State News

In the past year, the Office of Workers’ Compensation, and the District of Columbia Court of Appeals, has heard and issued opinions on both brand new and old doctrines of law.  Ranging from medical marijuana reimbursement, to the “coming and going rule,” DC workers' compensation has and will continue to see shifts in trends under the District of Columbia’s Workers’ Compensation Act.

On January 3, 2024, the Compensation Review Board (“CRB”) issued a decision in Freeland v. Dominion Mechanical, Inc. holding that a claim for reimbursement for out of pocket expenses associated with medical marijuana is not permissible under the District of Columbia’s Workers’ Compensation Act.  The decision notes that allowing reimbursement of expenses related to medical marijuana is contrary to federal law.  This decision was not appealed. 

On June 6, 2024, the D.C. Court of Appeals (“the Court”) issued a decision in Rieger v. D.C. Department of Employment Services, reversing the decision of the CRB.  The Claimant, a midwife, worked at multiple locations on the medical campus, including the main hospital building, as well as the medical arts building.  While walking from one location to the other, the Claimant took her usual route and left the university property and turned onto a public street, when she collided with a jogger running on the sidewalk.  The claim was initially found to be compensable before the CBR reversed the decision.  The Court applied the positional risk test and opined that the injury was in the course of the Claimant’s employment as her work obligations placed her at the location in which she was injured.  The Court held that the claim was not barred by the coming and going rule and stated that once an employee arrives on the employer’s premises, the going and coming rule does not bar the claim even if the employee had not reached a specific worksite on the premise.  Additionally, the Court noted that the Claimant’s activity of walking on the public sidewalk between premises was foreseeable and a part of her regular duties.  

GARDNER V. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES,         Conn.     (March 18, 2025)

The claimant sustained a compensable left hand injury on April 19, 2016. She underwent two surgeries to the hand. Dr. Ashmead, the treating physician, rendered an opinion on March 11, 2020 that the claimant had attained maximum medical improvement within an 8 percent rating for the left wrist. Also, Dr. Ashmead indicated the claimant continued to have work limitations and could not lift greater than 20 pounds. The respondents, based on Dr. Ashmead’s report filed a Form 36 seeking to establish maximum medical improvement and begin permanency payments. Claimant’s counsel, however, objected to the Form 36 contending that the claimant was entitled to ongoing temporary partial benefits and that the trial judge could, in his discretion, order temporary partial benefits under the provisions of General Statutes Section 31–308(b). The trial judge noted the claim was “novel” but concluded that the claimant had achieved maximum: improvement and that the Form 36 should be approved for permanency benefits. On appeal, the compensation review board affirmed the ruling of the trial Judge that permanency benefits were owed and not ongoing temporary partial benefits.   The Appellate Court affirmed the CRB decision, however, the Connecticut Supreme Court reversed that and concluded that a Judge has “the discretion to award a claimant, after he or she reaches maximum medical improvement, ongoing temporary partial benefits under Section 31-308(a) in lieu of permanent partial disability benefits under Section 31-308(b), up to the statutory maximum of 520 weeks.”

In our opinion, this is a significant  decision which increases possible exposures for temporary partial benefits and, in general, increases the settlement value of many cases where the claimant cannot return to work in their usual position.

COCHRAN V. DEPARTMENT OF TRANSPORTATION, 350 Conn.  844 (2024)

In this important decision, the Supreme Court held that a worker who is retired and took himself out of the workforce was entitled to a claim for total disability benefits made post-retirement.

The claimant sustained a compensable back injury in 1994. Surgery was performed in June 1994; a further back surgery was performed in April 1995. A voluntary agreement was issued and approved in 1995 for 29.5% of the lumbar spine.

On April 1, 2003 the claimant, at age 54, took an incentivized early retirement from the employer. The plaintiff had no intention of returning to work. In 2013 the claimant had back surgery with an allegedly unauthorized New York physician. A CME by Dr. Dickey in 2017 gave the “lightest” work capacity to the claimant. Dr. Sabella, a vocational specialist, found the claimant unemployable. The trial judge found the 2013 back surgery related and ordered a three month period of total disability following the 2013 surgery and ongoing total disability beginning on December 30, 2017. The CRB affirmed the decision. The Appellate Court reversed the Board decision; in doing so, the Court stated it had plenary review over the case (meaning that they did not have to defer to the CRB below regarding the application of the law). 

