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Schneider v. South Dakota Department of Transportation5/30/2001
As amended July 31, 2001
Appeal from the Circuit Court of The Sixth Judicial Circuit Mellette County, South Dakota Hon. Max A. Gors, Judge.
Considered on Briefs October 24, 2000; Reassigned 1/3/2001; Opinion Filed 5/30/2001
[ .] Robert Schneider (Schneider) suffered an injury to his back while chopping wood at his home on November 11, 1993. On January 27, 1994 Schneider was operating a snowplow when he reported a sudden onset of pain in his back. He has not worked since. The Department of Labor (Department) found that Schneider was not entitled to workers' compensation benefits. The circuit court reversed. On remand, the Department determined that Schneider was entitled to total disability benefits. The circuit court affirmed. We reverse.
FACTS
[ .] Schneider was employed by the Department of Transportation (DOT) from 1988 until January 1994 as a highway maintenance worker. On November 11, 1993, Schneider injured his back while home chopping wood during his holiday vacation. As a result, Schneider saw physical therapist Kelly Coleman on December 14, 1993. Schneider "complained of back and left hip and radicular leg pain." Schneider revisited Coleman five additional times for physical therapy treatments prior to January 27, 1994.
[ .] The purpose of the physical therapy was to decrease the pressure on the nerve rootlets by shifting the bulging disk. Coleman noted some improvement after the first visit and after additional visits. Schneider worked sporadically since the wood-chopping incident. He worked the entire week of November 13-19, took leave November 22 and 23, plowed snow November 24 for 3.5 hours then used sick leave for the rest of the day, he did not work at all the week of January 3 through 7 and January 10 to 14. Coleman stated that Schneider's problems were not cured or eliminated and "once you have a bulge and have a weakness like that, it never does return to a normal state." This is confirmed by the fact that after returning to work on January 18 he used four hours of leave January 19 because of back pain and missed all of January 21 because of back and leg pain.
[ .] On January 27, 1994, while driving a snowplow Schneider testified that "I had hit a snowdrift, or something of that nature, and I felt a sharp pain." Schneider called his supervisor and told him that driving the plow was hurting his back and he could not continue. Despite his claim that he was hurt, he completed his route and returned to the DOT garage. He has not worked since.
[ .] On February 4, 1994, Schneider sought medical care for his back and leg problems at the Veteran's Administration Hospital in Fort Meade, South Dakota. He briefly discussed his medical history with Nurse Hickenbotham and advised her that he suffered severe pain in his back and leg and related it to the wood-chopping incident. No mention was made of the events of January 27, 1994 with the snowplow.
[ .] Dr. Larry Teuber eventually diagnosed and performed surgery on Schneider to remedy a free-floating fragment in his back. In relaying his medical history to Dr. Teuber, Schneider stated he was injured while driving sometime in December 1993 and January 1994. Contrary to what he had told Nurse Hickenbotham, he also told Dr. Teuber "at no time in the past has he had left leg pain." The wood-chopping incident was never mentioned.
[ .] Schneider then visited Dr. Steven Goff for the purposes of impairment rating on March 23, 1995. Schneider specifically attributed the source of his injury to the January 27, 1994 incident driving the snowplow for the DOT. Consistent with what he told Dr. Teuber, but inconsistent with what he told Nu
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