South Dakota is a rural, expansive state with many smaller towns throughout. There are very few major health care providers within the state. There are also very few doctors that will perform independent medical examinations within the state. On occasion, we are forced to ask a claimant to travel outside his community to have the IME performed. The question then becomes what time and (more importantly) place are “reasonably convenient for the employee” to attend the IME. Unfortunately, there is no hard and fast rule and each claim must be reviewed independently.
SDCL 62-7-1 allows for compulsory medical examinations (a/k/a IMEs) at employer’s/insurer’s request. However, the IME must occur “at a time and place reasonably convenient for the employee.” Sometimes it will be necessary for a claimant to travel several hours or several hundred miles to attend the IME due to the location of the IME doctor. On occasion, a claimant will claim the distance is not “reasonably convenient” due to being in pain from sitting for long periods of time or simply unable to travel due to finances. The South Dakota Supreme Court has not interpreted what “reasonably convenient” means. However, the South Dakota Department of Labor has taken into consideration a Claimant’s pain when traveling for an IME and determined that sometimes traveling is the best of a bad situation. See, Dale L. Dobson vs. Homestake Mining Company, 1995 WL 529827, HF No. 87, 1994/95 (SD Dept. Labor). In these situations, it is best to calculate the approximate costs the claimant will incur to attend the IME (mileage, hotel, meals) and prepay those amounts. Sometimes it is worth allowing the claimant several days to travel to and from the IME in order to reduce the amount of time in a car or bus. On other occasions, it may be best to fly the claimant to the IME instead of making them drive. If these considerations are given to the employee, you have the best chance of convincing the Department of Labor the IME was at a time and place reasonably convenient to the employee if the claimant refuses to attend the IME.
As mentioned above, each claim is a different so determining what is reasonably convenient for the employee depends on that particular set of circumstances. If you have any questions on this topic, feel free to contact us.

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.

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.

The National Labor Relations Board (the “Board”) continues its heightened scrutiny of employee handbooks’ social media policies as the Board grapples with the concept of “protected concerted activity” in the era of social media.  In an August, 2016 ruling, the Board affirmed an administrative law judge’s decision holding that Chipotle’s social media policy violated the National Labor Relations Act (the “Act”).

By way of background, the case arose when Chipotle terminated an employee for tweeting about the working conditions of Chipotle’s employees and for circulating a petition amongst coworkers that addressed break periods.  One of the tweets posted included a news article concerning hourly workers having to work on snow days when other workers were off and public transportation was closed. When asked if the employee would remove the tweets, the employee agreed, and the tweets were subsequently taken down.

In part, the challenged portions of the social media policy were:

“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information”

“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

An employer violates Section 8(a)(1) of the Act when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.  Section 7 rights include, among others, the right of employees to self-organize, join unions, bargain collectively, and to engage in other concerted activities, such as discussing working conditions and wages.

The Board held that, while neither of the challenged provisions explicitly prohibited Section 7 activity, employees would reasonably construe portions of the provisions to restrict the exercise of Section 7 activity, and could serve to chill employees in the exercise of their Section 7 rights. The Board noted that ambiguous rules are construed against the employer.  As such, the Board ruled that Chipotle violated Section 8(a)(1) of the Act by restricting its employees’ Section 7 rights.

The Board’s decision serves as yet another reminder that employers must review and closely scrutinize and parse their social media policies to evaluate not only whether, by its terms, a policy prohibits Section 7 activity, but whether an employee could reasonably construe the policy to prohibit Section 7 activity.  In particular, employers should avoid vague or ambiguous verbiage and should consider using expressly defined terms.

As a final word, Chipotle’s social media policy also contained a disclaimer that said, “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws or any other privacy rights.”  The Board found that this disclaimer did not serve to cure the unlawfulness of the foregoing provisions.

In recent weeks, zero dollar allocation Medicare Set Aside’s (MSA) came into question. Initially it was thought that on any claim, even fully denied claims, where approval of a zero dollar MSA was sought, documentation would have to be provided to the Centers for Medicare and Medicaid Services (CMS) to support the zero dollar MSA. This would include submitting (1) Final settlement documents or a statement that none exist; (2) All court rulings including but not limited to rulings on compensability; or, (3) If no court ruling exists on compensability, treatment records showing no further treatment is needed for the work injury or a statement from the doctor concerning future treatment. However, additional information surfaced that indicates these stricter guidelines would not apply to settlements of completely denied or disputed claims.