The Appellate Court’s decision stated that: “he elected to remove himself from the workforce where he had no intention of returning and more than 10 years later sought to obtain Section 31–307(a) benefits. We cannot conclude the plaintiff is entitled to Section 31–307(a) benefits when he removed himself from the workforce with no intention of returning.”  The Appellate Court found this to be an issue of first impression before the Court.

The Supreme Court reversed the Appellate Court and concluded that “the statute as written entitles all medically qualified claimants to receive total incapacity benefits, with no exception for those claimants who may also be voluntarily retired.” The Court also stated “evidence of willingness to work has never been required to establish eligibility for total incapacity benefits.” The Court held that total disability benefits serve a “dual-purpose: to compensate for both wage loss and loss of earning power.”

The respondents had also raised the issue on appeal as to whether payment of total disability benefits were owed since there was no finding that the surgery performed was reasonable, necessary and available in Connecticut. Since that issue had not been addressed by the Appellate Court, the Supreme Court remanded the case back to the Appellate Court to address that issue.

MARTINOLI V. STAMFORD POLICE DEPARTMENT, 350 Conn. 868 (2025)

The claimant sustained a compensable heart condition in January 1999. He retired at age 64 in October 1999. In 2015, at age 80, he sustained a stroke and claimed entitlement to total disability at that time. The Judge and CRB found the stroke related to the initial claim and awarded total disability benefits to the retiree. The Appellate Court, however, reversed and said a retiree was not entitled to claim total disability benefits post-retirement. On appeal to the Supreme Court, however, the Supreme Court reversed the Appellate Court and determined that voluntary retirees could receive total disability benefits.  The Court cited the companion case of Cochran V. Department of Transportation, 350 Conn. App. 844 (2024). (see above summary of Cochran). 

The case was remanded back to the Appellate Court to address two other issues raised on appeal by the respondents that had not been addressed by the Appellate Court.

NAPOLITANO V. ACE AMERICAN INSURANCE COMPANY, 350 Conn. 871 (2024)

This decision from the Supreme Court dealt with the issue of cancellation of a workers’ compensation policy and whether it complied with the terms of General Statutes Section 31-348; that statute indicates that cancellation of a policy is not effective until fifteen (15) days after the cancellation has been filed.  In this case the employer had a series of three workers’ compensation policies with the employer. Notice on March 28, 2018 was issued to the employer regarding an audit noncompliance charge.  On April 5, 2018 two notices were sent to the employer stating that the employer had not complied with requests for payroll information; the second notice on April 5, 2018 indicated that the coverage would terminate on April 25, 2018.  On April 10. 2018 the employer’s agent advised the employer that they were compliant.  An employee was injured on May 29, 2018; the carrier denied coverage and claimed that the policy had been cancelled.  At a formal hearing an ALJ found that there was no coverage based on the information NCCI reported; the ALJ did not address contractual claims at the formal hearing.  The employer and the second injury fund settled the compensation case with the claimant for $225,000.  The employer brought a civil action against the carrier asserting claims of breach of contract, bad faith, negligent misrepresentation and promissory estoppell.  At the trial level, a Judge granted a summary judgment motion filed by the plaintiff employer concluding that the notice of cancellation was not unambiguous and unequivocal as required to be effective.  Additionally, the carrier’s motion to strike a bad faith claim was granted.  On appeal, the Appellate Court reversed and concluded that the notice was unambiguous that the policy was going to be cancelled.  It determined that the notice was certain and unequivocal.  The Court also determined that the motion to strike the bad faith claim was error.  The Connecticut Supreme Court reversed the Appellate Court decision and found that the notice of cancellation was not sufficient to cancel the policy. The Supreme Court stated “we conclude, instead, that, when a court considers whether notice of cancellation made under a workers’ compensation insurance policy was sufficiently definite and certain, it must consider all relevant communications between the parties, rather than limit its analysis to the notice received by the chairperson under Section 31 – 348.” The Supreme Court concluded that the policy remained in place on the date of accident.

