author: FULLER, Circuit Judge.

text:
    2004 SD 30
    Deanna STREETER, Claimant and Appellant, v. CANTON SCHOOL DISTRICT, Employer and Appellee, and Associated School Boards of South Dakota Worker’s Compensation Trust Fund, Provider and Appellee.
    No. 22748.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 7, 2003.
    Decided March 3, 2004.

      Stephanie E. Pochop of Johnson, Ek-lund, Nicholson, Peterson & Fox, Gregory, for appellant.
    Karla L. Engle of Tieszen Law Office, Pierre, for appellees.
   FULLER, Circuit Judge.

[¶ 1.] Deanna Streeter (Streeter), appeals from a circuit court order denying workers’ compensation benefits for total disability and medical care. We affirm in part and reverse in part.

PROCEDURAL HISTORY

[¶ 2.] Streeter filed a workers’ compensation claim. The Department of Labor (Department) awarded Streeter total disability benefits and ordered the Canton School District (Employer) to pay various claimed medical expenses. Employer appealed. Following a hearing before the Honorable Steven L. Zinter, the case was reversed and remanded to Department for further proceedings. Department entered amended findings of fact and conclusions of law denying Streeter’s permanent total disability benefits but continuing the payment of certain medical expenses. Both Employer and Streeter appealed. The Honorable Lori S. Wilbur affirmed Department’s denial of permanent total disability benefits and reversed Department’s order requiring payment of additional medical expenses.

FACTS

[¶ 3.] While teaching a class with special needs students at school on April 18, 1996, Streeter strained her low back by catching an 80-pound student as he began to fall. Streeter was initially treated by Dr. Tieszen, a chiropractor, for an acute lumbar sprain and spasms. After two months of treatment resulted in no improvement, Dr. Tieszen referred her to an orthopedist.

[¶ 4.] Streeter also saw Dr. Held, her family doctor, who documented Streeter’s pain which sometimes incapacitated her. Dr. Held prescribed pain medications and pool therapy. He released her to light duty work in mid-May 1996, restricting her from lifting, pushing, shoving, bending, squatting and getting down on all fours.

[¶ 5.] Dr. MacRandall, the Chief of Orthopedics at Sioux Valley Hospital, began to see Streeter in July 1996. She complained of pain and difficulty with sitting, sleeping, tingling, numbness and weakness of her legs. Dr. MacRandall initially diagnosed her with low back strain and prescribed medication. Ultimately, he ordered an MRI which showed a mild lumbar disk bulge, moderate bilateral facet hypertrophy and moderate spinal stenosis, a narrowing of the spinal cord. Dr. Ma-cRandall opined that the stenosis predated the injury but was aggravated by Streeter’s work incident. He testified that the April 1996 work injury was a major contributing cause to her disability impairment and need for treatment and that it was a permanent aggravation of her pre-existing condition. He believed that her complaints of pain, numbness and tingling were consistent with her diagnosis.

[¶ 6.] Streeter returned to Dr. Ma-cRandall in November 1996 complaining of problems with standing, staying in one position, pain going down the right leg, numbness of her right heel and scapular pain. Dr. MacRandall testified that these conditions were consistent with his diagnosis. Streeter asked Dr. MacRandall about returning to work. He gave her some work limitations but instructed her to avoid activities that bothered her. In 1996 Dr. MacRandall concluded that Streeter could work four hours a day, advancing to eight over time, but should not lift more than fifteen pounds.

[¶ 7.] In January 1997 Dr. MacRandall referred Streeter to Dr. William Asfora, a neurologist. Streeter complained to him of her pain. Dr. Asfora agreed with Dr. MacRandall that Streeter had spinal steno-sis which was aggravated by her work injury. Dr. Asfora gave her a fifteen pound weight restriction and thought she could do intermittent standing and sitting.

[¶ 8.] Dr. Asfora recommended surgery and Dr. MacRandall concurred that a decompression surgery of L4-5 with posteri- or fusion was appropriate as it would give her more space around her nerves and lessen her pain.

[¶ 9.] After another MRI, Dr. Asfora performed spinal surgery in February 1998. The procedure improved her sitting time but generally worsened Streeter’s back pain.

[¶ 10.] Dr. Asfora and Dr. MacRandall found no indication that Streeter was malingering. A psychological evaluation was conducted by Dr. Hartman. Dr. Hartman performed the Minnesota Multi-Phasic Inventory (MMPI) and interviewed Streeter. He opined that Streeter was experiencing acute stress, but no malingering, exaggeration or misrepresentation was evident.

