State News : South Dakota

Robert L. Miller v. McLaughlin Electric and Travelers Insurance

Robert Miller/Thomas J. Von Wald

Issue: (1) Whether the Claimant’s choice to move to assisted living over his treating physician’s approval of a "stair-glide" subjected the employer to pay for the assisted living arrangement?

Robert L. Miller ("Claimant") suffered a work related injury in 1982 at age 52. He continued treatment with a chiropractor and had a regular exercise program at the YMCA. In 2006, Claimant aggravated his injury. In 2013, he went to Orthopedic Surgery Specialists and reported that his back had worsened when he used stairs. He wished to go to assisted living and asked his treating physician at Orthopedic Surgery Specialists to write him a medical recommendation. The physician did so, but the Insurer subsequently inquired about whether a "stair-glide" would be an acceptable option. The physician stated in another letter that it would be an acceptable option so long as the Claimant did not use stairs. Claimant moved into an assisted living center in Oak Grove, Minnesota just prior to that letter from the physician to the Insurer. Insurer denied benefits and assisted living care, as a stair-glide in Claimant’s home would have been a more appropriate option. Claimant was also denied his requests for physical therapy to treat knee pain.

Ultimately, summary judgment was granted in favor of Insurer regarding Claimant’s request for payment of assisted living. Additionally, Judge Catherine Duenwald ruled that if Claimant wanted a change in choice of medical practitioner in order to attend physical therapy in Minnesota, it should have first been approved by the employer under SDCL § 62-4-43. Although ultimately prevailing, Insurer was ordered to pay Claimant’s gym membership in Minnesota as it was instructed by his treating physician and medical providers to continue exercising and swimming on a regular basis.

Charles Dockter v. Ron’s Equipment Painting, Inc. and Farmer’s Mutual Insurance Group

Lonald L. Gellhaus/J.G. Shultz

Issue: (1) Whether an injury sustained by Claimant arose out of and in the course of his employment with Employer?

Charles Dockter ("Claimant") was employed in July 2013 by Ron’s Equipment Painting, Inc. ("Employer"). His job duties primarily included power washing trucks, waxing, and cleaning. Prior to this employment, Claimant was fired and re-hired numerous times by Employer. Claimant’s alleged injury occurred on July 17, 2013, while he was washing a truck, but he did not report it to anyone. Claimant went to the Emergency Room in Ortonville, Minnesota on July 20, 2013, and afterwards he called his supervisor to notify him that he hurt his neck while working on July 17, 2013.

Multiple employees of Employer testified that Claimant had not told them anything about his alleged injury. Additionally, Claimant had requested July 18, 2013, off from work so that he could see his attorney. At hearing, Claimant provided inconsistent testimony regarding the pain and the circumstances surrounding the injury. Furthermore, in an unrelated event, the Department noted that Claimant had a co-worker who was injured when he closed his finger in the door of his house. Claimant advised the co-worker that he should tell the supervisor so that he could collect workers’ compensation for that injury.

Judge Hageman determined that the only evidence produced by Claimant was his testimony, which he did not find credible. Further, Claimant had a reputation for dishonesty which was further diminished by his suggestion to his co-worker to file a false workers’ compensation claim. Judge Hageman ultimately determined that Claimant fell "far short of carrying his burden of proof."

Catherine Guadagnino Wang v. Mileage Plus, Inc.

Dennis Finch and Jeffrey Maks/Kristi Geisler Holm

Issue: (1) Whether Claimant proved by a preponderance of the evidence that her work-related incident was a major contributing cause of her past and current condition and need for treatment?

Catherine Guadagnino Wang ("Claimant") started working for Mileage Plus, Inc. ("Employer") in 1998. She worked as a customer service representative, which was a sedentary job involving sitting for long periods of time at a desk with a computer station and a phone. In March 2000, she was referred to The Spine Center where she saw Dr. Larry Teuber for neck, shoulder, and face pain as well as pain in her mid and low back. Claimant underwent a lumbar microdisectomy and returned to work on light duty with lifting restrictions. She was discharged without restrictions in March 2002.

