#27409, #27420-a-DG
2015 S.D. 88

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****

SARAH SORENSEN,                              Plaintiff and Appellee,

v.

HARBOR BAR, LLC,                             Employer and Appellant,

and

MIDWEST FAMILY MUTUAL
INSURANCE COMPANY,                           Insurer and Appellant.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                    ****

                      THE HONORABLE MARK BARNETT
                                 Judge

                                    ****

LEE C. “KIT” MCCAHREN of
Olinger, Lovald, McCahren
 & Reimers, P.C.
Pierre, South Dakota                         Attorneys for appellee.


STEVEN J. MORGANS
SHARLA B. SVENNES of
Myers Billion, LLP
Sioux Falls, South Dakota                    Attorneys for appellants.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON OCTOBER 5, 2015
                                             OPINION FILED 11/10/15
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GILBERTSON, Chief Justice

[¶1.]        Sarah Sorensen was injured during the scope of her employment at

The Harbor Bar (Employer) on December 31, 2009. Approximately a week later,

she complained of a sudden onset of headaches and vomiting, which caused her to

undergo brain surgery. She filed for workers’ compensation benefits but was

denied, as Employer alleged that her injuries were the result of a different incident

on January 4, 2010. The Department of Labor (Department) conducted a hearing

and held that the workplace incident was a major contributing cause of her

condition. Employer appealed this ruling to the circuit court, which affirmed in part

and remanded in part for clarification of compensable damages. After the

Department clarified compensable damages, the circuit court affirmed. We affirm.

                                  BACKGROUND

[¶2.]        Sarah Sorensen graduated from high school in Watertown. After high

school, Sorensen attended culinary school in Mitchell, but dropped out after a year.

Sorensen moved back to Watertown and began living on her own, and took a

position as a waitress at the Harbor Bar in late 2009.

[¶3.]        While Sorensen was working on New Year’s Eve in 2009, a fight broke

out in the bar among some customers. Sorensen attempted to break up the fight,

and her co-worker Paul Kranz tried to help when he noticed Sorensen getting

involved. While trying to intervene, Kranz saw one of the customers hitting another

person while the other lay on the floor. Kranz pulled the man off, and discovered

that Sorensen was the person being attacked. Sorensen ran to the bathroom to

clean herself up, and finished the remainder of her shift. During her shift, several
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people noticed that Sorensen was getting black eyes. She also complained of a

headache.

[¶4.]        On the morning of January 7, about a week after the assault, Sorensen

suffered an onset of severe headaches and vomiting. Her boyfriend took her to the

emergency room, and an MRI revealed a massive intraventricular hemorrhage in

her brain. She was transported to Sanford Hospital in Sioux Falls, and underwent

brain surgery the next day.

[¶5.]        Dr. William Asfora was Sorensen’s surgeon, and he performed three

separate surgeries on her. The first surgery required Dr. Asfora to insert a

temporary drainage tube into Sorensen’s brain, while the second surgery entailed

inserting a permanent drain. During the third surgery, Dr. Asfora connected blood

vessels in the scalp to vessels in the inner brain.

[¶6.]        Dr. Asfora performed the third surgery after discovering that Sorensen

suffered from moyamoya disease, a vascular disease of the brain. It results in the

closing of some major blood vessels in the brain, which results in a network of

smaller and less stable vessels growing in an attempt to supply the brain with its

necessary nutrients. These small, unstable blood vessels make the brain more

prone to bleeding and a person with this condition is at greater risk for a major

brain bleed. The Department found that the first two surgeries were results of the

accident, but that the third surgery was due to the moyamoya disease alone.

[¶7.]        On January 3, 2010, the workplace assault was reported to the

Watertown Police. The police took pictures of Sorensen’s face, which showed that

she had a swollen face and two black eyes. Amanda Greeley, Sorensen’s co-worker,


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saw Sorensen when Sorensen went back to the bar on January 4 to pick up her

check. Greeley testified that Sorensen had two black eyes at that time, and was

complaining of a headache.