MORGAN V. SULZER PUMPS SOLUTIONS, INC., 6531 CRB-1-24-2 (January 22, 2025)

In this decision, the Compensation Review Board (“CRB”) held that the twenty-day period to appeal a finding to the CRB as set forth in Section 31-301(a) begins to run when the appellant’s aggrievement for appeal has been determined by way of finding, order, or decision.

The underlying claim proceeded through three formal hearing sessions, then a Finding and Award, which ordered the respondents to accept compensability of a right shoulder injury, was issued on December 21, 2023. The claimant filed a motion to correct the Finding and Award on January 3, 2024, and the motion was denied in its entirety on February 8, 2024. The respondents did not file a post-judgment motion, though they subsequently filed a petition for review on February 27, 2024.

The claimant filed a motion to dismiss the appeal as untimely. The CRB held that the following language of Section 31-301(a) was ambiguous as to whether an appellant’s appeal would be timely if taken within twenty days following a ruling on its counterparty’s post-judgment motion, given the appellant was aggrieved by a finding it did not seek to correct by way of motion: “If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion.”

The CRB dismissed the respondents’ appeal as untimely, relying on its analysis in Gonzalez v. Premier Limousine of Hartford, 5635 CRB-4-11-3 (April 17, 2012) and the Connecticut Supreme Court’s analysis in Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) and Dechio v. Raymark Industries, Inc., 299 Conn. 376 (2010) in holding that the twenty-day timeframe set forth in Section 31-301(a) began to run for the respondents once its grievances for appeal had been determined, which occurred on December 21, 2023, the date the Finding and Award was issued.

MASSENA V. CITY OF STAMFORD, 6534 CRB-7-24-3 (February 21, 2025)

This case involved a heart and hypertension injury under General Statutes Section 7-433c for a firefighter with date of injury February 27, 2008.  The claimant worked for the City from 1989 to 2018.The claimant sought to preclude the respondent from raising issues regarding evidence of hypertension in the pre-employment medical exam and also sought to bar the respondents from inquiring of the treating physician regarding the issue.  The respondents had filed three timely Form 43’s but the claimant alleged that issues concerning the pre-employment exam had not been raised in the disclaimers.  The Judge denied the Motions to Preclude and the CRB affirmed finding that the language of the Form 43’s was sufficient.

Mahmutovic v. Washington County Mental Health Services, Inc., 2023 VT 37, 218 Vt. 184, 307 A.3d 868:

Claimant suffered a compensable work injury to his left knee. Claimant voluntarily left the employment of the Defendant and began work for a new employer. While employed at the new employer, Claimant lost time attending a medical appointment for the accepted work injury. The Vermont Supreme Court found that 21 V.S.A. § 640(c), which states that an “employer shall not withhold any wages from an employee for the employee’s absence from work for treatment of a work injury or to attend a medical examination related to a work injury,” shifts the burden of covering lost wages to the employee’s current employer. Therefore, the new employer was required to reimburse Claimant for his lost wages related to his work injury. Claimant also challenged the constitutionality of 21 V.S.A. § 640(c) based on his “protected property interest in recovering lost wages.” The Court ultimately found for the Defendant, ruling that Claimant did not have third-party stand to challenge the constitutionality of the statue as the damage was to that of the new employer.

Defendant represented by David Grebe and McCormick, Fitzpatrick, Kasper & Burchard, P.C.

Hill v. Agri-Mark, Inc., 2025 VT 3

Claimant had an accepted work injury but did not initially miss any time from work. After the injury, Claimant left his job with Defendant and began working for two new employers concurrently. Claimant then voluntarily resigned from one of these positions approximately one week prior undergoing surgery, which in turn triggered a period of disability. The Department of Labor found that pursuant to 21 V.S.A. § 650(a)(4) and Rule 8.1500, only wages from employment that Claimant was employed “at the time of injury or disability” were considered for the average weekly wage calculation. Claimant appealed this decision to the Vermont Supreme Court, arguing that all wages within the 26 week look-back period should be counted as “concurrent” employment, and that Rule 8.1500 narrowed 21 V.S.A. § 650(a)(4) and was not a valid exercise of the Department of Labor’s rulemaking authority. The Supreme Court affirmed the Department’s decision that Rule 8.1500 was not a narrowing of the statute and was a valid exercise of rulemaking authority. For employment to count as concurrent an injured worker must be employed at the time of injury or disability.

