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Davidson v. Horton Industries2/27/2002
pain. Moreover, this Court further questions the Department's reliance on these videotapes, because after reviewing them, we were unable to find any activity demonstrating significant use of Davidson's upper right extremity. Attacking Davidson's credibility on the basis of a few videotapes which provide only brief glimpses of activities which she admits to doing is insufficient to counter the medical testimony of Dr. Small, Dr. MacDougall, Dr. Johnson and Dr. Blow. The medical conclusion of myofascial pain syndrome reached by these four physicians was not substantially challenged by Horton at the time of the depositions or by these videotapes.
[ .] The hearing examiner failed to support its finding that Davidson's testimony is not credible with any substantial evidence. In Johnson v. Albertson's, this Court upheld a hearing examiner's determination that claimant's testimony was incredible. 2000 SD 47, -27, 610 NW2d 449, 455. This Court concluded that there was "substantial evidence to support the determinations of the hearing examiner and the Department that [claimant] was not a credible witness and, thus, her subjective testimony as to pain could also be determined not to be credible." Id. at . The hearing examiner found that there was evidence that claimant was malingering, that there was a discrepancy between claimant's injury and the objective findings, that claimant failed to comply with her prescribed treatment, and that her testimony at the hearing conflicted with statements made at earlier dates. Id. at -33. Because of the substantial evidence in the record, this Court stated that the hearing examiner was correct in rejecting the expert opinions of five doctors who supported the claimant's complaints of injury. Id. at . This Court agreed "with the hearing examiner's finding that since [claimant] was lacking in credibility and because 'the opinions of [claimant's] expert witnesses regarding her condition were based in large part on what she told them, the opinions of those experts lack an adequate foundation.'" Id.
[ .] Again, the Johnson case is clearly distinguishable from the one at hand. The hearing examiner's determination that Davidson is incredible is not supported by substantial evidence. Furthermore, the opinions of Davidson's experts were not based merely on Davidson's complaints of pain and cannot be said to lack an adequate foundation. Because the Department does not support its determination that Davidson's testimony is incredible, it cannot justifiably reject the expert opinions of numerous doctors in favor of one hired by the insurer under these circumstances.
[ .] The burden of proof in workers' compensation cases lies with the claimant. The "'claimant has the burden of proving all facts essential to compensation[.]'" Phillips v. John Morrell & Co., 484 NW2d 527, 530 (SD 1992) (quoting King v. Johnson Bros. Constr. Co., 83 SD 69, 73, 155 NW2d 183, 185 (1967)).
This Court has stated that:
Having recognized the burden of proving all the essential facts of his claim is on the claimant, it becomes necessary to evaluate the evidence to determine whether the claimant has in fact met this burden. It should be noted proof need not arise to a degree of absolute certainty, but an award may not be based upon mere possibility or speculative evidence. Foltz, 516 NW2d at 342 (citing Mehlum v. Nunda Coop. Ass'n, 74 SD 545, 546, 56 NW2d 282, 283 (1953)).
Expert medical testimony couched in terms of probability is sufficient to sustain a workers' compensation claimant's burden of proof. Hanten v. Palace Builders, Inc., 1997 SD 3, , 558 NW2d 76, 80.
[ .] Davidson presented evidence to prove facts essential to c
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