State News : South Dakota

Supreme Court of South Dakota

Schuelke vs. Belle Fourche Irrigation District and First Dakota Indemnity Company

Mike Simpson/Charles A. Larson

Issue: Whether the cumulative trauma doctrine prevents the application of the three year statute of limitation under SDCL-62-7-35.1.

Claimant started working for Employer in 1988 as a laborer and heavy equipment operator. Claimant’s main job was to dig trenches using an excavator or track hoe. He suffered a cumulative trauma injury in 2000 to his hands/wrists, treated and was released in 2004. The last payment of benefits was August 4, 2004, but Claimant continued to have problems. He decided to "tough it out" and not treat until 2009. Once he resumed treating, the claim was denied as there had been more than three years since the last payment of benefits.

After the denial, Claimant continued to seek medical attention and even underwent another surgery on May 25, 2010. Claimant’s treating physicians wrote to Insurer and stated that Claimant’s current care was related to his original claim. Additionally, Claimant’s doctors noted that his symptoms had accumulated over several years and were consistent with repetitive use injuries.

Claimant argued SDCL 62-7-35.1 (the three year limitations statute) did not apply to cumulative trauma injuries. The SD Supreme Court rejected Claimant’s argument and held that the three year limitations period applies to all injuries, including cumulative trauma injuries.

Waterman vs. Morningside Manor and MHA Insurance Company

Jolene R. Nasser and Dean Nasser/Charles A. Larson

Issue: Whether an amended petition related back to the original petition for purposes of determining the proper statute of limitations.

The department granted summary judgment finding that the Claimant’s claim was barred. This was purely a procedural issue. Without boring you with the details, the SD Supreme Court reversed the grant of summary judgment and held Claimant could proceed with her claim. The important thing to take away from this case is that the SD Supreme Court went out of its way to allow Claimant’s case to go forward. The Court ignored case law in South Dakota and made its ruling based, in part, on federal case law. This is another example of the Court issuing a results oriented ruling. This case is so fact specific that it will not have much impact on future cases.

Smith vs. Stan Houston Equipment Company and United Fire and Casualty Company

Mike Simpson/Michael S. McKnight

Issue: Whether the Claimant’s employment was a major contributing cause of his current condition and need for treatment.

Claimant, aged 53, worked for Employer for over ten years as a diesel mechanic. Claimant’s job required heavy lifting and regular twisting. He currently suffered from neck, shoulder and back pain. Employer denied the claim based on causation.

Claimant has a history of injuries. In November of 2008, Claimant had three incidents which he later claimed caused neck, back, shoulder, and arm pain. Claimant did not report any of these incidents to Work Comp and decided to work through the pain. However, the pain became too much and Claimant sought the help of a chiropractor. On the intake paperwork, Claimant marked that his pain was from an old injury and chronic in nature. Claimant listed the injury as a 1981 whiplash incident. Claimant did not tell the chiropractor, his orthopedic surgeon, physical therapist, or other doctors about the 2008 incidents until after treating for about 5 months.

In August 2010, Claimant petitioned the Department of Labor for a hearing. Claimant testified that he did not tell his various medical providers about the November 2008 incidence because he was submitting his claims to his health insurance carrier and he was concerned with getting treatment and getting back to work. The IME doctor testified that he believed Claimant was not injured when he hit his head in November 2008 because Claimant did not mention the incident to his treating physicians and because Claimant told the chiropractor he had chronic pain.

Claimant’s treating physicians noted that they learned of the November 2008 injury from Claimant’s attorney rather than Claimant but opined that the injuries were related to his work activities. Claimant’s treating physician noted that sustaining a hit to the top of the head hard enough to knock Claimant to the ground certainly caused damage to Claimant’s neck and herniated a disc in the cervical spine.

The Department issued a decision and found Claimant credible and accepted that the November 2008 incidence occurred. However, the Department determined that Claimant’s employment was not a major contributing cause of the current condition and need for treatment because it rejected Claimant’s treating physician’s opinion due to the fact that the treating physician’s opinion was based on mere assumptions and not facts directly related from Claimant to the physician. The Circuit Court affirmed the Department with a slight modification in the language of the Order.

