author: HALBROOKS, Judge. ROBERT H. SCHUMACHER, Judge

text:
    Mark O. ZIEGELMANN, et al., Respondents, v. NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANIES, Appellant.
    No. A04-412.
    Court of Appeals of Minnesota.
    Sept. 21, 2004.

      Charles T. Hvass, Jr., Hvass, Weisman King, Chartered, Minneapolis, MN, for respondents.
    Steven L. Marquart, Cahill Marquart, P.A., Moorhead, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge; ANDERSON, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

A North Dakota resident injured in a motor-vehicle accident in Minnesota settled the underlying tort case for 90% of the tortfeasor’s liability-coverage limits. The North Dakota resident then sought to recover underinsured motorist (UIM) benefits from his own insurer. The UIM insurer denied benefits on the ground that the policy terms required exhaustion of a tortfeasor’s liability limits and moved for summary judgment. The district court denied the motion for summary judgment but, upon insurer’s request, certified to this court the question of whether the principles set forth in Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), apply to nonresident UIM coverage. We answer the district court’s question in the negative.

FACTS

Respondent Mark 0. Ziegelmann is a North Dakota resident who was injured in January 1998 in a motor-vehicle accident that occurred in Minnesota. At the time, Ziegelmann was a passenger in his truck, which was driven by his brother, Terry Ziegelmann. The truck collided with a vehicle driven by David Pearce.

Pearce was insured under a policy with Allstate with liability-coverage limits of $50,000. Ziegelmann’s coverage on his North Dakota vehicles was with appellant National Farmers Union Property and Casualty Companies (National Farmers).

The policy included underinsured-motorist (UIM) coverage and an exhaustion-of-liability clause:

With regard to ... an underinsured motor vehicle, we will make payment provided ... [t]he limits of all bodily injury liability policies and bonds that apply have been exhausted by payment of settlements or judgments, or such limits where the remaining part of them have been offered to the insured person in writing.

This clause is consistent with North Dakota law, which states that UIM coverage does not apply “[u]ntil the limits of all bodily injury liability policies and bonds that apply have been exhausted.” N.D. Cent.Code § 26.1-40-15.6 (2003).

In November 2002, Ziegelmann’s counsel wrote National Farmers, explaining that Ziegelmann had been offered a settlement in the amount of $45,000 from the $50,000 limit for bodily injury under Pearce’s insurance policy with Allstate. The letter states, “I am writing to you pursuant to the procedure outlined in Schmidt v. Clothier in order to preserve any underinsured motorist benefits that might be available to Mark Ziegelmann in the future.” 338 N.W.2d 256 (Minn.1983). National Farmers responded by letter dated December 3, 2002, writing:

At this time, it is not our intention to substitute the draft on this claim. We will allow Mr. Ziegelmann to sign any releases deemed necessary to acquire the settlement money.
However, it is our opinion that North Dakota Underinsured Motorist Law would apply on this claim. Mr. Ziegel-mann is a resident of North Dakota. His vehicle is primarily garaged in North Dakota and the contract for Un-derinsured Motorist Coverage was entered with National Farmers Union in the state of North Dakota. North Dakota law prescribes that the entire amount of the underlying insurance must be acquired in order for the insured to qualify for an underinsured motorist claim.

After this exchange, Ziegelmann settled with Allstate for $45,000 and commenced this litigation in Minnesota to recover UIM benefits from National Farmers. For the purposes of this appeal, the parties assume that Ziegelmann’s damages exceed $50,000.

National Farmers moved for summary judgment, arguing that under Minn.Stat. § 65B.50, subds. 1, 2 (2002), National Farmers is not required to provide UIM coverage to a nonresident who is injured in an accident in Minnesota. The relevant statutory provisions state:

Subdivision 1. Every insurer licensed to write motor vehicle accident reparation and liability insurance in this state shall, on or before January 1,1975, or as a condition to such licensing, file with the commissioner or thereafter maintain a written certification that it will afford at least the minimum security provided by section 65B.49 to all policyholders, except that in the case of nonresident policyholders it need only certify that security is provided with respect to accidents occurring in this state.
Subd. 2. Notwithstanding any contrary provision in it, every contract of liability insurance for injury, wherever issued, covering obligations arising from ownership, maintenance, or use of a motor vehicle, except a contract which provides coverage only for liability in excess of required minimum tort liability coverages, includes basic economic loss benefit coverages and residual liability coverages required by sections 65B.41 to 65B.71, while the vehicle is in this state, and qualifies as security covering the vehicle.

Minn.Stat. § 65B.50 (2002) (emphasis added).

National Farmers contends that if a nonresident has UIM coverage, it need not comply with Minnesota law, and Minnesota courts may not reform the out-of-state contract to comply with Minnesota law. Ziegelmann argues that the parties used a valid Schmidt procedure to achieve a fair outcome of the case, and National Farmers should, therefore, be bound by that agreement.

The district court focused on whether National Farmers “is freed from any obligation to insure the risk it underwrote by [Ziegelmann’s] use of the Schmidt v. Clothier agreement.” The court noted that under Schmidt, the exhaustion provision of Ziegelmann’s UIM policy would be void, whereas under North Dakota law, the exhaustion provision is valid. The court then considered the five choice-influencing factors applicable to a conflicts-of-law situation and concluded that Minnesota law should be applied. As a result, the district court denied National Farmers’ motion for summary judgment.

At National Farmers’ request, the district court certified as important and doubtful the question of whether “a foreign insurance company licensed in Minnesota that issued an underinsured motorist coverage policy that required exhaustion of liability pursuant to another state’s statute to a non-resident injured in an accident in Minnesota be bound by a properly executed Schmidt v. Clothier agreement?”

ISSUES

I. Are the principles set forth in Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), applicable to nonresident underinsured-motorist coverage?
II. Can an insurer be bound by a nonresident insured’s use of the procedure set forth in the Schmidt opinion?

ANALYSIS

I.

A certified question is a question of law, which this court reviews de novo. Conwed Corp. v. Union Carbide Chems. & Plastics Co., 634 N.W.2d 401, 406 (Minn.2001). The underlying issues here involve statutory interpretation and interpretation of insurance contracts, both of which are legal issues, which we review de novo. Dohney v. Allstate Ins. Co., 632 N.W.2d 598, 600 (Minn.2001).

In Schmidt v. Clothier, the Minnesota Supreme Court resolved the dilemma presented when an insured’s UIM policy contains an exhaustion clause but the best settlement available with the tortfeasor is less than the liability limits of the tortfea-sor’s policy. 338 N.W.2d 256 (Minn.1983). The court held that exhaustion clauses are void as against the policies of Minnesota’s no-fault act. Id. at 261. The court then created a procedure that balanced the right of an insurer to preserve its subrogation claim with the elimination of exhaustion clauses. Id. at 260-63 (insured must give insurer written notice of tentative settlement agreement, after which the insurer has 30 days to either acquiesce in settlement and lose its subrogation right or substitute its draft for the tortfeasor’s tendered draft and protect its subrogation right).

Minnesota’s no-fault act is codified under Minn.Stat. §§ 65B.41-.71 (2002). This court has interpreted Minn.Stat. § 65B.50, subds. 1 and 2, to mean that under the no-fault act, insurers licensed to do business in Minnesota must provide nonresident insureds with basic-economic-loss and residual-liability coverages, but are not required to provide UIM coverage. Warthan v. Am. Family Mut. Ins. Co., 592 N.W.2d 136, 139 (Minn.App.1999), review denied (Minn. July 28,1999).

In Warthan, this court was asked by a nonresident insured, injured in an accident in Minnesota, to reform the insured’s out-of-state UIM policy to comport with the calculation of a UIM insurer’s maximum liability amount as provided under Minnesota’s no-fault act. We declined, holding that because insurers of nonresidents are not required to furnish UIM coverage, “if nonresidents have such coverage it need not comply with Minnesota law.” Id.; see also Aguilar v. Texas Farmers Ins. Co., 504 N.W.2d 791, 794 (Minn.App.1993) (UIM insurer not required to reform nonresident insured’s UIM policy to meet the “add on” benefits required under Minnesota’s no-fault act).

