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Davidson v. Horton Industries2/27/2002
standard is applied to the agency's findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.'" Brady Mem'l Home v. Hantke, 1999 SD 77, , 597 NW2d 677, 679-80 (quoting Wagaman v. Sioux Falls Constr., 1998 SD 27, , 576 NW2d 237, 240 (citations omitted)). Under our review, "we are required to give 'great weight to the findings and inferences made by Department on factual questions.'" Id. (citations omitted). Further, "' f after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse.'" Id. (additional citations omitted). Belhassen v. John Morrell & Co., 2000 SD 82, , 613 NW2d 531, 535.
[ .] WHETHER THE DEPARTMENT ERRED IN DETERMINING CLAIMANT WAS NOT ENTITLED TO WORKERS' COMPENSATION BENEFITS, INCLUDING MEDICAL, TEMPORARY TOTAL DISABILITY, PERMANENT PARTIAL DISABILITY AND COZINE BENEFITS AND PERMANENT TOTAL DISABILITY BENEFITS UNDER THE ODD-LOT DOCTRINE.
[ .] This Court has stated that when the issue presented "'is a question of law, the actions of the agency are fully reviewable.'" Belhassen, 2000 SD 82 at , 613 NW2d at 535 (quoting Brady Mem'l Home, 1999 SD 77 at , 597 NW2d at 679-80). For all the reasons stated herein, the Department erred in its findings of fact and conclusions of law. It is simply not right when seven doctors basically give a diagnosis of chronic right shoulder myofascial pain syndrome and reach a prognosis that claimant should not work for a period of time, for the hearing examiner to ignore such evidence in favor of a very brief independent medical exam conducted by a physician hired by the claimant's employer. It is not enough to ignore the substantial evidence of pain because the cause cannot be determined. While we recognize that an agency may disregard one expert's opinion in favor of another, it cannot disregard the similar opinions of numerous medical experts in favor of one expert hired by the insurer under these circumstances. Upon review of the entire record, we are firmly convinced that the Department's action constitutes error in a conclusion of law. Because we believe basic errors have been made by ignoring seven similar medical reports, Davidson was denied a fair hearing and we reverse and remand.
[ .] Furthermore, in this case, a significant portion of the expert testimony was presented by means of deposition, affidavit and exhibit. This Court has stated
that " hen reviewing evidence presented by deposition, we do not apply the clearly erroneous rule but review that testimony as though presented here for the first time." Foltz v. Warner Transp., 516 NW2d 338, 340 (SD 1994) (quoting Day v. John Morrell & Co., 490 NW2d 720, 723 (SD 1992)) (citations omitted). See also, Truck Ins. Co. v. CAN, 2001 SD 46, , 624 NW2d 705, 708 (stating this Court reviews "findings based on deposition testimony and documentary evidence under a de novo standard of review"). In Foltz, this Court reversed the Department of Labor's denial of workers' compensation benefits because it disagreed with the Department's review of the evidence. 516 NW2d at 346-47. The Department supported its denial of benefits by relying solely on the deposition testimony of the employer and insurer's medical experts and ignoring the opinions of three other medical experts. Id. at 346. Accordingly, this Court reversed the Department with a direction to enter judgment in favor of the claimant. Id. at 347.
[ .] This case presents a similar issue. The key issue is whether Davidson established unemployability because of her pain. This issue is dependent upon both the credibility of Davidson and the medical evidence offered to support her claim
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