Full Opinion (html_with_citations)

#29900-a-SRJ
2022 S.D. 79

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                      ****

NEWS AMERICA MARKETING and
FARMINGTON CASUALTY COMPANY,                 Employer, Insurer, and
                                             Appellants,

      v.

DESTINY SCHOON,                              Claimant and Appellee.

                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                      ****

                 THE HONORABLE CHRISTINA L. KLINGER
                               Judge

                                      ****


SETH A. LOPOUR
J.G. SHULTZ of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota                    Attorneys for employer, insurer,
                                             and appellants.


BRAD J. LEE of
Beardsley, Jensen & Lee, Prof. LLC
Rapid City, South Dakota                     Attorneys for claimant
                                             and appellee.

                                      ****

                                             ARGUED
                                             NOVEMBER 8, 2022
                                             OPINION FILED 12/28/22
#29900

JENSEN, Chief Justice

[¶1.]         Destiny Schoon (Claimant) injured her shoulder and neck while

working for News America Marketing (Employer). Employer and Farmington

Casualty Company (Employer/Insurer) initially paid benefits to Claimant, but

subsequently denied her claim for surgery and additional benefits. Claimant

petitioned the South Dakota Department of Labor and Regulation (Department) for

a hearing on her claims, which resulted in a decision approving her request for

benefits. The circuit court entered an order affirming the Department’s decision.

Employer/Insurer appeals from the circuit court’s order. We affirm.

                           Facts and Procedural History

[¶2.]         Claimant was injured on May 7, 2015, while working part-time for

Employer as an advertising representative. 1 Her duties consisted of hanging

advertising signage on shelves and ceilings in stores, as well as data entry.

Claimant reported that she was injured while using a screwdriver to mount a shelf.

She described how she was “cranking” on the screwdriver to loosen a screw when

the screwdriver gave way, and she immediately felt a sharp pain in her right

shoulder that worsened over the next 24 hours. Claimant testified at the hearing

before the Department that when the injury occurred she felt severe pain in her

shoulder area and that her neck began to tighten.

[¶3.]         Claimant sought chiropractic treatment the next day at Black Hills

Health and Wellness Center. The medical record of that visit notes that Claimant




1.      At the time of the injury, Claimant was also employed full-time as a
        paralegal at a Rapid City law firm.
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complained of loss of motion and spasms in her neck. She was diagnosed with a

neck strain. The record from a second visit shows that she continued to complain

about her neck as well as pain in her right shoulder.

[¶4.]        Claimant was referred to Black Hills Orthopedic and Spine Center and

attended her first appointment on May 18, 2015. The record from that visit

identifies right shoulder pain as her chief complaint and includes a plan to evaluate

and treat her for right shoulder and neck strain. She began physical therapy and

was then referred to Dr. Lawlor, a rehabilitation and pain medicine specialist, who

had previously treated Claimant for prior injuries to her neck and shoulder.

Claimant’s symptoms from the work injury included pain, numbness, and tingling

down her arm and into her fingers. Dr. Lawlor prescribed additional physical

therapy and ordered a cervical MRI. The MRI showed a C5-6 herniation. Dr.

Lawlor referred Claimant to Dr. Wilson, a neurosurgeon. Dr. Wilson explained that

numbness and tingling were likely caused by radiculopathy from the herniated disc

and recommended surgery to replace the disc with an artificial disc.

[¶5.]        Claimant sought pre-approval from Employer/Insurer to pay for the

procedure. In response, Employer/Insurer retained Dr. Nipper to conduct an

independent medical examination (IME) of Claimant. The IME included a physical

examination of Claimant and a review of her medical records. In the IME report,

Dr. Nipper opined that Claimant only strained her shoulder and that the herniation

at C5-6 was preexisting and unrelated to her work injury. He noted that “[t]here is

no record of [Claimant] complaining of pain in the neck during her first visits with




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[PA] Winters at Black Hills Orthopedic and Spine Center.” 2 Dr. Nipper also

disagreed with Dr. Wilson’s opinion that Claimant’s pattern of pain aligned with the

affected discs, but in his deposition agreed that pain and numbness in one part of

the body can originate elsewhere. Employer/Insurer denied the claim based on Dr.