The principles of Schmidt are limited to those claims that arise under the Minnesota no-fault act. Schwickert, Inc. v. Winnebago Seniors, Ltd., 680 N.W.2d 79, 81 (Minn.2004). Because nonresident UIM coverage does not arise under the no-fault act, Warthan, 592 N.W.2d at 139, we conclude that the Schmidt principles do not apply to Ziegelmann’s action to recover UIM benefits under his policy.

II.

Ziegelmann contends that because National Farmers responded to the Schmidt notice, it should be held to that “agreement.” The district court seemed to concur with this framing of the issue, stating that the question before it was “whether [National Farmers] is freed from any obligation to insure the risk it underwrote by plaintiffs use of the Schmidt v. Clothier agreement.” We disagree.

Here, Ziegelmann’s counsel gave National Farmers written notice of a tentative settlement agreement with the tort-feasor, stating that counsel was -writing pursuant to the procedure outlined in Schmidt. National Farmers responded, stating that it would not substitute its draft, that Ziegelmann could “sign any releases deemed necessary to acquire the settlement money,” and that it was of the opinion that North Dakota law would apply to Ziegelmann’s UIM claim, which “prescribes that the entire amount of the underlying insurance must be acquired in order for the insured to qualify for a[n][UIM] claim.”

As previously discussed, the procedure set out in Schmidt is a course of action that occurs in UIM situations arising under the no-fault act, under which exhaustion clauses have been eliminated. Because the principles of Schmidt do not apply to a nonresident’s UIM coverage, an insurer cannot be bound by a nonresident insured’s use of the Schmidt notice procedure. And even if a nonresident insurer could be bound by agreement between the parties, we note that there was no such agreement in this case. By stating that it was National Farmers’ opinion that North Dakota law applied to Ziegelmann’s claim, National Farmers did not assent to the use of the Schmidt procedure.

DECISION

The procedure outlined in Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), did not create a binding agreement between the parties; it is a course of action that applies in UIM situations arising under Minnesota’s no-fault act. Because nonresident UIM coverage does not arise under Minnesota’s no-fault act, Schmidt is not applicable to this case.

Certified question answered in the negative.

ROBERT H. SCHUMACHER, Judge

(dissenting).

I respectfully dissent. I believe the exhaustion clause is not enforceable. First, Minn.Stat. § 65B.50 (2002), and opinions interpreting this statute are clear: Minnesota law will not impose greater underwriting risks on underinsured motorist (UIM) coverage than the insurer of a nonresident has contracted to take. See, e.g., Aguilar v. Texas Farmers Ins. Co., 504 N.W.2d 791, 793 (Minn.App.1993) (stating section 65B.50 does not require that policy written in another state be “written up” to provide, the minimum UIM coverage required by Minnesota law). But these cases áre not applicable here. In this case, Ziegelmann paid premiums for the benefit of carrying the UIM coverage he now seeks to recover. The issue is not whether coverage should be added, but whether the exhaustion clause included in' Ziegelmann’s policy is enforceable. ■

Second, Schmckert, Inc. v. Winnebago Seniors, Ltd., 680 N.W.2d 79 (Minn.2004), has no application here. The facts in that case involved damage to a building, not personal injury resulting from an automobile accident. Id. at 81. Moreover, in Schmckert, the supreme court was asked to determine whether the procedure set forth in Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), could be used to resolve an insurer’s subrogation rights in a first-party property insurance dispute. See Schwickert, 680 N.W.2d at 83. (“Owner asks us to extend [the Schmidt ] procedure for resolving an insurer’s subrogation rights to first-property insurance disputes.”). The supreme court determined the procedure did not apply. Id. at 84. But the supreme court did not determine the issue presented here — whether the exhaustion clause included in a nonresident’s UIM policy is enforceable.

In Minnesota, exhaustion clauses are not enforceable. Schmidt, 338 N.W.2d at 261; see also Minn.Stat. § 65B.49, subd. 4a (2002) (specifying that insured may recover “difference between the limit of under-insured motorist coverage and the amount paid -to the insured by [torfeasor].”). North Dakota law, however, requires the liability insurance of the tortfeasor be exhausted before UIM coverage may be sought. N.D. Cent. § 26.1-40-15.6 (2003). Thus, to determine whether the exhaustion clause is enforceable, we must determine which state’s law applies. The district court was correct in applying a conflict-of-law analysis.

To determine the outcome of a conflict of law, we consider five choice-influencing factors: (1) predictability of result, (2) maintenance of interstate and international order, (3) simplification of the judicial task, (4) advancement of thS forum’s governmental interest, and (5) application of the better rule of law. Jepson v. Gen. Cas. Co. of Wise,, 513 N.W.2d 467, 470 (Minn.1994). The first three factors are not significant in tort cases. Bigelow v. Halloran, 313 N.W.2d 10, 12 (Minn.1981); see also Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 96-97 (Minn.2000) (concluding that all factors except fourth factor were neutral in tort case arising from automobile accident).

The key consideration is the fourth factor, advancement of the forum’s governmental interest. Minnesota places great value in compensating tort victims. Jepson, 513 N.W.2d at 472. In fact, we have refused to apply our law when the law of another state would better serve to compensate a tort victim. See, e.g., Bigelow, 313 N.W.2d at 12-13; Boatwright v. Budak, 625 N.W.2d 483, 490 (Minn.App.2001), review denied (Minn. July 24, 2001). Moreover, because the automobile accident occurred in Minnesota, this state has the stronger governmental interest. See No-dak, 604 N.W.2d at 96 (holding that when all other relevant choice-of-law factors favor neither state’s law, state where accident occurred has strongest governmental interest and that state’s law should be applied).

The fifth factor, better rule of law, requires that Minnesota courts “prefer rules of law which make good socio-economic sense for the time when the court speaks, whether they be its own or another state’s rules.” Bigelow, 313 N.W.2d at 13 (quotation omitted). The supreme court has in some cases not placed significant emphasis on this factor. See Nodak, 604 N.W.2d at 96. Nevertheless, I note that Minnesota law makes good socio-economic sense in this case. By not enforcing exhaustion clauses, Minnesota law ensures that tort victims are compensated and limits the amount of useless litigation occurring in this state. Not only does Minnesota law make good socio-economic sense for tort victims and for the cost imposed on the judicial system, but the procedure outlined in Schmidt protects the economic interests of the insurer. See Schmidt, 338 N.W.2d at 260-63.

For these reasons, I would affirm the district court’s denial of National Farmers’ motion for summary judgment. Minnesota’s law should be applied, under which the exhaustion clause is not enforceable.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2004 SD 96
    In the Matter of the GUARDIANSHIP OF J.C.D., A Minor Child.
    No. 22998.
    Supreme Court of South Dakota.
    Considered on Briefs June 1, 2004.
    Decided Aug. 25, 2004.
    Caitlin F. Collier, Vermillion, South Dakota, Attorney for appellant Mother R.C.
    Elizabeth Rosenbaum, Sioux City, Iowa, Attorney for appellees Grandparents D.D. &B.D.
   KONENKAMP, Justice.

[¶ 1.] In this guardianship action, the mother timely moved to transfer jurisdiction to tribal court. All parties stipulated that the matter was controlled by the Indian Child Welfare Act (ICWA). On considering the motion, the trial court ruled that good cause existed to deny the transfer because witnesses and parties would be unduly burdened if the motion was granted and because the best interests of the child were best served by denying the request. Because these reasons were inadequate to override the mandates of ICWA, we reverse.

Background

[¶ 2.] J.C.D. was born on December 16, 2001. He has lived in the Vermillion, South Dakota area all his life, where he has been in the custody of his mother, R.C. The mother and father resided together in Vermillion. They were fulltime students at the University of South Dakota. The mother and J.C.D. are enrolled members of the Crow Creek Sioux Tribe. Both the mother and father have a history of legal troubles. At the time of the circuit court’s decision, the father stood charged with grand theft and third degree burglary.