[¶ 11.] Neither Dr. MacRandall nor Dr. Asfora were able to specifically define Streeter’s functional capacity. She was referred for evaluation of work abilities. In January 1998, physical therapist Scott Vandenbosch at McKennan Hospital attempted a Functional Capacities Examination (FCE), sometimes described as a Functional Capacity Analysis (FCA). The FCA was not completed because of Street-er’s reported pain. Vandenbosch reported observations of objective findings. There were discrepancies between the pain Streeter reported and pain behaviors she exhibited. He observed, for example, that “pain behavior,” both verbally and nonver-bally, was not accompanied with typical alterations in body mechanics, substitutions of movement patterns or changes in body posture that are often seen with reports of significantly increased pain. Van-denbosch further found that in the three separate weight-lifting tests Streeter reported significant increased pain in performing these tests, yet her complaints were not accompanied by objective indications that she was reaching her maximum level of function. Vandenbosch concluded that Streeter self-limited her sitting and standing capabilities. She did not show any weight shifting, guarding, favoring of a body part, or other behavior which would indicate intolerance to static and prolonged standing and sitting. Vandenbosch observed Streeter self-limiting her walking abilities during the FCA, noting that she dragged her right foot during the walking test in a manner that appeared to be exaggerated and attention seeking. Streeter declined to complete the second day of the FCA but Vandenbosch concluded that he knew of no objective evidence to show that Streeter could not have completed the testing on a second day.

[¶ 12.] On February 8, 1999, Streeter was examined at Employer/Provider’s request by Dr. Joel Gedan for an independent medical examination. During this examination, Dr. Gedan noted obvious signs of symptom magnification, including a sharp divergence between seated and supine straight leg raising, and generalized “give way” weakness in both legs. Dr. Gedan diagnosis was chronic low back pain with some thoracic pain and right foot paresphesia related to lumbar spinal steno-sis and status post L4-5 decompression surgery with no objective findings to support Streeter’s ongoing complaints or clinical situation. Dr. Gedan opined that Streeter had reached maximum medical improvement following the February 9, 1998 surgery, because her condition had changed very little since her surgery a year before.

[¶ 13.] It is undisputed that teaching jobs at all times were plentiful, both in 1996 and at the time of the hearing and after. The mere disaffection for her work at the Canton School cannot explain Streeter’s loss of continued employment, loss of income, loss of social life, or her willingness to undergo surgery and take prescription medications for her condition especially when other teaching jobs were plentiful. Dr. MacRandall and Dr. Asfora assigned general restrictions which according to Streeter’s own vocational expert would allow her to be employed at her above pre-injury wage levels.

STATEMENT OF ISSUES
Did Department commit error in determining that Streeter was not entitled to total disability benefits?
Did Department commit error in awarding payment for Streeter’s past medical bill?

STANDARD OF REVIEW

[¶ 14.] “The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct.” Brown v. Douglas School Dist., 2002 SD 92, ¶ 17, 650 N.W.2d 264, 269. “Our standard of review, delineated in SDCL 1-26-36, requires us to give great weight to the findings and inferences made the Department on factual questions. We examine agency findings in the same manner as a circuit court to decide if they were clearly erroneous in light of all of the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully reviewable.” Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (citations omitted).

[¶ 15.] A significant portion of the record in this case consists of expert opinion. “The trier of fact is free to accept all of, part of, or none of, an expert’s opinion.” Johnson v. Albertson’s, 2000 SD 47, ¶ 26, 610 N.W.2d 449, 455 (citations omitted).

A long-accepted premise is that the purpose of expert testimony is to assist the trier of fact and not to supplant it. Experts do not determine credibility. This State is not a trial-by-expert jurisdiction. The value of the opinion of an expert witness is no better than the facts upon which it is based. It cannot rise above its foundation and proves nothing if its factual basis is not true. It may prove little if only partially true. The credibility of witnesses and the evidentiary value of their testimony fall solely within the province of the [fact finder], (citations omitted).

Albertson’s, 2000 SD 47 at ¶ 25, 610 N.W.2d at 455.