Defendant represented by David Grebe and McCormick, Fitzpatrick, Kasper & Burchard, P.C.

Estate of St. Germain v. Rutland Northeast Supervisory Union, No. 01-25WC (January 26, 2025)

Claimant was employed as the principal of high school within the Defendant’s district. Following a series of allegations of sexual harassment against Claimant, he was advised by the superintendent that his employment was in jeopardy. Approximately one year after the allegations Claimant committed suicide. Claimant’s Estate contended that the allegations, threat of losing his job, combined with pre-existing anxiety and depression was the cause of death. The Defendant filed for summary judgment based on 21 V.S.A. § 649, which states that “an employee’s willful intention to injure himself” bars recovery under the Workers’ Compensation Act. The Department denied summary judgment to the Defendant, noting an important distinction that 21 V.S.A. § 649 does not bar a workers’ compensation claim if the employment causes a mental injury, which is turn is alleged to be the cause of death.  

An Arkansas Court of Appeals recently made an important distinction between the causation evidence required to establish a natural consequence of a compensable injury/illness as opposed to the evidence required to establish that a claimant’s primary compensable illness/injury was the major cause of the permanent impairment resulting from the compensable consequence. Booneville Hum. Dev. Ctr. v. Foster v. Foster, 2024 Ark. App. 618. 

In Booneville v. Foster, the Court found substantial evidence supported the Full Commission’s determination that the claimant’s atrial fibrillation was a natural consequence of his compensable COVID-19 illness based on Foster’s testimony that he had not been diagnosed with atrial fibrillation before contracting COVID-19 along with a medical report from Foster’s family physician which stated he had a complicated course of COVID-19 that resulted in a deterioration of his health including diastolic heart failure, respiratory failure and atrial fibrillation among other complications. However, the Court did not find substantial evidence supporting the Commission’s finding that Foster was entitled to a 10% impairment rating for his atrial fibrillation because no additional evidence was proffered to establish that Foster’s COVID-19 illness was the major cause of his atrial fibrillation as opposed to other potential causes such as his preexisting history of hypertension and obesity. Therefore, the Court reversed the Commission’s 10% permanent impairment award and held that “evidence of a causal connection between Foster's COVID-19 illness and his atrial fibrillation [did] not automatically resolve the issue of Foster's entitlement to permanent benefits for atrial fibrillation.” Id. at 10. 

In the case of Tazewell County v. Illinois Workers' Compensation Commission, the Illinois Appellate Court addressed the issue of whether repetitive trauma resulting in pain from a pre-existing condition is compensable under the Illinois Workers' Compensation Act. The claimant, Dora Potts, worked as a dental hygienist for Tazewell County, performing duties that involved repetitive arm movements. In 2019, she began experiencing left shoulder pain while performing her work duties. Medical examinations revealed that she had a pre-existing rotator cuff tear, impingement syndrome, and arthritis, which were not caused by her work but were aggravated by it. All experts agreed that there was no structural change to the MRI or her condition. The only change was an increase in pain while doing her work related activities.

The court held that when a pre-existing asymptomatic condition becomes painful due to work-related repetitive trauma, and not due to the natural progression of the condition, the resulting pain is considered an aggravation of the pre-existing condition and is compensable under the Illinois Workers' Compensation Act.  The court found that the evidence in the record satisfied the claimant's burden of proving that her repetitive trauma and resulting left shoulder pain arose out of and in the course of her employment with Tazewell County.

The Appellate Court affirmed the decision of the Circuit Court, which had confirmed the Illinois Workers' Compensation Commission's award of benefits to the claimant. The court's rationale was that the symptomatic condition resulting from work-related activities is an aggravation of the pre-existing condition, even in the absence of an organic or structural change to the underlying condition.

Kisa P. Sthankiya

ksthankiya@rusinlaw.com

312-454-5127

In Town of Cicero v. Ill. Workers’ Comp. Comm’n, 2024 IL App (1st) 230609WC, the Illinois Appellate Court expanded the traveling employee doctrine to apply to employees who are injured leaving their worksite on their way to their employer-provided vehicle.