[¶ 3.] J.C.D.’s paternal grandparents live in rural Union County, not far from Vermillion. The maternal grandmother, H.C., a former resident of Vermillion, now lives in Mitchell, South Dakota. With the parents having busy educational, employment, and social schedules, they relied heavily on the paternal grandparents to provide daily care for J.C.D. In May 2002, the paternal grandparents applied for temporary guardianship in order to assure the child’s safety and well being. At the time, the mother was in jail and the father had requested their help because he was unable to care for the child. On May 15, 2002, the circuit court appointed the paternal grandparents temporary guardians for a period of six months. Since that time, they have provided for all the child’s physical and emotional needs.

[¶ 4.] On September 18, 2002, the paternal grandparents petitioned for permanent guardianship because they believed that the mother and father were unable to properly care for J.C.D. That same day, the mother enrolled J.C.D. in the Crow Creek Sioux Tribe. Notice of this proceeding was given to the Tribe. On Sép-tember 30, 2002, the mother moved to transfer jurisdiction of the proceedings to the Crow Creek Tribal Court. On October 3, 2002, the Tribe made an appearance and moved to intervene. In response, the paternal grandparents agreed to the intervention but resisted the transfer.

[¶ 5.] On October 21, 2002, a hearing was convened on the matter. The court took the transfer issue under advisement and proceeded to hear testimony in support of the guardianship. Before the hearing concluded, the parties stipulated that the trial court should enter an order placing legal guardianship of J.C.D. with the paternal grandparents. However, in accord with the stipulation, the parties reserved the right to appeal any legal issue that they believed existed. In accord with the stipulation, the trial court entered an order and letters of guardianship.

[¶ 6.] On February 6, 2003, the father moved the court to reconsider the existing guardianship. On February 11, 2003, the mother moved to reconsider the guardianship for failure to establish jurisdiction under the Indian Child Welfare Act. The transfer motion was heard on April 30, 2003.

[¶ 7.] At the hearing, all parties agreed that the provisions of ICWA applied. Using Bureau of Indian Affair guidelines defining “good cause,” the trial court found that “good cause” to retain jurisdiction existed and therefore denied the transfer request. The mother now appeals on several issues. We deem the following issue dispositive: “Did the trial court err in denying the natural mother’s motion to transfer jurisdiction of the guardianship proceedings to the tribal court, in particular, by finding undue hardship existed as good cause to deny transfer to tribal court, and by incorrectly considering and/or applying a ‘best interests of the child’ standard inappropriate for ICWA cases?”

Analysis and Decision

[¶ 8.] ICWA was created to protect the best interests of Indian children and to promote the security of Indian tribes. 25 USC §§ 1901-63. This purpose is achieved by ensuring that tribes play an expanded role in custody proceedings involving Indian children. We first address the paternal grandparents’ argument that ICWA is inapplicable here because it specifically provides that it only applies to foster care placements and termination of parental rights proceedings. This is clearly not a termination proceeding. So we must examine whether this case involves a “foster care placement.” See 25 USC § 1911(c). The Indian Child Welfare Act defines “foster care placement” as

any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

25 USC § 1903(1)0).

[¶ 9.] Although we have never specifically addressed this question in a grandparent guardianship case, several other courts have. The majority rule is typified by In re A.K.H., 502 N.W.2d 790, 792 (Minn.Ct.App.1993). There, a grandmother successfully obtained sole physical and legal custody of an Indian child, with visitation rights for the parents. Their rights were not terminated. The Minnesota court had to decide whether an Indian tribe had a statutory right to intervene under ICWA. And the question became whether the proceeding involved a foster care placement. In examining the provisions of ICWA, the court found that (1) an Indian child was removed from the child’s parent or Indian custodian; (2) the child was temporarily placed in “the home of a guardian”; (3) the parents could not have the child returned upon demand; and (4) parental rights had not been terminated. Although the court did not conclude that the grandmother’s home was a foster home under ICWA, it reasoned that the nature of the guardianship did not allow for the return of the child upon demand, thus it qualified as a guardian placement under ICWA, and therefore ICWA applied.

[¶ 10.] Similarly, in the case of In re S.B.R., 43 WashApp. 622, 719 P.2d 154, 156 (1986), the court ruled that the rights acquired by the grandparents qualified as an ICWA guardianship. Because the father could not have the child returned upon demand, but could only seek to modify the guardianship decree, this was a placement proceeding contemplated by ICWA. We think this reasoning is sound. ICWA applies to this guardianship proceeding.

[¶ 11.] We turn now to address the mother’s appeal issue. She questions whether the trial court erred in determining that “good cause” existed to deny the transfer. We hold that “good cause” did not exist. Section 1911(b) of ICWA provides:

.In any State court proceeding for the , foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the. Indian child’s tribe, the court, in the-absence of good cause to the contrary,. shall transfer such proceeding to the jurisdiction of the tribe, - absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

25 USC § 1911(b). Because nowhere within the provisions of ICWA is “good cause” defined, we look to the BIA guidelines. In re J.L., 2002 SD 144, ¶ 12, 654 N.W.2d 786, 790. These guidelines suggest that “good cause to the contrary” may include situations where “evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to witnesses and parties[.]” Id. (emphasis added).

[¶ 12.] In making its determination to deny transfer to the tribal court, the circuit court reasoned that “the expense and inconvenience which would be incurred by petitioners if this matter [were] transferred to Fort Thompson, when all of the witnesses (probably for both parties) are located in Vermillion, outweighs the other applicable guidelines.” In their brief, the paternal grandparents list several witnesses who would be required to travel to the Crow Creek Sioux Tribal Court if the motion for transfer were granted. While we admit that there may be some inconvenience involved, we cannot say that the hardship would be “undue.” Under the trial court’s and the paternal grandparents’ reasoning, almost every case involving a child not residing on a reservation could be denied transfer. Generally, courts have denied transfer where very long distances existed between the parties and the tribal court. See In re S.S., 167 Ill.2d 250, 212 Ill.Dec. 590, 657 N.E.2d 935, 943 (1995) (motion to transfer from Illinois to Montana denied); In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984) (motion to transfer from Iowa to South Dakota denied); In re A.P., 25 Kan.App.2d 268, 961 P.2d 706, 712 (Kan.Ct.App.1998) (motion to transfer from Kansas to South Dakota denied); Chester County Dep’t of Soc. Serv. v. Coleman, 303 S.C. 226, 399 S.E.2d 773, 775-76 (1990) (motion to transfer from South Carolina to South Dakota denied). No similar circumstances exist here.

[¶ 13.] Nor are we convinced by the paternal grandparents’ attempt to analogize this case to Interest of J.J., 454 N.W.2d 317 (S.D.1990). In that case, the trial court did not solely rely on undue hardship. Id. There, the trial court considered other factors along with the undue hardship factor to arrive at its decision. Furthermore, the facts in that case indicate that the state court proceedings had already been lengthy and protracted. Id. There were no similar findings here.

[¶ 14.] Left then is the circuit court’s reliance on the child’s best interests as a factor in determining that jurisdiction should not be transferred. While we have suggested that a trial court may properly consider a child’s best interests in determining whether transfer of jurisdiction is proper, we recently cautioned, “that a substitute parent might provide a child with good care or even better care than its natural parent is not an appropriate standard for determining the best interests of a child” in the context of a ICWA transfer decision. J.L., 2002 SD 144, ¶ 21, 654 N.W.2d at 792. The conclusions of the trial court point to little else. In its decision the court explained, “based on the record at the present time this Court is satisfied that the [paternal grandparents] truly care for [J.C.D.] and have done whatever they could to care for him. They have provided a good home, medical care, and the care and stability that [J.C.D.] needs. Based on the record before the Court at this time the Court concludes that it would be in [J.C.D.’s] best interests to remain with [the Paternal Grandparents].” We have no reason to doubt the veracity of these findings. Undoubtedly, the paternal grandparents love this child and have met all his needs. However, as we point out above, that is not a sufficient standard upon which to deny a motion to transfer. It is for the Crow Creek Tribal Court to consider these matters and decide what is in J.C.D.’s best interests.

