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Johnson v. Powder River Transportation and Indemnity Insurance Co.2/20/2002
Appeal from the Circuit Court of The Sixth Judicial Circuit Hughes County, South Dakota Hon. Lori S. Wilbur, Judge
Considered on Briefs November 13, 2001
[ .] The South Dakota Department of Labor, Division of Labor and Management (Department) determined that Virginia Johnson (Johnson) was permanently, totally disabled and entitled to compensation for life. Powder River Transportation (Powder River) appealed Department's decision. The circuit court denied a constitutional challenge to reduction in benefits by the amount of social security benefits, upheld Department's decision to decline to tax disbursements, and affirmed Department's decision to award permanent disability compensation to Johnson. Both parties have appealed. We affirm.
FACTS
[ .] Virginia Johnson, a sixty-one-year-old employee of Powder River, was performing duties as a van driver on March 16, 1998 when she slipped and fell on ice and suffered injury to her right shoulder and lower back. Johnson reported the injury to her employer and sought medical treatment. Johnson continued to work while undergoing treatment for her injuries. Prior to the incident, she had been working twelve to fifteen hours per day, seven days per week. Because the extensive work schedule tended to aggravate her injury, her doctor limited her to five days a week, eight hours per day with a lifting restriction of twenty pounds. In compliance with the restrictions ordered by Johnson's doctor, Powder River limited Johnson's work schedule.
[ .] Johnson's average weekly wage at the time of her injury was $241.65 based on her pay of 18 cents per mile driven. From the date of her injury to the end of her employment with Powder River, Johnson earned an average weekly income of approximately $146. In October 1999 Powder River lost its contract to transport railroad workers, and the new contractor chose not to hire Johnson. Johnson has had no work since that time.
[ .] While still in the employ of Powder River, Johnson sought worker's compensation benefits through Department. On March 8, 1999 a memorandum of payment was issued noting that Johnson's compensation rate would be $195.
[ .] In order to continue receiving unemployment compensation, Johnson documented businesses in the area where she applied for work. She registered with Job Service in Hot Springs and returned at least twenty-three times between April and November 1999 attempting to find employment. She also contacted other employers in her area. Despite Johnson's efforts to find employment, she received only two job offers. One was unacceptable because it would require relocating to eastern South Dakota. The other was unacceptable because it offered only four hours per week and Johnson was still employed by Powder River at the time and had to be available to be called out to drive.
[ .] On December 7, 1999 a hearing on the matter was held before Department. The administrative law judge determined that Johnson was permanently totally disabled and set her compensation rate at $195 per week with cost of living increases. Department found that Johnson had made an extensive job search and had been unsuccessful in her attempt to find employment. Department further found that although she was not obviously unemployable based solely on her physical condition, Johnson had made a prima facie odd-lot case considering her age, training and experience and the type of work available in her community and considering that with the cost of commuting at twenty-nine (29) cents per mile, jobs available in Hot Springs would pay less than Johnson's compensation rate. Finally, Department held that Powder River failed to satisfy its rebuttal b
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