In March 2005, a doctor with The Spine Center had a "frank talk" with Claimant, as he felt she was "blowing her symptoms out of proportion" and that she should return to work in the near future. Her primary care physician also noted that her pain symptoms were of "questionable etiology and significance." In June 2005, Dr. Wayne Anderson conducted a review of the Claimant’s records at the request of the Employer and Insurer, concluding that the slip at work was just another incident that aggravated a low back condition

Ultimately, there were records noting that the Claimant had a complex pain disorder, but causation was an issue because multiple doctors questioned the etiology of the Claimant’s back pain. Claimant’s lower back pain was present and actively being treated just prior to her slip at work. She was not able to show by a preponderance of the evidence that her slip was a major contributing cause of her treatment and need for surgery. Despite the opinion that Claimant was permanently and totally disabled, there was no indication that it was due to any work-related injury or condition.

Todd Barber v. MWP Construction, Inc., and Acuity Mutual Insurance Company

Brad J. Lee/Rebecca L. Mann

Issue: (1) Whether Employer/Insurer is required to prove a change of condition after a settlement agreement was signed which provided an obligation of Employer/Insurer to pay future medical benefits, except when the Employer/Insurer approves a Medicare Set-Aside?

The Department of Labor had previously approved a settlement agreement between Claimant and Employer, which encompassed all medical benefits relating to the Claimant’s back injury for past, present, and future. Indemnity benefits were not included in the settlement, and were essentially waived by the Claimant. The settlement agreement provided that there was an obligation on the part of the Employer to pay future medical benefits, with the exception that future benefits would not be covered if the Claimant obtained an approved Medicare Set-Aside at the Employer’s expense.

Both parties agreed that neither party was permitted to reopen the matter upon a change of condition, which Judge Catherine Duenwald found to be unambiguous. Relying on the Department’s decision inStanton v. United Parcel Service and Liberty Mutual Insurance Group, Judge Duenwald concluded that after an award is final, the Employer is required to establish a change in condition before they can deny medical benefits, fail to pay medical bills, or not authorize treatments, and until such time, the settlement agreement is considered to be an Order of the Department.

Catherine Tobin v. Care Concepts, LLC, and First Dakota Indemnity Company

Margo Tschetter Julius/Charles Larson

Issue: (1) Whether Claimant’s injury arose out of her employment with Employer?

Catherine Tobin ("Claimant") was a 68 year old woman at the time of her hearing. She worked with Care Concepts, LLC ("Employer"), where she worked as a medication aide. On May 30, 2014, Claimant fell while she was at work, stating that she "fell over my own two feet." Employer denied worker’s compensation benefits on the grounds that the injury did not arise out of her employment, as the injury did not arise out of a risk that could be associated with her employment.

In the Department’s decision, Judge Hageman first reviewed the "Positional Risk Doctrine." Under that doctrine, a person who is injured when he or she is required to be in a particular place at a particular time during his or her employment is able to collect workers’ compensation, even if the employment-related activities were not a major cause of the injury. Judge Hageman determined that Claimant’s employment placed her in the room in which she fell, and therefore the Positional Risk doctrine did apply.

Further, the Department addressed the "Unexplained Fall Doctrine." This doctrine makes an injury compensable when the employee proves that an injury occurred by accident in the course of employment from a neutral risk that is neither attributable to the claimant personally nor the employer. Judge Hageman found that the Unexplained Fall Doctrine applied, holding that it was apparent that Claimant did not know what caused her to fall, therefore that the fall was "unexplained." Accordingly, it was determined that Claimant’s injury arose out of and in the course of her employment with Employer.

Tammy Lagler v. Menard’s, Inc., and Zurich American Insurance Company

Ronald Parsons/J. G. Shultz

Issue: (1) Whether Claimant is entitled to attorney’s fees pursuant to SDCL § 58-12-3? (2) Whether Claimant is entitled to a lump sum payment of benefits? (3) Whether Claimant is entitled to costs?

