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Hayes v. Rosenbaum Signs & Outdoor Advertising, Inc.

Supreme Court of South Dakota

August 27, 2014

KEVIN HAYES, Appellant,
v.
ROSENBAUM SIGNS & OUTDOOR ADVERTISING, INC. and ACUITY, Appellees

Considered on Briefs April 28, 2014

Page 879

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE ROBERT A. MANDEL, Judge.

Reversed & Remanded.

MICHAEL J. SIMPSON, Julius & Simpson, LLP, Rapid City, South Dakota, Attorneys for appellant.

CHARLES A. LARSON, Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for appellees.

SEVERSON, Justice. KONENKAMP, ZINTER and WILBUR, Justices, and MILLER, Retired Justice, concur. MILLER, Retired Justice, sitting for GILBERTSON, Chief Justice, disqualified.

OPINION

Page 880

SEVERSON, Justice

[¶1] Kevin Hayes appeals the Seventh Judicial Circuit Court's affirmance of a Department of Labor's (Department's) workers' compensation determination. We reverse and remand.

Background

[¶2] Hayes injured his lower back on March 27, 2007, while working for Rosenbaum Signs. Rosenbaum and its insurer Acuity (collectively " Employer" ) treated the claim as compensable and paid for medical treatment. Employer then required that Hayes see Dr. Dale Anderson for an independent medical evaluation (IME) on October 4, 2007. Based on Dr. Anderson's evaluation, Employer denied further medical treatment.

[¶3] Hayes filed a petition for hearing on May 13, 2009, alleging entitlement to medical benefits from Employer. Employer answered denying that Hayes' work injury remained a major contributing cause to his current need for medical treatment. Hayes submitted an affidavit from his treating physician, Dr. Christopher Dietrich, who stated that the 2007 injury was a major contributing cause of his current condition and need for ongoing medical treatment. Dr. Anderson was deposed on March 30, 2010. Dr. Anderson testified that Hayes had reached maximum medical improvement and that Hayes' low back condition and need for treatment was fifty percent caused by his pre-existing low back fusion in 1991 and fifty percent by the 2007 injury. After Dr. Anderson's deposition, Employer filed an amended answer dated July 30, 2010, (amended answer) where it admitted that " Claimant's work activities are currently a major contributing cause to his current need for

Page 881

medical treatment or low back pain." The Department, on August 3, 2010, dismissed the case without prejudice (order of dismissal), stating:

The Employer and Insurer, having filed an Amended Answer, and having admitted items in controversy as set out in the Petition, and the parties having agreed that controversy or dispute no longer exists in this matter, at this time, IT IS HEREBY: ORDERED that the above-captioned matter be dismissed without prejudice.

[¶4] On May 2, 2011, Employer required that Hayes see Dr. Nolan Segal for an IME. Dr. Segal agreed that Hayes suffered an initial work injury, but testified that the work injury was no longer a major contributing cause of Hayes' current condition. Instead, Dr. Segal concluded that Hayes' ongoing back problems were due to a longstanding chronic condition dating back to the late 1980s. Dr. Segal based his opinion primarily on records for the period before November 2007, which Dr. Anderson previously considered, and which led to Employer's admission. Employer denied further medical treatment based upon Dr. Segal's IME. Hayes petitioned for a hearing.

[¶5] On April 17, 2013, the Department held a hearing to address Hayes' petition. Hayes argued that res judicata applied to prevent Employer from changing its position from its previous admittance. Hayes further argued, based on Dr. Dietrich's opinion by deposition submitted at the hearing, that the 2007 injury is and remains a major contributing cause of his current condition and need for medical treatment. Employer argued that it is not changing positions, but that Hayes' 2010 physical condition was different than his current condition, and that Hayes' work injury no longer remains a major contributing cause of his current condition. Employer further argued that res judicata does not apply to this case. The Department agreed with Employer and found res judicata inapplicable and that Hayes failed to meet his burden of proof on causation. The circuit court affirmed the Department on October 25, 2013.

[¶6] Hayes appeals, raising as issues (1) Whether res judicata or other equitable principles such as judicial estoppel preclude Employer's argument, and (2) Whether Hayes proved that the 2007 injury is and remains a ...


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