The SD Supreme Court found that the Department’s findings of fact did not support the conclusions of law that Claimant failed to prove causation by a preponderance of the evidence. The Court noted that the Department found the Claimant credible and accepted the November 2008 incidents occurred. The Department also found that Claimant reported to multiple medical providers about the specific pain that he was experiencing. Finally the Department found that the experts all agreed that Claimant’s 2008 injuries could be a major contributing cause of Claimant’s current condition. The Court noted that it was therefore illogical that Claimant failed to establish causation. Additionally, the Court noted that Claimant’s treating physician’s opinion did contain the adequate foundation as Claimant’s treating physician had knowledge of the 2008 incidents before he offered his opinion on causation (here is that treater bias again).

South Dakota Department of Labor

Whittecar v. Metrix, LLC and Reliamax Insurance

Michael M. Hickey/J.G. Schultz

Issue: Whether Claimant’s employment was a major contributing cause of Claimant’s condition.

Claimant worked for Employer in the fall of 2006 doing sandblasting and powder coating on equipment surfaces. On March 7, 2007, Claimant was injured while working for Employer when a truck body was dropped on him. Claimant continued working the remainder of his shift and then went to the emergency room. The x-rays were negative and Claimant was discharged. Claimant treated with various doctors in 2007 for back, neck, and shoulder pain. Claimant was given work restrictions and returned to work within those restrictions until he was terminated in May of 2007 for reasons unrelated to the injury.

Claimant was involved in a motorcycle accident after his work injury in June of 2007. Claimant was thrown from his motorcycle and rendered unconscious. He was treated at the local emergency room and released as there were no broken bones. Following the motorcycle incident, Claimant went through an IME wherein the IME doctor determined that the Claimant’s allegations of pain were subjective without organic findings and opined that the March 7, 2007 work injury was not a major contributing cause of the ongoing problems. Additionally, Claimant was unable to obtain medical opinions as to causation from his treating physicians. Accordingly, Employer moved for summary judgment based on Claimant’s lack of medical causation opinions.

In response to Employer’s motion, Claimant submitted three identical written reports prepared by Claimant’s counsel and signed by Claimant’s treating doctors (which is becoming more common). The Department determined that the Claimant’s propounded reports were entitled to little or no weight as they were not precise and well supported by the evidence. The reports did not comment about Claimant’s current conditions nor the motorcycle accident that Claimant was involved in. To the contrary, the IME doctor’s written report discussed the history of pain, the motorcycle accident, and the lack of diagnostic findings to support Claimant’s allegations. The Department granted Employer’s motion for Summary Judgment and Claimant was entitled to no benefits.

Terveen vs. SD DOT and South Dakota Worker’s Compensation Fund

ALJ: Taya Runyan

Issue: Whether Claimant sustained an injury arising out of and in the course of his employment.

Claimant was employed by the South Dakota Department of Transportation at the Belle Fourche, South Dakota location as a Journey Transportation Technician. Claimant’s job mandated that he be on the road on a daily basis during the summer and approximately 70% of the time in the winter. On November 14, 2011, Claimant left Belle Fourche on a work-related trip to Yankton, South Dakota. Two days later, he was returning to Belle Fourche and was seriously injured in a single vehicle accident.

It was later learned that Claimant was injured when he deviated from his employment to do a job for another employer. Claimant argued that his deviation from the main road of travel was minimal and expected and/or condoned by the Employer. On the other hand, Employer argued that Claimant was engaged in a non work-related side trip when he was injured.

The Judge rejected Employer’s arguments and found the primary purpose of Claimant’s trip was for Employer-related business and the slight detour for the other employer did not automatically relieve Employer of liability for the injury. While there was a deviation in employment, the Judge found the deviation was not "substantial" as the personal detour was only a few miles off of the Claimant’s route home and was only going to take a little bit.

Voorhees vs. Raven Industries Inc. and Dakota Truck Underwriters

Russ Janklow/Michael S. McKnight (ALJ Duenwald)

Issue: Whether Claimant’s employment was a major contributing cause of the bilateral carpal tunnel syndrome.