The court noted that determining whether an injury to a traveling employee arises out of and in the course of his employment is governed by different rules that other employees. The test for whether an injury to a traveling employee arises out of his employment is if he was injured while engaging in conduct that is “reasonable and foreseeable” by his employer.”

There was no dispute that the employee was a travelling employee while performing his inspection duties in the Town of Cicero. The question was whether he was a travelling employee at the time he was leaving  the worksite after obtaining his work phone, downloading his assignments, and attempting to make his way down a flight of stairs to his employer-provided vehicle. The court concluded that after he obtained his assignments and phone, he was performing actions incidental to his employment and a travelling employee.

 Kisa Sthankiya

ksthankiya@rusinlaw.com

312-454-5127 

In Illinois, we are seeing a trend with the Illinois Workers’ Compensation Commission awarding benefits under multiple provisions of the statute for conditions arising from the same date of injury. These awards are increasing the overall value of cases and creating a growing body of caselaw to support multiple avenues of recovery from the same injury.

In American Coal Company v. Illinois Workers’ Compensation Commission et al. 2024 IL App (5th) 230815WC, the Illinois Appellate Court found that an employee could receive permanent total disability benefits under 8(e)(18) and was also entitled to benefits under 8(d)(2), 8(c) and 8(e) for injuries resulting from the same date of accident. The employer stipulated that the employee was entitled to permanent total disability benefits for the loss of use of both eyes. Permanent total disability benefits are one of the maximum recoveries under the Illinois Workers’ Compensation Act entitling an employee to a substantial weekly benefit for life. The employee argued that he should also receive additional benefits under for losses under Section 8(d)(2), 8(a) and 8(e). Under Section 8(d) they award benefits for spinous fractures, 100% loss of use each eye under Section 8(c) and 60% loss of use of MAW under Section 8(d)(2). The court held that the employee was entitled to recover additional benefits under Section 8(d)(2), 8(c) and 8(e) for injuries to claimant’s hip, spine, abdomen, and psychological issues in addition to permanent total disability. They relied on a prior case,  Beelman Trucking v. Illinois Workers’ Compensation Comm’n, 233 Ill. 2d 364 (2009), where the supreme court held that the claimant could recover under  two sections of the Act also. (8(e)(18) and 8(e)(10)) They found that an award for the additional benefits would address his further diminished earning capacity as a result of the injury and adequately address the full scope of his injuries.

Kisa Sthankiya

ksthankiya@rusinlaw.com

312-454-5127

In Alabama, for an accident to be compensable, it must both arise out of and occur in the course of the employment. Unlike many states that employ a one part “but for” causation test (but for being at work, the accident would not have happened), Alabama’s test is two parts and both parts must be satisfied.

In the Course of

The “in the course of” part of causation test is typically easy to prove because it has to do with time and place.  If the accident occurred at work, then it will most likely be considered in the course of the employment. 

Arising Out of

The “arising out of” part of the test can be trickier to prove.  For this part of the test to be satisfied, the employee must be able to demonstrate a causal nexus between the job and the injury.  Another way to put it is that the employee would need to be able to prove that the accident occurred because he/she was placed at increased risk of it occurring because of the job.  This is why unexplained falls are not compensable in Alabama.  If the employee cannot prove what caused or contributed to the fall, then he/she cannot satisfy his/her burden of proving that it arose out of the employment.

Horseplay

When it comes to an accident and resulting injury being caused by employee misconduct such as horseplay, Alabama courts have generally held that indemnity benefits are not owed to the injured employee. 

In Walden v. Glaze & Son, the Court found that an employee who instigated or participated in horseplay from which an injury occurs is not entitled to compensation for the injury.  616 So. 2d 357 (Ala. Civ. App. 1992).  In Walden, the Court found that the worker was engaged in horseplay at the time of the injury because he was wrestling in a playful manner.

There may be situations where horseplay is determined to be compensable.  Examples of such situations include:

1.       If the injured employee was innocently injured through the horseplay of another employee(s).         

2.       If management was a willing participant or encouraged the horseplay.

3.       If management knew about the horseplay and allowed or otherwise implicitly consented to such conduct continuing.

