State News : South Dakota

In Linda Muellenberg v. Redfield Ace Hardware d/b/a Investment Enterprises and First Dakota Indemnity Company HF No. 33, 2022/2023, Linda Muellenberg (“Claimant”) worked for Redfield Ace Hardware (“Employer”) as a cashier, but she would also stock products on shelves. On December 3, 2020, Claimant sustained a work injury to her left eye when she was struck by the metal end of a bungee cord after it detached from a shelf (the “Injury”).

Following the Injury, Claimant required surgery on her left eye. After surgery, she was released to full-duty work by her treating doctor, Dustin Dierks. Following her release to full-duty work, no permanent work restrictions were imposed by any of her medical providers. Later, Claimant treated with her new doctor, Alex Ringeisen, who found Claimant to have a visual acuity of 20/40 in her injured eye with glasses or contact correction.

Claimant alleged she was permanently and totally disabled under SDCL § 62-4-53 and primarily relied on the alleged fact that she could not safely drive the approximate 10 miles from her home in Zell, South Dakota, to nearby Redfield, South Dakota for employment opportunities. Further, Claimant admitted she had previously driven herself from her home in Zell, South Dakota, to her mother-in-law’s home approximately five miles away but did not feel comfortable driving to Redfield, South Dakota, 10 miles away.

However, Claimant’s treating doctor testified there was no medical reason why Claimant could not drive, but he ultimately left the choice of whether to drive up to the discretion of the patient. Employer had an Independent Medical Examination completed by Dr. Douglas Martin, who opined there was no medical reason why someone with partial vision in one eye cannot drive and noted patients with partial vision drive personal and commercial vehicles.

Claimant provided a vocational assessment from their expert, Tom Audet, who concluded that Claimant was unemployable due to her inability to drive to work. He testified that his opinions were based on what Claimant felt she was able to do. Employer provided a vocational assessment from their expert, Chad Kollars, who concluded that Claimant was capable of driving to and performing work in Redfield. Chad based his assessment on the medical opinions of Claimant’s treating physicians, which indicated Claimant could drive and had no formal work restrictions.

Employer’s main argument, and biggest concern, in this file, was that workers’ compensation claimants should not be allowed to determine their restrictions based on their subjective beliefs or limitations when no formal medical restrictions have been imposed.

The South Dakota Department of Labor (the “Department”) relied on Billman v. Clarke Mach., Inc., 2021 S.D. 18, 956 N.W.2d 812, in which the Court held “[t]he Department must take a holistic approach to a claimant's condition, as each factor affects the severity of the others. The statute explicitly requires the Department to examine the ‘employee's physical condition, in combination with the employee's age, training, and experience[.]’” Id. at ¶ 37.

The Department ultimately held that while Claimant had symptoms that made her uneasy about driving, her feelings, without formal restrictions related to her condition, failed to prove she was “obviously unemployable.” Further, the Department found Chad Kollars’ assessment more persuasive because it did not rely on Claimant’s subjective views of her condition. Therefore, the Department concluded Claimant was not entitled to Permanent Total Disability (PTD) benefits.

The Muellenberg ruling is still ripe for appeal at this time. In South Dakota, Claimant can appeal to the circuit court who will make a ruling. That decision can then be appealed as a matter of right to the SD Supreme Court.