Claimant was born in the Philippines and moved to the United States in 1998. Additionally, she was diagnosed with diabetes in 1988. After Claimant moved to the United States, she worked at a nursing home and as a seamstress in Huron, South Dakota. In 2003, she started working for Aerostar, which is a subsidiary of Raven Industries, sewing parachutes. There was a time from 2004 to 2005 that she was unemployed but returned to Aerostar in 2005. Between the years of 2007 and 2009, Claimant typically worked 10 hours per day and 5 or 6 days per week. Claimant’s job consisted of fine finger and hand movements of slight pinching, and gripping. She would also move her hands over the fabric, pushing the fabric through the machine. Claimant also worked as an inspector, which would entail pinching the fabric seam and pulling it through her pinched fingers in order to test the product.

In 2009, after Claimant started to work as an inspector, Claimant noticed that her hands became numb. She filed an incident report in April for numbness in her hands. Claimant met with Employer’s plant ergonomist, who recommended she wear gloves to alleviate the wrist pain and numbness. Claimant admitted that when she wore the gloves, she did not experience much pain. However, when the gloves were removed, Claimant’s hands would hurt. Claimant was also taught some ergonomic stretches for her hands and wrists and used over-the-counter pain reliever to alleviate the pain. Unfortunately, Claimant’s hand pain increased over time.

On November 3, 2011, Claimant filed another incident report with Employer and Insurer regarding the pain in her hands. Claimant immediately began treating the pain and was diagnosed with carpal tunnel syndrome, and had carpal tunnel release.

Employer offered the testimony of an occupational therapist and certified ergonomic evaluation specialist, who stated that the pain Claimant was experiencing was not related to work and instead related to non-occupational risk factors like gender, age, and diabetes. The ergonomic specialist also testified that Claimant’s work activities would not cause carpal tunnel syndrome.

Employer also submitted the testimony of two separate orthopedic surgeons that opined that Claimant did have carpal tunnel syndrome but that her diagnosis was not related to work and instead related to her gender, age, and diabetes. The IME doctors opined that there is scientific evidence that repetitive activities are not causally related to carpal tunnel syndrome.

The Department ruled that the work activities were a major contributing cause of Claimant’s carpal tunnel syndrome. The Department rejected the ergonomic specialist’s opinion because he did not observe the Claimant doing every job that she had prior to filing the First Report of Injury. Additionally, the Department held that the ergonomic specialist did not obtain accurate facts in determining his opinion and the opinion lacked foundation.

The Department rejected the IME doctors’ opinions due to the fact that they gave much reliance to the ergonomic specialist’s opinion. Basically, the Department held that since the ergonomic specialist lacked foundation, so did the IME doctors. The Department accepted the treating physician’s opinion that the work activities were a major contributing cause of the carpal tunnel syndrome. This case shows the huge bias given to treating doctors’ opinions.

Sorenson vs. Harbor Bar LLC and Midwest Family Mutual Insurance Company

Kit McCahren/Steve Morgans (ALJ Hageman)

Issues: 1. Whether Claimant’s work related injury was a major contributing cause of her intracranial hemorrhage; and 2. Whether Claimant is permanently and totally disabled as a result of the work related injury.

Claimant and her brother lived in Watertown with her adoptive parents. Claimant initially had some difficulties common with foster children but eventually became a relatively stable and intelligent young woman. After graduating from high school, Claimant lived on her own and looked after her own finances. She worked several waitressing positions at that time and was capable of working a full time job. One of her positions was at the Harbor Bar in Watertown.

Claimant was working at Harbor Bar on December 31, 2009, when a fight broke out among the patrons shortly before midnight. Claimant attempted to break up the fight and eventually became involved in the fight. During the fight, Claimant was struck numerous times by a patron. After the fight ended, Claimant continued her shift but was noted to have black eyes and complained of a bad headache. It was also thought that Claimant had broken her nose during the fight.

On January 7, 2010, Claimant sought medical treatment at a local hospital. An MRI of Claimant’s head revealed a hemorrhage in Claimant’s brain. Claimant was transported to Sioux Falls where she underwent brain surgery on January 8, 2010. Ultimately, Claimant underwent three brain surgeries to alleviate the hemorrhage.

