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Megan M. Peterson v. the Evangelical Lutheran

June 27, 2012

MEGAN M. PETERSON,
CLAIMANT AND APPELLANT,
v.
THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, EMPLOYER AND
APPELLEE, AND SENTRY INSURANCE, INSURER AND
APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT MCCOOK COUNTY, SOUTH DAKOTA THE HONORABLE TIMOTHY W. BJORKMAN Judge

The opinion of the court was delivered by: Zinter, Justice

#26214-rev & rem-SLZ

CONSIDERED ON BRIEFS

ON APRIL 17, 2012

#26214

[¶1.] Megan Peterson worked at a nursing home owned by The Evangelical Lutheran Good Samaritan Society (Good Samaritan). Peterson alleged that she sustained a work-related injury to her back when assisting a resident with a wheelchair. Good Samaritan denied Peterson's claim. Two doctors, who testified by deposition, disagreed whether Peterson suffered a work-related injury and whether employment was a major contributing cause of her back condition. The Department of Labor (Department), after considering the depositions and Peterson's medical records, determined that Peterson failed to prove that she sustained a compensable work-related injury. The Department also determined that Peterson failed to prove that her employment remained a major contributing cause of her condition and need for treatment. The circuit court affirmed. On de novo review, we reverse and remand.

Facts and Procedural History

[¶2.] Peterson was twenty-two years of age at the time of the Department hearing and had a history of injuries. In 2003, she slipped on wet stairs at her middle school and injured her left ankle. The ankle injury was treated with ice, compression bandages, and crutches. Although the injury resolved, Peterson continued to have occasional flare-ups.

[¶3.] In 2007, Peterson began working for Good Samaritan as a certified nursing assistant. On December 9, 2007, she sustained a work-related injury to her lower back while helping move a resident into bed. Dr. Scott D. Tieszen, of Tieszen Chiropractic Clinic, treated Peterson's hips and back. Following treatment, Dr. Tieszen recommended that Peterson continue to wear a back brace. By January 2008, Peterson returned to work with no restrictions.

[¶4.] In early 2009, Peterson experienced an ankle flare-up involving swelling and pain because of the twelve-hour shifts she was working. Peterson received physical therapy at Prairie Rehabilitation, Hartford Therapy Services. She also began wearing a doctor-recommended walking boot. Peterson was wearing the walking boot while working her overnight shift on July 15-16, 2009.

[¶5.] Peterson testified that while working that overnight shift, she bent down to help a resident with a wheelchair foot pedal, she stood back up, and she felt a sharp pain go through her lower back. Peterson complained of back pain and asked her supervisor for pain medication. Peterson told her supervisor that Peterson thought she had pinched a nerve. She took Tylenol and completed her shift.

[¶6.] After work, Peterson went home to bed. When she awoke, she could not move from the waist down due to pain. An ambulance was called, and Peterson was transported to a hospital emergency room around 4 pm. The emergency room records note that Peterson "complain[ed] [of] low back pain 18 hours ago." Peterson also reported that she was going to physical therapy for her foot and that "last night [she] felt low back pain getting progressively worse." A CAT scan revealed a disk protrusion at the L5-S1 level. Peterson was medicated and released from the emergency room to bed rest at home. She then treated with her family physician, Dr. Dawn A. Flickema, at the McGreevy Clinic. Dr. Flickema recommended an epidural block, but Good Samaritan's insurer refused to pay for that procedure.

[¶7.] On August 25, 2009, Peterson sought medical assistance from Dr.

David L. Hoversten, a board certified orthopedic surgeon. Dr. Hoversten performed a physical examination and reviewed Peterson's medical records from Hartford Therapy Services, the McGreevy Clinic, and the emergency room. Because the emergency room CAT scan was not definitive, Dr. Hoversten ordered an MRI. The MRI revealed a "dark disk" at L5-S1 that was "substantially bulging" and had a thirty percent loss of height. Peterson was terminated from Good Samaritan on September 1 because of work restrictions imposed by Dr. Hoversten.

[ΒΆ8.] Dr. Hoversten later opined by letter that Peterson's work activities independently caused her back discomfort, pain, and the need for evaluation and treatment. In a subsequent July 20, 2010 deposition, Dr. Hoversten testified that Peterson had a congenitally weak back and the flattened disk was the source of her pain. Dr. Hoversten also testified that both back injuries probably caused the disk problem and pain. Based on Peterson's history, Dr. Hoversten testified that Peterson suffered a work-related injury on July 15, 2009: he indicated that both back injuries had a substantial part to play ...


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