Tammy Lagler ("Claimant") was injured during the course of her employment with Menards, Inc. ("Employer") in April 2007. In February 2008, Dr. Watts of Core Orthopedics performed surgery on Claimant’s ankle. Zurich American Insurance Company ("Insurer") assumed responsibility of the injury and initially paid all medical expenses including the surgery. Claimant continued treatment with Dr. Watts. In August 2008, Dr. Watts recommended surgery Claimant’s ankle as a result of her work injury.

While the surgery request was pending, the Insurer scheduled an independent medical exam for September 2008. In late August 2008, Claimant filed a Petition for Hearing alleging that Insurer has "veraciously and unreasonably refused payment." The IME was subsequently cancelled and not rescheduled for unknown reasons. The Insurer reached Claimant’s attorney in early September 2008, stating that additional information was needed from Dr. Watts before surgery could be approved, but that Insurer had not yet denied Claimant’s requested treatment. Claimant’s attorney stated that he would not withdraw the Petition for Hearing until it was confirmed that surgery was being paid for.

Surgery was denied after the Insurer found out from Dr. Watts’ nurse that Claimant’s condition can be caused by wearing heels. Insurer concluded that the injury was not due to the original work injury. Each of Dr. Watts’ assistants denied having any conversations with Insurer in which they indicated that Claimant’s injury was not related to the workplace. An adjuster from Insurer stated that the assistant that gave her this information was named "Angie Roberts" but nobody by that name had ever worked for Dr. Watts. There is a record of a five minute telephone call between Dr. Watts’ office and Insurer on that day.

In October 2008, Dr. Eric Watson conducted an examination of Claimant’s ankle and concluded that surgery would be beneficial, but did not say whether it was related to the work injury. Again in November 2008, Dr. Watts stated that she had changed her gait pattern since the injury, which he believed was the biggest contributing factor to her need for surgery. Surgery was performed in February 2009, and Claimant was able to return to work part time in April 2009. In February 2010, a Dr. Richard Farnham opined that Claimant’s work injury did not require surgery.

For the issue of whether Claimant could collect attorney’s fees pursuant to SDCL § 58-12-3, Judge Hageman concluded that Insurer had diligently investigated the claim and sought an answer from the treating doctor. The phone records indicating that someone from Insurer’s office did have a conversation with someone at Core Orthopedics and that Insurer had the right to ascertain why the surgery was needed. The Department found that Claimant could not collect attorney’s fees because she was unable to prove that Insurer’s denial of the second surgery was vexatious or without reasonable cause.

On the issue of whether Claimant could receive a lump sum payment of her benefits, Judge Hageman determined that would be appropriate because of Claimant’s "exceptional financial need that arose as a result of reduced income due to the injury," as required by SDCL § 62-7-3. Additionally, on the third issue, the Department concluded that Claimant was not entitled to costs.

Sharleen Grimlie v. Larson Manufacturing Company, Inc., and Zurich North America

David J. King and Bram Weidenaar/Justin G. Smith

Issue: (1) Whether the incident that Claimant experienced while working for Employer is and remains a major contributing cause of Claimant’s current condition and need for treatment? (2) Whether Claimant’s medical treatment was medically necessary and reasonable? (3) What is the extent of Claimant’s current condition and is Claimant entitled to Permanent Partial Disability Benefits? (4) Whether Claimant is permanently and totally disabled due to a work-related injury or condition and falls under the Odd-Lot Doctrine? (5) Whether Employer/Insurer is required to reimburse Claimant and Claimant’s medical insurer for medical bills paid, and if so, in what amount?

Sharleen Grimlie ("Claimant") was hired in 1993 as a door assembler at Larson Manufacturing Company, Inc. ("Employer"). Claimant injured her back in January 2011 while working, which she initially attributed to overwork. She reported the injury that day and filled out an injury report the next day when her back did not feel any better. The day after the injury occurred, she also went to a chiropractor who advised her not to return to work. Claimant had treated with this chiropractor in the past but had not previous history of back problems.