Nipper’s IME report. Despite the denial, Claimant proceeded with the surgery.

The surgery resolved some of Claimant’s cervical radiculopathies, including the

numbness in her arms, but not all of her pain.

[¶6.]         Claimant’s preexisting medical history involved three injuries to her

neck and right shoulder areas. Claimant sustained neck and shoulder injuries due

to motor vehicle accidents in 2001 and 2003. Claimant was diagnosed with

whiplash after the first accident. Approximately ten months after that accident,

Claimant continued to complain of “[c]onstant upper back pain into the neck and

shoulders[.]” Following the second accident, Claimant was again treated for pain in

her neck and right shoulder. More than nine months post-accident, Claimant

continued to complain of “constant neck and shoulder pain.” She continued regular

chiropractic treatments for these injuries for several years following the accidents.

[¶7.]         Claimant fractured her wrist in a 2004 slip and fall and underwent

surgery. The fall also exacerbated her prior neck and shoulder injuries, which she

alleged, in a lawsuit against the city and concert venue where she fell, caused her to

“suffer[] serious and permanent personal injuries[.]” On June 23, 2005, her medical

records show that she “reached what she considered pre-injury status of her car




2.      Dr. Nipper did not have Claimant’s complete records, and his report does not
        reflect Claimant’s chiropractic treatment prior to May 18, 2015.
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#29900

accident injuries—upper back, mid back, and neck. The car accident condition has

improved and is now considered resolved.” Still experiencing pain from the fall,

however, she continued regularly treating with a chiropractor for back and neck

pain.

[¶8.]        In 2008, a chiropractor who had treated Claimant offered an opinion in

her slip and fall lawsuit that she would “have residuals from her accident injuries

for the rest of her life or until some other treatment is discovered that will repair

her injuries.” Notes from a provider in 2008 show Claimant reported her shoulder

pain had “been getting worse as time [went] on[,]” she had “neck problems[,]” and

she was “wondering if this could be a problem.” Another expert opinion letter

offered in the slip and fall lawsuit included the provider’s opinion that “the injuries

that she has been dealing with will be permanent[.]” Claimant had also been

diagnosed with fibromyalgia, depression, and degenerative disc disease prior to her

2015 work injury.

[¶9.]        Claimant had a cervical MRI in 2009 that showed some impingement

at C5-6 but not to the degree the 2015 MRI showed following her work injury. Dr.

Dietrich compared these two MRIs and noted the change at C5-6, which he stated

was objective evidence that her condition had changed. Dr. Nipper opined that the

task Claimant was performing could not have caused her cervical injury but agreed

that the 2015 MRI was worse.

[¶10.]       In 2009, Dr. Lawlor performed cervical facet area injections in an effort

to reduce Claimant’s level of pain. Claimant testified that the injections

significantly reduced her neck and shoulder pain and that she was able to work


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sixty hours per week and play softball with only occasional flare-ups until the 2015

work injury. Despite her past medical history, Claimant explained that her “pain

was pretty much nonexistent other than an occasional flare-up” from 2009 until her

2015 work injury. She testified that she was able to manage pain with Flector

patches and returned to work and other normal activities without significant

limitation or treatment. Claimant described how after the 2015 work injury, her

pain and symptoms in her neck and shoulder increased significantly.

[¶11.]       Claimant presented expert opinions from three of her treating

physicians at the hearing. Medical records from Dr. Lawlor and Dr. Wilson, along

with their opinion letters and affidavits were introduced in lieu of live testimony.

Dr. Dietrich’s medical records and deposition testimony were also submitted at the

hearing.