[¶ 16.] In this case, almost all of the expert testimony that would aid the fact finder in determining whether Street-er suffered an injury was presented via deposition, affidavit, and exhibits. In this regard, we have stated: “When reviewing evidence presented by deposition, we do not apply the clearly erroneous rule but review that testimony as though presented here for the first time.” Day v. John Morrell & Co., 490 N.W.2d 720, 723 (S.D.1992). Under this standard, “we will decide for ourselves the credibility of the deponents and the weight and value to be attached to their testimony.” Caldwell v. John Morrell & Co., 489 N.W.2d 353, 357 (S.D.1992). “When reviewing evidence presented by deposition, we do not apply the clearly erroneous rule but review that testimony as though presented here for the first time.” Foltz v. Warner Transp., 516 N.W.2d 338, 341 (S.D.1994).

ISSUE ONE

[¶ 17.] Did Department err in determining that Streeter was not entitled to total disability benefits?

[¶ 18.] There are two ways in which a claimant can make out a prima facie case under the odd-lot doctrine. One way is for the claimant to establish obvious unemployability by convincing the trier of fact that she suffers “continuous, severe, and debilitating pain.” Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 29, 571 N.W.2d 376, 381. Once a claimant establishes unemployability, “the burden shifts to the employer to show there is suitable employment available in the claimant’s community that will accommodate claimant’s limitations.” Kester, 1997 SD 127 at ¶ 29, 571 N.W.2d at 381.

[¶ 19.] A claimant’s credibility may be affected by evidence of “malingering.” Factors that may indicate malingering include a marked discrepancy between the claimed injury and objective findings by a medical expert, and lack of cooperation during evaluations and during the claimant’s prescribed treatments. Albertson’s, 2000 SD 47 at ¶¶ 27-29, 610 N.W.2d at 455-456.

[¶20.] Streeter’s FCE done by Van-denbosch, found that she did not exhibit the usual physical manifestations of someone with this sort of injury, such as weight shifting, or favoring, or guarding the sensitive area. He also observed that she seriously dragged one foot during a physical test, while she had not done so in the previous test. He also found an inconsistency in how she raised her leg to 90-degrees while sitting but only 60-degress while lying. Vandenbosch noted that when she was asked to resist a push against her leg, she demonstrated “give away,” that is, at some point her leg gave way in a fashion that signals symptom magnification. Vandenbosch found no evidence of muscle atrophy that might be expected with nerve injury. Finally, Van-denbosch found no reason to support Streeter’s refusal to complete the second day of testing.

[¶ 21.] Dr. Gedan, a neurologist from Minneapolis met two times with Streeter. Dr. Gedan concluded that she demonstrated “profound” symptom magnification based on a number of the same observations made by Vandenbosch. Dr. Gedan performed an electromyogram, which apparently is designed to reveal nerve damage by variations and electric impulses applied to the affected area. Dr. Gedan obtained a negative test. He also noted that the surgery did not improve her condition.

[¶ 22.] Based upon this testimony, after the remand order from Judge Zinter, Department, which had previously determined that Streeter fit within the odd-lot doctrine, reversed itself and determined that Streeter had not established obvious unemployability, that is, continuous, severe and debilitating pain. It further found as a fact that there was suitable employment available in Streeter’s community that would accommodate her limitations. Finally, Department found that SDCL 62-4-53 imposed upon Streeter the burden of making a reasonable, good faith search for work, which she had failed to do. For all of these reasons Department determined that Streeter did not qualify under the odd-lot doctrine.

[¶ 23.] Applying the appropriate review standard, reviewing the medical deposition testimony, deciding for ourselves the credibility of the deponents and the weight and value to be attached to their testimony, we find that the foregoing facts provide sufficient evidence in support of the agency’s finding. Accordingly, we affirm the trial court on this issue.

ISSUE TWO

[¶ 24.] Did Department err in awarding payment for Streeter’s past medical bill?

[¶ 25.] We next consider whether the trial court erred by denying Streeter benefits for past medical expenses. SDCL 62-4-1 provides that “the employer shall provide necessary ... medical ... care.” “It is in the doctor’s province to determine what is necessary or suitable and proper. When a disagreement arises as to the treatment rendered or recommended by the physician, it is for the employer to show that the treatment was not necessary or suitable and proper.” Krier v. John Morrell & Co., 473 N.W.2d 496, 498 (S.D.1991) (emphasis original).