[¶8.]        After the police took the photographs, Detective Timothy Toomey

became involved in the investigation of the New Year’s Eve assault. Toomey

interviewed witnesses to the assault and reviewed Harbor Bar’s surveillance

footage. This information led to the arrest of Sorensen’s attacker.

[¶9.]        On January 27, 2010, a month after the incident, Toomey was

contacted by Todd Syhre about another incident that had allegedly taken place at

the Harbor Bar. Syhre told Toomey that he and his friend Dave McGuire were at

the bar one night when they witnessed Sorensen roughhousing with her boyfriend

and brother. Syhre testified that he saw her boyfriend attempt to pick Sorensen up,

only to drop her to the floor. Syhre did not see her hit the floor, but thought she fell

on her back and could have hit her head. Syhre did not remember the date of this

alleged incident. Initially he thought it may have happened prior to December 31,

but after calling McGuire, the two decided that the incident took place on January

4.

[¶10.]       Toomey reviewed the surveillance tapes of the bar, but did not see

Sorensen in the bar any night between the night of the assault and her admission to

the hospital. However, he admitted at the hearing that he did not watch all the

tapes, but only portions from each night. After watching the videos and considering

what Syhre and McGuire had said, Toomey did not give their stories much weight.

He believed they were encouraged to talk to him by Employer, and their inability to


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agree upon a date hurt their credibility. At the hearing, the Department found

Toomey’s testimony to be credible.

[¶11.]       Sorensen presented evidence from Dr. Robert Packard, showing her

qualifications for Social Security Disability. Packard testified live at the hearing

that Sorensen now suffers serious mental defects, such as memory loss. He also

testified that she has gained significant weight since the incident, as she has no

ability to tell when she is hungry or full. Packard stated that Sorensen is not able

to manage her own affairs.

[¶12.]       Dr. Asfora, in his video deposition presented to the Department, stated

that the workplace accident was a major contributing cause of Sorensen’s brain

hemorrhage. Her moyamoya disease was asymptomatic prior to the accident, and

the punches she suffered were likely the cause of the hemorrhage. He testified that

the rotation a person’s head experiences when being punched could cause

significant bleeding in the brain.

[¶13.]       Employer presented the video deposition of Dr. Starzinski as expert

testimony. Dr. Starzinski only reviewed the medical records and never treated

Sorensen himself. He did not believe the accident was a major contributing cause of

the hemorrhage. His opinion was based on the belief that Sorensen was able to

continue her normal activities in the days following the accident, and it was only

after the alleged second incident that she began to become symptomatic. He

testified that an intracranial hemorrhage would be a “show-stopper” that would not

allow a person to continue to function normally. Because he believed she had been




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able to function normally after the accident, he did not think that the accident was

a major contributing cause of the hemorrhage.

[¶14.]       During the hearing, Sorensen attempted to present testimony by Dr.

Sabow as rebuttal to Dr. Starzinski’s testimony. Employer objected, arguing that

Dr. Sabow was an undisclosed expert witness. Initially, the Department did not

allow Dr. Sabow to testify, but then allowed Sorensen’s attorney to question Dr.

Sabow as an offer of proof. Dr. Sabow’s testimony was extremely brief, as he only

answered a few questions. Sorensen’s attorney asked him to examine the pictures

of Sorensen taken on January 3. Dr. Sabow testified that the picture showed that

Sorensen had “raccoon eyes” which can be a sign of intracranial trauma. Dr. Sabow

never examined Sorensen personally. Sorensen’s attorney argued that the

testimony should be allowed as a rebuttal to Employer’s claim that there was a

second incident that caused the hemorrhage. The Department reconsidered its

original position and included the testimony as substantive evidence.

[¶15.]       Because of this admission, the Department allowed Employer to retain

an additional expert and supplement the record with his testimony. Employer

retained Dr. Howard, a neurosurgeon from the University of Iowa. Dr. Howard

testified that a neurosurgeon could not diagnose an intracranial hemorrhage solely

from “raccoon eyes” in a photograph.