[¶12.]       Dr. Lawlor’s letter was a response to Employer/Insurer’s request to

justify treatment as related to Claimant’s shoulder. In it, he explained that

Claimant’s 2015 cervical MRI showed C5-6 herniation. He noted that reporting

shoulder pain as a predominate complaint was “not uncommon for people with a C5-

6 disc herniation[,]” and it was appropriate to “address the neck as it relates to her

shoulder pain” in physical therapy.

[¶13.]       Dr. Wilson’s letter explained that Dr. Lawlor had referred Claimant to

him for further evaluation and that he had personally reviewed her MRI. He

opined that “the event at work while lifting a sign over her head is directly related

to her C5-6 herniation and ongoing neurologic symptoms.” Given her age, he




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recommended C5-6 cervical disc replacement as a durable treatment of her

symptoms.

[¶14.]       On July 16, 2019, Dr. Dietrich performed an impairment evaluation

and determined that Claimant was 11% impaired. At Dr. Dietrich’s deposition,

Employer/Insurer objected to his testimony regarding causation and the need for

medical treatment, asserting he could not state his opinion to a reasonable degree of

medical probability because he had not seen every record of Claimant’s treatment

for her preexisting injuries. Over that objection, Dr. Dietrich opined that the

objective changes observable between the two cervical MRIs reflected “significantly

more than you would expect to see in a 33 year old with a slight disc protrusion”

over that period in the absence of trauma of some sort. He testified that he believed

her 2015 work injury exacerbated her underlying cervical disc problems and led to

the treatment and surgery that followed. He confirmed that he had treated other

patients in the past for similar injuries sustained doing similar tasks and that such

injuries may cause referred pain. He predicted that Claimant occasionally would

require injections or medication going forward and recommended that she continue

physical therapy independently at home.

[¶15.]       In anticipation of the hearing before the Department, Dr. Nipper

prepared an independent record review as an addendum to the initial IME report.

Dr. Nipper reaffirmed his opinion that the strain resolved six weeks after the event,

Claimant had reached maximum medical improvement by June 18, 2015, and any

symptoms beyond that time resulted from degenerative processes and preexisting

conditions predating May 7, 2015. In a response to interrogatories, he claimed


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“[t]here is no conceivable way that the demise of the C5-6 disc was caused by the

activity on or around May 7, 2015. It is simply not plausible.” However, Dr. Nipper

admitted in his deposition that “if you’re asking if the surgery was appropriate

regardless of cause, then my answer would be yes.” The addendum also reflects

that Claimant received facet joint injections from Dr. Dietrich in August 2016 and

trigger point injections intermittently thereafter.

[¶16.]       The Department issued a decision approving Claimant’s request for

benefits and entered findings of fact and conclusions of law. The Department

awarded Claimant permanent partial disability benefits, medical expenses, and

prejudgment interest. The Department further ordered Employer/Insurer to pay for

Claimant’s future medical treatment related to her work injury. Employer/Insurer

appealed the decision to the circuit court. The court issued a memorandum opinion

and order affirming the Department’s decision on December 27, 2021.

[¶17.]       Employer/Insurer raises three issues on appeal, which we restate as

follows:

             1.     Whether the circuit court erred by affirming the
                    Department’s holding that Claimant’s work injury was
                    and remained a major contributing cause of her
                    impairment and need for treatment.

             2.     Whether the circuit court erred in affirming the
                    Department’s finding of an adequate foundation for Dr.
                    Dietrich’s opinion.

             3.     Whether the circuit court erred by finding the opinions of
                    Drs. Dietrich, Wilson, and Lawlor more persuasive than
                    that of Dr. Nipper.




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                                Standard of Review

[¶18.]       “We review the Department’s decision in the same manner as the

circuit court.” Hughes v. Dakota Mill and Grain, Inc.,
2021 S.D. 31, ¶ 12
,
959 N.W.2d 903, 907
; see SDCL 1-26-37; SDCL 1-26-36. We review the Department’s

findings of fact for clear error and overturn them only if “after reviewing the

evidence we are left with a definite and firm conviction that a mistake has been

made.” Hughes,
2021 S.D. 31, ¶ 12
,
959 N.W.2d at 907
 (quoting Schneider v. S.D.