Prevention

While it may sound like common sense, it is wise to have safety rules in place against horseplay.  Those rules should state that they are in place for the safety of all employees.  Safety training for employees and management should include instruction on horseplay prevention and it should be included in signage on the employer’s premises in large letters to demonstrate the importance of the rule.  Finally, any such behavior should never be ignored or overlooked.  Enforcement of the rule is every bit as important as having the rule in the first place.

Dual Benefit

While horseplay is a complete defense to workers’ compensation benefits, having a safety rule against such conduct that is communicated and uniformly enforced has the dual benefit of giving the employer a statutory safety rule violation defense.  Although it is only a defense to the payment of indemnity benefits, it does not hurt to have that to fall back on if the trial judge does not agree that the employee’s conduct rose to the level horseplay.

About the Author:    

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this article or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

                The general understanding of Section 440.19, Florida Statutes, which sets forth the statute of limitations for workers’ compensation claims, is that an injured employee has two years from the date they knew or should have known that their injury arose out of work performed in the course and scope of their employment in which to file a petition for benefits. Thereafter, payment of any indemnity benefit or furnishing medical treatment tolls the limitations period for one year. In other words, the statute of limitations is two years from the date of accident or one year from the last provision of benefits, whichever is later.

                A pair of recent decisions from the First District Court of Appeal offer a new method of interpreting Florida’s statute of limitations. Both opinions arise from the same case, Ortiz v. Winn-Dixie, Inc. In this case, a Winn-Dixie employee tripped and fell while working in 2003, sustaining injuries to her right side which eventually resulted in having her right kidney removed. The carrier provided all necessary treatment and authorized Ms. Ortiz to treat with a new physician, Dr. Young, beginning in 2015. Ms. Ortiz treated with Dr. Young eight times between September 2015 and her last authorized appointment with Dr. Young in January 2019. Unbeknownst to the carrier, Ms. Ortiz had seen Dr. Young twice in August 2019 and again in April 2020. For reasons unknown, Dr. Young requested that these visits be billed to Ms. Ortiz’s personal health insurance. The Carrier contacted Dr. Young’s office in May 2020 and inquired about any recent dates of service. Upon learning of the August 2019 and April 2020 visits, the carrier filed a notice of denial which effectively deauthorized Dr. Young. Ms. Ortiz then filed a petition for benefits seeking authorization of a return appointment with Dr. Young, which the carrier denied on the grounds that the statute of limitations had expired, as more than one year had passed since the last provision of benefits in January 2019. The Judge of Compensation Claims sided with the carrier, and Ms. Ortiz appealed the ruling.

                In its initial opinion published in May 2023, the First DCA affirmed the trial court ruling and held that the August 2019 and April 2020 visits were not “authorized treatment” which would toll the statute of limitations because Ms. Ortiz did not establish that these visits were in connection to her compensable injuries. However, the Court went beyond this and offered a new framework for analyzing Florida’s statute of limitations. The Court stated that the initial two-year period following an accident serves as a “master timer” that stops for one year each time a benefit is provided. In other words, the “master timer” is a period of 720 days, and days are only subtracted from the 720 when it has been more than one year from the last provision of benefits. If an injured employee has not used all of their 720 days, the statute of limitations still has not expired, even if more than a year has passed since the last provision of benefits. Ms. Ortiz moved for rehearing, and the carrier notably requested affirmance of the decision but without the aforementioned statute of limitations analysis.

                Just recently, on December 23, 2024, the First DCA published its opinion on the motion for rehearing. To further add to the confusion, the First DCA granted the motion for rehearing, set aside the trial court order, and held that the statute of limitations had not expired in Ms. Ortiz’s case. The Court reasoned that the visits to Dr. Young in August 2019 and April 2020 were no different than the visits to Dr. Young that the carrier had authorized and paid for since 2015. The only difference here was that the August 2019 and April 2020 visits were billed to Ms. Ortiz’s personal insurance. The Court held that it is the furnishing of treatment—not the billing of treatment—which tolls the statute of limitations. Which insurance carrier gets billed for treatment has no legal bearing on the statute of limitations, and an injured employee cannot be prejudiced because of a billing issue.

