Paulson v. Black Hills Packing Co. , 1996 S.D. LEXIS 125 ( 1996 )

ERICKSON, Circuit Judge.

[¶ 1] Marc Paulson (Paulson) filed a petition with the Department of Labor (Department) seeking worker’s compensation benefits for back injuries incurred while employed at Black Hills Packing Company (BHP). The Department found in favor of Paulson. BHP appealed to the circuit court alleging that Paulson’s most recent injury was an aggravation of his previous back condition caused while working for a subsequent employer thereby absolving BHP of further liability; that Paulson was not entitled to rehabilitation benefits; that he failed to give the required notice of his retraining claim; and that he was not entitled to both rehabilitation benefits and Cozine disability benefits. The circuit court reversed the Department’s decision on the sole issue of causation which then rendered the other issues moot. Paulson now appeals that decision. We affirm.

FACTS

[¶ 2] Paulson worked for BHP for twenty years from 1969 until it closed in 1989. In January 1989, Paulson was moving a pallet of meat when he stepped on another pallet twisting his back. He was off work six to eight weeks. In August 1989, Paulson was skinning heads when suddenly he was unable to move. On this occasion he was off work eight to ten weeks. Again he returned to work. BHP closed in December 1989.

[¶3] After BHP closed, Paulson worked for its new owner, GFI America, refurbishing the plant. He then worked for GFI as an on-line foreman. Paulson quit this job in June 1990. Subsequently he worked at several different jobs.

[¶ 4] In January 1992, Paulson was working for Western Wholesale Liquor Company (Western). In the course of moving cases of liquor from a pallet to a shelf, he felt a sharp sensation in his back. That evening he went to the emergency room and ultimately his physician advised him to stop physical types of labor and sent him to the South Dakota Division of Rehabilitation Services for vocational retraining.

[¶ 5] The Department found that this 1992 injury was a recurrence of his prior BHP injury, thus BHP was liable. The circuit court on appellate review determined that this 1992 injury was an aggravation of the BHP injuries controlled by the “last injurious exposure rule,” thus BHP was not liable.

ANALYSIS

[¶ 6] I. Standard of Review

[¶7] The issue before this Court is the Department’s application of the “last injurious exposure rule.” Issues involving the application of a rule of law are questions of law fully reviewable de novo. Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995).

[¶ 8] II. Application of the “last injurious exposure rule”

[¶ 9] BHP contends they are not liable because Paulson’s 1992 back episode constituted a successive injury to the injury he received in 1989. BHP further contends that this “new injury” while working for his subsequent employer was, at best, an aggravation of Paulson’s prior back condition which under the “last injurious exposure rule” relieves them of liability.

[¶ 10] This “rule” provides that:

When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.

Novak v. C.J. Grossenburg and Son, 89 S.D. 308, 232 N.W.2d 463, 464-65 (1975)(quoting 3 Larson, Workmen’s Compensation Law, § 95.00).

[¶ 11] As Paulson correctly argues, “in successive injury cases, the original employer/insurer remains liable if the second injury is a mere recurrence of the first.” Schuck, 529 N.W.2d at 900.

[¶ 12] The core issue in this case is whether Paulson’s disability was a recurrence or an aggravation of his 1989 injury. In making this determination there are certain guidelines. To determine that an injury was an “aggravation” of a prior episode, the evidence must show:

1. A second injury as that term is used in this jurisdiction;

2. That this second injury contributed independently to the final disability.

To determine that the second episode was a “recurrence” of the prior injury the evidence must show:

1. There have been persistent symptoms of the injury;

2. No specific incident that can independently explain the second onset of symptoms.

Schuck, 529 N.W.2d at 900.

[¶ 13] To make this determination, expert opinion is required. Schuck, 529 N.W.2d at 900. To review this issue, Judge Zinter properly made a de novo review of the medical expert’s testimony. Helms v. Lynn’s Inc., 542 N.W.2d 764, 766 (S.D.1996). This consisted of the deposition of Dr. Steven K. Goff and the affidavits of Dr. Wayne J. Anderson and Dr. Alvin E. Wessel. Judge Zinter found Dr. Goffs testimony to be more credible because Dr. Goff was thoroughly and adversely examined under oath and steadfastly and articulately explained his opinion. This was in contrast to the rather sterile affidavits of Drs. Anderson and Wes-sel, both of which merely incorporated their entire medical records. From these records counsel refers the Court to two or three sentences lifted from their treatment records.

[¶ 14] Judge Zinter then concluded that:

1. There had been a succession of accidents;

2. After the 1989 accident there is no history of persistent symptoms lasting until 1992 similar to those found after the 1992 incident;

3. The 1992 injury caused an onset of more severe symptoms which had not been present after the 1989 accident.

[¶ 15] Based upon these findings, Judge Zinter concluded that the 1992 episode constituted a “second injury” because it resulted in new problems or symptoms not present prior to 1992 and the new problems or symptoms did not subside after 1992.

[¶ 16] This caused Judge Zinter to conclude that the Department has erred as a matter of law in applying the “last injurious injury exposure rule” prompting his reversal.

[¶ 17] III. Conclusion

[¶ 18] Our review, like that of Judge Zinter is de novo. Paulson has the burden of proving by a preponderance of the evidence that the 1992 episode was a recurrence, rather than an aggravation of his 1989 injury. The key to this decision is the medical evidence. While not controlling, Judge Zinter’s conclusions are well reasoned, substantially supported by the evidence and are persuasive. Our review leads us to the same conclusion. The Department erred in its application of the “last injurious injury exposure rule.” Therefore, we affirm the circuit court’s reversal of the Department’s decision. We also agree that this reversal is dispositive of the case. Therefore, the other issues raised need not be addressed.

[¶ 19] MILLER, C.J., and KONENKAMP and GILBERTSON, JJ., concur. [¶ 20] SABERS, J., dissents. [¶ 21] ERICKSON, Circuit Judge, for AMUNDSON, J., disqualified.