During Claimant’s hospitalization, she was diagnosed with Moya Moya disease, which is a vascular disease of the brain. The neurosurgeon testified that the condition was either congenital or developed in early childhood. Moya Moya disease is a situation where a network of new, small and less stable vessels grow in the brain and are prone to bleeding and puts the person at risk for a major vascular event.

After Claimant’s brain surgeries, she was evaluated by a licensed psychologist. The psychologist testified that Claimant suffered clear mental deficits particularly in the area of memory and date details. The psychologist noted that Claimant was depressed due to her loss of memory. He also noted that Claimant could not remember what she last ate or when and that she had lost the natural signals to tell us when we are hungry or full. The psychologist concluded that Claimant was totally disabled and that she was not capable of managing her own affairs. Likewise, Claimant’s neurosurgeon testified that her work related injury was a major contributing cause of her brain hemorrhage and need for medical treatment. The neurosurgeon stated that the fact that Claimant was punched was the likely cause of the brain hemorrhage.

Employer and Insurer utilized the testimony of a neurologist, who opined that the fight at the bar was not a major contributing cause of Claimant’s brain hemorrhage. The neurologist stated that the Moya Moya disease was the primary cause of the hemorrhage. The neurologist based the opinion on the fact that Claimant was able to continue her normal activities for a number of days following the fight. The neurologist also stated that the headache Claimant experienced would have been much more severe had it been related to the hemorrhage.

The Department held that Claimant’s work activities were a major contributing cause of her brain injury. The Department noted that it was undisputed Claimant was in a fight on December 31, 2009, and that she received injuries as a result of that fight. Also, the Department accepted the opinion of the treating physician and psychologist. Both doctors stated that the work activities, i.e., the bar fight, were a major contributing cause of the brain hemorrhage. The Department noted that the treating physician’s opinions were well documented by the medical record. Finally, the Department noted that Employer’s neurologist opined that the Moya Moya disease was "the" major contributing cause and did not opine on whether the bar fight could be "a" major contributing cause. Thus, the Employer’s neurologist’s opinion was rejected.

The Department also held that Claimant was permanently and totally disabled. The Department noted that the depression and loss of memory severely reduced Claimant’s functionality and Claimant was unable to take care of her own finances.

Gibson v. Human Services Center, State of South Dakota

Mike Bornitz/Robert Anderson (ALJ Duenwald)

Issue: Whether the April 24, 2010 work injury was a major contributing cause for the Claimant’s need for surgery and current condition.

Claimant was employed as a counselor at the Human Services Center in Yankton, South Dakota. On April 24, 2010, while assisting another counselor to physically restrain a patient, Claimant injured his back. Claimant initially reported that he suffered low back pain that radiated into his lower left side. Claimant treated with a local chiropractor and was off work for two days. The chiropractor utilized conservative treatments and on May 18, 2010, the Claimant reported that he no longer felt symptoms. Claimant was then released without restrictions and placed at MMI.

In July of 2010, Claimant went to his family physician and reported pain in his lower left back and hip that radiated into the lower leg. Claimant told his physician that this was the same pain he experienced in April. Claimant did not report any intervening accidents or injuries that could explain the pain. An MRI was taken and showed that Claimant suffered from disc herniations at L4-5 and L5-S1. Claimant had a discectomy on October 19, 2010, which was successful.

Prior to April of 2010, Claimant reported to his chiropractor that he had fallen down several stairs in his home and landed on his backside. However, an x-ray was taken of that event that did not reveal any issues with the bony structures in the Claimant’s spine. Additionally, the Claimant did not miss any work from that incident and the condition resolved.

Claimant’s treating chiropractor and physicians opined that the April work injury was a major contributing cause of the need for the discectomy. The treating doctors testified and explained that a large part of Claimant’s initial pain was due to inflammation and the other part of the pain is the herniation itself. This explained why Claimant initially thought his work injury had resolved itself but later it was determined that he had a herniated disc.