Dep’t of Transp.,
2001 S.D. 70
, ¶ 10,
628 N.W.2d 725, 728
). But “[w]e review the

Department’s factual determinations based on documentary evidence, such as

depositions and medical records, de novo.” Id.; see Peterson v. Evangelical Lutheran

Good Samaritan Soc’y,
2012 S.D. 52
, ¶¶ 18–19,
816 N.W.2d 843, 849
 (explaining

that proposed amendments to SDCL 1-26-36 failed, leaving this standard of review

intact with respect to agency findings of fact derived from documentary evidence).

“The Department’s conclusions of law are fully reviewable.” Hughes,
2021 S.D. 31, ¶ 12
,
959 N.W.2d at 907
.

[¶19.]       We review evidentiary rulings under an abuse of discretion standard.

McDowell v. Citibank,
2007 S.D. 52
, ¶ 26,
734 N.W.2d 1, 10
 (citing Behrens v.

Wedmore,
2005 S.D. 79
, ¶ 63,
698 N.W.2d 555, 579
).

                              Analysis and Decision

             1.     Claimant’s work injury was a major contributing
                    cause of her impairment and need for treatment.

[¶20.]       “In a workers’ compensation proceeding, the claimant bears the burden

of proving the facts ‘necessary to qualify for compensation by a preponderance of the

evidence.’” McQuay v. Fischer Furniture,
2011 S.D. 91, ¶ 11
,
808 N.W.2d 107
, 111

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#29900

(quoting Darling v. W. River Masonry, Inc.,
2010 S.D. 4
, ¶ 11,
777 N.W.2d 363, 367
).

SDCL 62-1-1(7) defines “injury,” in relevant part, as follows:

             only injury arising out of and in the course of the employment,
             and does not include a disease in any form except as it results
             from the injury. An injury is compensable only if it is
             established by medical evidence, subject to the following
             conditions:
             ...
                    (b) If the injury combines with a preexisting disease or
                    condition to prolong disability, impairment, or need for
                    treatment, the condition complained of is compensable if
                    the employment or employment related injury is and
                    remains a major contributing cause of the disability,
                    impairment, or need for treatment[.]

[¶21.]       Employer/Insurer does not dispute that Claimant sustained an injury

on May 7, 2015, and that the injury occurred within the course and scope of her

employment. Therefore, the sole question is whether Claimant’s injury remains a

major contributing cause of her current condition and the need for surgery and

other treatment.

[¶22.]       Our decisional law has emphasized that a claimant must show that the

work injury is “‘a’ major contributing cause” of the claimant’s condition and the

need for treatment. Orth v. Stoebner & Permann Const., Inc.,
2006 S.D. 99
, ¶ 42,
724 N.W.2d 586, 596
 (quoting Brown v. Douglas Sch. Dist.,
2002 S.D. 92
, ¶ 23,
650 N.W.2d 264, 271
). In South Dakota, “insofar as a workers’ compensation claimant’s

‘pre-existing condition is concerned[,] we must take the employee as we find him.’”

Id. ¶ 48,
724 N.W.2d at 597
 (alteration in original) (quoting St. Luke’s Midland

Reg’l Med. Ctr. v. Kennedy,
2002 S.D. 137
, ¶ 13,
653 N.W.2d 880, 884
).