[¶16.]       The Department ruled in favor of Sorensen, finding that the work-

related injury was a major contributing cause of the hemorrhage and resulting

disabilities. The Department also found that the alleged second incident did not

take place after the work-place assault as Employer claimed, if it happened at all.


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It also found that the first two surgeries performed by Dr. Asfora were compensable

as a result of the injury, but that the third surgery was exclusively the result of

Sorensen’s moyamoya disease and thus not compensable. The Department awarded

Sorensen her expenses for medical bills and lost income.

[¶17.]         Employer appealed the decision to the circuit court, which affirmed on

causation and compensation but remanded to the Department for clarification on

which medical expenses were compensable.* This was because the Department had

found that the third surgery was not the result of the work-place injury, but still

directed Employer to pay for the third surgery when it issued its findings of fact and

conclusions of law. The Department clarified its holding, thus reducing Sorensen’s

award. The circuit court issued a final order after remand with the adjusted award.

[¶18.]         Employer appeals, raising the following issues:

               1.     Whether the Department was clearly erroneous in its finding
                      that the alleged second incident actually happened before the
                      work-place incident, if it happened at all.

               2.     Whether the Department was clearly erroneous in its
                      determination that the work-related injury was a major
                      contributing cause of Sorensen’s intracranial hemorrhage.




*        This decision was released in July 2014. Sorensen claims that we do not
         have jurisdiction over this case because Employer did not appeal within the
         allotted time, arguing that this initial circuit court decision was what should
         have been appealed. However, we only have jurisdiction over final
         judgments. SDCL 15-26A-3. This judgment was not final, as the circuit
         court remanded on the issue of damages. See Midcom, Inc., v. Oehlerking,
         2006 S.D. 87, ¶ 11, 722 N.W.2d 722, 725 (holding that a judgment must
         completely adjudicate all of the issues of fact and law in a case to be final).
         As the circuit court did not issue a final judgment until its Final Order After
         Remand, and Employer properly appealed that order within the allotted
         time, we have jurisdiction over this matter.

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             3.     Whether the Department abused its discretion by admitting Dr.
                    Sabow’s undisclosed testimony as rebuttal testimony.

                             STANDARD OF REVIEW

[¶19.]       We review an agency’s findings of fact under the clearly erroneous

standard. SDCL 1-26-36; Foley v. State ex rel. S.D. Real Estate Comm’n, 1999 S.D.

101, ¶ 6, 598 N.W.2d 217, 219 (citations omitted). We afford “great weight to the

findings and inferences made by the Department on factual questions.” Wagaman

v. Sioux Falls Constr., 1998 S.D. 27, 576 N.W.2d 237, 240. Our question is not

whether we would have made the same findings as the trial court, but whether we

have a “definite and firm conviction that a mistake has been made.” Isack v.

Acquity, 2014 S.D. 40, ¶ 7, 850 N.W.2d 822, 825 (quoting Stockwell v. Stockwell,

2010 S.D. 79, ¶ 16, 790 N.W.2d 52, 59). “We do not substitute our judgment for the

Department’s on the weight of the evidence or the credibility of witnesses.” Gerlach

v. State, 2008 S.D. 25, ¶ 6, 747 N.W.2d 662, 664 (citations omitted).

[¶20.]       When reviewing an agency’s evidentiary rulings, we examine whether

the agency abused its discretion. McDowell v. Citibank, 2007 S.D. 52, ¶ 26, 734

N.W.2d 1, 10. An abuse of discretion “is a fundamental error of judgment, a choice

outside the range of permissible choices, a decision, which, on full consideration, is

arbitrary or unreasonable.” Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846,

850. However, even if the agency did abuse its discretion, we will not overturn

unless the abuse produced some prejudicial effect. McDowell, 2007 S.D. 52, ¶ 26,

734 N.W.2d at 10.




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                                     DECISION

[¶21.]        1.    Whether the Department was clearly erroneous in its finding
                    that the alleged second incident actually happened before the
                    work-place incident, if it happened at all.

