewett's estimate provided at the Department hearing, he spent 475 days between 1997 and 2002, and 245 days between 2003 and 2008, crawling on the floor performing his work. Real Tuff's estimates were significantly less. There is, however, no dispute that before 2003, Jewett performed duties from a kneeling position on bare knees. After a 2003 Occupational Safety and Health Administration inspection, Real Tuff provided knee pads and rubber floor mats. Real Tuff also allowed employees to build jigs and tables to hold the products off the floor during assembly. This change allowed Jewett to spend less time kneeling and more time in a seated position on a small rolling stool.
[¶4.] Jewett had not sought medical treatment for his right knee before August 2006. On August 1, 2006, he picked up a corral panel to turn it over and in the process his right knee "snapped back" and "popped." Jewett immediately felt a sharp pain and reported the injury to Real Tuff. Jewett was referred to Mobridge Orthopedic Surgery Specialists. Dr. James Mantone, a board-certified orthopedic surgeon, became Jewett's treating physician.
[¶5.] Dr. Mantone ordered an MRI that revealed a "loose body" in Jewett's right knee (patellofemoral joint).*fn1 Dr. Mantone subsequently performed arthroscopic surgery, which removed the loose body and cartilage debris that had been dislodged from Jewett's medial femoral condyle in the accident. Dr. Mantone also performed chondroplasties on the rough areas to smooth the medial femoral condyle and patellofemoral joint.
[¶6.] While performing the surgery, Dr. Mantone found significant osteoarthritis in Jewett's medial femoral condyle and patellofemoral joint. The arthritis was pre-existing, advanced patellofemoral degenerative disease with diffused grade four changes in the central and medial facet and medial portion of the trochlea. Grade four changes are the most serious type of arthritis, meaning that there was exposed bone in Jewett's knee. Dr. Mantone also observed grade two to three changes in the medial femoral condyle.
[¶7.] After the surgery, Jewett continued to experience fluid buildup, pain, "give-way" weakness, catching, locking, and the inability to straighten his knee. Dr. Mantone ultimately recommended that Jewett obtain a partial or total right knee replacement.
[¶8.] Real Tuff's insurer (Insurer) paid for the medical care, including the arthroscopic surgery. But after an independent medical examination, Insurer denied compensation for additional medical treatment and benefits. Insurer's physician believed that Jewett's remaining condition and need for treatment after the surgery were caused by pre-existing, non-work related osteoarthritis. Jewett subsequently filed a petition with the Department seeking workers' compensation for a right knee replacement.
[¶9.] In July 2008, Jewett suffered a second work-related injury at Real Tuff-this time to his left knee. Dr. Mantone recommended an MRI as reasonable and necessary to diagnose the condition of Jewett's left knee. Based on Jewett's pre-existing osteoarthritis, Insurer declined to pay for the MRI. Jewett then added a workers' compensation claim for the MRI.
[¶10.] At the hearing, Dr. Mantone testified (by deposition) that the August 2006 work-related injury was a major contributing factor in Jewett's need for a right knee replacement. Dr. Mantone's opinion was based on the continuity of symptoms. He explained that Jewett's work-related injury produced symptoms that initially required care and those symptoms continued. However, Dr. Mantone conceded that Jewett's pre-existing arthritis also played a role in the need for a knee replacement. He testified that he could not replace any of the articular cartilage in Jewett's knee because Jewett had too much arthritis. Further, when asked what part of the knee would need to be replaced, Dr. Mantone responded, "I think in him for where his disease is maximal is the patellofemoral joint." (Emphasis added.) Dr. Mantone conceded that Jewett may have required a right knee replacement based on his pre-existing arthritis.
[¶11.] With respect to Jewett's alternative theory, Dr. Mantone believed that Jewett's arthritic changes could have been the result of repetitive use-abuse type work activities. Dr. Mantone opined that Jewett's work on his knees on a concrete floor over the course of five or six years was a major contributing cause of the arthritic changes in Jewett's knees. Dr. Mantone's opinion was based on Jewett's deposition description of the time he spent working on his knees. Dr. Mantone also observed that Jewett was a younger man and a doctor would not expect Jewett's level of arthritis without a cause or injury significant enough to produce the observed level of arthritis. Dr. Mantone finally noted ...