#26214-rev & rem-SLZ

2012 S.D. 52

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                    ****
MEGAN M. PETERSON,                         Claimant and Appellant,

      v.

THE EVANGELICAL LUTHERAN
GOOD SAMARITAN SOCIETY,                    Employer and Appellee,

      and

SENTRY INSURANCE,                          Insurer and Appellee.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                   MCCOOK COUNTY, SOUTH DAKOTA

                                    ****

                THE HONORABLE TIMOTHY W. BJORKMAN
                              Judge

                                    ****

MICHAEL E. UNKE
Salem, South Dakota                        Attorney for claimant
                                           and appellant.


MICHAEL S. MCKNIGHT
MEGHANN M. JOYCE of
Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota                  Attorneys for appellees,
                                           employer and insurer.

                                    ****
                                           CONSIDERED ON BRIEFS
                                           ON APRIL 17, 2012

                                           OPINION FILED 06/27/12
#26214

ZINTER, Justice

[¶1.]        Megan Peterson worked at a nursing home owned by The Evangelical

Lutheran Good Samaritan Society (Good Samaritan). Peterson alleged that she

sustained a work-related injury to her back when assisting a resident with a

wheelchair. Good Samaritan denied Peterson’s claim. Two doctors, who testified by

deposition, disagreed whether Peterson suffered a work-related injury and whether

employment was a major contributing cause of her back condition. The Department

of Labor (Department), after considering the depositions and Peterson’s medical

records, determined that Peterson failed to prove that she sustained a compensable

work-related injury. The Department also determined that Peterson failed to prove

that her employment remained a major contributing cause of her condition and

need for treatment. The circuit court affirmed. On de novo review, we reverse and

remand.

                           Facts and Procedural History

[¶2.]        Peterson was twenty-two years of age at the time of the Department

hearing and had a history of injuries. In 2003, she slipped on wet stairs at her

middle school and injured her left ankle. The ankle injury was treated with ice,

compression bandages, and crutches. Although the injury resolved, Peterson

continued to have occasional flare-ups.

[¶3.]        In 2007, Peterson began working for Good Samaritan as a certified

nursing assistant. On December 9, 2007, she sustained a work-related injury to her

lower back while helping move a resident into bed. Dr. Scott D. Tieszen, of Tieszen

Chiropractic Clinic, treated Peterson’s hips and back. Following treatment, Dr.


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Tieszen recommended that Peterson continue to wear a back brace. By January

2008, Peterson returned to work with no restrictions.

[¶4.]        In early 2009, Peterson experienced an ankle flare-up involving

swelling and pain because of the twelve-hour shifts she was working. Peterson

received physical therapy at Prairie Rehabilitation, Hartford Therapy Services. She

also began wearing a doctor-recommended walking boot. Peterson was wearing the

walking boot while working her overnight shift on July 15-16, 2009.

[¶5.]        Peterson testified that while working that overnight shift, she bent

down to help a resident with a wheelchair foot pedal, she stood back up, and she felt

a sharp pain go through her lower back. Peterson complained of back pain and

asked her supervisor for pain medication. Peterson told her supervisor that

Peterson thought she had pinched a nerve. She took Tylenol and completed her

shift.

[¶6.]        After work, Peterson went home to bed. When she awoke, she could

not move from the waist down due to pain. An ambulance was called, and Peterson

was transported to a hospital emergency room around 4 pm. The emergency room

records note that Peterson “complain[ed] [of] low back pain 18 hours ago.” Peterson

also reported that she was going to physical therapy for her foot and that “last night

[she] felt low back pain getting progressively worse.” A CAT scan revealed a disk

protrusion at the L5-S1 level. Peterson was medicated and released from the

emergency room to bed rest at home. She then treated with her family physician,

Dr. Dawn A. Flickema, at the McGreevy Clinic. Dr. Flickema recommended an

epidural block, but Good Samaritan’s insurer refused to pay for that procedure.


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[¶7.]        On August 25, 2009, Peterson sought medical assistance from Dr.

