State News : South Dakota

We hope these are helpful.  There was one SD Supreme Court case and several department decisions.  If you have questions, please call me at 605-731-0228 or email me atcalarson@bgpw.com

South Dakota Supreme Court

Knapp v. Hamm & Phillips Service Company, Inc.,

Mike Simpson/Tim Gebhart and Rick Orr

Ervin Knapp worked for a construction company from 2005 to June 2008, while maintaining a South Dakota residence. In May of 2008, he applied with a job as a truck driver for Employer at Employer’s Marmarth, North Dakota office. Knapp was hired and assigned to drive truck hauling wastewater from oil fields in southwestern North Dakota and northwestern South Dakota. From June 26, 2008 until July 18, 2008, Knapp worked only in North Dakota. After July 18, 2008, Knapp spent 60 percent of his working time in North Dakota and 40% percent in South Dakota.

Knapp was injured while working in North Dakota on September 30, 2008. The insurer accepted the claim (under North Dakota workers’ compensation statutes) and Knapp was paid benefits. Knapp treated for his injuries in North Dakota and South Dakota. On September 2, 2009, insurer issued a denial letter claiming that Knapp’s continued symptoms were not cause by the work injury and benefits were discontinued.

On December 7, 2009, Knapp filed a petition for hearing in South Dakota. In May 2010, Employer filed a motion for summary judgment claiming that South Dakota lacked jurisdiction and if jurisdiction was found, res judicata applied since North Dakota already made a determination as to benefits. Knapp died in March 2011 due to causes unrelated to his work injury and Knapp’s wife, Sharon, filed a motion to substitute herself as a party. The South Dakota Department of Labor granted Sharon’s motion to substitute but ultimately dismissed the case. The South Dakota Supreme Court agreed with the dismissal as South Dakota was not the place of the employment relationship.

The South Dakota Supreme Court first looked at whether the South Dakota Department of Labor had jurisdiction to hear the claim by determining whether the Department’s scope of authority carried over into out-of-state injuries. The Court determined that an out-of-state injury may be compensable under South Dakota if the employment had asubstantial connection with South Dakota. The Court relied on the following factors to determine whether there was a substantial connection between the employment and South Dakota:

1 – the person is injured in the State; or

2 – the employment is principally located in the State; or

3 – the employer supervised the employee’s activities from a place of business in the State; or

4 – the State is that of the most significant relationship to the contract of employment with respect to the issue of workers’ compensation; or

5 – the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workers’ compensation act of the State; or

6 – the State has some other reasonable relationship to the occurrence, the parties and the employment.

In other words, it depends on the facts. In this case the employment agreement was made in North Dakota, Knapp primarily worked in North Dakota, the injury occurred in North Dakota, and his employer was located in North Dakota. Therefore, North Dakota had jurisdiction but South Dakota did not. Remember, more than one state may have jurisdiction to hear a claim, but in this case, the claimant could not establish enough of a tie to South Dakota.

South Dakota Department of Labor

Jens Fuller v. Concrete Professionals and Acuity

Jody Speck/Mike McKnight

ALJ – Don Hageman

Claimant was hired by Employer on April 20, 2012. On May 14, 2012, Claimant and a co-worker set forms while preparing a driveway for a concrete pour. Claimant walked away from the worksite for a short period and upon return got into a physical fight with his co-worker. The ALJ determined that it was more likely than not that Claimant threw the first punch. Claimant was injured during the fight. Employer/Insurer denied benefits alleging willful misconduct under SDCL 62-4-37, which is a complete bar to comp benefits.

Under SDCL 62-4-37, Employer/Insurer has the burden of proving that the employee engaged in willful misconduct and that the employee’s injuries were "due to the employee’s willful misconduct." The Employer must only show that the misconduct was a substantial cause of the injuries, not the only cause.