[¶23.]       Employer/Insurer argues that the circuit court and Department

misapplied Armstrong v. Longview Farms, LLP,
2020 S.D. 1
,
938 N.W.2d 425
, in

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finding that Claimant proved her “work-related injury was and remains a major

contributing cause of her condition, need for treatment, and impairment.” In

Armstrong, we affirmed the Department’s denial of a claimant’s petition for benefits

for knee replacement surgery he claimed was necessitated by a recent work injury

to his knee. In upholding the Department’s decision, we determined that the

claimant’s preexisting knee condition was worsening well before his work injury,

which was just the “tipping point . . . .” Id. ¶ 24,
938 N.W.2d at 431
. The evidence

was uncontroverted that the claimant had been a candidate for knee replacement

surgery for over a decade before the injury in question, and “his medical providers

noted he was experiencing ongoing, worsening pain in both knees.”
Id.
 The doctor

who performed the knee replacement surgery admitted claimant “likely met the

diagnostic criteria for [the procedure] years earlier . . . .” Id. ¶ 12,
938 N.W.2d at 428
. Additionally, in Armstrong, the medical imaging of the claimant’s knee prior to

the work injury showed the same degenerative condition that existed after the

injury.

[¶24.]       Contrary to Employer/Insurer’s assertions, the resolution of the

particular facts in Armstrong is not determinative of this appeal. Employer/Insurer

cites no rule from Armstrong that mandates reversal in this case. Rather, it

appeals the Department’s fact-bound determination that Claimant’s 2015 work-

related injury was a major contributing cause of her current condition and need for

surgery and related treatment. In support of this determination, the Department

found that Claimant had significant relief from her prior neck and shoulder injuries

after the facet injections in 2009 and that Claimant had been mostly symptom-free


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until her 2015 work injury. Moreover, Claimant’s 2015 cervical MRI objectively

revealed, after her work injury, that the condition of her C5-6 disc had worsened

and herniated since her 2009 MRI. 3

[¶25.]         Employer/Insurer also argues that the Department erred in finding

that Claimant did not seek care or have significant neck and shoulder issues during

the period spanning 2009 to 2015. It highlights Dr. Nipper’s deposition testimony

that it was not plausible for Claimant to have had no symptoms during this time,

based upon her preexisting injuries. Employer/Insurer contends Dr. Nipper’s

opinion is consistent with the medical records showing that Claimant complained of

constant pain in the neck and shoulder areas from 2001 until 2009, received

regular, ongoing treatment for these injuries during this time, and was diagnosed

with permanent injuries to the neck and shoulder after the 2004 injury.

Employer/Insurer also asserts that the loss of her health insurance in 2010 was the

only reason that Claimant did not seek treatment for her preexisting injuries

during this time.

[¶26.]         In administrative appeals, we review de novo an agency’s findings of

fact that are based upon documentary evidence submitted at the hearing, but we

review its findings based on live testimony presented at the hearing for clear error.

See Hughes,
2021 S.D. 31, ¶ 12
,
959 N.W.2d at 907
. In reviewing the Department’s

findings, we note that there is documentation showing that Claimant expressed




3.       X-rays of the cervical spine taken in February 2004 were not abnormal, and
         X-rays taken in May 2004 showed moderate encroachment at C5-6. As for
         the 2009 MRI, Claimant had some minimal disc displacement, including at
         C5-6, but she had no compressive arthropathy or disease in the joint.
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concern about her ability to continue to receive treatment for her prior injuries

when her insurance benefits ended in 2009, as well as references in the record at

points in time between 2009 and 2015 to Claimant being without health insurance.

However, Claimant testified that she received significant relief after the nerve

injections in 2009 and was no longer in need of the treatment she was receiving

prior to these injections. Claimant also testified that during this timeframe she was

refilling her prescription medications and using Flector patches to manage her pain

during flare-ups. She further explained that she had no significant ongoing issues

until her work injury in 2015. Despite the fact that Claimant sought medical care

for other issues between 2009 and 2015, Employer/Insurer presented no evidence

that Claimant needed or sought additional treatment for her neck and shoulder

during this timeframe. Moreover, there was also evidence that Claimant remained

employed full-time, working up to sixty hours per week, and was physically active

until her 2015 injury. Finally, Employer/Insurer did not cross-examine Claimant

about its theory that she avoided medical treatment for preexisting injuries because

of financial reasons.

