An often neglected aspect of a South Dakota permanent total disability claim is there requirement for a reasonable but unsuccessful job search effort on the part of the claimant. This is required unless the claimant is deemed “obviously unemployable” by showing that a job search would be futile, as provided in SDCL 62-4-53. Further, expert testimony is required pursuant to SDCL 62-4-53, providing, “An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. Seldom is a claimant obviously unemployable, therefore, as part of the claimant’s proof of permanent total disability there must be a showing of a reasonable but unsuccessful job search effort. What constitutes a reasonable job search? It is not something that can be defined by a bright line rule and will vary by the circumstances. It is not just based on the number of job applications or contacts made, but the number is certainly relevant to the determination.

Did the claimant only start looking in the months before hearing? Has significant time passed between the date of release to work and the job search efforts made? Is the claimant only applying to be able to satisfy the unemployment benefit of requiring two contacts a week? What types of jobs are they applying for? Submitting applications for jobs outside of their abilities and/or restrictions should hardly constitute a reasonable search sufficient to satisfy the requirement. Is the claimant registered with job service or South Dakota Vocational Rehabilitation? How is the claimant presenting in the job application or job interview? Sabotaging the application and interview process by their statements and/or presentation does not constitute a reasonable effort to return to work.

Do not neglect this important legal requirement when evaluating a claim for permanent total disability.

The South Dakota Department of Labor and Regulation will begin posting appellate decisions from the Circuit Court on its website. This is something the South Dakota Workers’ Compensation Committee has been working toward for some time. Currently you can access all Department of Labor decisions, but unless we are involved in the case or the decision was appealed to the SD Supreme Court, we often did not know the outcome of the appeal, or even if a Department decision was appealed in the first place.  Fortunately, this new feature will change that.

Boyce Law will continue to monitor all Department decisions and provide case law updates on this blog. We will also report any relevant appellate decisions from the Circuit Court. The appellate decisions can be accessed at http://dlr.sd.gov/workers_compensation/decisions_appeals.aspx.  You can navigate to that page by clicking “Case Decisions” from the home page and using the “Workers’ Compensation Appeals Decision” link found on the “Case Decisions” page.

On Thursday, April 27, 2017, R. Alexander Acosta was confirmed by the U.S. Senate to head the Labor Department.  Acosta served on the National Labor Relations Board under former Republican President George W. Bush, who also appointed him to be assistant attorney general in the Justice Department’s Civil Rights Division.

Prior to his role with the NLRB, Acosta served as a law clerk to Samuel Alito from 1994 to 1995 when Alito was a judge at the 3rd U.S. Circuit Court of Appeals, prior to Alito joining the United States Supreme Court.  Interestingly, Acosta told the Senate Committee on Health, Education, Labor and Pensions during his confirmation hearing that he had reservations about certain Obama-era labor regulations.

Particularly relevant to prior blog posts we have had, Acosta expressed reservations about Obama’s changes to the overtime rule issued last year that more than doubled the salary ceiling under which employees would be eligible for overtime pay, from $23,660 to $47,476 a year.  As we previously discussed, the rule purported to extend overtime pay to more than 4 million salaried workers, but it was blocked by a federal judge in November 2016. Acosta said he had “serious questions as to whether the secretary of labor had the power to enact this in the first place.”

We will keep you apprised as to any developments in this area.

Guest Blogger:  Sue Simons, Staff Attorney, RAS 

Under South Dakota law, when an employee is injured in the course and scope of his/her employment, the employee has the right to make the initial selection of the treating medical practitioner.  However, the legislature recognized the right of the employer to have an injured employee examined by a medical practitioner selected by the employer at identified times and intervals. In fact, the legislature provided penalties for employee non-compliance or interference with an examination requested by the employer.  Pursuant to SDCL § 62-7-1, to invoke this right, the medical practitioner selected by the employer must be “a duly qualified medical practitioner,” defined as a medical practitioner licensed and practicing within the scope of his/her profession under Title 36.  As result of the licensure and practice requirements, finding “duly qualified medical practitioners” willing and able to perform examinations has proven to be difficult and costly. Starting this month, however, the number of “duly qualified medical practitioners” may soon be greatly expanded with the opening of the application process for physicians to obtain interstate medical licensure.