The ALJ determined that Claimant provoked the altercation that resulted in his injuries. The ALJ also determined that the Claimant made no attempt to defuse the situation or retreat prior to engaging in a fist fight. These actions were a substantial factor in causing Claimant’s injuries and the ALJ determined that Claimant’s injuries were not compensable.

Donald Kryger v. City of Deadwood and SDML Workers Compensation Fund

Dennis Finch/Mike McKnight ALJ – Don Hageman

Claimant suffered a compensable lower back injury while working on October 16, 2002. Insurer sent Claimant a letter on December 16, 2002 stating that Claimant had been released from treatment and "we are closing your file." There was also language indicating Claimant could file a petition for hearing if he disagreed with the decision. Claimant suffered additional work-related injuries to his body and his lower back in the next eight years. Employer filed summary judgment arguing that Claimant is barred from receiving benefits for his lower back injury as his current symptoms relate to the 2002 injury and the two year statute of limitations ran.

The ALJ determined that the December 16, 2002 letter from Insurer, stating that Insurer was closing Claimant’s file, was not a denial in order to trigger the two year statute of limitations period under SDCL 62-7-35. Instead, the ALJ held that the three year statute of limitations period from the last payment of benefits was applicable since the letter did not deny any benefits but simply noted that Insurer was closing its file. The ALJ determined that a letter closing a file did not adequately inform the Claimant that no further benefits would be paid as needed to trigger SDCL 62-7-35. Since there were other factual questions, summary judgment was denied.

Gettert v. Horst Masonry Construction & Acuity

 Michael Hickey/Michael McKnight Judge Hageman

This is an interesting decision. The claimant had a compensable claim and benefits were paid. The claimant obtained additional treatment, but the provider turned the bills into his health carrier instead of work comp. The last payment of benefits by Acuity was on August 31, 2007. The additional treatment was paid by the health carrier after August 31, 2007. If it had been turned into work comp, it would have presumably been paid by Acuity.

Claimant filed a petition on August 19, 2011, which was more than three years since the last payment of benefits. Under SDCL 62-7-35.1, a claim is barred if three years have passed without payment of benefits. This statute only applies when a claim is not denied. Claimant argued it was a mistake that the health carrier and not work comp paid benefits after August 31, 2007. The department barred the claim for benefits as it was claimant’s responsibility to ensure the bills were provided to the correct entity.

Leckner v. Rochester Armored Car & General Casualty

 Michael Bornitz/Charles Larson Judge Hageman

The only issue was whether the claimant sustained a 15% or a 25% impairment. The surgeon provided a 25% impairment whereas Dr. Ripperda, in an IME, provided a 15% impairment. The department accepted the opinion of Dr. Ripperda over the treating doctor as it found Dr. Ripperda was more knowledgeable in assessing impairments than the operating surgeon.

Mack v. Nathan Hunke and Dakota Truck Underwriters

 Laura Brahms/Charles Larson Judge Runyan

This was a motion for partial summary judgment. Claimant sustained a compensable work injury and received treatment. Claimant fell down the stairs after his surgery, but did not tell the surgeon (he did report increased pain though). The surgeon testified on the claimant’s behalf and opined the work injury was a major contributing cause of the claimant’s problems and current need for treatment.

On cross-examination, the doctor admitted he knew nothing of the claimant’s fall, and that he expects his patients to tell him important information like a fall. This was critical because there was no way the doctor could opine on the cause of the claimant’s condition and need for treatment after the fall as he did not know what happened. Without information on the fall, he admitted he was in no position to provide a causation opinion after the date of the fall. Thus, the department limited the insurer’s exposure to a very short window and granted summary judgment to all benefits claimed after the day claimant fell.