An MRI was taken in April 2011, which showed degenerative spondylotlisthesis, spinal stenosis, a bulging disc and protruding disc, as well as other levels of degenerative disc change. Dr. Mitchell Johnson of Orthopedic Institute recommended a back brace and physical therapy and allowed her to return to work with restrictions for a short period of time. In June 2011, however, Dr. Paul Cederberg performed an IME of Claimant. Dr. Cederberg stated that Claimant had chronic, long term, and degenerative preexisting conditions. Accordingly, he opined that her injury was not related to the employment. As a result, Employer issued a denial.

Dr. Johnson performed fusion surgery in August 2011, and Claimant returned to physical therapy until December 2011 when she began a home-based program. The surgery was paid for by Employer’s health insurance coverage, not workers’ compensation.

In March 2012, Dr. Johnson ordered Claimant completely off work. She was subsequently terminated by Employer and lost insurance coverage. In June 2013, Dr. Johnson wrote to Claimant, in a response to her attorney, saying that there may be some other work she could perform with restrictions, and that his previous recommendation was only relating to her current job duties. In July 2014, Dr. Cederberg performed a follow-up IME and came to the same conclusion as he had previously.

In reviewing the causation of the injury, Judge Duenwald determined that Dr. Cederberg’s conclusion was flawed in a number of ways, and ultimately did not find him credible. As to the extent of Claimant’s condition, Judge Duenwald found that under SDCL § 62-4-53, the employee has the burden of proof to make a prima facie showing of permanent total disability. Because Claimant had not attended a Functional Capacities Examination or been evaluated recently by a treating physician to establish the extent of her disability, Judge Duenwald looked to Dr. Cederberg’s opinion from August 2012 in which he said that she could perform sedentary work, thereby finding that she was not permanently and totally disabled. As to the issue of whether Employer was required to reimburse Claimant for medical bills, Judge Duenwald determined that because the medical claim was deemed to be compensable, any medical bills that have been incurred by Claimant and have been paid out by any other party are to be reimbursed by Employer.

Anthony J. Shulte v. Rural Manufacturing Co., Inc., and First Dakota Indemnity Company

Michael E. Unke/Michael McKnight

Issue: (1) Was Claimant’s work for Employer a major contributing cause of Claimant’s injury or condition and need for treatment?

Anthony Shulte ("Claimant") worked for Rural Manufacturing Co., Inc. ("Employer") for over 20 years as a shop foreman doing fabrication, installation work, service work, repair work, and some design work. On May 1, 2012, Claimant injured his shoulder while building a steel scale pan for some equipment they were building. He felt a pop and a sharp pain in his shoulder, which he claimed he did not realize he injured at the time.

Claimant treated regularly with a local chiropractor since 1989 for a variety of injuries and symptoms including neck, back, ankle, wrist, knew, and toe pains. In April 2012, just prior to the injury, Claimant saw the chiropractor for his cervical spine and left shoulder. Claimant did not return to the chiropractor until June 2, 2012, reporting a left shoulder pain at 8 out of 10. On June 11, 2012, Claimant returned again with the same complaints, and further testing revealed a possible rotator cuff tear.

Dr. Hurd provided an opinion that the MRI showed AC joint arthrosis, a possible superior labral tear, as well as a low grade rotator cuff tear. The degree of muscular atrophy and retraction of the muscle indicated to Dr. Hurd that the rotator cuff was injured in an acute manner. Eventually, symptoms became worse, and Dr. Hurd recommended rotator cuff surgery.

In October 2012, an IME was performed by Dr. Gary Wyard, who was of the opinion that Claimant had not suffered a rotator cuff tear, as it would have shown up on an MRI. He believed Claimant was magnifying his symptoms, and continued to have that belief even after the rotator cuff surgery by Dr. Hurd, which Dr. Wyard deemed unnecessary.

Judge Duenwald ultimately found in favor of Claimant as to causation, Although Dr. Wyard’s reasoning regarding age and tearing of muscles appeared to be "textbook," Judge Duenwald concluded that not every injury is textbook and that Dr. Hurd was the doctor who actually had the opportunity to see the muscle and the tear during the surgery. Accordingly, Judge Duenwald found the treating physician’s opinion more credible than the IME, thereby awarding benefits.

 If you have any questions regarding these decisions, please contact Charlie Larson at 605-336-2424 orcalarson@boycelaw.com.