Thyen v. Hubbard Feeds, Inc. , 2011 S.D. LEXIS 116 ( 2011 )

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2011 S.D. 61IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
DAVID THYEN Claimant and Appellant,
v.
HUBBARD FEEDS, INC., Employer and Appellee,
and
SENTRY INSURANCE, Insurer and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT L. TIMM
Judge
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RONALD L. SCHULZ
Watertown, South Dakota Attorney for claimant
and appellant.
MICHAEL S. MCKNIGHT
WILLIAM J. GASSEN III of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota Attorneys for employer,
insurer, and appellees.
****
CONSIDERED ON BRIEFS
ON AUGUST 22, 2011
OPINION FILED 09/21/11
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KONENKAMP, Justice
[¶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.
Background
[¶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
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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.
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[¶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.
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[¶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 work at Hubbard. In a letter from the human resources
manager, Hubbard instructed Thyen that he was “not to remove from the plant any
property, products or other items belonging to the Company” or his job would be
terminated.
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[¶11.] On October 15, 2008, Thyen petitioned the Department of Labor for a
hearing on his workers’ compensation claim. In preparation for the hearing, his
attorney provided a letter to the Department:
Claimant has made a request of his employer to obtain samples
of the materials that he was exposed to and the employer has
denied his request. We believe that the temperature around
July 2 and July 16, 2008 caused a toxic situation and it is our
understanding that the work area is in the same condition today
as it was on those dates. We expect that a like condition will
occur when the temperature reaches the same degree in 2009 as
it did on those days. Claimant would like the opportunity to
obtain samples for analysis assuming the employer does not
clean up the work area. Counsel for Employer and Insurer has
indicated to me [counsel for Thyen] that sampling will be
allowed.
Hubbard never allowed Thyen to obtain samples and no testing was done because
Hubbard cleaned up the spilt moldy feed on June 26, 2009. Hubbard brought
Thyen’s empty collection boxes to the hearing.
[¶12.] At the hearing in January 2010, Thyen, his wife, and his daughter
testified, while the testimony of Dr. Rogotzke and Dr. Beth Baker (Hubbard’s
independent medical examiner) were submitted by deposition. The parties
stipulated to the admission of Thyen’s medical records. Following the hearing, the
Department ordered the parties to submit briefs. In Thyen’s brief, he asserted that
his injury arose out of and in the course of his employment. He further asserted
that Hubbard agreed to allow him to obtain samples, but then cleaned up the plant
area without allowing sampling.
[¶13.] On August 4, 2010, the Department issued a letter decision holding
that Thyen “failed to demonstrate that he sustained a compensable injury arising
out of and in the course of his employment.” It concluded that Thyen only offered
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evidence of a temporal sequence, assigning blame because the injury occurred at
work. No expert testified on what exactly caused the injury, only that it was likely
work related. Although the Department found that Hubbard’s “action[s] showed a
total disregard for [Thyen’s] health, the health of its other employees and its
customers” because it “did not make a greater effort to collect samples to test for
toxins,” the Department concluded Hubbard’s failure did not alter or shift Thyen’s
burden to prove causation. It later issued findings of fact, conclusions of law, and
an order denying Thyen’s workers’ compensation claim. The circuit court affirmed
the Department’s decision. Thyen appeals to this Court.
Analysis and Decision
[¶14.] To recover on a workers’ compensation claim, Thyen must establish by
a preponderance of the evidence that he sustained an injury arising out of and in
the course of his employment at Hubbard. See SDCL 62-1-1(7); Rawls v. Coleman-
Frizzell, Inc., 2002 S.D. 130, ¶ 20, 653 N.W.2d 247, 252 (citation omitted). But
Thyen contends that his efforts to prove causation were thwarted by Hubbard’s
refusal to allow collection of samples and its later destruction of potential samples.
Hubbard responds that Thyen waived the issue of spoliation of evidence because he
did not specifically present the issue to the Department or the circuit court.
[¶15.] Our review of the record indicates that the issue was raised and
preserved. Thyen did not use the word “spoliation,” but he clearly placed the issue
of Hubbard’s evidence destruction before the Department. Counsel for Thyen wrote
the Department seeking to schedule the hearing after Thyen obtained samples of
the materials he was exposed to because Hubbard gave Thyen permission to obtain
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the samples. Then, during the hearing, Thyen submitted testimony and
documentary evidence about his efforts in obtaining samples. He entered into
evidence two prescriptions from Dr. Geier requesting samples from Hubbard. He
testified that Hubbard twice denied his requests, with one denial established by a
letter from Hubbard. Thyen also entered into evidence the letter he was asked to
sign, agreeing that upon returning to work he would not obtain or take any property
from Hubbard. Finally, during the hearing, Hubbard and Thyen stipulated that
Hubbard gave Thyen permission to obtain samples, and that no samples were
obtained because Hubbard cleaned up the area.
[¶16.] Spoliation is the intentional destruction of evidence. State v. Engesser,
2003 S.D. 47, ¶ 44, 661 N.W.2d 739, 753; State v. Kietzke, 85 S.D. 502, 514-15, 186
N.W.2d 551, 558 (1971). “When it is established, a fact finder may infer that the
evidence destroyed was unfavorable to the party responsible for its destruction.”
Engesser, 2003 S.D. 47, ¶ 44, 661 N.W.2d at 753. Although this Court has
predominately addressed spoliation in criminal cases, we recognized in Engesser
that the rule applies with equal force in civil cases. Id. ¶ 45 (citing Spesco v. Gen.
Elec. Co., 719 F.2d 233 (7th Cir. 1983)); see also Richter v. City of Omaha, 729
N.W.2d 67, 72 (Neb. 2007); Manpower, Inc. v. Brawdy, 62 P.3d 391, 392 (Okla. Civ.
App. 2002); Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77 (Mo. Ct. App.
1995). Spoliation is established along with an unfavorable inference against the
spoliator “when substantial evidence exists to support a conclusion that the
evidence was in existence, that it was in the possession or under the control of the
party against whom the inference may be drawn, that the evidence would have been
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admissible at trial, and that the party responsible for destroying the evidence did so
intentionally and in bad faith.” Engesser, 2003 S.D. 47, ¶ 46, 661 N.W.2d at 755.
Cf. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721-22 (Tex. 2003).
[¶17.] Because the Department failed to properly consider the spoliation
question, Thyen is entitled to a new hearing before the Department so that the
issue can be determined and the negative inference applied if it is established that
spoliation occurred.
[¶18.] Reversed and remanded.
[¶19.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
concur.
[¶20.] WILBUR, Justice, did not participate.
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