Employer offered the IME opinion of Dr. John Dowdle that Claimant’s condition and need for surgery was caused by the non-work related injury from the prior incident where he fell down the stairs. Dr. Dowdle stated that the April work injury was not a major contributing cause of Claimant’s back condition and need for surgery.

The Department accepted the opinions of Claimant’s treating physicians as they were corroborated by each other and were based on the record. The Department rejected the IME opinion as Dowdle was not familiar with Claimant’s case and did not have all the medical records.

Wieber vs. Morton Buildings, Inc. and American Zurich Insurance Company

Kit McCahren/Alan Peterson (ALJ Runyan)

Issue: What to include to determine the proper Workers’ Compensation rate.

The Employer and Insurer contended that appropriate Workers’ Compensation rate be calculated by Claimant’s wages in the fifty weeks prior to the injury, using his actual hours at straight time and excluding overtime multipliers, expense reimbursements, and crew bonuses. Claimant argued that the calculation of wages should include bad weather pay, crew bonus, holiday pay, meal/motel reimbursement, miscellaneous payments, personal time, profit sharing, overtime, training bonuses and vacation time.

In coming to its decision, the Department relied on SDCL 62-1-1(6) and determined that vacation, sick leave, holiday pay, etc. do not constitute earnings. Benefits from paid time off should not be calculated as earnings for Workers’ Compensation purposes because those amounts do not represent hours worked and should not be factored into the compensation rate. The Department excluded the crew bonus, the profit sharing, the motel and meal reimbursements, the bad weather pay, and the holiday pay.

McKinney vs. Rapid City Regional Hospital and FinCor Solutions

Jim Leach/Dennis Finch (first insurer); Charles A. Larson (second insurer)

Issue: Whether Claimant’s alleged 2007 work injury was an aggravation or recurrence of her 1998 compensable work injury.

Claimant experienced a work injury on August 28, 1998, while working for RCRH (who was self insured at the time). The 1998 work injury consisted of wrist and hand injuries. Claimant treated for her work injury and continued to do so over the years. Claimant had flare-ups, and filed another FROI in 2007 when FinCor was the insurer, although she was having the same issues.

Claimant and RCRH identified the same expert, who testified Claimant suffered a recurrence and everything was related to the 1998 claim. FinCor moved for summary judgment and the Department granted the motion as the experts testified Claimant suffered from a recurrence and found RCRH was still on the risk.

Milbrandt vs. Bibbs, Inc. and Dakota Truck Underwriters

Glenn Boomsma/Michael S. McKnight and Thomas J. Von Wald (ALJ Hageman)

Issue: Whether Claimant needed to personally exhaust the personal injury proceeds he received from a third-party tortfeasor before Insurer had to continue actual Workers’ Compensation benefits.

Claimant was employed by Employer as a long haul over-the-road trucker, and was in an accident caused by the negligence of a third party. He sustained injuries to his head, chest, neck, left shoulder, and right hip. Employer and Insurer accepted the injuries as compensable and benefits were paid. As a result of the May 30, 2007 accident, Milbrandt made a claim against the third-party tortfeasor who was responsible for the accident. In June of 2009, Milbrandt negotiated a settlement of $160,000.00 with the tortfeasor. After reducing the settlement amount for fees, costs and reimbursement to the Insurer for Workers’ Compensation benefits paid at the time of the settlement, Claimant was left with a net recovery of $73,541.32. The parties agreed that Employer and Insurer were entitled to an offset against Workers’ Compensation benefits in the amount of $73,541.32 pursuant to SDCL 62-4-38.

In September of 2011, Claimant continued to have pain in his right hip to the point where he needed a hip replacement. In January of 2012, Claimant had his right hip replaced. Insurer denied benefits for the hip replacement and in the alternative has requested an offset or credit against any benefits in the amount of $73,541.32. Claimant’s hip surgery and post-surgery care were mostly paid for by Medicare and Blue Cross Blue Shield supplemental insurance.