David L. Hoversten, a board certified orthopedic surgeon. Dr. Hoversten performed

a physical examination and reviewed Peterson’s medical records from Hartford

Therapy Services, the McGreevy Clinic, and the emergency room. Because the

emergency room CAT scan was not definitive, Dr. Hoversten ordered an MRI. The

MRI revealed a “dark disk” at L5-S1 that was “substantially bulging” and had a

thirty percent loss of height. Peterson was terminated from Good Samaritan on

September 1 because of work restrictions imposed by Dr. Hoversten.

[¶8.]        Dr. Hoversten later opined by letter that Peterson’s work activities

independently caused her back discomfort, pain, and the need for evaluation and

treatment. In a subsequent July 20, 2010 deposition, Dr. Hoversten testified that

Peterson had a congenitally weak back and the flattened disk was the source of her

pain. Dr. Hoversten also testified that both back injuries probably caused the disk

problem and pain. Based on Peterson’s history, Dr. Hoversten testified that

Peterson suffered a work-related injury on July 15, 2009: he indicated that both

back injuries had a substantial part to play in the deterioration of the L5-S1 disk.

Dr. Hoversten further testified that Peterson’s ankle problem played no causative

role in her July 2009 back injury.

[¶9.]        Prior to Dr. Hoversten’s physical examination, Good Samaritan’s

workers’ compensation insurance company retained Dr. Jerry J. Blow to review

Peterson’s medical records. Dr. Blow is a physiatrist practicing rehabilitation

medicine. After reviewing some of Peterson’s medical records, he opined by letter

(before Dr. Hoversten’s physical examination) that Peterson’s lower back injury was


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#26214

caused by her preexisting ankle problem and resulting impaired balance. He also

indicated that general deconditioning and obesity were contributing factors. He

opined that her back injury was not caused by her work. Based on Dr. Blow’s letter,

Good Samaritan’s insurer denied any workers’ compensation benefits.

[¶10.]       Peterson filed a claim with the Department. Both physicians testified

by deposition. The Department adopted Dr. Blow’s opinion over the opinion of Dr.

Hoversten and denied relief. The circuit court affirmed. Peterson now appeals to

this Court. She argues that she sustained a work-related injury and that her

employment remains a major contributing cause of her condition and need for

treatment.

                                Standard of Review

[¶11.]       The parties disagree whether the clearly erroneous or de novo

standard of review applies to the Department’s findings of fact. Peterson points out

that the Department’s findings on causation were based solely on medical records

and the depositions of Drs. Hoversten and Blow. Peterson also points out we have

often stated that “the matter is reviewed de novo when ‘an agency makes factual

determinations on the basis of documentary evidence, such as depositions’ or

medical records.” Darling v. W. River Masonry, Inc., 2010 S.D. 4, ¶ 10, 777 N.W.2d

363, 366-367 (quoting Vollmer v. Wal-Mart Store, Inc., 2007 S.D. 25, ¶ 12, 729

N.W.2d 377, 382 (citing Watertown Coop. Elevator Ass’n v. S.D. Dep’t of Revenue,

2001 S.D. 56, ¶ 10, 627 N.W.2d 167, 171)); accord Mudlin v. Hills Materials Co.,

2005 S.D. 64, ¶ 5, 698 N.W.2d 67, 71; Brown v. Douglas Sch. Dist., 2002 S.D. 92, ¶

9, 650 N.W.2d 264, 268.


                                         -4-
#26214

[¶12.]       On the other hand, Good Samaritan points out that in the initial

review of agency findings, SDCL 1-26-36 requires the circuit court to “give great

weight to the findings made and inferences drawn by an agency on questions of

fact.” The circuit court must review the agency’s findings to determine whether

they are “[c]learly erroneous in light of the entire evidence in the record.” SDCL 1-

26-36(5). Good Samaritan also points out that at the next level of review, “[t]he

Supreme Court shall give the same deference to the findings of fact, conclusions of

law, and final judgment of the circuit court as it does to other appeals from the

circuit court. Such appeal may not be considered de novo.” SDCL 1-26-37.

