State News : South Dakota

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.