[¶27.]       Further, all three of Claimant’s treating physicians found no

discrepancy in Claimant’s description of the location and mechanism of her injury

and agreed her work injury was a major contributing cause of her need for

treatment. From our review of the documentary evidence, giving appropriate

deference to the Department’s ability to observe and consider Claimant’s testimony,

we conclude that the Department did not clearly err in finding that Claimant did

not have significant problems from her prior injuries until the 2015 work injury or


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in finding she did not avoid seeking medical treatment for her prior injuries

between 2009 and 2015 for financial reasons.

[¶28.]        Employer/Insurer next argues that the Department ignored a material

change in Claimant’s testimony from her deposition compared to the hearing and

that the Department should have rejected Claimant’s entire testimony about the

neck injury based upon this change. When asked at deposition where the pain was

immediately after the injury, Claimant responded that it was in her right shoulder

but did not mention her neck. At the hearing, when asked where the pain in her

shoulder referred to, she mentioned feeling “pressure in my neck. I wouldn’t

necessarily call it pain.”

[¶29.]        Employer/Insurer also points to Claimant’s denial of similar past

problems when she filled out an intake form after her 2015 injury. Dr. Dietrich

admitted in his deposition that “she definitely checked that box in a fashion that we

would disagree with.” When Employer/Insurer questioned Claimant’s credibility

concerning this response at the hearing, she explained that the pain was different:

“[w]hen I meant no, what I was saying is that similar -- in the past the pain was

behind the shoulder to the back side of it. This was to the front. That was new.”

[¶30.]        Based on these alleged discrepancies, Employer/Insurer argues that

Claimant was not credible and that the Department made no credibility

determination concerning Claimant’s testimony. It also contends that the

Department committed reversible error by failing to reject Claimant’s entire

testimony consistent with SDCL 62-7-40, which provides that “if the finder of fact

determines that any person testifying in the proceeding has knowingly sworn


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falsely to any material fact in the proceeding, then the finder of fact may reject all of

the testimony of that witness.”

[¶31.]       Pursuant to SDCL 62-7-40, a fact finder may, but is not required to,

reject all the testimony of a witness that it finds has “knowingly sworn falsely to

any material fact in the proceeding[.]” Further, we cannot assume from the absence

of a specific credibility determination that the Department found Claimant

knowingly swore falsely to a material fact and chose to accept her testimony in spite

of that. The Department could have very well determined that Claimant’s

testimony at the hearing was not inconsistent with her deposition testimony and

that the testimony was consistent with her reports immediately after the injury.

For instance, during Claimant’s first visit to Black Hills Health and Wellness

Center the day after the injury, she reported neck stiffness and spasms, which

provided an objective basis to support her claim of an injury to her neck.

[¶32.]       We recognize the Department’s advantage in judging credibility of

witnesses and review for clear error. See Hughes,
2021 S.D. 31, ¶ 12
,
959 N.W.2d at 907
. “Determining the credibility of the witnesses is the role of the factfinder.”

Schneider,
2001 S.D. 70
, ¶ 14,
628 N.W.2d at 730
 (citation omitted). “Due regard

shall be given to the opportunity of the agency to judge the credibility of the

witness.” Id. ¶ 11, 628 N.W.2d at 728–29 (citation omitted); see Smith v. Stan

Houston Equip. Co.,
2013 S.D. 65
, ¶ 17,
836 N.W.2d 647, 652
 (deferring to the

Department’s determination that claimant testified credibly as to his own pain).

The Department’s findings demonstrate that its credibility determinations as to




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causation were favorable to Claimant, and we find no clear error in these findings

by the Department. 4

               2.     Declining to strike Dr. Dietrich’s opinion.

[¶33.]         Employer/Insurer argues that the circuit court erred by upholding the

Department’s failure to strike Dr. Dietrich’s opinions for inadequate foundation,

which it asserts was an abuse of discretion. Claimant initially contends the

objection is untimely and therefore waived, citing a Department of Labor decision

for the proposition that “[t]he time for objecting to experts was at the Prehearing

Conference.” Dennis Pottebaum, No. 290, 1997/98,
2001 WL 356251
, at *1 (S.D.