Further, a 2000 amendment to SDCL 15-6-52(a) provides that the circuit court’s

“[f]indings of fact, whether based on oral or documentary evidence, may not be set

aside unless clearly erroneous . . . .” 2000 S.D. Sess. Laws ch. 91, § 1 (emphasis

added). Good Samaritan points out that based on this amendment to SDCL 15-6-

52(a), we have recently rejected the argument that findings based on documentary

evidence and deposition testimony are reviewed de novo:

             This Court formerly reviewed documentary evidence and
             deposition testimony under the de novo standard. However,
             SDCL 15-6-52(a), [as amended in 2000], specifically provides
             that “findings of fact, whether based on oral or documentary
             evidence, may not be set aside unless clearly erroneous.”

Stockwell v. Stockwell, 2010 S.D. 79, ¶ 17, 790 N.W.2d 52, 60 (alteration in original)

(quoting Gluscic v. Avera St. Luke’s, 2002 S.D. 93, ¶ 15, 649 N.W.2d 916, 919).

Because SDCL 1-26-37 requires our review of the circuit court’s decision to be the

same as any other appeal from a circuit court, and because SDCL 15-6-52(a)

requires clearly erroneous review of circuit court decisions based on documentary

evidence, Good Samaritan contends that we must review the decision in this case
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for clear error and not under the de novo standard. We take this opportunity to

resolve the conflicts that may appear in these authorities.

[¶13.]       We are reviewing an appeal from circuit court. SDCL 1-26-37 (as

amended in 1983) requires that our review of circuit court decisions reviewing

agency appeals be conducted in the same manner as we would review any other

appeal from a circuit court. Therefore, SDCL 1-26-37 would appear to require

adherence to SDCL 15-6-52(a), which requires clearly erroneous review even if the

decision is based on documentary evidence. But as we explained in State, Div. of

Human Rights ex rel. Miller v. Miller, 349 N.W.2d 42, 46 (S.D. 1984), we are

generally not reviewing the circuit court’s findings in appeals from administrative

agencies. We pointed out that a simultaneous 1983 amendment to SDCL 1-26-36

required circuit courts, for the first time, to either adopt the agency’s findings and

conclusions or enter their own. Because the fact finder’s findings were thus assured

to be in the record for our review, and because the 1983 amendments to SDCL 1-26-

36 and 1-26-37 were so “intertwined,” we noted that the literal language of SDCL 1-

26-37 did not apply. Miller, 349 N.W.2d at 46. We explained that in reviewing a

circuit court’s decision under SDCL 1-26-37, we were actually reviewing the

agency’s findings.

             Even if we apply SDCL 1-26-37 as amended [requiring review of
             the circuit court’s decision for clear error], . . . we [would then]
             decide whether the circuit court was clearly erroneous in
             determining that the agency was clearly erroneous. This reverts
             us to the agency record. . . . It follows that, in the final analysis,
             we still review [the agency record] essentially as did the circuit
             court.




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#26214

Id. at 46 n.2; In re Nw. Bell Tel. Co., 382 N.W.2d 413, 415 (S.D. 1986). Therefore, in

reviewing the circuit court’s decision under SDCL 1-26-37, we are actually making

“the same review of the administrative tribunal’s action as did the circuit court.”

Miller, 349 N.W.2d at 46; In re S.D. Water Mgmt. Bd. Approving Water Permit No.

1791-2, 351 N.W.2d 119, 122 (S.D. 1984) (stating that “despite the new language in

[SDCL 1-26-37], this [C]ourt still reviews the administrative decision essentially in

the same manner as did the circuit court”). Further, we perform that review of the

agency’s findings “unaided by any presumption that the circuit court’s decision was

correct.” Kermmoade v. Quality Inn, 2000 S.D. 81, ¶ 10, 612 N.W.2d 583, 586

(alteration in original); accord First Nat. Bank of Ft. Pierre v. S.D. State Banking