[¶ 15.] Reversed.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 98
    STATE of South Dakota, Plaintiff and Appellee, v. MYRL & ROY’S PAVING, INC., Defendant and Appellant.
    No. 22925.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided Aug. 25, 2004.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, SD, for plaintiff and appellee.
    Ronald G. Schmidt of Schmidt, Schroyer & Moreno, Rapid City, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] After a driver was stopped and charged for operating an overweight vehicle in violation of various provisions of SDCL Chapter 32-22, the State brought charges against Myrl & Roy’s Paving, Inc. (Myrl & Roy’s) as owner of the vehicle. A magistrate found Myrl & Roy’s guilty on five counts of violating SDCL 32-22-16 and one count of violating SDCL 32-22-52. The magistrate further imposed a civil penalty pursuant to SDCL 32-22-55. The circuit court affirmed the magistrate’s judgment, and Myrl & Roy’s now appeals. Affirmed.

FACTS AND PROCEDURE

[¶ 2.] Myrl & Roy’s is a large corporation engaged in construction primarily in the Sioux Falls, South Dakota area. As part of its business, it owns rock quarry operations as well as several multi-axle motor vehicles used to haul heavy loads. On August 17, 2001, Jericho Dede (Dede), an employee of Myrl & Roy’s, was hauling asphalt mix for a paving project at the Sioux Falls airport. Dede obtained the mix from an asphalt plant located in one of Myrl & Roy’s pits. In order to obtain the asphalt mix, Dede drove under a silo which made a series of drops into the truck. Before Dede drove under the silo, however, another driver had sensed his truck was overweight, and some of the mix from his truck was placed in Dede’s vehicle at the direction of an on-site manager. Dede proceeded to obtain the usual amount of asphalt mix from the silo despite the fact that he already had some amount of material in his truck. Dede also declined to weigh his truck on a platform scale located near an exit of the pit.

[¶ 3.] After Dede left the plant, an officer with the Sioux Falls police department stopped his truck and determined that the four axle vehicle was overweight. The following chart illustrates the individual axle weights in pounds:

The State subsequently charged Dede with numerous violations of SDCL Chapter 32-22.

[¶ 4.] As owner of the overweight vehicle, the State also charged Myrl & Roy’s with the following violations:

Count I: Overweight in excess of 20,000 lbs. on one axle in violation of SDCL 32-22-16(1)
Count II: Overweight in excess of 20,-000 lbs. on one axle in violation of SDCL 32-22-16(1)
Count III: Overweight on tandem axles in violation of SDCL 32-22-16(3)
Count TV: Overweight on two or more consecutive axles in violation of SDCL 32-22-16(3)
Count V: Overweight on two or more consecutive axles in violation of SDCL 32-22-16(3)
Count VI: Operating vehicle with cut or worn tires in violation of SDCL 32-19-13
Count VII: Operation of oversize or overweight vehicle in violation of SDCL 32-22-52

A magistrate judge found Myrl & Roy’s guilty on Counts I and II because axles 3 and 4 were individually overweight. Because axles 3 and 4 were cumulatively overweight, Myrl & Roy’s was guilty on Count III. Similarly, the magistrate judge determined Myrl & Roy’s to be guilty on Counts IV and V because axles 2, 3, and 4, as well as axles 1, 2, 3, and 4 (the gross weight of the vehicle) were cumulatively overweight. Myrl and Roy’s was found not guilty on Count VI. Finally, the magistrate found Myrl & Roy’s guilty on Count VII because the gross weight of the vehicle exceeded the legal limit. The magistrate also imposed a civil penalty pursuant to SDCL 32-22-55.

[¶ 5.] The circuit court affirmed the judgment of the magistrate and found that the overweight statutes apply to owners as well as drivers. The circuit court further determined there was no double jeopardy violation because the gross weight of the vehicle along with each set of axle violations involved separate, distinct violations of South Dakota’s overweight statutes. Myrl & Roy’s now appeals and raises the following issues for our review:

1. Whether SDCL 32-22-16 and 32-22-55 applied to Myrl & Roy’s as owner of the overweight vehicle.
2. Whether the penalties under SDCL 32-22-16 and 32-22-52 subjected Myrl & Roy’s to double jeopardy in violation of Article VI, Section 9 of the South Dakota Constitution.

STANDARD OF REVIEW

[¶ 6.] This case presents issues involving statutory construction, and as such our review is de novo. Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480). We employ the following well-settled principles in our interpretation of legislative enactments:

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to. the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result.

Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citation omitted).

ANALYSIS AND DECISION

[¶ 7.] 1. Whether SDCL 32-22-16 and 32-22-55 applied to Myrl & Roy’s as corporate owner of the overweight vehicle.

[¶ 8.] The magistrate and circuit court determined that SDCL 32-22-16, 32-22-52, and 32-22-55 applied to Myrl & Roy’s as the owner of the overweight vehicle. Myrl & Roy’s concedes the application of 32-22-52 but argues 32-22-16 and 32-22-55 apply solely to the driver of the overweight vehicle and not to the owner of such a vehicle. SDCL 32-22-16 provides, in pertinent part:

No motor vehicle or combination of vehicles operating on a public highway may have a weight:
(1) In excess of twenty thousand pounds on any one axle, or in excess of the tire weight per inch of tire width prescribed by § 32-22-21, including all enforcement tolerances;
(3) In excess of the maximum weight on two or more consecutive axles as determined by the formula detailed in § 32-22-16.1, or in excess of the tire weight per inch of tire width prescribed by § 32-22-21. However, in no instance may the gross weight of any vehicle or combination of vehicles exceed eighty thousand pounds on the interstate highway.

(emphasis added). The relevant part of SDCL 32-22-55, a civil penalty statute, states:

Any person who is convicted of the offense of operating a motor vehicle upon the public highways of this state with weight upon any wheel, axle, or groups of axles or upon more than one thereof greater than the maximum permitted by §§ 32-22-2 to 32-22-33, inclusive, 32-22^47 and 32-22-48 shall be fined in addition to, and not in substitution for, any other penalties now provided by law for such offense ...

(emphasis added). See State v. Feiok, 364 N.W.2d 536 (S.D.1985) (determining SDCL 32-22-55 to be a civil penalty in reasonable relation to the State’s goal of enforcing the weight restrictions set forth in its statutes).

[¶ 9.] The question of whether SDCL 32-22-16 and 32-22-55 apply to owners as well as drivers of overweight vehicles turns on our interpretation of the term “operating” found in both statutes. At the outset, we note the fact that neither statute specifically mentions the words “owner” is clearly not dispositive. While neither SDCL 32-22-16 nor 32-22-55 contains the term “driver,” this Court has consistently upheld the application of the statutes and their respective penalties to drivers of overweight vehicles. See State v. Krahwinkel, 2002 SD 160, 656 N.W.2d 451; State v. Geise, 2002 SD 161, 656 N.W.2d 30; Feiok, 364 N.W.2d 536. The legislature certainly did not intend for the statutes to apply to no one. By their own specific terms, the statutes are not limited in application to either drivers or owners.

[¶ 10.] The intent of a statute “must be determined from the statute as a whole.” Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d at 611. We believe the manner in which the statutes establish liability suggests the legislature intended for SDCL 32-22-16 and 32-22-55 to apply to the owners of overweight vehicles as well as drivers. First, it is noteworthy that unlike most other criminal statutes that prohibit “a person” from engaging in certain proscribed conduct, SDCL 32-22-16 simply prohibits “vehicles operating” with excessive weight. So also, SDCL 32-22-55 which imposes liability upon any person convicted of that SDCL 32-22-16 “operating” offense. Thus, the statutes leave room for any person who is engaged in vehicle operations. Second, it is important to note that as strict liability statutes designed to protect the integrity of our roads in South Dakota, SDCL 32-22-16 and 32-22-55 do not require the State to establish any element of intent or malfeasance. See also Krahwinkel, 2002 SD 160, ¶ 37, 656 N.W.2d at 464 (holding, inter alia, “that actual damage is not a condition precedent to the imposition of a civil penalty.”). The State need only prove that a vehicle is overweight in order to bring criminal charges under SDCL 32-22-16 and impose a civil fine pursuant to SDCL 32-22-55. Thus, the statutes are directed toward truck operations in general, which can include both owners and drivers. Given the general purpose of South Dakota’s overweight statutes — ensuring the safety and quality of public roads — we believe a reasonable interpretation of SDCL 32-22-16 and 32-22-55 encompasses liability for owners of overweight vehicles as well as drivers.

