APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. TIMM Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON AUGUST 22, 2011
[¶1.] In this workers' compensation appeal, we reverse and remand for a new hearing before the Department of Labor to consider the employee's claim that the employer intentionally destroyed relevant evidence that would have assisted the employee in establishing causation for his injuries.
[¶2.] Claimant, David Thyen, has worked for Hubbard Feeds, Inc. since January 30, 2003, as a mix operator. In addition to his work at Hubbard, Thyen and his wife ran a small dairy farm. On July 2, 2008, before going to work, Thyen helped his wife feed the dairy cows by mixing the feed and driving it to the feed bunks with a skid-steer loader. After finishing, Thyen arrived at Hubbard for work at 9:00 a.m. He was asked to monitor the flow of wheat middlings being removed from a tank that had accidentally become contaminated with a load of limestone the previous day. While monitoring the flow, he also cleaned up an area near the "meat and bone tank" where old feed had spilled and become moldy and "raunchy smelling." Shortly thereafter, Thyen felt his face turn red and "burn red hot." He immediately went inside the plant and threw cold water on his face. But the cold water did not help, and within minutes his stomach, arms, hands, legs, and neck were hot and tingling, with a pins-and-needles burning sensation.
[¶3.] Hubbard's plant manager took Thyen in a work vehicle to the Brown Clinic in Watertown. There, Thyen began to shake uncontrollably. Dr. Allison Geier diagnosed an allergic reaction, and treated him with an epinephrine injection, along with benadryl and solumedrol by IV. Thyen's redness lightened, but he continued to shake. He was transferred to Prairie Lakes Hospital and admitted for observation. He was released on July 3, 2008.
[¶4.] Dr. Geier made an appointment for Thyen to see Dr. Kenneth Rogotzke, an ear, nose, and throat doctor, for allergy testing on July 10, 2008. Dr. Rogotzke believed Thyen experienced "an anaphylactic event or angioneurotic edema event." He asked Thyen to obtain a Materials Safety Data Sheet (MSDS) from Hubbard, listing the ingredients stored or used at Hubbard. On July 16, 2008, Thyen's daughter brought him to Hubbard to retrieve the MSDS. Upon entering the office, he experienced symptoms similar to those on July 2, 2008. His daughter drove him to Dr. Rogotzke's office. Dr. Rogotzke was not available, but his office contacted him by phone. Thyen injected himself with epinephrine, and returned the next day to see Dr. Rogotzke. Dr. Rogotzke referred him to an allergist in Sioux Falls.
[¶5.] On July 22, 2008, Thyen saw Dr. Brian Brennan. Dr. Brennan examined Thyen and reviewed his history. In his report, Dr. Brennan wrote, "At this time I am at a loss for determining the cause of this from his history." He added, Perhaps a pesticide exposure could cause symptoms such as this, but also symptoms of pesticide exposure are lacking and there is no history of pesticide exposure. This could represent a flushing syndrome, but again, many of the symptoms are lacking. Certainly, some of this flushing could be related to his Niacin therapy but at this time it is unclear whether he was taking Niacin on the dates of these reactions.
Dr. Brennan referred Thyen to the Mayo Clinic.
[¶6.] On July 28, 2008, Thyen was seen by Dr. Joseph Butterfield at the Mayo Clinic for an allergy consultation. After examining Thyen, Dr. Butterfield decided to "check allergy skin tests to common inhalants and molds." But Dr. Butterfield "informed Mr. Thyen that we [Mayo] do not have tests for any of the 250 additives in grains which he mixes." He diagnosed a flushing episode and hypertension. At a follow-up visit on September 5, 2008, Dr. Butterfield told Thyen that the skin tests for mold came back negative.
[¶7.] Thyen was again examined by Dr. Rogotzke on August 22, 2008. In his report, Dr. Rogotzke wrote, "The question is whether this is inhalant or chemicals. This would be hard to prove the chemicals. Certainly seems to be work related in my mind. I got to see the second episode and that was to me very profound. It mimicked the first reaction he had."
[¶8.] Dr. Douglas Pay with Avera Dermatology examined Thyen on August 25, 2008. Dr. Pay diagnosed Thyen with "[o]ccupational dermatitis secondary to work related exposure, exact etiology undetermined at this time." He referred Thyen to "occupational health." On August 25, 2008, Dr. Bruce Elkins, a certified medical examiner, provided a second opinion. He examined Thyen, his history, the MSDS, and opined that "[t]he most likely explanation for Mr. Thyen's symptoms is an unrecognized workplace exposure." In particular, Dr. Elkins believed that the insecticide Tempo could cause symptoms such as Thyen's and that "additional information regarding potential exposure to Tempo still needs to be explored." He recommended that Thyen follow up with an allergist for additional testing.
[¶9.] Thyen saw allergist Dr. Mark Bubak on September 10, 2008. Dr. Bubak reported, "I am unable to give an allergic reaction for this and unfortunately I do not know enough about toxic mold exposures to say that is what happened to him either. It is unusual that just going to the office would have a similar flushing episode." Dr. Bubak concluded, "I am unable to give worthwhile recommendations at this point[.]"
[¶10.] Thyen submitted his first report of injury to Hubbard on July 3, 2008. On August 22, 2008, Hubbard's insurer, Sentry Insurance, sent Thyen a conditional denial of his claim. Thyen then asked Hubbard to provide him with random samples of various materials in the areas around the plant. The first request came by prescription from Dr. Geier in August 2008, for "samples of areas pt [patient] in contact with prior to reaction -- at least 10 places & clothing if needed." Hubbard refused to give Thyen a sample because no protocols were in place. Then, in September 2008, Thyen gave Hubbard another prescription from Dr. Geier, which provided a collection protocol and collection boxes. Hubbard did not collect the requested samples. In a letter dated October 6, 2008, Hubbard acknowledged Thyen's request for samples and again denied his request. On November 5, 2008, Thyen returned to ...