[¶ 26.] “[W]e have previously acknowledged that there may be instances where nonwork related diseases are nonetheless covered under workers’ compensation insurance such as, ‘where the treatment for nonwork related disease would be unnecessary but for the work related injury.’ ” Mettler v. Sibco, Inc., 2001 SD 64, ¶ 9, 628 N.W.2d 722, 724.

[¶ 27.] While the medical testimony from Streeter’s treating physicians and from those who examined her at the request of Employer conflicts at times, Dr. MacRandall testified that the April 1996 work injury was a major contributing cause of Streeter’s disability, impairment and need for treatment. There was no question in Dr. MacRandall’s opinion that Streeter had a permanent aggravation of her preexisting stenosis. Dr. MacRandall was Streeter’s treating orthopod. Dr. As-fora, a neurologist, reviewed Dr. MacRan-dall’s records, conducted his own physical and radiological tests, and agreed with Dr. MacRandall that Streeter had spinal steno-sis which was exacerbated by her work injury. Dr. Asfora recommended surgery. Dr. MacRandall concurred. The expert retained by Employer, Dr. Gedan, agreed that the surgery was a reasonable and medically necessary surgical intervention, stating “it was therefore reasonable and medically necessary for Dr. Asfora surgical intervention on February 2,1998.”

[¶ 28.] Given the doctors’ opinions it is for the employer to show that the treatment was not necessary or suitable and proper. Krier, 473 N.W.2d at 498. It is Employer’s burden to establish the treatment was not necessary or suitable and proper. Reviewing the record as a whole Employer has failed to meet that burden. Thus, the order of the circuit court is reversed as to the medical expenses.

[¶ 29.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 30.] FULLER, Circuit Judge, for ZINTER, Justice, disqualified.

       The doctor testified that people should generally be able to raise their legs in roughly the same range of motion whether seated or lying down. "Give way” weakness occurs when the doctor pushes the patient's leg toward her torso, and rather than steadily resist, the patient's leg prematurely "gives way” as it approaches her body.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2004 SD 29
    Valerie HABBEN, Claimant and Appellee, v. G.F. BUCHE CO., INC., Employer and Appellant.
    No. 22965.
    Supreme Court of South Dakota.
    Considered on Briefs Feb.17, 2004.
    Decided March 3, 2004.

      John D. Jacobsen of Willoughby, Benson and Jacobsen, Burke, South Dakota, Attorneys for claimant and appellee.
    Drew C. Johnson, Aberdeen, South Dakota, Attorney for appellee Dept, of Labor.
    George F. Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, South Dakota, Attorneys for employer and appellant.
   ZINTER, Justice.

[¶ 1.] Valerie Habben worked at a grocery store owned by G.F. Buche Co., Inc. (R.F. Buche, President; hereafter Buche or Employer). After a bank deposit was discovered missing, Habben was accused of taking the money and told that she had to admit the theft or she should leave. Habben did not return to work after the accusation. A hearing examiner and the circuit court awarded unemployment benefits, concluding that Habben did not voluntarily leave her employment without good cause. Absent any record evidence of Habben’s guilt, we affirm.

Facts and Procedural History

[¶ 2.] Habben started working for Employer as a grocery store checker in September 2001. On February 2, 2002, Buche informed all employees that a bank deposit was missing, and he was eager to have the money returned. Buche told the employees that whoever took the money could keep their job if the money was anonymously returned to an outside mailbox at the post office the next morning.

[¶ 3.] The money was not returned, so Buche contacted Sergeant Zylstra of the Wagner police department. Buche told Zylstra that if an employee admitted taking the money and returned it, he or she would not lose their job. On February 4, 2002, Zylstra interviewed Habben and the other employees who had worked on February 1. Zylstra informed them of Buche’s offer.

[¶ 4.] This offer was also communicated to an agent of the Division of Criminal Investigation (DCI), who assisted Zylstra in the investigation. The DCI agent and Zylstra conducted a second round of interviews on February 6, 2002. Buche was out of the office that day and did not participate. Habben was scheduled to work from 11 a.m. to 5 p.m. When she arrived, she was told that Zylstra and the DCI agent were interviewing employees. Habben met with Zylstra and the DCI agent that morning.