Dept. Lab. Mar. 8, 2001). Claimant also argues that the Department did not abuse

its discretion in declining to strike Dr. Dietrich’s opinions based upon inadequate

foundation.

[¶34.]         Employer/Insurer asserted foundation objections during Dr. Dietrich’s

deposition. Although Employer/Insurer did not raise the foundation objection at the

prehearing conference, the foundation objections were already made at the

deposition and preserved in the deposition transcript. Further, Employer/Insurer

brought to the Department’s attention at the hearing the “objections on the record

in that deposition that I want to make sure that are reserved and can be argued as

necessary . . . . And there are a couple of other objections that we’re not waiving

obviously by having it submitted, so we will maintain those.” The Department




4.       Dr. Nipper’s deposition testimony also reflects his perception that Claimant
         answered his questions honestly, that he saw no other doctors in the records
         question her credibility, and that he agreed with her counsel that he was “not
         questioning her credibility here today[.]”
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expressed understanding and “[w]ith that noted” admitted the deposition into

evidence. Rather than deeming the objection waived, the Department overruled it

on the merits: “[f]or the sake of expedience, the Department will address the

objection that was made during deposition.”

[¶35.]       We have held “that an objection first formally made . . . after a hearing

does not preserve such objection for appeal. Having acquiesced in the admission of

the challenged materials at the hearing, [parties] are estopped to object before an

appellate court.” Application of Am. State Bank, Pierre,
254 N.W.2d 151, 155
 (S.D.

1977) (internal citations omitted). But here, at the hearing, Employer/Insurer

sought confirmation that the Department was aware of the formal objection to

foundation it had made during the deposition. Although it did not elaborate on its

objections at the prehearing conference or the hearing, the objections were

preserved, counsel for Employer/Insurer noted it was not waiving these objections,

and the Department specifically addressed and overruled the foundation objections.

Therefore, the foundation objection was adequately preserved.

[¶36.]       Reaching the merits, the Department applied the Burley test in

determining Dr. Dietrich’s testimony was relevant and had adequate foundation:

             Admissibility of expert testimony is governed by SDCL 19-15-2
             (Rule 702). Under this rule, before a witness can testify as an
             expert, that witness must be “qualified.”
Id.
 Furthermore,
             “[u]nder Daubert, the proponent offering expert testimony must
             show that the expert’s theory or method qualifies as scientific,
             technical, or specialized knowledge” as required under rule 702.
             State v. Guthrie,
2001 S.D. 61
, ¶ 34,
627 N.W.2d 401
, 415–416;
             Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 597
,
113 S. Ct. 2786, 2799
,
125 L. Ed. 2d 469
 (1993). Before
             admitting expert testimony, a court must first determine that
             such qualified testimony is relevant and based on a reliable
             foundation. Guthrie,
2001 S.D. 61
, ¶ 32,
627 N.W.2d at 415
.

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              The burden of demonstrating that the testimony is competent,
              relevant, and reliable rests with the proponent of the testimony.
              SDCL 19-9-7 (Rule 104(a)). The proponent of the expert
              testimony must prove its admissibility by a preponderance of the
              evidence. Daubert,
509 U.S. at 592
 n.10,
113 S. Ct. at 2796
 n.10,
125 L. Ed. 2d 469 n.10
. “Relevance embraces ‘evidence having
              any tendency to make the existence of any fact that is of
              consequence to the determination of the action more probable or
              less probable than it would be without the evidence.’” Guthrie,
2001 S.D. 61
, ¶ 32,
627 N.W.2d at 415
 (quoting SDCL 19-12-1).

Burley v. Kytec Innovative Sports Equip., Inc.,
2007 S.D. 82
, ¶ 13,
737 N.W.2d 397
,

402–03 (alteration in original).

