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Davidson v. Horton Industries2/27/2002
om Dr. Johnson. As a result of her refusal to work, Davidson's temporary disability benefits were terminated after May 23, 1995.
[ .] In April 1996, Horton arranged for Davidson to be examined by Dr. Bengston at the Mayo Clinic. Dr. Bengston diagnosed her with chronic right shoulder myofascial pain syndrome. He recommended that she avoid repetitive activity involving her right shoulder and concluded that she had reached her maximum medical improvement. He further concluded that her permanent partial disability would be zero-percent. On April 22, 1996, Horton and its insurer again terminated Davidson's temporary disability benefits.
[ .] Horton again offered Davidson a position in the repair kit area and she returned to work on May 30, 1996. After approximately thirty minutes of work, she left, complaining of pain. Davidson returned to see Dr. Small who recommended no further work.
[ .] In September 1996, Davidson underwent another FCE at the Mayo Clinic. The second FCE showed greater restrictions than the first one and indicated she should not do repetitive activities with her upper right extremity. Dr. Bengston assigned Davidson a five-percent impairment rating and stated that she had reached maximum medical improvement. Horton's insurer paid out the benefits available to her under this rating and cut off all weekly benefits.
[ .] On September 25, 1996, Horton and its insurer arranged for an independent medical exam by Dr. Tountas. After his exam, Dr. Tountas was unable to identify any underlying condition causing Davidson's pain. He further stated that Davidson could return to full-time work without any restrictions and that she did not have any permanent partial disability.
[ .] In October 1996, Horton made Davidson another offer to return to work in the repair kit area. Davidson attempted to return to work in January 1997, but left work after less than one hour because of pain.
[ .] Davidson filed a petition for hearing with the Department of Labor,
Division of Labor and Management (Department) on September 21, 1995, seeking an award of all available workers' compensation benefits, including medical, temporary total disability, permanent partial disability and Cozine benefits and permanent total disability benefits under the odd-lot doctrine. A hearing was held before the Department, on November 5 and 6, 1997. On February 12, 1999, the hearing examiner found against Davidson, denying her claim for workers' compensation benefits. On March 26, 1999, the hearing examiner entered findings of fact, conclusions of law and an order and judgment. The hearing examiner's findings and conclusions stated that Davidson was not a credible witness and failed to support her claim for benefits with objective medical findings.
[ .] On April 7, 1999, Davidson filed a petition for review with the Secretary of Labor. The Secretary affirmed. Davidson then appealed her claim to the Fifth Circuit. Davidson filed briefs almost one year later and requested that the circuit court remand the case to the Department for reconsideration of its decision in light of new and material evidence. The circuit granted the motion to remand, but the Department determined that the new evidence was not material and had no impact on its original decision. The circuit court then affirmed the decision of the Department in its entirety on April 10, 2001 and entered judgment on April 16, 2001.
STANDARD OF REVIEW
[ .] This Court's standard of review for workers' compensation cases is well established:
We have often stated that "' nder SDCL 1-26-37, when the issue is a question of fact, then the clearly erroneous
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