                The majority opinion contains no mention of the “master timer” statute of limitations analysis. However, in a lengthy concurring opinion, Judge Tanenbaum (who authored both the Court’s original 2023 opinion and the opinion on the motion for rehearing) essentially doubled down on his “master timer” framework and again advocated for using this method to calculate when the statute of limitations expires. Notably, in a separate concurring opinion, Judge Bilbrey wrote that he “join[ed] the majority opinion in full,” that “Judge Tanenbaum’s concurring opinion … is not the opinion of this court,” and that Judge Tanenbaum’s “reasoning may be found to be persuasive or may be discarded.” Judge Tanenbaum countered that the Court did not adopt his analysis “not because it is not valid, but because Ortiz did not raise it.”

                Thankfully, the Court has (at least for now) retreated from the “master timer” statute of limitations analysis. However, as Judge Tanenbaum noted in his concurrence, several judges used this method to address statute of limitations issues between the first and second Ortiz opinions, and it is a near certainty that claimants’ attorneys will continue to advance this argument moving forward. Accordingly, while the conventional understanding of the statute of limitations set forth above remains the current state of the law, defense attorneys need to be aware of the “master timer” analysis in order to combat it. 

In Linda Muellenberg v. Redfield Ace Hardware d/b/a Investment Enterprises and First Dakota Indemnity Company HF No. 33, 2022/2023, Linda Muellenberg (“Claimant”) worked for Redfield Ace Hardware (“Employer”) as a cashier, but she would also stock products on shelves. On December 3, 2020, Claimant sustained a work injury to her left eye when she was struck by the metal end of a bungee cord after it detached from a shelf (the “Injury”).

Following the Injury, Claimant required surgery on her left eye. After surgery, she was released to full-duty work by her treating doctor, Dustin Dierks. Following her release to full-duty work, no permanent work restrictions were imposed by any of her medical providers. Later, Claimant treated with her new doctor, Alex Ringeisen, who found Claimant to have a visual acuity of 20/40 in her injured eye with glasses or contact correction.

Claimant alleged she was permanently and totally disabled under SDCL § 62-4-53 and primarily relied on the alleged fact that she could not safely drive the approximate 10 miles from her home in Zell, South Dakota, to nearby Redfield, South Dakota for employment opportunities. Further, Claimant admitted she had previously driven herself from her home in Zell, South Dakota, to her mother-in-law’s home approximately five miles away but did not feel comfortable driving to Redfield, South Dakota, 10 miles away.

However, Claimant’s treating doctor testified there was no medical reason why Claimant could not drive, but he ultimately left the choice of whether to drive up to the discretion of the patient. Employer had an Independent Medical Examination completed by Dr. Douglas Martin, who opined there was no medical reason why someone with partial vision in one eye cannot drive and noted patients with partial vision drive personal and commercial vehicles.

Claimant provided a vocational assessment from their expert, Tom Audet, who concluded that Claimant was unemployable due to her inability to drive to work. He testified that his opinions were based on what Claimant felt she was able to do. Employer provided a vocational assessment from their expert, Chad Kollars, who concluded that Claimant was capable of driving to and performing work in Redfield. Chad based his assessment on the medical opinions of Claimant’s treating physicians, which indicated Claimant could drive and had no formal work restrictions.

Employer’s main argument, and biggest concern, in this file, was that workers’ compensation claimants should not be allowed to determine their restrictions based on their subjective beliefs or limitations when no formal medical restrictions have been imposed.

The South Dakota Department of Labor (the “Department”) relied on Billman v. Clarke Mach., Inc., 2021 S.D. 18, 956 N.W.2d 812, in which the Court held “[t]he Department must take a holistic approach to a claimant's condition, as each factor affects the severity of the others. The statute explicitly requires the Department to examine the ‘employee's physical condition, in combination with the employee's age, training, and experience[.]’” Id. at ¶ 37.

The Department ultimately held that while Claimant had symptoms that made her uneasy about driving, her feelings, without formal restrictions related to her condition, failed to prove she was “obviously unemployable.” Further, the Department found Chad Kollars’ assessment more persuasive because it did not rely on Claimant’s subjective views of her condition. Therefore, the Department concluded Claimant was not entitled to Permanent Total Disability (PTD) benefits.

The Muellenberg ruling is still ripe for appeal at this time. In South Dakota, Claimant can appeal to the circuit court who will make a ruling. That decision can then be appealed as a matter of right to the SD Supreme Court.