In 2015, with the support of the South Dakota Board of Medical and Osteopathic Examiners, the South Dakota Legislature passed the Interstate Medical Licensure Compact (the “Compact”).  An identified purpose of the Compact was to “strengthen access to health care” by providing “a streamlined process that allows physicians to become licensed in multiple states, thereby enhancing the portability of a medical license and ensuring the safety of patients.”  SDCL 36-4-44, Section 1.  Under the Compact, licensed physicians can qualify to practice medicine across state lines and participating states may now share investigative and disciplinary information.  A physician who meets the qualifications of the Compact will be eligible for licensure in any other Compact-state. Once licensed, the physician is bound to comply with all statutory laws and administrative rules/regulations of each Compact state where he/she chooses to practice.  The “practice” occurs where the patient is located at the time of the encounter, thereby making the physician under the jurisdiction of the state medical board where the patient is located.

To date, eighteen (18) states have adopted the Compact, including: Alabama, Arizona, Colorado, Idaho, Illinois, Iowa, Kansas, Minnesota, Mississippi, Montana, Nevada, New Hampshire, Pennsylvania, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming and it has been legislatively introduced in Maine, Michigan, Nebraska, Rhode Island, Tennessee, Texas, Washington, Washington, D.C..

What this means for employers/insurers in South Dakota is that the number of “duly qualified medical practitioners” available to perform examinations may soon be greatly expanded.

More information about the Compact can be found at https://imlcc.org/

 

I am sure that everyone has heard some version of the quote, “Rules are made to be broken.” As an attorney, this makes me cringe. Often times when I am reviewing a file or talking to an employer I note that there is a handbook, manual, policy or other form of rules reduced to writing. Then, I dig deeper, and I find that while there may be all of these rules or policies written down, they are all too often not enforced. Simply having the rule reduced to writing does not somehow relieve all other responsibility if the rule is not followed and an employee is injured. It is alarming how many times employees are interviewed and questioned about a company handbook or policy manual and the question is met with a bewildered look and a response such as, “What handbook? We have one of those?!”

The day–to-day challenges involved in running a business make it difficult to ensure that employees are informed of the rules, and that managers do their jobs to enforce the rules. However, doing so is absolutely critical. Spending 15-20 minutes on a training for employees to discuss the company rules/policies will prove to be invaluable. Each employee needs to not only know where to look to find the company’s rules/policies, but they also need to know who to talk to about questions they may have. Further, training for managers who are tasked with enforcing the rules can prove to be extremely effective and prevent injuries to employees. Rules are not made to be broken – they are made to ensure the safety of the employees and promote an efficient and effective workforce. Emphasizing that the rules are there to protect the employees is key to helping the employees understand the importance of having them followed. I have seen too many times that an injury occurred that could have been avoided had an employee followed the rule/policy put into place. I have also seen too many times when an employer may have the rule, but it is only enforced sparingly, leading to a lackadaisical attitude amongst the employees regarding following the rules because they know if they don’t, there will be no negative repercussions.

If a rule/policy is violated, immediately address that with the employee and note it in their personnel file. It would be prudent to document the conversation and have the employee sign something acknowledging that the rule/policy was discussed with them as a result of their violation. It is much easier to address these issues before they become problems.

We are always happy to help your company draft rules, policies or manuals, and you can call our office to discuss doing so. However, ensuring consistent enforcement of the rules is up to you.

Doctors, lawyers and judges often ignore South Dakota’s adoption of an evidence-based medicine standard in workers’ compensation claims. SDCL 62-1-15 was enacted in 1995 and simply provides:

“In any proceeding or hearing pursuant to this title, evidence concerning any injury shall be given greater weight if supported by objective medical findings.”

Despite its clear and concise language, the statute is seldom relied upon when accepting or rejecting a medical opinion. While the law does not require objective findings in order to sustain a workers’ compensation claim, the medical evidence presented to support the claim must not be speculative. Vollmer v. Walmart Store Inc., 729 NW2d 377 (SD 2007).  Medical evidence must be precise and well supported and based on a reasonable degree of medical certainty or probability. Id. A medical opinion cannot be based solely upon a temporal sequence. Darling v. West River Masonry, Inc., 777 NW2d 363 (SD 2010).  According to our Supreme Court, “arguments relying solely on temporal sequence have ‘little value in the science of fixing medical causation.’”