Comm’n, 2008 S.D. 12, ¶ 10, 745 N.W.2d 674, 676; Meligan v. Dep’t of Revenue and

Regulation, 2006 S.D. 26, ¶ 13, 712 N.W.2d 12, 17; Thomas v. Custer State Hosp.,

511 N.W.2d 576, 579 (S.D. 1994).

[¶14.]         Thus, SDCL 1-26-37 does not necessarily preclude de novo review of

appeals from circuit court involving agency findings. The standard of review

depends on the nature of the issue on appeal and how the circuit court was required

to review that issue under SDCL 1-26-36. 1



1.       SDCL 1-26-36 provides:

               The court shall give great weight to the findings made and inferences
               drawn by an agency on questions of fact. The court may affirm the
               decision of the agency or remand the case for further proceedings. The
               court may reverse or modify the decision if substantial rights of the
               appellant have been prejudiced because the administrative findings,
               inferences, conclusions, or decisions are:
                      (1) In violation of constitutional or statutory provisions;
                      (2) In excess of the statutory authority of the agency;
                                                                (continued . . .)
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[¶15.]       Under SDCL 1-26-36(5), factual findings of the agency are reviewed

under the clearly erroneous standard. Further, the 2000 amendment to SDCL 15-6-

52(a) specifically provides that findings of fact “whether based on oral or

documentary evidence, may not be set aside unless clearly erroneous . . . .”

Therefore, Good Samaritan argues that even though the agency decision in this case

was based on documentary evidence, we must review the circuit court’s decision

(administrative findings adopted by the circuit court) for clear error rather than de

novo. An examination of the 2000 amendment does not support Good Samaritan’s

argument.

[¶16.]       The 2000 amendment to SDCL 15-6-52(a) was significant. See 2000

S.D. Sess. Laws ch. 91, § 1. Before the amendment, it was “well-settled” that “when

reviewing [a circuit court’s trial] findings based on documentary evidence [this

Court did] not apply the clearly erroneous rule set forth in SDCL 15-6-52(a), but

review[ed] the matter de novo.” First Nat’l Bank of Biwabik, Minn. v. Bank of

Lemmon, 535 N.W.2d 866, 871 (S.D. 1995) (collecting cases). Further,

notwithstanding SDCL 1-26-36, this Court applied the same de novo rule in appeals



________________________
(. . . continued)
                       (3) Made upon unlawful procedure;
                       (4) Affected by other error of law;
                       (5) Clearly erroneous in light of the entire evidence in the
                       record; or
                       (6) Arbitrary or capricious or characterized by abuse of
                       discretion or clearly unwarranted exercise of discretion.
               A court shall enter its own findings of fact and conclusions of law or
               may affirm the findings and conclusions entered by the agency as part
               of its judgment. The circuit court may award costs in the amount and
               manner specified in chapter 15-17.

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#26214

involving factual findings by administrative agencies. Biwabik, 535 N.W.2d at 871

(collecting cases).

[¶17.]        Biwabik was a split decision. The minority, based on Anderson v.

Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985), argued for

clearly erroneous review of all findings, including those based on documentary

evidence. The minority pointed out that the Supreme Court had interpreted the

identical Federal Rule of Civil Procedure to require clearly erroneous review

regardless of the form of the evidence presented. Biwabik, 535 N.W.2d at 869

(Timm, Cir. J., dissenting) (citing Anderson, 470 U.S. at 573-74, 105 S. Ct. at 1511-

12). Nevertheless, this Court declined to adopt the Supreme Court’s interpretation.

The majority explained that appellate courts were “as capable of reviewing the

record as the trial court. A trial judge’s superior fact-finding abilities relate to his

opportunity to observe and evaluate live testimony; when physical or documentary

evidence is offered, the trial court is in no better position to intelligently weigh the

evidence than the appellate court.” Biwabik, 535 N.W.2d at 871-72 (majority

opinion) (citations omitted). Thus, despite the “clearly erroneous” review specified

in the pre-2000 version of SDCL 15-6-52(a) and SDCL 1-26-36(5), this Court

continued to utilize de novo review of both circuit court and administrative agency

findings if they were based on documentary evidence. See Biwabik, 535 N.W.2d at

872.

