State News : South Dakota

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.  

In Arneson v. GR Mgmt., LLC, 2024 S.D. 61, 13 N.W.3d 206, the claimant, Mr. Michael Arneson (“Arneson”), worked as a maintenance manager at a hotel and casino in Deadwood, South Dakota. On July 18, 2018, Arneson was working on a commercial exhaust fan for his employer (Employer”) when the fan shorted and sent 440 volts of electricity through Arneson’s hand, which exited through his foot (“the Work Injury”).

Arneson when to the emergency room for treatment. Within the next few days, he began suffering from mild heart palpitations. Almost two weeks later, Arneson went to the hospital for his heart palpitations and was diagnosed with hyperthyroidism and Atrial Fibrillation (“AFib”).

Arneson then brought a petition for workers’ compensation benefits arguing that the Work Injury caused his AFib and that he was permanently and totally disabled.

Arneson’s treating doctor, Dr. Holloway, provided an expert opinion that Arneson’s AFib was likely caused by his hyperthyroidism and the Work Injury.  Dr. Holloway acknowledged that Arneson’s hyperthyroidism could cause AFib itself. However, he also opined that electrical shocks like the Work Injury can cause heart arrythmias, such as AFib. Dr. Holloway did not provide an opinion on how commonly hyperthyroidism causes AFib or how commonly electrical injuries, like the Work Injury, cause AFib. He simply stated he believed both hyperthyroidism and the Work Injury causally contributed to Arneson’s AFib.

Employer countered by providing testimony from two non-treating experts. First, Employer presented the testimony of a cardiologist, Dr. Brody. Dr. Brody stated that he has rarely treated electrical injuries and that electric shock-induced AFib is extremely rare, occurring in less than 1% of cases based on his review of medical literature. In contrast, Dr. Brody testified that “the association” between hyperthyroidism and AFib “is a lot stronger” and more well accepted in the medical community. Dr. Brody then opined that the Work Injury was unlikely to have caused Arneson’s AFib, and the more likely cause was Arneson’s hyperthyroidism.  Employer also provided the testimony of Dr. Elkins. Dr. Elkins, like Dr. Brody, stated that it was statistically far more likely that hyperthyroidism caused Arneson’s AFib than an electrical shock like the Work Injury.

The Department of Labor (“Department”) found that the Work Injury was a major contributing cause of Arneson’s AFib and that he was permanently and totally disabled. Employer appealed arguing it was error for the Department to accept Dr. Holloway’s testimony that the Work Injury caused Arneson’s AFib when Employer presented unrebutted evidence that the Work Injury was statistically highly unlikely to have caused Arneson’s AFib.

The South Dakota Supreme Court (“Court”) rejected Employer’s argument and relied on a Minnesota case in support, stating “[a]n opinion based solely on statistical improbability ignores the fact that, by definition, improbable events do occur.” Arneson v. GR Mgmt., LLC, 2024 S.D. 61, ¶ 35, 13 N.W.3d 206, 217 (citing Ingram v. Syverson, 674 N.W.2d 233, 237 (Minn. Ct. App. 2004) (noting “medicine is an imperfect science and a plaintiff's symptoms may not always be proven by tests and statistics.”). The Court then found Dr. Holloway’s opinion was sufficient to show the Work Injury was a major contributing cause of Arneson’s AFib and affirmed the Department.

While the Court has still not defined “major contributing cause.” The Arneson opinion provides additional information on what “major contributing cause” is not. In this case, the Court was offered an opportunity to define major contributing cause in terms of probability and soundly rejected it. Employers should be aware of cases like this that continue to define the casual standard for compensable injuries.  

In South Dakota, Claimants must prove that "employment or employment-related activities were a major contributing cause of the condition of which the employee complained, or, in cases of a preexisting disease or condition, that the employment or employment-related injury is and remains a major contributing cause of the disability, impairment, or need for treatment." Norton v. Deuel Sch. Dist. No. 19-4, 2004 S.D. 6, ¶ 7, 674 N.W.2d 518, 521. Additionally, the South Dakota Supreme Court has held that “the claimant's work activities do not have to be ‘‘the’ major contributing cause’’ of the injury; they only have to be ‘‘a’ major contributing cause.’” Hughes v. Dakota Mill & Grain, Inc., 2021 S.D. 31, ¶ 20, 959 N.W.2d 903, 909 (citations omitted). “[T]he claimant has the burden of establishing a ‘causal connection between the employment and the disability.’” "Day v. John Morrell & Co., 490 N.W.2d 720, 724 (S.D. 1992) (quoting Lawler v. Windmill Restaurant, 435 N.W.2d 7010 (S.D.1989)).

Causation is a medical question, and “[t]he testimony of professionals is crucial in establishing this causal relationship because the field is one in which laymen ordinarily are unqualified to express an opinion.” Id.

We have started to encourage our clients to challenge claimants treating doctor(s) and their medical opinions with competing IMEs. In two separate 2023 cases, both of which are currently under appeal, the South Dakota Department of Labor (“the Department”) sided with the employer and the insurer finding that the claimants failed to meet their burden of proving that the work injuries were a major contributing cause of their conditions.

First in Roem v. E & N Street, LLC., HF No. 69, 2020/21, the claimant was suffering from a wide range of injuries including neck issues, headaches, right shoulder and arm pain, potential CRPS and chronic pain. The claimant had three separate treating doctors who looked at the neck injury. One of the doctors found the claimant’s injuries to be a major contributing cause, another stated that there could be other causes of the claimant’s neck issues but he did not know if the condition was preexisting, and the other did not see any objective evidence of acute injuries. The employer had an IME completed and the doctor found that the claimant had some degeneration in the neck as well as a lack of any acute findings. The Department found the IME doctor's opinions to be “more persuasive” and stated that his findings were “particularly significant.” As to the neck injuries, the Department held that the work incident was not a major contributing cause of the injury. When looking at the claimant’s shoulder injury, one of the treating doctors failed to provide an opinion connecting the shoulder issues to work, thus the Department held there was not sufficient evidence to meet the claimant’s burden of proof.  The Department continued to side with the IME doctor’s opinions on all alleged injuries often stating that the IME was “more persuasive” or that the treating doctor's opinions failed to establish the claimant’s burden of proof. Specifically, as to the CRPS diagnosis, the Department was not persuaded by the treating doctors' opinions because the opinions were “not definitive” and one of the doctors concluded that CRPS was “merely possible, but not probable.” The Department held that the claimant’s expert opinions did not meet her burden of proving medical probability or that the work was a major contributing cause of any of the injuries.

Similarly, in Pham v. Smithfield Foods, Sioux Falls, HF No. 8, 2020/21, the Department sided with the employer’s IME doctor's findings as opposed to the claimant’s treating doctors. Specifically, the Department was moved by the fact that the IME doctor reviewed all of the claimant's prior medical records when forming his opinion whereas the treating doctor failed to review the claimant's entire medical history. The Department stated that due to the treating doctor’s failure to review the claimant’s medical history in its entirety, his opinion was “not well-supported.” Additionally, the Department found the IME doctor’s opinion to be “more persuasive” and described his analysis of the claimant’s injuries as “particularly significant.”  

All in all, we are finding that an IME with strong opinions therein can persuade a factfinder that just because the claimant’s treating doctor makes an opinion or recommendation, does not mean that their opinion is always the most informed or proper under the circumstances.