Precedents Cited and Their Influence

• Fair v. Nash Finch Co., 2007 S.D. 16, 728 N.W.2d 623: Reaffirmed the claimant’s burden to prove a compensable injury arising out of employment. Brewer’s case turns on causation rather than occurrence of an accident; Fair provides the baseline burden.
• Haynes v. Ford, 2004 S.D. 99, 686 N.W.2d 657: Clarifies that a work injury alone does not ensure benefits; the injury must be “a major contributing cause” of the current condition. The Court applies this standard to weigh competing medical opinions.
• Hughes v. Dakota Mill & Grain, Inc., 2021 S.D. 31, 959 N.W.2d 903: Supplies key points: (a) “a major contributing cause” means one of the major causes, not “the” sole cause; (b) appellate standards—great deference to live-witness findings but de novo review of documentary evidence; and (c) the reliability of an expert hinges on the completeness of the factual foundation. The majority deploys Hughes to frame review and to temper reliance on IME opinions that did not convincingly account for SI‑joint specific diagnostics; the dissent uses it to attack the completeness of the treating physician’s record review.
• Arneson v. GR Mgmt., LLC, 2024 S.D. 61, 13 N.W.3d 206: Confirms de novo review for deposition-only medical disputes and notes the potential persuasive force of a treating physician’s opinion due to firsthand knowledge of the condition and treatment. The Court leans on Arneson to justify preferring the treating orthopedist’s SI‑focused analysis over IME conclusions.
• Darling v. Western River Masonry, Inc., 2010 S.D. 4, 777 N.W.2d 363: Holds that temporal sequence alone has little value in proving medical causation. The majority acknowledges Darling but finds the treating physician’s causation opinion rested not merely on timing, but on diagnostic injections, FABER testing, treatment response, and surgical outcomes.
• News America Marketing v. Schoon, 2022 S.D. 79, 984 N.W.2d 127: Supports causation despite prior issues where the later pain is different in character and location and prior symptoms had improved. The majority applies Schoon to discount the weight of pre‑injury thoracic/lumbar complaints compared to post‑injury SI‑based pain.
• Billman v. Clarke Machine, Inc., 2021 S.D. 18, 956 N.W.2d 812: Defines the odd‑lot framework and the employer’s burden: show actual open jobs within the claimant’s limitations; mere possibility is insufficient. The Court finds the employer met this burden through concrete job listings and internal accommodations.
• Baker v. Rapid City Regional Hospital, 2022 S.D. 40, 978 N.W.2d 368: Restates the two odd‑lot pathways and the claimant’s duty to show a reasonable but unsuccessful job search if not obviously unemployable. Brewer’s search fell short under Baker’s reasonableness benchmark.
• Spitzack v. Berg Corp., 532 N.W.2d 72 (S.D. 1995): Longstanding support for assessing the reasonableness of a claimant’s job search. Cited to uphold the ALJ’s finding that Brewer’s search was not reasonable.
• Statutes:
  • SDCL 62‑1‑1(7): Causation must be established by medical evidence—anchoring the Court’s insistence on diagnostic and clinical proof.
  • SDCL 62‑4‑53: Governs odd‑lot PTD—framing the two‑prong pathway and shifting burdens.
  • SDCL 1‑26‑37: Appellate review of agency decisions—underpins the standards of review applied.

Legal Reasoning

1) Causation: SI‑Joint Diagnostics vs. Degenerative MRIs

The linchpin is whether Brewer’s 2015 lifting‑twisting event was a major contributing cause of his current condition. The majority’s de novo review gives decisive weight to:

• Targeted SI‑joint diagnostics and response: Brewer repeatedly obtained significant relief from SI‑joint injections and medial branch ablations. The treating orthopedist performed the FABER test localizing pain to the SI region and ultimately did a bilateral SI joint fusion—with initial marked improvement. These are direct, pain‑generator‑specific data points.
• Epidural ineffectiveness as a diagnostic exclusion: Even the IME conceded that an epidural at L4–L5 has diagnostic value; no relief suggests the disc is not the culprit. Brewer’s epidural produced little relief, undermining the degenerative disc theory.
• Character and location of pain changed post‑accident: Pre‑injury, Brewer’s pain was primarily thoracic and improved with conservative care. Post‑accident, it localized to the SI/lumbosacral region with different quality and severity—consistent with a lifting/twisting SI injury.
• Treating physician’s longitudinal vantage point: The orthopedist’s opinion was anchored in hands‑on examination, surgical decision‑making, and posterior assessment of treatment efficacy, not merely retrospective record review.
• “A” major cause, not “the” cause: Acknowledging mild age‑typical degeneration, the Court reiterates employment need only be a major contributing cause, not the sole cause. The work event’s contribution need only be substantial, not exclusive.

In contrast, the IME opinions leaned on generalized MRI findings of degeneration and the uncommonness of bilateral SI pain outside major trauma, plus pre‑injury chiropractic notes. The majority faults that approach for not explaining why the pain behaved like SI pain (responded to SI injections; not to epidural) and for over‑valuing pre‑injury notes that were improving and anatomically different. Temporal proximity alone was not decisive; it was the convergence of targeted SI diagnostics, test results, treatment response, and clinical judgment that carried the day.

The dissent emphasizes that the treating orthopedist did not review the entire medical record set (YMC, PT, Sanford, IMEs) and partially relied on Brewer’s history—invoking Hughes to argue his opinion’s foundation was incomplete. The majority effectively responds by focusing on the strength of the SI‑specific evidence and even using IME testimony (epidural diagnostic point) against the IME’s own conclusion.

2) Odd‑Lot PTD: Neither Obviously Unemployable Nor Reasonable Job Search

The Court reaffirms the two odd‑lot avenues:

• Obvious unemployability: Not met. Brewer is relatively young, educated (GED and IT coursework), articulate, and demonstrably employable (14 months at a homeless shelter with accommodations). Recreational activities and childcare do not disqualify a claimant, but they inform the capacity profile the ALJ could credit. The FCE supports limited but real work capacity, especially for sedentary or accommodated roles.
• Unavailability after reasonable efforts: Also not met. Brewer’s job search was inadequately executed—résumé highlighting limitations (a hiring “red flag”), failures to follow application instructions, and lack of follow‑through when employers requested more information. Even Brewer’s own vocational expert discouraged that résumé approach.

Finally, even if Brewer had made a prima facie showing, the employer satisfied its rebuttal burden by identifying actual open jobs (including internal positions at Truxedo and home‑based roles) that would meet Brewer’s FCE limitations and benefit rate—meeting Billman’s “more than mere possibility” requirement.

Impact and Practical Implications

A. Causation in Degenerative‑Backdrop Cases

• Elevated role of targeted diagnostics: Where MRIs show multilevel degeneration, SI‑joint injections, medial branch blocks/ablations, and positive SI‑specific exams (e.g., FABER) can outweigh generalized imaging in proving work‑related causation.
• Treating physicians’ perspectives matter: Without creating a per se preference, South Dakota reinforces that treating physicians may be more persuasive when armed with pain‑generator‑specific evidence and treatment response.
• Insurer practice adjustment: IMEs must grapple directly with SI‑specific findings rather than default to degenerative explanations. An IME should explain why SI‑targeted relief is not probative and address diagnostic non‑response to epidural injections.
• Documentation strategy: Claimants should build a record differentiating pre‑ and post‑injury pain (location, character, severity) and track response (or lack thereof) to targeted procedures.

B. Odd‑Lot PTD Proof

• Reasonable job search remains central: Applicants should avoid self‑sabotage (e.g., leading résumés with physical limitations), follow application instructions, respond to employer inquiries, and maintain detailed logs.
• Employer rebuttal evidence: Showing actual open jobs within FCE restraints and wage thresholds—especially including remote options—effectively defeats odd‑lot claims even where claimants have limitations.
• Accommodated employment counts: Post‑injury work, even part‑time, and activities of daily living can erode “obvious unemployability” arguments.

C. Appellate Review and Agency Proceedings

• De novo reweighing of deposition records: Parties should expect that medical disputes based primarily on depositions and medical records will be reweighed on appeal—heightening the importance of robust, SI‑specific causal explanations in the record.