CONSIDERED ON BRIEFS ON MAY 20, 2013
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT CUSTER COUNTY, SOUTH DAKOTA THE HONORABLE MARY THORSTENSON Retired Judge
MICHAEL J. SIMPSON of Julius & Simpson, LLP Attorneys for claimant and appellant.
MICHAEL S. MCKNIGHT MATTHEW D. MURPHY of Boyce, Greenfield, Pashby & Welk, LLP Attorneys for appellees.
[¶1.] In this workers' compensation case, a claimant appeals the Department of Labor's ruling that the claimant failed to prove by a preponderance of the evidence that his employment was a major contributing cause of his current condition and need for treatment. The circuit court affirmed but modified the Department's decision.
[¶2.] Cameron Smith, age fifty-three, has worked for over ten years as a diesel mechanic for Stan Houston Equipment Company in Rapid City. His job requires heavy lifting and regular twisting. He currently suffers from neck, shoulder, and back pain. Stan Houston and its insurer denied Smith's workers' compensation claim. The question is whether Smith's employment with Stan Houston was a major contributing cause of his current condition and need for treatment.
[¶3.] In 1981, before working for Stan Houston, Smith suffered a slip and fall at work in Sundance, Wyoming. He was treated by a chiropractor for whiplash. He later testified that he had recovered a year after the accident. In late November 2008, while employed at Stan Houston, Smith had three incidents at work, which he later claimed caused neck, back, shoulder, and arm pain. While carrying a full load of tools and gear, he hit his head on an overhead garage door, sending him to his knees; he slipped on a ramp and fell to his knees and elbows; and he aggravated his shoulders and back in dragging 6, 000 feet of hose off a reel into a parking lot. Although Smith did tell his boss about each incident, he and his boss together decided Smith would not report the injuries for workers' compensation, but would try to work through the pain.
[¶4.] In December 2008, the pain was too much and Smith complained to his boss. His boss recommended that he see a chiropractor. At his appointment with Dr. Jeffery Burns, a chiropractor, Smith did not tell him of the three incidents in November 2008. On his intake paperwork, he marked an "x" in two boxes indicating that his reasons for the visit were for an "old injury" and "chronic pain." He listed his injury as the 1981 whiplash incident. Dr. Burns later diagnosed Smith with thoracic segmental dysfunction, muscle spasm and joint swelling, and cervical segmental dysfunction with a guarded prognosis.
[¶5.] Smith scheduled an appointment with Dr. Stewart Rice, a neurosurgeon. As with Dr. Burns, Smith did not tell Dr. Rice of the incidents in November 2008. Rather, he indicated that his "neck pain began in 1981 when he slipped and fell and had a whiplash type injury to his neck." Dr. Rice's notes indicate that Smith reported a "gradual increase of nagging, aching pain in the posterior cervical region, mid-back region and shoulders, as well as occasionally into the low back." Believing that Smith would benefit from chiropractic management, Dr. Rice did not recommend surgery.
[¶6.] Shortly after his appointment with Dr. Rice, Smith had a phone conversation with Dr. Burns. He told Dr. Burns that he had had his gallbladder taken out and, according to Dr. Burns's notes, reported: "currently very painful at mid upper back and neck." Dr. Burns recommended that he see Dr. Lee Papendick for an evaluation. In March 2009, Smith saw Dr. Papendick, an orthopedic surgeon. At that appointment, Smith again did not mention the November 2008 incidents. Dr. Papendick noted that Smith reported numbness and tingling in his hands. Dr. Papendick believed the cause was carpal tunnel syndrome and recommended an electromyogram and a nerve conduction study. Smith made a claim for workers' compensation coverage for the carpal tunnel syndrome, which was accepted and is not at issue in this appeal.
[¶7.] In April 2009, Smith had to crawl underneath a machine and thought he had "aggravated something horribly[.]" He submitted a workers' compensation claim and three first reports of injury. In the first two reports, he indicated his date of injury as December 15, 2008, with "[n]o specific injury — pain too much to ignore." The second report of injury was the same. The third, however, listed the date of injury as April 13, 2009, and described his pain as "[r]ight arm & right shoulder unusable — extreme pain." An insurance adjuster contacted Smith. During their conversation, Smith did not tell the adjuster of the incidents in November 2008, although he did state that he had pain since December 2008, and that the recent incident caused a spike in pain.
[¶8.] On May 6, 2009, Smith was being treated by a physical therapist for his carpal tunnel syndrome. His therapist noted, "I have great concerns concerning C-spine as cervical screen strongly suggests nerve compression issues and associated limitations as well." Smith, however, never told the therapist about his November 2008 incidents. Smith's orthopedic surgeon treating his carpal ...