[¶18.]        In response to Biwabik, the 2000 Legislature enacted 2000 Session

Laws chapter 91, § 1. This measure was introduced as House Bill 1060. Section 1

of House Bill 1060 amended SDCL 15-6-52(a) to explicitly require clearly erroneous


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review of a circuit court’s trial findings of fact “whether based on oral or

documentary evidence.” Id. Section 2 proposed this same amendment to SDCL 1-

26-36, which applied to agency findings. Section 2 provided that administrative

agency “[f]indings of fact, whether based on oral or documentary evidence, may not

be set aside unless clearly erroneous, and due regard shall be given to the ability of

the agency to judge the credibility of the witness.” House Bill 1060 § 2. But the

House Judiciary Committee struck Section 2 of House Bill 1060. 2000 House

Journal at 191. House Bill 1060 ultimately passed with only section 1 remaining.

Thus, the 2000 Legislature required clearly erroneous review of a circuit court’s

trial findings based on documentary evidence, but the Legislature left intact the

case law requiring de novo review of administrative agency findings based on

documentary evidence.

[¶19.]       In this case, the Department entered its causation findings on medical

records and depositions, and the circuit court affirmed. Therefore, notwithstanding

the amendments to SDCL 1-26-37 and 15-6-52(a), we review the Department’s

findings de novo. See, e.g., McQuay v. Fischer Furniture, 2011 S.D. 91, ¶ 10, 808

N.W.2d 107, 110 (“However, ‘when an agency makes factual determinations on the

basis of documentary evidence, such as depositions or medical records,’ our review is

de novo.” (quoting Darling, 2010 S.D. 4, ¶ 10, 777 N.W.2d at 366-67)); Vollmer,

2007 S.D. 25, ¶ 12, 729 N.W.2d at 382; Watertown Coop., 2001 S.D. 56, ¶ 10, 627

N.W.2d at 171.




                                          -10-
#26214

                                      Decision

[¶20.]       In a workers’ compensation dispute, a claimant must prove the

causation elements of SDCL 62-1-1(7) by a preponderance of the evidence. Grauel

v. S.D. Sch. of Mines & Tech., 2000 S.D. 145, ¶ 11, 619 N.W.2d 260, 263. The first

element requires proof that the employee sustained an “injury” arising out of and in

the course of the employment. SDCL 62-1-1(7); Bender v. Dakota Resorts Mgmt.

Group, Inc., 2005 S.D. 81, ¶ 7, 700 N.W.2d 739, 742. The proof necessary for the

second element (“condition”) is dependent on whether the worker also suffered from

a preexisting condition or a prior, compensable work-related injury. See SDCL 62-1-

1(7). If the worker suffered from neither of these, the claimant must prove that the

employment or employment related activities were a “major contributing cause” of

the “condition” of which the employee complains. SDCL 62-1-1(7)(a). In cases

involving a preexisting disease or condition, the claimant must prove that the

employment or employment related injury is and remains a “major contributing

cause of the disability, impairment, or need for treatment.” SDCL 62-1-1(7)(b); see

also Grauel, 2000 S.D. 145, ¶ 9, 619 N.W.2d at 263 (citing SDCL 62-1-1(7)(a)-(b)).

Finally, if “the injury combines with a preexisting work related compensable injury,

disability, or impairment,” the claimant must prove that “the subsequent

employment or subsequent employment related activities contributed

independently to the disability, impairment, or need for treatment.” SDCL 62-1-

1(7)(c).

[¶21.]       The parties here do not specifically identify which subpart of the

“condition” element applies in this case. The doctors’ answers to the attorneys’


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questions use the language of all three subdivisions of SDCL 62-1-1(7). However,

Peterson has not made a record requesting relief under SDCL 62-1-1(7)(c). 2

Further, the decision of the Department, the language of both briefs, Dr.

Hoversten’s diagnosis of a preexisting weak back, and Dr. Blow’s opinion that

Peterson’s condition was related to a preexisting ankle condition all indicate that

this is an SDCL 62-1-1(7)(a) and (b) case. In proving the major contributing cause

requirement of those subsections, a claimant need not “prove that the work injury

was ‘the’ major contributing cause, only that it was ‘a’ major contributing cause.”