[¶ 5.] At the meeting, the DCI agent reiterated that if Habben admitted to taking the money, she could keep her job. Habben, however, denied the theft. Zyls-tra asked Habben if she would be willing to take a polygraph test, and she responded that she would if everyone else had to. The DCI agent then told Habben that he, Zylstra, and Employer’s management believed that she had taken the money. The DCI agent told Habben that they believed she took the money because she was a single parent with five children, so “she had the most to gain by taking it.” The agent continued in his requests for an admission, and Habben continued to deny the theft. The DCI agent persisted, and in addition, made a number of statements as to what would happen if Habben did not admit. In one of those statements, he indicated that Habben’s children would be taken away from her unless she admitted. Habben ultimately left the room and went to see the store manager. She told the manager that the process was “bull.” She then left work at about 11:45 a.m. without permission.

[¶ 6.] The next day, February 7, 2002, Habben did not report for work. Employer’s office manager contacted Habben and asked her to come in to talk to Buche. Habben complied, and during the meeting Buche told her that he and the police believed that she was responsible. Buche also repeated that if she gave the money back, she could retain employment. Hab-ben, however, continued to deny any involvement. Buche then told Habben that unless she made an admission by 3 p.m. that day, a grand jury would convene and issue an indictment against her. After further discussions, Habben asked Buche if she could leave. Buche responded: “If you walk out that door without admitting it, I don’t ever want to see your face again.” Habben testified that she left, believing she had been terminated.

[¶ 7.] Sometime thereafter, Habben filed claims for unemployment benefits. The South Dakota Unemployment Insurance Division determined that Habben voluntarily left her employment without good cause and was therefore disqualified from receiving benefits. A hearing examiner reversed, finding that Habben did not voluntarily quit, but was constructively fired. The circuit court adopted the hearing examiner’s findings. Employer now appeals to this Court raising the following issue:

Whether Habben was disqualified from receiving unemployment insurance benefits after her employment terminated.

Analysis and Decision

[¶ 8.] Our standard of review is well established.

We review administrative decisions in the same manner as the circuit court. Factual findings can be overturned only if we find them to be “clearly erroneous” after considering all the evidence. SDCL 1-26-36; Permann v. South Dakota Dept. of Labor, 411 N.W.2d 113, 117 (S.D.1987). Unless we are left with a definite and firm conviction a mistake has been made, the findings must stand.... Conclusions of law are fully renewable, as are mixed questions of fact and law that require the application of a legal standard. Schuck v. John Morrell Co., 529 N.W.2d 894, 896 (S.D.1995) (citations omitted).

Abild v. Gateway 2000, Inc., 1996 SD 50, ¶ 6, 547 N.W.2d 556, 558-59. In conducting our review, we also consider that it is Employer’s burden to prove that Habben was not eligible for benefits. In re Johnson, 337 N.W.2d 442, 446 (S.D.1983) (citations omitted).

[¶ 9.] Individuals are disqualified from receiving unemployment insurance benefits if they “voluntarily quit employment without good eause[.]” Reetz v. Lutheran Health Sys., 2000 SD 74, ¶ 9, 611 N.W.2d 230, 233 (citing SDCL 61-6-13). Habben asserts that she did not voluntarily terminate, and that if she did, she is not disqualified from receiving benefits because she had good cause to leave her employment. Employer, however, argues that Habben simply “made the decision” not to come back to work, and therefore, she quit voluntarily and became ineligible for benefits.

[¶ 10.] In supporting its argument, Employer points out that Habben was not expressly fired. Employer indicates that: no one ever told Habben that she would be “fired” or “terminated” if she did not admit taking the money; that all employees were told that no one would lose their job; and that all questioned employees were given the same “offer” of continued employment if they returned the money.

[¶ 11.] However, there is also record evidence that Habben reasonably believed she had been terminated by Employer. First, the record reflects that Habben was repeatedly approached and told that she could keep her job if she admitted to the theft. Habben also stated that she was “really, really intimidated” by Zylstra and the DCI agent, and she felt “they had already discussed it, I was fired and out of there.” Moreover, she was told that she would be indicted by a grand jury and her children would be taken away if she did not make an admission. Ultimately, Buche told Habben, “If you walk out that door without admitting it, I don’t ever want to see your face again.” Later, when Buche was asked about his plans for Hab-ben if she did not admit taking the money, he conceded that he “was hoping that, ah, she would not show up[.]”

[¶ 12.] Considering this evidence, the hearing examiner found that “[Habben] did not report for work as scheduled on February 7, 2002, because she reasonably believed her employment was terminated because she refused to admit to taking the money.” (Emphasis added.) The hearing examiner also concluded that she believed Habben’s testimony. Under all of these circumstances, we conclude that the hearing examiner was not clearly erroneous in finding that Habben “reasonably believed that her employment was terminated,” and she did not voluntarily quit.