Davis v. Dr. Pepper and Insurance Co. of Pennsylvania

 Russ Janklow/Dick Travis Judge Runyan

The issue was whether the claimant was permanently and totally disabled. The case turned on whether the claimant could be retrained. In PTD cases, the claimant must prove that retraining is not "feasible." The claimant had twice dropped out of college before his injury because he was failing his classes. He attempted to return to school after his injury and again failed out. Rick Ostrander testified that the claimant’s repeated failed attempts to get through school demonstrated that he could not be retrained. Jim Carroll testified on behalf of the employer and insurer and felt the claimant had a 50% chance at completing a retraining program as he passed a couple classes before dropping out the last time. The department rejected Carroll’s testimony and found retraining was not feasible as the claimant was not smart enough to complete school.

The other important point was that Carroll relied on an IME doctor’s work restrictions while Ostrander used the treating doctor’s work restrictions. The department accepted "the restrictions and opinions of [the treating doctor] as more credible…as the treating physician" was in a better position to provide restrictions for the claimant’s specific condition. Once again, the department sides with the treating doctor.

Hope this was helpful.  Another summary of case law and decisions will be coming soon, but feel free to contact me with any questions. 

The SD Department recently issued a ruling that the employee bars responsibility for making sure medical bills were sent to the correct entity. 

South Dakota has a three year statute of limitations from the last payment of benefits on an accepted claim (subject to an exception for a change in condition).  The claimant was treating with a chiropractor who was billing the claimant's health carrier instead of workers' compensation.  Claimant sought payment of those bills and the Department held the bills were barred since it had been more than three years since the insurer paid any benefits on the claim. 

The Department reasoned that only claimant could have corrected this situation as claimant would have received EOBs and presumably had co-payments or paid on a deductible.  Therefore, the employer and insurer were entitled to partial summary judgment on all claims barred by the three year limitation period. This decision is subject to appeal.

If you have questions, please contact Charlie Larson atcalarson@bgpw.com or 605-336-2424.  Thanks.

The South Dakota Supreme Court has recently, and repeatedly, rejected what it calls the "temporal sequence" opinion.  This opinion was accepted for years and all it contained was a statement from the treating doctor that the problems were work related because the problems did not start until after the injury.

The court recognized that just because symptoms start at work doesn't mean the underlying cause was work related.  This has been a huge help in defending causation claims in South Dakota and helps with settling claims as it forces claimant attorneys to actually work up a file.

Please let me know if you have any questions.  Charlie Larson - calarson@bgpw.com or 605-731-0228

Currently in South Dakota you cannot force a claimant to attend an IME unless the doctor conducting the IME is licensed in South Dakota.  If the claimant volunteers to go to a non-SD licensed doctor, the IME is valid and can be used.

There is going to be some legislation proposed where the defense bar would be allowed to use non-SD licensed doctors in exchange for increasing the notice period from 3 days to 7 days.  This seems like a good compromise as there are very few doctors licensed in SD who will do IMEs, and there are lots of exceptions to the notice provision.  We will wait and see if this compromise gets passed.  If it does, the new law would take effect on July 1, 2013. 

If you have questions, please contact Charlie Larson at 605-336-2424 or calarson@bgpw.com

South Dakota had a recent SD Supreme Court case where the department and appellate court held for the employer and insurer on a medical issue.  The case went up to our high court.  The issue was whether the work injury remained a major contributing cause of the claimant's need for treatment.

The treating doctor testified on behalf of the employee.  The insurer had a record review done by an orthopedic surgeon. The court reversed the department's ruling on causation for two very important reasons: 1. the court indicated a strong preference for the treating doctor; and 2. the court indicated it's disdain for record reviews.

Record reviews are helpful, but in order to have a fighting chance in SD, you must have the patient examined.  The court discussed how the record review doctor never took a history and found that to be very important. 

Record reviews are still a helpful tool as you do not need to disclose them if they are adverse.  If you have a favorable record review and the case is litigated, you need to get an IME and have that doctor testify at hearing in order to have a chance at prevailing.

Please contact me if you have any questions.  Charles Larson - (605) 336-2424 -calarson@bgpw.com