[¶37.]        Dr. Dietrich personally treated Claimant and was aware of her

preexisting injuries from a review of records from Dr. Lawlor, ProMotion, and Black

Hills Orthopedic as well as the summary of Claimant’s medical records. His

curriculum vitae included his medical degrees, residencies, licenses, certifications,

and relevant experience. His testimony had a tendency to make the existence of

facts of consequence to the determination of the action more or less probable than

without his testimony. Once Claimant showed his “testimony rest[ed] upon ‘good

grounds, based on what is known[,]’” id. ¶ 24,
2007 S.D. 82
,
737 N.W.2d at 406

(citation omitted), “[a]ny other deficiencies in [his] opinion . . . [could] be tested

through the adversary process at trial.”
Id.

[¶38.]        Employer/Insurer notes, however, that Dr. Dietrich formed his opinion

based on a summary of Claimant’s medical records prepared by her counsel rather

than by reviewing Claimant’s full medical records. It cites McQuay, a prior decision

by this Court in which Dr. Dietrich testified and the court upheld a finding by the

Department that his opinions were less persuasive than that of a non-treating

expert.
2011 S.D. 91, ¶ 25
,
808 N.W.2d at 113
. In support of its evidentiary

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objection, Employer/Insurer argues that “[i]t is impossible for Dr. Dietrich to have a

sufficient understanding of Claimant’s prior injuries, treatments, and diagnoses

without reviewing the actual and complete records.” But here, while

Employer/Insurer asks this Court to accept that “[s]urely more is required of an

expert[,]” McQuay does not provide the broad “actual and complete records”

requirement it reads into it when considering the admissibility of expert testimony.

The Court’s statements in McQuay related to the weight afforded to Dr. Dietrich’s

opinion, on de novo review, not the admissibility of his opinions. Contrary to

Employer/Insurer’s assertion, McQuay did not hold that experts, as a matter of

course, are required to consider all of a claimant’s medical records to establish an

adequate foundation for their opinions.

[¶39.]       The circuit court found no abuse of discretion in the Department’s

admission of Dr. Dietrich’s testimony, and neither do we. Dr. Dietrich was aware of

Claimant’s prior accidents and treatment, and these preexisting injuries were

thoroughly explored by Employer/Insurer’s counsel during cross-examination of Dr.

Dietrich. Employer/Insurer’s objections go to the weight rather than the

admissibility of his testimony. See State ex rel Dep’t of Transp. v. Spiry,
1996 S.D. 14
, ¶ 16,
543 N.W.2d 260
, 263–64 (“Regardless of the timeliness of the objection,

however, it appears clear to the Court that the [party’s] objection is without merit.

The basis of an expert’s opinion is generally a matter going to the weight of the

testimony rather than the admissibility.”).




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             3.     Persuasiveness of expert opinions.

[¶40.]       Employer/Insurer also argues that the circuit court erred by finding

Claimant’s experts’ opinions more persuasive than Dr. Nipper’s. Employer/Insurer

cites numerous cases where this Court found non-treating expert testimony more

persuasive than that of their counterparts who had treated the claimants. It also

cites McQuay in support of its claim that Dr. Dietrich’s opinion, in this case, should

be determined less persuasive than that of Dr. Nipper. See
2011 S.D. 91, ¶ 25
,
808 N.W.2d at 113
.

[¶41.]       The Department and the circuit court expressly acknowledged the

possibility that a non-treating expert could be more persuasive than a treating

expert. Nevertheless, both found the treating experts more persuasive in this case,

particularly in light of the Department’s findings that Claimant was active and did

not have any significant neck and shoulder injuries for six years before her 2015

work injury. Further, Employer/Insurer does not advance a legal argument

supporting its contention of error. Instead, it argues that Dr. Nipper had a more

exhaustive understanding of Claimant’s medical history than the treating

physicians, but it cites no authority requiring such a standard be met. Having

affirmed the Department’s findings concerning Claimant’s testimony under clear

error review, we find no error in the Department’s findings concerning the medical

opinion testimony or causation.

[¶42.]       Affirmed.

[¶43.]       KERN, SALTER, DEVANEY, and MYREN, Justices, concur.




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