The all-too-common opinion from the treating physician that the work incident caused the condition because the condition didn’t exist before the work incident should have no value in a South Dakota workers’ compensation claim. As my beloved mentor used to tell me, “post hoc, ergo propter hoc” which is Latin for “after this, therefore resulting from it” is not legally sufficient to support medical causation. The law requires an adequate explanation of the opinion based on science and evidence. As quoted above, SDCL 62-1-15 dictates that the fact-finder give great weight to opinions based on objective medical evidence. Those opinions which are based on objective medical evidence and are precise and well supported should be accepted regardless of whether or not the opinions come from the treating doctor, a record review or a compulsory medical examination.

In a recent 8th Circuit case published on March 1, 2017, LaKeysia Wilson v. Arkansas Dept. of Human Services (DHS), Wilson, an African American woman, sued DHS alleging disparate treatment on account of race as well as a retaliation claim.

Another DHS employee, an African American woman, Sharon Meeks was fired in 2013 and filed a discrimination charge with the EEOC.  The State Appeal panel ordered her reinstated.  Meeks’s supervisor led the investigation resulting in Meeks’s termination.  The supervisor urged the plaintiff, Wilson, to apply for the same open program position for which Meeks had applied and told Wilson that she “was determined to thwart the efforts of Meeks.”  Meeks and Wilson were the only ones who applied for the job.  In March 2014, Wilson got the job, which was a promotion to program supervisor.  DHS then re-hired Meeks in Wilson’s old position, and fired her three (3) months later.

Weeks after Meeks was fired, Wilson began to receive what she claimed to be unfair criticism from her supervisor and was stripped of her supervisor duties on July 2, 2014.  She filed a charge of discrimination on September 8, 2014, alleging harassment based on race and disability.  Three weeks later, she was put on a performance improvement plan, and the next week she received a written warning for work that a Caucasian employee did not accomplish.  On October 22, 2014, six (6) weeks after filing the EEOC charge, Wilson was terminated.

The 8th Circuit affirmed the dismissal of the disparate treatment charge because Wilson did not state sufficient grounds to establish that she was treated differently than a Caucasian colleague.  As to the retaliation claim, Wilson was required to show (1) she engaged in statutorily protected conduct; (2) she suffered an adverse employment action; and (3) a causal connection exists between the two. See Wells v. SCI Mgmt., L.P., 469 F.3d 697, 702 (8th Cir. 2006).  The 8th Circuit found that Wilson sufficiently pled the first two elements, but the issue of the causal connection between the filing of the EEOC charge and the firing still existed.  The Court found that the six-week period between the EEOC charge and the termination plausibly alleged a casual connection.  The Court found that without a detailed explanation why DHS terminated Wilson, DHS’s alternative explanation for the firing was not “sufficiently convincing” finding that while the factual allegations may be consistent with termination due to poor performance, that was not an “obvious alternative explanation” rendering her claim implausible.

While DHS may ultimately be able to show that Wilson had performance issues sufficient to warrant her termination, the Employer takeaways from this case are clear:  Employers must document performance issues.  Employers must also take all complaints of discrimination seriously.  Also, as harsh as it may sound – hire slow, but fire fast, preferably before the employee with performance issues complains about discrimination.  Doing so will go a long way to avoid paying a lawyer to defend a retaliation claim.

 

 

 

 

At the end of 2016, the Department of Labor issued a decision denying summary judgment for Claimant in Eixenberger v. Rapid City Winair Company and Travelers Ins. Co., HF No. 128, 2014/15, citing that several factual issues still needed to be hashed out and summary judgment was not proper.

Eixenberger worked for Rapid City Winair Co. as a delivery driver and as warehouse personnel. He pulled products and loaded trucks, and also drove the delivery truck.  On July 8, 2013, Eixenberger was loading the truck on an 87-degree day, and earlier that day told a co-worker that he felt sick to his stomach. Later that afternoon, a co-worker found Eixenberger lying next to the truck, unresponsive. Emergency medical services were called and he was rushed to the hospital, but unfortunately passed away due to what was later determined to be a heart attack. The emergency room doctor, Dr. Newman, opined Eixenberger’s work activities on July 8, 2013, were a major contributing factor in his heart attack, stating that the physical exertion that day caused the heart attack.