[¶ 11.] Our recent decision in Harris v. Best Business Products, Inc., 2002 SD 115, 651 N.W.2d 875, involved the application of a similarly worded statute, SDCL 32-19-13, which provides in pertinent part:

No person may operate on the public highways of this state a licensed motor vehicle which has a mounted tire ... having a minimum tread depth less than two thirty-seconds of an inch on any two adjacent tread grooves.

(emphasis added). We determined that the statute applied to both owners as well as drivers of an offending vehicle. Id., ¶ 10. Central to our decision was the fact that it was “the employer’s negligence that caused” the violation. Id., ¶ 18.

[¶ 12.] Owners act through their employees, and the facts in this case show it was logical for the State to focus upon Myrl & Roy’s rather than Dede, the driver of the overweight truck. A manager directed that a portion of asphalt mix from an overweight truck be placed in Dede’s vehicle before it proceeded under the silo to receive its own load. Despite the fact Dede’s vehicle already contained a significant amount of material, the silo, under the control of the manager, deposited the regular amount of asphalt mix in Dede’s truck. Myrl & Roy’s did not have a policy requiring its drivers to weigh their vehicle before traveling on public roads.

[¶ 13.] When the legislature drafted SDCL 32-22-16 and 32-22-55 it did not specifically limit its application to drivers. Moreover, the general purpose of the statutes along with the manner in which liability is determined suggests the legislature contemplated their application to owners of- overweight vehicles. The specific facts of the case support the State’s determination that Myrl & Roy’s should bear the responsibility of the overweight vehicle. In sum, we hold SDCL 32-22-16 and 32-22-55 may apply to owners of overweight vehicles as well as drivers.

[¶ 14.] 2.. Whether the penalties under SDCL 32-22-16 and 32-22-52 subjected Myrl & Roy’s to double jeopardy in violation of Article VI, Section 9 of the South Dakota Constitution.

[¶ 15.] Myrl & Roy’s next contends that the penalties imposed under SDCL 32-22-16 and 32-22-52 subjected it to double jeopardy in violation of the South Dakota Constitution. SD Const, art. VI, Section 9. SDCL 32-22-16 set out above is a criminal statute. SDCL 32-22-52 is also a criminal statute which provides:

It is a Class 2 misdemeanor for any person to drive or move, or for the . owner to cause or knowingly permit to be driven or moved, on any highway any vehicle or vehicles, of a size or weight exceeding the limitations stated in this chapter, or the rules and regulations of the Transportation Commission or county commission adopted pursuant thereto.

In essence, Myrl & Roy’s claims it cannot be subjected to multiple penalties under SDCL 32-22-16 and 32-22-52 because only one truck was overweight and therefore, it can only be cited for one violation.

[¶ 16.] Myrl & Roy’s misapprehends the South Dakota overweight vehicle statutory scheme. SDCL 32-22-16 and 32-22-16.1 provide for three different types of overweight violations, with each violation requiring proof of different facts: (1) gross weight violations; (2) single axle violations; and (3) violations encompassing two' or more axles. In this case, Myrl & Roy’s was found guilty on one or more of each type of violation and each involved different facts. Therefore, Counts I through IV clearly constituted separate, distinct violations of South Dakota overweight vehicle law and, thus, do not subject Myrl & Roy’s to double jeopardy.

[¶ 17.] Count V, essentially based upon the gross weight of the vehicle, charged Myrl & Roy’s with a violation of SDCL 32-22-16. Count VII, also based upon the gross weight of the truck, charged Myrl & Roy’s with a violation of SDCL 32-22-52. However, as applied to the facts of this case a violation of SDCL 32-22-52 requires the proof of an element which SDCL 32-22-16 does not; ie. that “the owner caus[ed] or knowingly per-mitt[ed]” the vehicle to be driven or moved. Therefore, as applied, there would be no double jeopardy violation under a Blockburger analysis. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Moreover, as we recognized in State v. Weaver, multiple punishments for the same offense do not offend the double jeopardy clause “if the Legislature plainly intended to impose multiple punishments.” 2002 SD 76, ¶ 14, 648 N.W.2d 355, 359 (citing State v. Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d 37, 43-44 (acknowledging that “[c]ourts cannot impose multiple punishments for different offense arising out of the same conduct but the Legislature can.”) (citation omitted)). Here, we believe the legislature intended to impose additional punishments for overweight vehicles given the fact that SDCL 32-22-52 explicitly imposes a penalty when the weight of the vehicle exceeds “the limitations stated in this chapter” e.g. the weight limitations in SDCL 32-22-16. Because this language clearly reflects legislative intent to impose an additional penalty for a violation of SDCL 32-22-16, Myrl & Roy’s cannot show a violation of double jeopardy in this case.

[¶ 18.] Affirmed.

[¶ 19.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The State later dismissed the charges against Dede and solely prosecuted Myrl & Roy's for operation of the overweight vehicle,

      . Despite Myrl & Roy's assertion in its brief, the definition of "operator” found at SDCL 32-35-1(9) is limited to Chapter 32-35 and does not apply to the issues before us.

      . In its,reply brief, Myrl and Roy’s briefly raises the issue of double jeopardy in regard to SDCL 32-22-16 and 32-22-55. We have conclusively held that imposition of the civil penalty under 32-22-55 in addition to the criminal .penalty under SDCL 32-22-16 does not subject a defendant to double jeopardy. Krahwinkd, 2002 SD 160, ¶ 29-34, 656 N.W.2d at 462-64; Feiok, 364 N.W.2d at 538-39.

      . SDCL 32-22-16.1 describes the formula for determining the weight on groups of consecutive axles.


author: ZINTER, Justice TICE, Circuit Judge

text:
    2004 SD 99
    Mary Ann HAYNES, Claimant and Appellant, v. McKie FORD, Employer and Appellee, and Mid-Century Insurance Company, Insurer and Appellee.
    No. 22749.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 27, 2003.
    Reassigned March 30, 2004.
    Decided Aug. 25, 2004.

      Michael J. Simpson of Julius and Simpson Rapid City, SD, for claimant and appellant.
    Craig A. Pfeifle, J. Ashley Parr of Lynn, Jackson, Shultz & Lebrun, Rapid City, SD, for employer, insurer and appellees.
   ZINTER, Justice

(on reassignment).

[¶ 1.] Mary Haynes appeals from a circuit court decision overruling a Department of Labor ruling that Haynes was permanently and totally disabled and entitled to workers’ compensation benefits. We affirm the circuit court.

Facts and Procedural History

[¶ 2.] Mary Haynes was diagnosed with mild mental retardation predating this case. She worked at several jobs after finishing high school, but they were all short-lived. She was unemployed from October 1995 to March 1997, but then started a program at the Black Hills Workshop, a non-profit organization that provides employment service to adults with disabilities. There, Haynes was given daily assistance and job skills. She was also “placed” at the Comfort Inn as a housekeeper. In that employment, she was given a substandard work evaluation, but was “getting close to the standard for the average worker.” In October 1997, Haynes was placed at McKie Ford as a cleaning person. In March 1998, she asked that Black Hills Workshop’s services be terminated and she be allowed to continue her job at McKie Ford “on her own.”

[¶ 3.] On March 5, 1999, Haynes slipped and fell while working at McKie Ford. She was treated in the emergency room by Dr. Bryan Den Hartog. He diagnosed Haynes with an acute low back strain. He took Haynes off work for two weeks, and then returned her to work on a part-time basis.