Brown, 2002 S.D. 92, ¶ 23, 650 N.W.2d at 271.

[¶22.]         Peterson argues that the Department and circuit court erred in

adopting the expert testimony of Dr. Blow over the testimony of Dr. Hoversten.

Peterson contends that Dr. Hoversten’s causation opinion should have been adopted

because he was the physician who actually examined Peterson, Dr. Hoversten’s

credentials were superior to Dr. Blow’s, and Dr. Hoversten had a better

understanding of the facts of the incident and Peterson’s medical history. We agree.

[¶23.]         The opinion of an examining physician should be given substantial

weight when compared to the opinion of a doctor who only conducts a review of

medical records. See Darling, 2010 S.D. 4, ¶ 19, 777 N.W.2d at 369. In this case,

only Dr. Hoversten examined, treated, and personally took a history from Peterson.


2.       There appears to be no dispute that Peterson sustained a prior work injury to
         the same disk in 2007. Additionally, Dr. Hoversten indicated that the 2009
         injury independently contributed to Peterson’s condition, the showing
         necessary for recovery under SDCL 62-1-1(7)(c). Nevertheless, Peterson
         makes no argument for recovery under SDCL 62-1-1(7)(c). Therefore, we
         express no opinion about compensability of the 2007 or 2009 incidents under
         SDCL 62-1-1(7)(c).

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#26214

That is significant because Peterson’s history was the major reason for the

difference in the doctors’ opinions. Dr. Hoversten’s credentials were also superior to

those of Dr. Blow. Dr. Hoversten is an orthopedic surgeon who has been board

certified for almost twenty years. Dr. Blow was trained in physical medicine and

rehabilitation, but had been unable to pass his board certification examinations on

three occasions. At the time of his deposition, his only board certification was in

independent medical examinations, a certification that involved a week-long course.

Finally, as described below, Dr. Hoversten’s opinion was more persuasive because

his understanding of the facts of the incident was corroborated by other evidence,

and he had a better understanding of Peterson’s medical history. See Engel v.

Prostrollo Motors, 2003 S.D. 2, ¶¶ 20-22, 656 N.W.2d 299, 302 (stating that of two

expert doctors’ opinions, one doctor’s opinion was “more persuasive based on his

credentials, his interaction with [the claimant], the clarity of his reasoning and the

fact [his opinion was] substantiated by other evidence”).

[¶24.]       Both parties argue that the opposing physician expressed opinions

based on incomplete medical information or faulty facts. “[A]n expert’s opinion is

entitled to no more weight than the facts it stands upon.” Jewett v. Real Tuff, Inc.,

2011 S.D. 33, ¶ 29, 800 N.W.2d 345, 352. In this case, both physicians were

unaware of certain facts and history when issuing their written opinions.

Nevertheless, they adhered to their written opinions when learning of the omitted

facts before their depositions.

[¶25.]       From our review of the record, however, we believe Dr. Blow adhered

to an incorrect view of the incident at work and failed to give sufficient


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consideration to significant aspects of Peterson’s medical history. In preparing his

records review report, Dr. Blow only reviewed records involving Peterson’s history

from May 15, 2009, through August 17, 2009. Consequently, at the time Dr. Blow

prepared his written report, he was not aware that Peterson had suffered a prior

work-related injury to the same disk while lifting a patient in 2007. He also did not

have Dr. Hoversten’s records, which included a physical examination. Those

records also included an MRI that reflected Schmorl’s nodes showing a congenitally

weak back and the flattening and bulging of the L5-S1 disk. At the time of his

deposition, Dr. Blow became aware of this information and did not change his

opinion. But he admitted that the 2007 incident was a work-related injury. This

was significant because, as Dr. Hoversten explained, the 2007 work-related injury

involved the same disc that “had an injury and started to deteriorate.”