[¶22.]       Employer first argues that the Department was clearly erroneous in its

finding that the alleged second incident happened before the work-place incident, if

it happened at all. Employer points to the testimony of several witnesses that

believed they saw Sorensen at the bar on January 4, and saw her boyfriend drop her

on her back. Employer does not consider relevant the fact that these witnesses

could not remember Sorensen having black eyes, as it claims it was dark in the bar

and she was likely wearing makeup. Employer also argues that we should discount

Detective Toomey’s testimony that he did not see Sorensen on the tapes because he

did not watch all of the tapes.

[¶23.]       The Department made a finding that Toomey’s testimony was credible.

While it did not explicitly find that the other witnesses were not credible, Toomey’s

doubts about their testimonies are implied in the Department’s decision to find him

credible. Toomey testified that he doubted both the witness’s motives and

recollections, considering they only approached him weeks after Sorensen had

already been admitted to the hospital. The Department also found it significant

that none of these witnesses could remember if Sorensen had black eyes when they

saw her in the bar. The police took pictures of Sorensen on January 3 that show she

had very apparent bruising on her face, and the Department found it unlikely that

witnesses would not remember this.

[¶24.]       There is ample evidence in the record to support the Department’s

finding that the alleged second incident did not occur after the work-place incident,
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if it occurred at all. The Department was present at the hearing and heard the

testimony. We will not substitute our judgment for that of the Department.

Gerlach, 2008 S.D. 25, ¶ 6, 747 N.W.2d at 664. The Department’s finding was not

clearly erroneous.

[¶25.]       2.      Whether the Department was clearly erroneous in its
                     determination that the work-related injury was a major
                     contributing cause of Sorensen’s intracranial hemorrhage.

[¶26.]       Employer also argues that the Department was clearly erroneous by

determining that the work-place injury was a major contributing cause of the

hemorrhage. Employer puts forth several arguments to support this contention.

The Department determined that the work-place assault was a major contributing

cause because she suffered a brain contusion. Employer argues that the contusion

cannot suffice for causation because Sorensen did not present symptoms of a brain

bleed until seven days after the fight. Employer’s expert, Dr. Starzinski, opined

that an intracranial hemorrhage such as Sorensen’s would be a “show-stopper” and

that a person would not be able to function as Sorensen did until she was admitted

to the hospital a week after the fight. Dr. Starzinski also believed that Sorensen’s

moyamoya disease could have been the cause of the bleed.

[¶27.]       All of the above arguments may be true, but it is not our place to verify

them. That is the proper function of the fact finder, not the reviewing court. Dr.

Asfora testified that the work-place injury was a major contributing cause of the

brain bleed. He acknowledged Sorensen’s preexisting moyamoya disease, but

believed the work-place assault to have been a major contributing cause because




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she had previously been asymptomatic. This testimony supports the circuit court’s

holding and it is not clearly erroneous.

[¶28.]       Employer argues that we should discount Dr. Asfora’s testimony

because he was unaware of the second incident, and thus his opinion was based on

faulty information. As we have already affirmed the Department’s finding that the

second incident did not occur, we will not afford Dr. Asfora’s testimony any less

weight. The opinion of the treating physician supports Sorensen’s claim that the

work-place injury caused her disability. We thus hold the Department’s decision to

be well supported in the record and not clearly erroneous.

[¶29.]       3.     Whether the Department abused its discretion by admitting Dr.
                    Sabow’s undisclosed testimony as rebuttal testimony.

[¶30.]       Employer also argues that the Department abused its discretion when

it admitted the testimony of Dr. Sabow, who Sorensen called in rebuttal to the

testimony of Dr. Starzinski. The Department has the authority to issue sanctions

pursuant to SDCL 15-6-37(b), such as the exclusion of evidence, if the parties do not

follow its procedures. ARSD 47:03:01:05.02. See also Schrader v. Tjarks, 522

N.W.2d 205, 210 (S.D. 1994) (discussing exclusion of testimony as a possible

sanction for a party’s failure to comply with discovery rules). However, discovery

rules are meant to promote, not stifle, the truth-finding process. Schrader, 522

N.W.2d at 210. The sanction must also be appropriate in light of the equities

involved in the case. Id.