[¶ 4.] Haynes testified that she continued to have pain in her back and maintained that the pain did not exist prior to the slip and fall. However, Dr. Den Har-tog noted that Haynes had good range of motion in her back and her neurovascular examination and motor function appeared intact. Dr. Den Hartog further noted that Haynes was not doing the back exercises she had been instructed to do. Because of Haynes’s continued complaints of pain and the absence of abnormalities in his evaluations, Dr. Den Hartog ordered an MRI to rule out any objective injury. The results of the MRI were “essentially normal.” Dr. Den Hartog thereafter noted that “most of her complaints [were] subjective. I cannot find any objective signs on her examination today of any significant nerve impingement or mechanical back pain.” Moreover, by the summer of 1999, Dr. Den Hartog returned Haynes to working full-time.

[¶ 5.] In October 1999, Haynes was terminated from McKie Ford for reasons unrelated to the work injury. Haynes next found a job at a Super 8 motel in December 1999. She started working part-time in the laundry department, and this position increased to full-time employment in the summer months.

[¶ 6.] At the request of the workers’ compensation insurer, Haynes was examined by Dr. Brett Lawlor. Dr. Lawlor saw Haynes five times from June 1999 until March 2000. Neither a MRI, EMG, nor an x-ray could confirm a specific source of pain. However, Dr. Lawlor diagnosed mechanical low back pain, a designation that he described as a catch-all diagnosis for patients who do not have a specifically identifiable cause of back pain. He stated that Haynes’s subjective complaints were the only evidence of a permanent injury. Dr. Lawlor also noted that Haynes had not been fully .compliant with her physical therapy. Therefore, although Dr. Lawlor indicated that the slip-and-fall was a major contributing cause of Haynes’s initial mechanical back pain, he opined that the work injury was not a major contributing cause of any permanent impairment, and he returned her to work without restrictions. Although Dr. Lawlor also testified that it was not his opinion Haynes was malingering, he opined that Haynes had a zero percent impairment rating.

[¶ 7.] In March 2000, Haynes was still complaining of back pain and right leg numbness to Dr. Lawlor. Dr. Lawlor found her complaints to be inconsistent and further found that when Haynes was casually observed, she had greater flexion than that demonstrated when she was being directly observed. Dr. Lawlor again found that Haynes’s test results were normal.

[¶ 8.] Haynes next sought medical care from Nancy McPherson, a physician’s assistant. McPherson treated Haynes on a number of occasions for a variety of conditions including anxiety and depression. McPherson saw Haynes for back pain on three occasions from June through September of 2000. On the September visit, McPherson limited Haynes to working twenty hours per week and four hours a day. However, McPherson testified that this restriction was temporary, and that Haynes was to see her again in a few weeks. Haynes did not return to McPherson.

[¶ 9.] In November 2000, Haynes sought treatment from Dr. Gregory Low-enberg, a chiropractor. Dr. Lowenberg treated Haynes from November 2000 through March 2001. He found “tightness or spasm” in Haynes’s mid-back down through her buttocks. Dr. Lowenberg testified that his findings of spasms were objective findings. He also found Haynes’s spine had restricted motion. Although Dr. Lowenberg believed that Haynes had back pain, he conceded that he was unable to express an opinion that Haynes was permanently disabled as a result of the slip-and-fall. He was unable to express that opinion because Haynes never followed through on the treatment plan he prescribed for her to get back to work.

[¶ 10.] A number of other factors impacted Haynes’s ability to work. In October 2000, Haynes was the victim of domestic abuse, and her husband was jailed for the offense. Additionally, in early 2001, Haynes was admitted to a psychiatric facility on two occasions.

[¶ 11.] Consequently, evidence was presented at hearing from Dr. Charles Lord, a psychiatrist. Dr. Lord had last seen Haynes in October 1998, prior to her work injury. After reviewing her post injury medical history and his prior involvement with Haynes, he opined that she had a tendency to somatize, meaning she took psychological discomfort and put it into a target organ. He explained this condition by noting that the medical evidence reflected no objective physical findings that caused the ongoing problem. He ultimately opined that Haynes’s mental condition would have made her uncompetitive in the labor market with or without the injury at McKie Ford. With respect to the issue of that injury being a major contributing cause of a permanent and total disability, he specifically deferred to Dr. Lawlor, but declined to defer to Dr. Lowenberg or McPherson.

[¶ 12.] At the time of the hearing, Haynes worked at the Clarkson nursing home. In that job, she sat at a table folding laundry approximately twenty to twenty-five hours per week. Occasionally, Haynes worked up to thirty to thirty-five hours per week.

[¶ 13.] After a hearing, the Department awarded permanent and total disability benefits. The circuit court reversed. Haynes now appeals, raising the following issues:

1. Whether the circuit court erred in determining that Haynes’s work injury was not a major contributing cause of her current disability.
2. Whether the circuit court erred in determining that Haynes was not permanently and totally disabled pursuant to the odd-lot doctrine.

Analysis and Decision

[¶ 14.] In workers’ compensation cases:

Our standard of review ... is controlled by SDCL 1-26-37. “Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.” We will reverse only when, after careful review, we are firmly convinced a mistake has been made.... “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.” “Whether a claimant makes a prima fa-cie case to establish odd-lot total disability inclusion is a question of fact.”

Lagge v. Corsica Co-op, 2004 SD 32, ¶ 14, 677 N.W.2d 569, 573 (internal citations omitted). However, when an agency makes factual determinations on the basis of documentary evidence, such as a deposition, the matter is reviewed de novo. Watertown Coop. Elevator Ass’n. v. SD Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167,171 (citations omitted).

1. Whether Department erred in determining that Haynes’s work injury was a major contributing cause of her current disability.

[¶ 15.] Haynes claims permanent, total disability under the odd-lot doctrine. Under the odd-lot doctrine, a workers’ compensation claimant must show that her physical condition, in combination with her age, training, and experience, and the type of work available in her community, causes her to be unable to secure anything more than sporadic employment resulting in insubstantial income. Enger v. FMC, 1997 SD 70, ¶ 21, 565 N.W.2d 79, 85 (quoting Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995)). This showing can be made by establishing either that: “1) she is obviously unemployable; or 2) suitable employment is unavailable.” Id. (citing Petersen v. Hinky Dinky, 515 N.W.2d 226, 231-32 (S.D.1994)).

[¶ 16.] Haynes testified that she had experienced back pain continuously since the date of her work injury. She also testified that prior to that work injury, she did not have any significant difficulty with her back. Although she worked full-time at McKie after her injury, she further testified that she sought medical assistance for treatment of her pain after the incident. The Department found her credible, (however, see infra note 2), and based on medical depositions, further found that her injury was a major contributing cause of her current disability. Therefore, the Department awarded permanent total disability benefits.

[¶ 17.] SDCL 62-1-1(7)(a) provides that “[n]o injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of[.]” (Emphasis added.) “ ‘Condition’ ... is the loss produced by some injury; i.e., it is the result rather than the cause. The word ‘condition’ means ‘state of being.’ ” Steinberg v. SD Dept, of Military and Veterans Affairs, 2000 SD 36, ¶ 10, 607 N.W.2d 596, 600 (citations omitted) (emphasis added). Accordingly, even though there is no medical dispute that Haynes suffered an initial work-related injury, that injury does not automatically establish entitlement to benefits for her current claimed condition. Haynes must have also established that this injury became a major contributing cause of her current claimed condition. To decide that question, we determine whether Haynes produced sufficient medical testimony to establish that the slip-and-fall was a major contributing cause of her current, claimed inability to work full-time.

[¶ 18.] That medical testimony was presented through the depositions of Dr. Lord, a psychiatrist; Dr. Lawlor, a board-certified specialist in physical medicine and rehabilitation; Dr. Lowenberg, a chiropractor; and Ms. McPherson, a physician’s assistant. As an overview, we observe that both Dr. Lord and Dr. Lawlor supported employer’s position that the slip- and-fall was not a major contributing cause of Haynes’s current condition. On the other hand, Dr. Lowenberg and physician’s assistant McPherson supported Haynes’s claim.