Several facts that Dr. Newman relied upon in reaching that conclusion were determined by the Department to be disputed – including the amount of physical exertion, including how much lifting was going on and the pace at which Eixenberger was working, Eixenberger’s physical appearance prior to the collapse and statements he made to co-workers. Dr. Newman conceded that his opinion would change if Eixenberger’s physical exertion was less than he understood it to be at the time he gave his opinion.

Employer and Insurer offered the opinion of Dr. Del Core, a board-certified cardiologist from Creighton Medical School. Dr. Del Core ultimately testified that the heart attack was not necessarily related to Eixenberger’s work activities. The Department noted that Dr. Del Core assumed that Eixenberger was not performing extreme physical activity on the day that he died, and pointed out that the level of exertion was a disputed fact at that heart of the case. In denying Eixenberger’s motion for summary judgment, the Department stated that “whether…unusual activity occurred that day is disputed, and a hearing will be needed to resolve the matter.”

This decision highlights the importance of a factual investigation after an injury or death, including speaking to all the witnesses. It also highlights the importance of an employer keeping a pulse on their employees and the tasks that they are performing on any given day and to ensure proper documentation of those tasks where feasible. These cases can be won or lost based on the expert testimony, and the law provides that expert testimony is only as good as the facts upon which it is based – so make sure you have all the facts.

As you know, the Occupational Safety and Health Act of 1970 was enacted for the purpose of ensuring the safety and health of employees by setting and enforcing certain standards in the workplace.  In furtherance of that mission, OSHA has the power to review settlement agreements between employers and employees under its authority to protect the administration of whistleblower statutes.

In August 2016, the Director of Whistleblower Protection Programs, Maryann Garrahan, issued a memorandum providing Interim Guidance to employers to aide in compliance with these standards.  This guidance supersedes the guidance in Chapter 6, paragraphs XII.E.2 and 3 of the OSHA Whistleblower Investigations Manual, but does not otherwise change OSHA’s policies with regard to review of settlements.  The Interim Guidance states that it is designed to “ensure that an employer does not contractually restrict or otherwise deter an employee from engaging in whistleblower activity and collaterally to help ensure that employees who do engage in such activity do so without fear or concern of retaliation.”

According to Garrahan, “OSHA will not approve a “gag” provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity.”  Often, constraints of this kind arise from broad confidentiality or non-disparagement clauses, which OSHA interprets as restricting an employee’s ability to engage in protected activity. OSHA has provided other examples of prohibited provisions in its Interim Guidance, including prohibiting:

  • A provision that restricts the complainant’s ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on a respondent’s past or future conduct.
  • A provision that requires a complainant to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct.
  • A provision that requires a complainant to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employer has violated the law.
  • A provision that requires a complainant to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.

So what does this mean?  Employers should immediately review their severance, settlement, and confidentiality agreement templates to ensure compliance with OSHA’s new guideline, and attorneys need to be aware of the same in drafting any such agreements.

For more information on this topic, you can visit http://bit/ly/whistleblower-guidelines.  There, you will find additional information, including guidance regarding avoiding language such as “except as provided by law” in your agreements, and what language should be used instead. If you have any questions, please feel free to call our office to discuss.

Thirty plus years of employment and worker’s compensation practice has exposed me to thousands of personnel files and interviews, not to mention my experience with what could easily be twice that many management-level employees. Those that manage employees or those charged with the responsibility of managing the business’ worker’s compensation claims routinely make four common mistakes:

1. Failing to consistently enforce the policies, rules and procedures of the company. An employer must be consistent with every employee and with every policy. Nothing is harder to explain than why the rule/policy/procedure was being enforced against Jane but not against John or others.
2. Failing to accurately report and document what goes on in the workplace. Many employment related claims turn on who said what to whom. In other words, the “she said, he said” credibility battle is at the crux of many disputes. Inaccuracy in your documentation will come back to haunt you every time.
3. Failing to use common decency and respect. Follow the Golden Rule we all learned as children: treat others as you would like to be treated.  This is a simple yet often overlooked rule.
4. Failing to document the personnel file. Although much has been written about the importance of documentation, it is remarkable the lack of documentation we see in many situations. Properly documented files leads to less confusion and can save everyone time and money in the end.

If you are interested in learning more about this topic, please contact the authors regarding more in-depth training we provide on these subjects and how to avoid these mistakes.