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Davidson v. Horton Industries2/27/2002
Dr. Small, including three specialists, felt she was capable of working. Claimant then saw Dr. Small, who took her off work. Not only has Claimant not returned to work since, she has not returned to any of the doctors who said she could go back to work.
48. Claimant is not a credible witness.
Despite the majority's finding that the Johnson case is distinguishable, I find it very much on point. As the findings of fact above demonstrate, there was "substantial evidence to support the determinations of the hearing examiner and the Department that [Davidson] . . . was not a credible witness, and, thus, her subjective testimony as to pain could also be determined not credible[,]" just like in Johnson. 2000 SD 47 at , 610 NW2d at 455.
[ .] The majority, in part, bases its decision on the fact that Davidson presented medical testimony of "several doctors" who agree Davidson suffers from a pain syndrome. But, every physician who treated Davidson prior to Dr. Small, including three specialists, felt she was capable of working. Thus, we should not emphasize the number of experts acknowledging Davidson experienced pain; but rather, we should look at whether it incapacitated her. Furthermore, it is a "long-accepted premise . . . that the purpose of expert testimony is to assist the trier of fact and not to supplant it." Id. at . "Experts do not determine credibility." Id. We should focus on whether the record "definitely and firmly" demonstrates that the Department has made a mistake. Belhassen, 2000 SD 82, , 613 NW2d 531, 535 (citation omitted). It has not. Further, the expert testimony reviewed in this case "cannot rise above its foundation." Schneider, 2001 SD 70 at , 628 NW2d at 730 (quoting Johnson, 2000 SD 47 at , 610 NW2d at 455) (other citations omitted). "The value of the opinion of an expert witness is no better than the facts upon which they are based." Id. The Department held that the facts fed to the medical experts originated from a non-credible source. Therefore, I cannot join the majority opinion which has sought out reasons to reverse an administrative decision that I feel is firmly supported by the record. This might be a case where I would personally have chosen a different decision, but that is not the purpose of appellate review.
[ .] KONENKAMP, Justice, joins this dissent.
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