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Sarah Sorenson v. Harbor Bar, LLC and Midwest Family Mutual Ins. Co., 2015 SD 88
This matter came before the South Dakota Supreme Court on appeal by the Employer/Insurer. Claimant was injured during her employment in December 2009 when she sustained a head injury, ultimately ending in her having brain surgery. There were three separate surgeries, and the Department found that the first two surgeries were the responsibility of the Employer/Insurer and that the third surgery was not. Employer/Insurer appealed the decision, and the Circuit Court affirmed in part and remanded in part for clarification regarding the amount of the compensable damages.
On appeal, the issues appealed were (1) Whether the Department was clearly erroneous in its finding that the alleged second incident actually happened before the work-place incident, if it happened at all; (2) Whether the Department was clearly erroneous in its determination that the work-related injury was a major contributing cause of Sorensen’s intracranial hemorrhage; and (3) Whether the Department abused its discretion by admitting Dr. Sabow’s undisclosed testimony as rebuttal testimony. As to the first issue, the S.C. held that they would not substitute their judgment for that of the Department, as the Department heard the witnesses live and was able to determine their credibility. As to the second issue, the S.C. held that it was the function of the fact-finder to assess the credibility attributed to the expert opinions and they believe the fact-finder got it right. As to the last issue, the S.C. stated that disclosure of a rebuttal witness has never been required in SD by statute, rule or caselaw. The S.C. went on to say that absent evidence of bad faith on the part of the Claimant, there was no reason to exclude this testimony and would only serve to stifle the Department’s truth-finding process. The Court also stated that even if they were to find that the Department abused its discretion, it would not merit reversal because the Employer/Insurer would have to show that they were prejudiced, and they would not be able to do so because they were able to supplement the record with additional expert testimony of their own.
If you have questions on this case or generally in South Dakota, please contact Charlie Larson atcalarson@boycelaw.com or at 605-336-2424