Davidson v. Horton Industries2/27/2002
ompensation under workers' compensation law. The Department erred when it ignored this evidence. We conclude for all of the reasons stated above that Davidson was denied a fair hearing. Because Davidson has made a prima facie showing, the burden now shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant. See Kester v. Colonial Manor of Custer, 1997 SD 127, -30, 571 NW2d 376, 381 (holding that after claimant establishes prima face case of disability, the burden shifts to the employer to show that some suitable work is available). Accordingly, we reverse and remand for proceedings consistent with this opinion.
[ .] GILBERTSON, Chief Justice, and GORS, Acting Justice, concur.
[ .] AMUNDSON and KONENKAMP, Justices, dissent.
AMUNDSON, Justice (dissenting).
[ .] It is clear from this Court's precedent that due regard should be given to a fact finder's credibility determination, and we should respect the opinions of those who have seen, firsthand, the demeanor of witnesses. See Schneider, 2001 SD 70 at , 628 NW2d at 728; Johnson, 2000 SD 47, , 610 NW2d 449, 453-54; Mathis v. Mathis, 2000 SD 59, , 609 NW2d 773, 776; Belhassen, 2000 SD 82 at , 613 NW2d at 536; Hendricksen v. Harris, 1999 SD 130, , 600 NW2d 180, 181; Kurtz v. SCI, 1998 SD 37, 576 NW2d 878, 882; Peterson v. Hinky Dinky, 515 NW2d 226, 235 (SD 1994); Foltz, 516 NW2d at 347 (Amundson, J., dissenting), Wendel v. Domestic Seed & Supply, 446 NW2d 265, 270 (SD 1989). Moreover, it is not this Court's job to search for reasons to reverse a lower court's decision. See S.D. Subsequent Injury Fund v. Cas. Reciprocal Exch., 1999 SD 2, , 589 NW2d 206, 211 (finding this Court should not search for reasons to reverse); Fenner v. Trimac Transp., Inc., 1996 SD 121, , 554 NW2d 485, 489 (stating " e do not look for reasons to reverse, even if we would not have made a similar decision . . . but confine our review to a determination of whether the record contains substantial evidence to support the agency's decision"); Peterson v. Beck, 537 NW2d 375, 379 (SD 1995) (finding this Court should not "search out" reasons for reversal, but rather, should confine its review to determine if there is evidence to support the lower court's decision).
[ .] A review of the record in this case shows the following findings of fact entered by the administrative law judge:
11. After Dr. Quinlan examined Claimant, Employer and Insurer offered to have Claimant examined at the Mayo Clinic. Claimant refused that request.
15. Dr. Blow also recommended Claimant attend a pain clinic. Dr. Quinlan made a similar recommendation several months earlier. Claimant refused to attend a pain clinic even though Insurer offered to pay for the program.
17. Dr. Small referred Claimant to Dr. Philip Johnson, an orthopedic surgeon in Fargo, North Dakota. This referral was at the request of Claimant's attorney. Dr. Small noted: " I have been in touch with [Claimant's ] attorney and he also wants a second opinion from an out of state physician."
22. In May 1995, Dr. Quinlan was provided with a two-page analysis describing the duties for a job in the repair kit area. Dr. Quinlan approved the position for Claimant[. O]n May 15, 1995, Claimant received a job offer from Employer to work in this position, but refused to return to work based on a note from Dr. Johnson.
24. Employer and Insurer arranged for Claimant to be seen at the Mayo Clinic in April 1996. Dr. Keith Bengtson examined Claimant. That physical examination was totally normal except for a "slightly decreased" range of motion and tenderness of the right shou
Page 1 2 3 4 5 6 7 8 South Dakota Employee Leasing Services
Employee Leasing Services
|