As for zero dollar allocation MSA’s on accepted claims, it is our understanding at Boyce Law that the above-guidelines will likely be put in place. In these cases, in order to secure CMS approval, it will be necessary to obtain a court order that establishes the claim is not compensable, or treatment records showing no further treatment for the work injury will be required.

With that being said, we will watch to see if CMS issues any new guidelines via a policy memo in the future, and keep you apprised of those developments.

The South Dakota Department of Labor recently held that when a Petition for Hearing is not filed within two (2) years from the date of the denial letter, the claim cannot be reopened for a change in condition pursuant to SDCL 62-7-33. In Palmquist v. Luverne Truck Equipment, Inc. and Travelers Insurance, the Claimant’s medical benefits were denied via letter and no Petition for Hearing was submitted until after two years had passed from the denial. Claimant argued that a letter she filed with the Department prior to the denial letter should be considered a Petition for Hearing (the medical benefits were denied after benefits had been issued for a matter of years). The Department first analyzed the letter that Claimant sent to the Department in prior years to determine whether it included the necessary information to be considered a Petition for Hearing. In determining that the letter was not a Petition for Hearing, the Department relied on Administrative Rule 47:03:01:02 to hold that the letter did not contain the specific information required by the Rule. Since there was no prior Petition for Hearing on file, the Department then analyzed whether SDCL 62-7-33 applied to a claim where the two year statute of limitation applied.

It was undisputed that Claimant’s Petition for Hearing was filed after the two year statute of limitations had run. Claimant argued that her claim should be reopened under the change in condition statute found at SDCL 62-7-33 because she experienced a change in her physical condition after the two year statute of limitations had run. Claimant relied on language from Owens v. F.E.M. Electric Assn., Inc., 2005 SD 35, 694 N.W.2d 274, 280, when arguing that a change in condition after the expiration of the two year statute of limitations allows Claimant to continued workers’ compensation benefits. The Department denied Claimant’s request to reopen her claim and held that Claimant’s assertion flied in the face of the clear language of SDCL 62-7-35, which says all claims which have been denied in writing and for which no petition for hearing has been filed are “forever barred.” The Department also held that allowing a claim to be reopened under SDCL 62-7-33 would be contrary to the Legislature’s intent. Claimant also made equitable arguments to overcome summary judgment and the Department rejected them in their entirety.

This matter has been appealed and is currently set for oral arguments in Spring of 2017.

 

There are some common myths that prevail in the field of workers’ compensation surrounding compulsory medical examinations set up by the Employer and Insurer.  Below, some of those myths are dispelled and the law on this issue clarified.

Myth #1: The Compulsory Medical Exam Must Be Set up Where the Employee Resides

At the expense of the employer, an employee must present for an examination to a “duly qualified medical practitioner” selected by the employer, at a time and place reasonably convenient for the employee.  Under South Dakota law, the physician must be licensed in SD in order for the employer to compel the employee to attend.  This does not mean that a non-licensed SD physician cannot be used, it just means that the only way to get the Department to compel attendance, or suspend benefits, is when the employer complies with SDCL 62-7-1.

Myth #2:  Employee is Not Allowed to Have Anyone Present at the Examination

The employee may request that the examination take place in the presence of a duly qualified medical practitioner paid for by the employee.  If the examination is made without a duly qualified medical practitioner present on behalf of the employee, the employee is entitled to a written report from the examination if requested.

Myth #3: An Employer is Limited to Only One Compulsory Examination of the Employee

Under Title 62, the Employer is entitled to get a compulsory examination once every four (4) weeks for purposes of determining the nature, extent, and duration of the injury received by the employee.

Myth #4: An Employee is not required to attend the IME 62-7-3

If an employee refuses to submit themselves to a medical examination, or unnecessarily obstructs the examination, the employee’s right to compensation payments can be temporarily suspended until the examination takes place, and no payments need to be made under Title 62 until that occurs.

Myth #5: When the Claimant Does Attend the Exam, He Can Receive the Missed Benefits

If the benefits are suspended pursuant to SDCL 62-7-3, the Claimant is not eligible for benefits that would have been awarded from the time he/she fails to attend a compulsory medical examination to such time as he attends the examination or reaches maximum medical improvement.

If you have any questions about IME’s or South Dakota law regarding the same, please give us a call to discuss.