On June 2, 2021, the Supreme Court of South Dakota released its opinion in the matter of Hughes v. Dakota Mill & Grain, 2021 S.D. 35, which addressed the Court’s interpretation of the causation standard of “a major contributing cause.”. Although this opinion addresses aspects of the causation standard (i.e., what a claimant does not have to prove), it does not give clear direction regarding how medical experts should interpret the causation standard when there are multiple causes for the condition from which the injured worker complains.
Claimant, Taylor Hughes, worked various construction and heavy labor jobs from the time he left high school in the ninth grade (2004) until his employment with Dakota Mill & Grain (the “Employer”) in 2017. In 2010 and 2011, prior to his employment with Employer, he underwent two back surgeries that he related to his work activities with a prior employer Hughes reported no real back issues between 2014 and 2017. Hughes began working for the Employer in 2017. Before being cleared to work for the Employer, Hughes underwent a physical examination. At the physical, Hughes reported no back problems and was approved by the examining doctor to start work. Hughes’ job duties with the Employer included heavy labor. Several months after starting with the Employer, Hughes claimed that he injured his back when he fell off a skid-loader but did not report the injury. Five days after the injury, Hughes went to the emergency room complaining of back pain similar to the pain experienced from his prior injury with his previous employer. An MRI after the work injury in 2017 detected a herniated disk in Hughes’ back, and Hughes complained of shooting pain down his legs. Hughes filed a worker’s compensation claim against the Employer.
The South Dakota Department of Labor (the “Department”) held an administrative hearing. At the hearing, conflicting expert testimony was submitted regarding whether Hughes’ symptoms were the result of degenerative back conditions from the prior injuries sustained while working for his previous employer, or whether they were caused by Hughes’ fall from the skid-loader and related to the work injury of June 26, 2017, reported to the Employer. The Department determined that Hughes failed to show that his disability was caused by a workplace injury and failed to show that his work activities with the Employer were a major contributing cause of the injury. The Department’s decision was appealed. The decision was appealed to the Sixth Judicial Circuit in Hughes County, South Dakota. The Circuit Court reversed the Department’s decision, finding that the Department committed clear error in reaching the decision, and the matter was then appealed to the South Dakota Supreme Court (the “Court”).
On appeal, the Court addressed two issues. The first issue was whether the Department erred in determining Hughes failed to establish that he sustained an injury that arose out of his employment. The Court identified three instances where an injury is said to “arise out of” the employment under South Dakota law: (1) the employment contributes to causing the injury; (2) the activity is one in which the employee might reasonably engage; or (3) the activity brings about the disability upon which compensation is based. The Court determined that an employee need only show that the employment was “a contributing factor” to the injury to establish this element.
The Court agreed with the Circuit Court and overturned the Department’s determination that Hughes’ disability was not “caused by” a workplace injury. The Court held that the correct standard to determine whether an injury “arose out of” Hughes’ employment should have been whether Hughes’ work activities “contributed to” his injury. The Court held that, under the correct standard, Hughes established that his injury arose out of and in the course of his employment with the Employer by a preponderance of the evidence because Hughes reported that he felt “100 percent” before beginning work with the Employer, Hughes informed his supervisor that his back was sore the day he fell off the skid-loader, and the work Hughes performed with the Employer included activities that would aggravate one’s back.
The second issue determined by the Court was whether Hughes established that his’ work activities were a major contributing cause of his condition. The Court determined that, under SDCL 62-1-1, the test for causation when a person has a pre-existing work injury is whether the injury was a major contributing cause of the injury. Relying on Orth v. Stoebner & Permann Constr., Inc., 2006 S.D. 99, 724 N.W.2d 586, the Department found that a major contributing cause was “a cause which cannot be exceeded.” The Department determined that because 60% of Hughes’ condition was caused by other factors, any of which could have exceeded 40%, Hughes did not meet the causation threshold.
The Court found that a claimant does not need to reach a 50% threshold to establish causation or show that the work activities were the sole cause of the injury. Instead, the Court determined that the injury only needs be determined to be a major contributing cause. Although both experts agreed that from 2012 through 2017 Hughes’ showed an increasing disc bulge in his back, the Court ultimately sided with Hughes’ expert and found that the work activities were a major contributing cause of his condition and he had proven this by a preponderance of the evidence. In doing so, the Court adopted the opinion of Hughes’ expert determined that because Hughes was symptom-free before working for the Employer; because he had worked full-time for months without complaint prior to his injury with the Employer; and, because he had not been utilizing pain medication or back injections for years prior to the injury, his work activities were a major contributing cause of his condition.
As noted above, this decision gives direction from the Court on what “a major contributing cause” standard is not. However, the Court left open the definition of “a major contributing cause” by adopting the definition provided by Hughes’ expert stating that “a major contributing cause” is “not the only cause, not the most significant cause, just a major contributing cause.” When reviewing cases for causation, this new direction from the Court should be taken into consideration.