[¶ 19.] Our de novo review of these conflicting medical depositions leads us to agree with the circuit court that the opinions of the medical doctors are more persuasive in this case than the opinions of the chiropractor and physician’s assistant. As the circuit court noted, the former opinions warrant greater weight due to “Dr. Lawlor’s and Dr. Lord’s specialized training and superior experience in understanding the medical and psychiatric factual information upon which the answers to those issues depended.” Moreover, the cross examinations of Dr. Lowenberg and McPherson reflect that their testimony did not support a claim for permanent total disability. Furthermore, even if one only relied upon their direct examinations, their opinions are much less persuasive than the testimony of the psychiatric physician and the specialist in physical and rehabilitation medicine.

[¶ 20.] These conclusions are confirmed by examining the foundation for the testimony of each witness. First, as a result of Haynes’s psychological and psychiatric condition, Dr. Lord testified that Haynes’s fall at work was not a major contributing cause of any current claim of permanent inability to hold substantial and gainful employment. Unlike the other medical experts, Dr. Lord’s testimony was based on all of Haynes’s medical records, specifically including the pre-injury records in her Social Security disability file that reflected back pain as early as 1992. His opinion was also based upon the lack of credible medical evidence of a continuing injury. Most significantly, only Dr. Lord was competent to assess the impact of Haynes’s mental condition on this claim. On that subject, he observed that it was her mental condition, rather than her work injury, that made her uncompetitive in the labor market. In fact, Dr. Lord observed that Haynes was never really capable of functioning in a competitive labor market. Even after cross-examination on these points, he held to his opinion that “[t]he problem with her husband, the physical abuse, the alcohol problems, the lack of sticking with the psychiatric treatment in one particular place and not following through, her personality problems, her im-pulsivity and her lack of follow through” are more significant issues for her than the back injury. Of course, none of these problems were caused by, or were related to, her fall at McKie Ford. Furthermore, Dr. Lord’s opinions were not refuted by any other medical expert.

[¶ 21.] Although Dr. Lord had not treated Haynes since 1998 and was not aware of Dr. Lowenberg’s discovery of “objective muscle tightness,” these points did not change Dr. Lord’s psychiatric opinions when they were called to his attention. Dr. Lord explained that he did not rely upon Dr. Lowenberg’s “objective” notation of muscle spasms because he opined that it was very common for such patients who somatize to experience the muscle tightness observed by Dr. Lowenberg. Furthermore, even though Dr. Lord eon-ceded that he did not treat Haynes for her low back pain, he maintained his psychiatric opinion, he deferred to Dr. Lawlor on the physical aspects of the causation issue, and he specifically declined to defer to the two other experts.

[¶ 22.] Dr. Lawlor specialized in physical medicine and rehabilitation, particularly specializing in the non-surgieal treatment of neurological and musculoskeletal injuries and diseases, with a major emphasis on neck and back pain. Using that specialty, Dr. Lawlor examined Haynes several times. His examinations revealed that the slip-and-fall was not a major contributing cause of her current condition. Instead, Dr. Lawlor indicated that the fall was not permanently disabling and that Haynes was capable of full-time work without restriction. Dr. Lawlor specifically noted that Haynes had a zero percent permanent impairment rating and no permanent injury as a result of the fall at McKie Ford.

[¶23.] There is ample evidence in the record to support Dr. Lawlor’s opinion. First, Dr. Lawlor noted that Haynes’s reports of pain were inconsistent with all of the objective medical evidence. He indicated that “some other factor besides a physical factor” was contributing to her complaints of pain. This other factor was fully explained by the psychiatric opinion of Dr. Lord.

[¶ 24.] Second, Dr. Lawlor observed that Haynes was “not fully compliant” in her physical therapy, nor did she attend all of her appointments. Moreover, when she did participate in physical therapy, she voiced complaints that were inconsistent with her known physical capabilities. For example, “at times [Haynes said] she couldn’t bend forward when asked to do so, but when casually observed would be able to bend forward with seeming ease.”

[¶ 25.] Third, Dr. Lawlor was the only practitioner that ordered a neurological study of Haynes. The study used was considered the “gold standard” for determining neurological or myopathic injury, but that testing revealed no abnormalities.

[¶ 26.] Finally, Haynes essentially confirmed Dr. Lawlor’s opinion. She did so by demonstrating her ability to work full-time at McKie Ford after the injury and at the Super 8 Motel when her hours were increased to full-time during the tourist season.

[¶ 27.] Consequently, Dr. Lawlor concluded that the slip-and-fall was not a major contributing cause of Haynes’s condition. In his view, Haynes’s complaints of pain were simply inconsistent with objective medical evidence. In fact, he specifically noted that Haynes’s complaint of decreased sensation of her entire right-lower extremity was medically impossible. Therefore, he opined that under the AMA guidelines, Haynes had no permanent impairment, and she could return to work without any restrictions.

[¶ 28.] The Department, however, declined to rely upon these physicians, and instead relied upon the deposition of Dr. Lowenberg. However, the record is clear that, while Dr. Lowenberg believed she had pain, he conceded that he was unable to express an opinion that Haynes was permanently disabled due to the slip-and-fall. He was unable to express that requisite opinion because Haynes never followed through on the treatment plan Dr. Lowenberg prescribed for her to get back to work. He specifically conceded:

Question: Now certainly one of the objects of the treatment plan that you outlined was to attempt to restore this woman to, among other things, the ability to work a 40-hour week; isn’t that correct?
Answer: That would be a goal.
Question: All right. And we’ll never know if that would have been successful because she didn’t follow the program; isn’t that correct?
Answer: Well, there’s room for interpretation with all that with work. I mean she followed through with a full month and didn’t have a lot of increase or benefit. So with a full month of care, we weren’t lending [sic] to think that she was going to restore full health. So I ■can’t say, you know, would have she [sic] gotten completely better and worked.10 hours? There’s no way I could state that. If she would have followed through with the proper treatment plan, I would have been able to state on more definitive basis where we were at there.
Question: Sure. But the reason we don’t have the answer to that question is because she did not follow through on the treatment plan; correct?
Answer: Correct.

Consequently, Dr. Lowenberg did not express the requisite opinion on causation of the claimed permanent, total disability. .

[¶ 29.] It must also be noted that to the extent that Dr. Lowenberg gave an opinion, it was based on an inaccurate work tolerance history and an incomplete understanding of Haynes’s work restriction. He incorrectly understood that McPherson’s restriction was permanent and that “all the doctors tried to get her to go from more into 8 hours, and each time it caused problems.” He also incorrectly believed that she was unable to return to full-time work after the 1999 injury. In point of fact, she did return to work, and Dr. Lawlor did not limit her to part-time work efforts. Additionally, even if he had, Haynes demonstrated an ability to work full-time at two different jobs. Dr. Lowenberg failed to consider these facts in reaching his opinion. We therefore reiterate that “[t]he 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.” Wiedmann v. Merillat Indus., 2001 SD 23, ¶ 17, 623 N.W.2d 43, 47-48 (citing Johnson v. Albertson’s, 2000 SD 47, ¶ 25, 610 N.W.2d 449, 455).

[¶ 30.] The Department’s reliance on the physician’s assistant is even more suspect. First, it is significant that Haynes did not even complain of back pain on her first visit to McPherson. Therefore, it is not surprising that, after Haynes’s first and second visits, McPherson noted no correlation between the work injury and Haynes’s claims of pain. Second, and more importantly, McPherson did not attempt to give the permanent disability opinion that is necessary to sustain Haynes’s claim here. McPherson testified that she only gave Haynes a temporary work restriction of twenty hours per week. McPherson indicated that she expressed no opinion on the permanency of that work restriction because again, Haynes did not follow up or carry through with her medical plan regarding her complaints of pain. Therefore, McPherson’s deposition also fails to establish that the slip-and-fall was a major contributing cause of Haynes’s current claim of permanent and total disability.