[¶31.]       Rebuttal evidence explains, contradicts, or refutes evidence of the

defendant. Id. at 209. It is meant to cut down defendant’s case, not merely bolster

the plaintiff’s. Id. Disclosure of rebuttal witnesses has never been required in

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South Dakota by statute, rule, or caselaw. See Schrader, 522 N.W.2d at 209,

(“Neither statute or rules, nor South Dakota precedent require disclosure of rebuttal

witnesses”). In Schrader, we held that a trial court abused its discretion when it

excluded the testimony of three rebuttal expert witnesses. Id. We held that

because the party that failed to disclose did not do so out of bad faith, and that

because exclusion of testimony should be a last resort, the trial court should have

admitted the evidence. Id. The party did eventually disclose his expert rebuttal

witness prior to trial, but at a time that the opposing party still believed improper.

[¶32.]       This case shares similarities with Schrader, and its differences are not

dispositive. There is no evidence in this case of bad faith on the part of Sorensen.

The record indicates that there was at least a misunderstanding about disclosure

requirements between Sorensen’s attorney and the Department, and it is possible

that the Department informed Sorensen’s attorney that he did not need to disclose

his rebuttal witnesses. The record contains a prehearing scheduling order that

included a deadline for expert witness disclosure, but it does not mention rebuttal

witnesses specifically. While the attorney in Schrader did eventually disclose his

rebuttal witness, Sorensen’s failure to do so in this case does not appear to be out of

bad faith. Excluding Dr. Sabow’s testimony in this case due to lack of disclosure

would only have stifled the Department’s truth-finding process.

[¶33.]       Employer argues that Dr. Sabow’s testimony is not rebuttal testimony

at all because Dr. Starzinski’s deposition was taken months before, and Sorensen’s

counsel had a video copy in his possession prior to the hearing. However, that does

not mean Dr. Sabow’s testimony cannot be rebuttal testimony. Rebuttal testimony


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is testimony that contradicts the defendant’s evidence. Schrader, 522 N.W.2d at

209. In this case, Sorensen’s attorney called Dr. Sabow not to show that the work-

place incident was the cause of the trauma, but to show that the alleged second

incident was not the cause. Sabow’s testimony supported the idea that Sorensen

could not have had “raccoon eyes” on January 3 if the trauma was caused by the

alleged second incident on January 4. The Department heard Dr. Sabow’s brief

testimony, and held that it was proper rebuttal testimony. Excluding the testimony

at that point would only have hindered the truth-seeking process. The

Department’s decision to admit the testimony as substantive evidence was well

within its discretion.

[¶34.]       Even if we were to hold that the Department abused its discretion in

admitting Dr. Sabow’s testimony, it would not merit reversal or remand. Employer

would still have to show prejudice. The Department admitted Dr. Sabow’s

testimony, but allowed Employer time to supplement the record with additional

expert testimony to refute Dr. Sabow’s opinion. Employer argues that this was

insufficient, that the video deposition of Dr. Howard added to the record could not

compare to Dr. Sabow’s live testimony. However, the fact that Dr. Sabow’s

testimony was live is of little effect, as it was extremely brief and not very technical.

Dr. Howard’s video deposition was a sufficient opportunity for Employer to refute

Dr. Sabow’s testimony. The additional expert testimony mitigated any prejudice to

Employer by allowing Dr. Sabow’s undisclosed testimony.




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                                  CONCLUSION

[¶35.]       We hold that the Department was not clearly erroneous in finding that

there was no second incident or in finding that the work-place injury was a major

contributing cause to Sorensen’s injury and disability. We also hold that the

Department did not abuse its discretion in admitting the undisclosed testimony of

Dr. Sabow. We accordingly affirm the ruling of the circuit court.

[¶36.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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