[¶ 13.] Employer, however, also argues that there was no “good cause” for Habben’s termination. South Dakota law requires “good cause” for voluntarily terminations. The relevant portion of the statute provides:

“Good cause” for voluntarily leaving employment is restricted to leaving employment because:
(3) The employer’s conduct demonstrates a substantial disregard of the standards of behavior that the employee has a right to expect of an employer or the employer has breached or substantially altered the contract for employment[.]

SDCL 61-6-13.1(3).

[¶ 14.] We agree with Habben that, absent evidence of guilt, “[d]emand-ing that an employee admit to thievery in order to retain a job is certainly conduct which demonstrates a substantial disregard of the standards of behavior any employee has a right to expect.” Additionally, we believe that under these circumstances, requiring an involuntary admission of theft as a condition of continued employment “substantially altered” Habben’s contract of employment. Id. Therefore, even if Habben had voluntarily quit, we agree that she had “good cause” under SDCL 61-6-13.1(3).

[¶ 15.] Employer, however, also argues that SDCL 61-6-13.1(3) is inapplicable because law enforcement, rather than Employer, engaged in the coercive conduct that gave Habben reason to believe she was terminated. Employer points out that SDCL 61-6-13.1(3) only applies to employer conduct, and that when Habben left work before the end of her shift on February 6, 2002, she left because of the conversations with the law enforcement officers. Therefore, Employer argues that “good cause” cannot be established under SDCL 61 — 6—13.1(3).

[¶ 16.] We do not agree because factually, Zylstra, the DCI agent and Employer were all part of a “concerted effort.” Cf. Reetz, 2000 SD 74, ¶ 29, 611 N.W.2d at 237 (Sabers, J., dissenting) (noting that a “concerted effort” of administrative employees in their communications with employee justified employee’s belief that employer was “trying to get rid of her”). Here, there was a concerted effort to get Habben to confess. There is no dispute that Zyls-tra and the DCI agent were acting at Employer’s request and for its benefit. Indeed, the Hearing Examiner found that “since [the admit or terminate statement] is the same statement that the DCI'agent made to [Habben] during the February 6 interview, the preponderance of the evidence indicates that [Employer] communicated this to Zylstra, who communicated it to the DCI agent, who then communicated it to [Habben].” Moreover, Habben was told that Zylstra, the DCI agent, and Employer’s management believed that she took the money. Furthermore, everything Habben was told by law enforcement was in line with what all employees were told when Employer first discovered the missing deposit. Finally, even though we acknowledge that Habben initially left on February 6 because of law enforcement’s conduct, her final separation from employment occurred after the February 7 accusation in which Buche himself told her to admit to the theft or leave. Therefore, in light of Buche’s personal and collaborative efforts, we believe that his conduct was sufficiently related to Habben’s separation to be deemed caused by employer conduct.

[¶ 17.] We conclude that, absent evidence of Habben’s participation in the theft, the hearing examiner and the circuit court were justified in finding that Habben did not voluntarily quit without good cause.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

      . $4,061.98 was missing.

      . Employer specifically argues that:
      (1) [The DCI agent] is obviously not [Hab-ben’s] employer, and as such, his conduct is not contemplated by SDCL 61-6-13.1.
      (2) [Employer] had no employment or agency affiliation with [the DCI agent] or the DCI, and he had no authority to control how [the DCI agent] conducted his investigation.
      (3) [The DCI agent] has never had any type of employment affiliation or agency agreement with [Employer]. Moreover, [Employer] did not expressly or impliedly give [the DCI agent] or Sergeant Zylstra the authority to fire his employees.
      (4) Neither [Employer] nor his supervisors told [the DCI agent] how to conduct his investigation, and they never told him to focus his investigation on any particular suspect.
      (5) Given that SDCL 61-6-13.1(3) contemplates only the employer’s conduct, the Court will note that [Employer] was not present at the store on the day [Habben] decided to walk off the job.
      (6) Given that SDCL 61-6-13.1(3) contemplates only the employer's conduct, the Court will note that neither [Employer] nor his supervisors said anything to [Habben] that caused her to walk off the job. To be redundant, [Habben] admits that she walked off the job because of [the DCI agent's] conduct.