[¶ 31.] In the final analysis, Dr. Law-lor, the physician who was most qualified and most experienced with Haynes’s problems, concluded that she suffered no permanent and totally disabling condition as a result of this relatively minor injury. Dr. Lord supplied the psychiatric/psychological explanation for the lack of medical evidence supporting Haynes’s problems: Haynes’s pain was caused by somatization and related mental health and social problems, rather than any physical injury at McKie Ford. Finally, Dr. Lord confirmed that Dr. Lawlor’s opinion should be used on the mechanical aspects of the injury and any resulting disability. These medical opinions clearly outweighed the founda-tionally flawed testimony of Dr. Lowen-berg and McPherson.

[¶ 32.] Because a preponderance of the medical testimony established that the fall was not a major contributing cause of Haynes’s current claimed condition, the circuit court’s denial of worker’s compensation benefits is affirmed.

[¶ 33.] Because of our holding in Issue 1, we need not reach Issue 2.

[¶ 34.] Affirmed.

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

[¶ 36.] TICE, Circuit Court Judge, dissents.

[¶ 37.] TICE, Circuit Court Judge, sitting for SABERS, Justice, disqualified.

TICE, Circuit Judge

(dissenting).

[¶ 38.] I respectfully dissent.

[¶ 39.] Under the facts of this case Claimant suffered an injury to her back while working. There is no question by anyone who testified that the injury she suffered at the time of the fall caused her to have a back injury at that time. Further, there is no evidence of significant back injuries of any consistent nature prior to this work-related accident. Claimant testified that she had experienced back pain continuously since the date of her work injury which impaired her work ability. She stated that prior to the injury she did not have any significant difficulty with her back. Because Claimant testified in front of the Department of Labor’s Administrative Law Judge (ALJ), we must consider the AL J’s view of Claimant’s testimony under a clearly erroneous standard. The most significant finding of the ALJ is that Claimant was credible. More specifically, the ALJ stated:

Claimant credibly testified that she has suffered from constant low back pain since the date of her injury.
Claimant’s testimony regarding her back pain was supported by her medical providers.
Claimant was a credible witness and her testimony is accepted. This is also based on the opportunity to observe Claimant’s demeanor at the hearing.

[¶ 40.] After the accident, when Claimant worked full-time at McKie, she continued experiencing pain. She testified that the pain was further aggravated during this time. She testified that her back condition has affected many activities she used to do prior to the work injury and she has had difficulty sleeping since she fell. She has seen doctors and physical therapists many times since the incident for treatment of the pain. She has never wavered from her complaints of pain. One cannot say affirmatively that the ALJ was clearly erroneous in its belief that Haynes was credible. Additionally, she was found to be credible by Physician’s Assistant McPherson and Chiropractor Dr. Lowen-berg. Though not questioning her credibility, Dr. Lord expressed a belief that the pain she experienced was caused by a somatic psychological condition. He based this on his belief that the medical records revealed no objective indication of permanent injury. However, prior to his testimony, he failed to review Dr. Lowenberg’s records, which support objective findings of pain. Furthermore, Dr. Lord had not seen the Claimant since before the work injury.

[¶ 41.] The ALJ also specifically found Claimant’s testimony was supported by her medical providers. There was medical testimony that Claimant’s injuries and pain were, and continue to be, caused by the slip and fall at work. Both McPherson and Dr. Lowenberg opined that Claimant’s pain was caused by her slip and fall. McPherson stated that in the course' of the ten months that she treated Claimant she never had any doubts about Claimant’s credibility with regard to her back pain. Dr. Lowenberg, Claimant’s chiropractor, found consistent tightness or muscle spasm in Claimant’s back. He performed several tests and stated that the results of such tests were objective findings consistent with Claimant’s subjective complaints. Dr. Lowenberg gave a professional opinion that Claimant should be permanently limited to part-time work and that the slip and fall injury was a major contributing cause of the condition for which he treated her. Though he felt he could have been more definitive had she completed a recommended treatment program, that did not diminish his belief of the permanent nature of her discomfort. Indeed, Dr. Lord stated that it was consistent with somatici-zation for one to not appear to improve or follow through with treatment. Although Dr. Lord did not give credence to Dr. Lowenberg, it is clear that the spasms, as testified to by Dr. Lowenberg, could be deemed to be objective signs of a permanent injury. Additionally, one could question the necessity of finding an objective basis for the pain. Dr. Lawlor, Respondent’s own expert who examined the patient on several occasions, acknowledged that out of 100 people he sees with lower back problems, 50 of those people do not have an objective indicator as to the specific source of their pain.

[¶ 42.] Respondent tries to link Claimants personal life and psychological problems to Claimants back pain. However, evidence by Claimants social worker, Mike Sprung, contradicts Respondents argument. Sprung testified that Claimant experienced marital difficulties and depression even before the work injury, yet, Claimant was able to work on a full-time basis without experiencing back pain despite her psychological condition. It was only after the injury that her work was limited. Respondents psychological expert, Dr. Lord, had seen Claimant for her psychological problems prior to her work incident. It is not insignificant that at the time Dr. Lord initially saw her Claimant was continually working full-time. It was only since the work injury that Claimant has had back pain and difficulty working full-time.

[¶ 43.] Both Dr. Den Hartog and Dr. Lawlor diagnosed Claimant with acute (or mechanical) low back strain. While Dr. Lawlor did not indicate that permanent back pain was caused by the work injury, he did say that the initial mechanical back pain was a major contributing cause of Claimants injury. Importantly, Dr. Law-lor did not see Haynes after March 2000 and to a degree deferred to Dr. Lowenberg and PA McPherson as to their assessment after this time. It is clear that McPherson and Dr. Lowenberg found the injury was a major contributing cause of her permanent injury.

[¶ 44.] Perhaps of major significance is the condition of somaticization which Claimant unquestionably suffered from. If one would not accept that the ALJ could find that the spasms provided objective evidence of a permanent injury from the fall, he could nonetheless find that Claimants experiencing of pain was a direct result of the work injury which, when taken in context with her somaticization, was permanent. SDCL 62 — 1—1 (7)(b) states:

If the injury combines with a preexisting disease or condition to cause or 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.

If the accident was a catalyst to a somatic person experiencing pain on a permanent basis, and the accident remains a major contributing cause of the disability, then one would be covered under workers compensation.

[¶ 45.] On balance, I would agree with the majority that the expertise and training that Dr. Lawler had was considerably greater than that of the other witnesses who testified by deposition in this matter. Nonetheless, we cannot disregard the opinion of the ALJ and substitute our own opinion unless we find, after reviewing the entire record, that it was clearly erroneous. It is my opinion that the record does not reflect that the ALJ was clearly erroneous and, thus, I would reverse the decision of the circuit court in this matter.

      . The foundation for this testimony is amply supported by the record. Dr. Den Hartog indicated that medical testing (MRI testing) was "essentially normal” with no signs of any objective problem. Moreover, notwithstanding her subjective complaints of pain, Dr. Den Hartog released Haynes to full-time work on June 2, 1999. Furthermore, although Haynes continued to complain of back pain, she returned to full-time work without any physical difficulties in performing her job duties.

      . The dissent and the hearing examiner place too much emphasis on the wrong question. They primarily focus on whether Haynes was credible in her complaints of back pain. However, there is no dispute that Haynes suffers from back pain. The dispositive questions are (1) whether Haynes's current back pain was caused by the McKie Ford slip-and-fall, and (2) if it was, whether that fall (the injury) has become a major contributing cause of her current claimed "condition”; i.e., her claimed, permanent inability to work at any employment for forty hours per week. To recover permanent total disability, Haynes had the burden of answering both questions in the affirmative. However, on these questions, both physicians testified that Haynes's fall at work was not a cause of her current condition, and the opposing testimony of the chiropractor and nurse are insufficient. Moreover, even if the fall at work contributed to Haynes’s current condition, her only expert testimony (the chiropractor and physician's assistant) failed to establish a permanent total inability to work full-time. Both witnesses conceded an inability to express a permanent total disability opinion. Consequently, Haynes failed to establish that the fall was a major contributing cause of her claimed, permanent condition.