Employer and Insurer filed a motion for summary judgment making the argument that Milbrandt needed to personally exhaust the $73, 541.32 on medical bills and/or Worker’s Compensation benefits which become due in the future. Employer and Insurer argued that the offset should not be applied to any bills paid by Medicare and Blue Cross Blue Shield as the personal injury proceeds benefited Milbrandt personally and by having Medicare and Blue Cross Blue Shield pay his medical bills, Milbrandt was making a double recovery.

Claimant argued the actual medical bills versus the amounts paid by Medicare and Blue Cross Blue Shield, should be used to reduce the offset against future Workers’ Compensation benefits. Claimant argued that Employer and Insurer should not be able to benefit from his separate contractual obligation with Medicare and Blue Cross Blue Shield for health insurance.

In coming to its conclusion, the Department focused on the language in 62-4-38, which stated that "In the event the injured Employer recovers any like damages from such other person, the recovered damages shall be an offset against any Workers’ Compensation which the Employee would otherwise been entitled to receive." The Department determined this language meant that the benefits the Employee would otherwise have been entitled to receive means the amount the Employee would have been entitled to receive had the damages from the tortfeasor not been recovered. The Department went on to state that there was no question Claimant would be entitled to medical expenses if it is ultimately decided that the hip replacement is deemed compensable.

The Department held that in this case, the cost of the benefits which Milbrandt would be entitled, and to which the offset would apply, if his hip replacement is compensable, is the amounts actually paid by Medicare and Blue Cross Blue Shield and Milbrandt himself. The Department also noted that Milbrandt was not entitled to reduce the offset amount by the actual medical bills. However, in coming to its conclusion, the Department completely bypassed the well-accepted provision in Workers’ Compensation law that a Claimant may not make a double recovery. In this instance, the Employer and Insurer argued that Claimant made a double recovery because he was able to keep his personal injury proceeds while at the same time have a third-party pay his medical expenses without any form of reimbursement to that third-party. This decision defies common sense and is on appeal.

Dudash vs. City of Rapid City and Berkley Risk Administrators Company, LLC

Brad Lee/Tim Becker (ALJ Hageman)

Issue: Whether Employer and Insurer’s claim files needed to be turned over to Claimant pursuant to a discovery request.

The facts of the case aren’t important. The significance of this case is that the Department required the insurer’s claims file to be produced. The rule had been that the nurse case manger file was subject to production, but the claims file was off limits. This case changes that. Here, the Claimant filed a motion to compel seeking to get the claims file. The insurer argued the information was not relevant, and was protected by the work product doctrine.

The Department held the claims file may have relevant information so that objection was overruled. The closer call was whether the information was protected as work product. The Department followed some recent federal cases (not work comp cases) that it is part of an insurer’s job to investigate claims. Therefore, simply investigating claims is not done in "anticipate of litigation" which is the standard on whether something is work product. In this case, the claim was compensable and so the investigation and claims’ handling was not done in anticipate of litigation. Once it appeared the claim was headed toward litigation (either a denial or an attorney’s involvement), all documents and notes from after that date did not have to be produced.

I’ve been waiting for a decision like this. It was only a matter of time that our Department started requiring the claims’ file to be produced. It is absolutely critical that you keep the claims’ file purely professional and do not put anything in your notes that you wouldn’t want Claimant or his/her attorney to read. For instance, do not put that the Claimant is a liar, is a perm total, or anything that could be used against you if your file has to be turned over.

I spoke to Claimant’s attorney about this decision. He said that several defense attorneys have simply been producing the claims’ file without a motion to compel (which shocked me) and he has had several motions to compel granted; I have not seen a Department decision requiring production yet. He told me he has one case where the adjuster wrote in the notes that she was going to find a way to get the claim denied. I don’t know what her intent was in writing that, but it doesn’t look good on paper, especially when she denied the claim shortly thereafter.

Conclusion

As always, we hope you find these summaries helpful. In order to evaluate a case, you must know what the Department has been doing lately. There were several important decisions lately and I know there will be a couple more Supreme Court decisions in the coming months and some of the department decisions above are being appealed (remember, all Department decisions are subject to appeal). We hope all is well and look forward to working with you all for another year. Please let us know if you have any questions.  You can reach me, Charlie Larson, at 605-336-2424 orcalarson@bgpw.com.