[¶26.]       Dr. Blow’s opinion was also based partially on his assertion that

Peterson may not have suffered a work-related injury. Dr. Blow believed Peterson

did not report either the work incident or the related onset of pain when Peterson

was treated in the emergency room and by Dr. Flickema. Dr. Blow opined that if a

person had developed acute back and leg pain from bending over to move a

wheelchair pedal, the person would have related that work incident in the patient’s

subsequent treatment.

[¶27.]       Contrary to Dr. Blow’s belief, Peterson did report the work incident.

When asking her supervisor for pain medication immediately after the incident,

Peterson mentioned that she hurt her back: she indicated she thought she pinched a

nerve. Additionally, the emergency room records reflect that Peterson


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“complain[ed] [of] low back pain 18 hours ago,” which would have been during her

night shift at Good Samaritan. Those records also reflect Peterson reported that

during the night of the injury, “[she] felt low back pain getting progressively worse.”

Even Dr. Blow’s own records review reflects a physical therapy call while Peterson

was in the emergency room where it was stated that Peterson hurt her back as

Peterson claimed. That record indicated the injury occurred as Peterson “[b]ent

over helping resident with foot pedal.” Therefore, the injury and pain were

reported, and a critical factual assumption underlying Dr. Blow’s opinion was

incorrect.

[¶28.]       Finally, the record suggests that Dr. Hoversten based his opinion on

more complete facts and a more reliable medical history. Before coming to the

diagnosis expressed in his September 2009 letter opinion, Dr. Hoversten: performed

a physical examination of Peterson; reviewed Peterson’s records from Hartford

Therapy Services, the McGreevy Clinic, and the emergency room; reviewed the CAT

scan taken in the emergency room; and, ordered and reviewed an MRI of Peterson’s

back. We acknowledge that Dr. Hoversten did not at this point know that Peterson

had been experiencing pain in her left ankle, that she had been wearing the

walking boot while working her shift on July 15, 2009, and that she had been

wearing that boot for nearly two days when she was injured. But, before Dr.

Hoversten’s deposition was taken, he became aware of those facts. He reviewed Dr.

Blow’s report and deposition opinion as well as the medical records from Tieszen

Chiropractic Clinic. Thereafter, Dr. Hoversten capably explained why Dr. Blow’s

opinion was incorrect under the medical history and facts of this case.


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[¶29.]       Ultimately, Dr. Hoversten’s medical opinion was more persuasive than

the opinion of Dr. Blow. Whether a claimant’s employment is and remains a major

contributing cause of her condition may be gleaned from the totality of a doctor’s

testimony. See Wise v. Brooks Const. Servs., 2006 S.D. 80, ¶¶ 22-25, 721 N.W.2d

461, 468-70. We do not require a doctor to use the exact words of the statutes. Id.

In this case, Dr. Hoversten indicated that Peterson suffered a work-related injury.

He indicated that bending over to assist with the pedal of the wheelchair was an

activity that could cause an injury or an aggravation of a prior injury. This type of

normal employment activity may result in a compensable injury.

             [A]n employee does not have to have an accident or experience
             any trauma to his person before a medical condition will qualify
             as a compensable injury. It is sufficient that the disability was
             brought on by strain or overexertion incident to the employment,
             though the exertion or strain need not be unusual or other than
             that occurring in the normal course of employment.

Schuck v. John Morrell & Co., 529 N.W.2d 894, 899 (S.D. 1995) (alteration in

original). Dr. Hoversten also explained why Peterson’s ankle problem could not

have played a causative role in the deterioration of her L5-S1 disk. Dr. Hoversten

finally opined that the July 15, 2009 injury was a major contributing cause of her

condition: “I think both of these [back injuries affecting the same place in the back],

if they are correct, are work-related injuries, and I believe they have a substantial

part to play in the deterioration of the L5-S1 disk, yes.” We conclude Dr.

Hoversten’s opinion was sufficient to meet Peterson’s burden of proving that her

employment caused a work-related injury and that is and remains a major

contributing cause of her back condition and need for treatment.



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[¶30.]        Reversed and remanded for further proceedings before the

Department.

[¶31.]        GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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