In January, the South Dakota Supreme Court issued Harvey v. Regional Health Network, Inc., 2018 SD 3, 906 N.W.2d 382, wherein it affirmed summary judgment for the employer and dismissed the terminated employee’s claims for slander, malicious prosecution, intentional and negligent infliction of emotional distress (I/NIED), wrongful termination, breach of contract, and punitive damages. Harvey, who worked at a nursing home, claimed her termination was premised upon false reports of resident abuse by two coworkers who wanted her fired. She also argued the employer should be held liable for failing to conduct a thorough investigation of the co-worker reports, both before her termination and when the employer reviewed her termination via an internal grievance process, and for causing her to be criminal prosecuted for felony elder abuse. The case is instructive to the practitioner and employer on issues involving: (1) internal investigations, (2) mandatory reporting, and (3) employment policies:

1. Investigations/Decisions: Upon receiving a verbal report of employee misconduct (hitting a resident), the employer obtained written statements from two coworkers (one of whom had a good performance record, the other did not). Other coworkers were not interviewed. In recommending termination, a supervisor noted her own observation of other behavior consistent with the incident reported by the two coworkers. As applied to the I/NIED claims, the Court held that a failed or insufficient investigation did not rise to the level of outrageous conduct, even if the investigation was lacking. Similarly, the slander claim failed because there was no evidence that the speakers (supervisors and leadership) entertained serious doubt as to the truth of the publication (hitting a resident). Harvey is instructive to employers and practitioners particularly as it provides guidance on taking care to conduct sufficient internal investigations and, when possible, having the ultimate disciplinary decision being made by an individual who is not a witness to the conduct at issue in the investigation.

2. Mandatory Reporting: Harvey involved the employer making a mandatory report of alleged elder abuse to the Department of Health. Not only did the report form the basis of Harvey’s slander claim, but she also brought a claim of malicious prosecution (involving the prosecutor’s later decision to pursue criminal charges against Ms. Harvey). The employer did not report as quickly as required by the applicable reporting laws and did not comply with the Department’s requests for supporting documentation, resulting in a Department audit of the employer policies. Nonetheless, the Court upheld dismissal of the malicious prosecution claim, finding that the employer merely reported the conduct and allowed the authorities to do their jobs. Harvey reminds employers and practitioners to be mindful to (a) timely transmit any required disclosure; (b) provide all information learned in their own investigation; and (c) not advocate or otherwise get overly involved in the independent decision of an investigating agency or authority.

3. Policies: In Harvey, Court engaged in a lengthy analysis of the employer’s post-termination grievance procedure and whether the alleged failure to follow the procedure created a breach of contract claim. The Court ultimately answered this question in the negative. Significant to its holding was a review of the employer’s written policies, including: (a) express statements that the employment was at-will and that the terms in the handbook should not be regarded as promises for employment and do not create any contract; (b) reservation of the right to terminate for any reason with or without notice; (c) not having an “exclusive” list of reasons for which an employee could be terminated; (d) not having a mandatory progressive discipline policy; and (e) a grievance procedure that did not restrict the employer from terminating at will and did not require the employer to review the termination decision to make sure the policies/procedures were consistently applied. Employers and practitioners are encouraged to keep these concepts in mind when drafting or revising employment policies.

Also notable in Harvey was the Court’s refusal to expand the whistle-blower wrongful termination cause of action to an employee’s report to supervisors of concerns that her coworkers’ performance was “unsafe” and/or her request to place security cameras in the facility. On this issue, the Court noted existing law limit whistleblowing activity to “the reporting of unlawful or criminal conduct to a supervisor or outside agency”, and it noted to expand the law to include the cited report would wrongfully eviscerate the at-will doctrine in favor of judicial management of the employee/management relationship.

Recommendation is made for review of the Harvey decision in its entirety, as it provides a great analysis of multiple tort and contract claims that an aggrieved employee may seek to bring against an employer.

Let’s take a moment to consider this hypothetical scenario:

John Smith is at work for the Widget Company working on the assembly line. Mr. Smith has been working for about 10 hours when he faints, causing him to fall and hit his head on the ground beneath him. The Widget Company gets Mr. Smith to an emergency room where several tests are run to determine the cause of Mr. Smith’s fainting spell. A review of the diagnostic testing and Mr. Smith’s medical history uncovers that Mr. Smith has a history of fainting due to a personal health condition and he has experienced these fainting spells several times in the background. The Emergency Room physician tells Mr. Smith that the fainting spell was related to his personal health condition and provides him recommendations how to address this issue in the future.

Now, the million-dollar question: Is the diagnostic testing performed on Mr. Smith a covered benefit under South Dakota workers’ compensation law?

Whenever the purpose of the diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable, even if it should later be determined that the claimant suffered from both compensable and noncompensable conditions. Mettler v. Sibco, 2001 S.D. 64, ¶ 9, 628 N.W.2d 722, 724.

We get several questions about whether or not diagnostic testing is compensable when the ultimate outcome relates the reason for the event pointing to a personal health condition. However, keep the above case law in mind when evaluating the responsibility for payment of diagnostic testing to determine the medical explanation for an accident or injury.

As always, please call us if you have any questions, we are happy to help.

The first decision of 2018 involves a permanent total disability claim heard by Judge Thronson. This is the first decision we have seen from Judge Thronson following a hearing. There were a number of issues presented at hearing and the Department found in Claimant’s favor on all of them.

The first issue was whether the work injury was a major contributing cause of Claimant’s condition. Frankly, this part of the opinion is difficult to understand. The opinion starts by stating the Insurer argued that Claimant could not prove that the accident, and not some other unrelated medical condition, was responsible for her condition. There is then some discussion of cervical stenosis and the Department of Labor states the injury need only be a major contributing cause, not the major contributing cause. Despite that, the Department then states that Dr. Cederberg, the IME doctor, provided the medical opinion that the work injury was a major contributing cause to the disability. If the IME doctor relates the injury to work, it is not at all clear why it would have been an issue at hearing. Regardless, the Department found the injury was a major contributing cause of the condition complained of.

The next question was whether Claimant was permanently and totally disabled. Claimant had a $691.00 per week comp rate. She was 61 years old with a high school diploma, and her vocational expert, Tom Audet, testified she would be unable to work within her restrictions and make at least her workers’ compensation rate. The Employer and Insurer did not have their own expert at the hearing. The Department of Labor accepted Audet’s testimony that Claimant was in the odd-lot category. The most interesting part of this opinion was in the Department’s analysis of whether Claimant conducted a good faith job search. Claimant looked for 26 jobs between December of 2014 and May of 2015. It appears she did not make any other job search and the hearing was in August of 2017. If that is correct, Claimant would have gone more than two (2) years without looking for work. The Department held that “no case law in South Dakota specifies that a job search need be made in any particular timeframe.” What constitutes a reasonable job search depends on the facts, but it’s curious that the Department of Labor found the job search to be reasonable as it focused only on the 26 job contacts over a five-month period and did not make any mention that Claimant failed to look for work for more than two (2) years, or attempt to address why the Department was not concerned with this seemingly relevant fact. The Employer and Insurer’s lack of an expert may have been the determining factor here as there was no evidence that a job search would have made a difference.

The final claim was that Claimant refused medical care, and thus, aggravated her condition. Claimant was prescribed a second round of physical therapy but did not proceed forward with it. The IME doctor indicated the failure to complete the second round of physical therapy aggravated Claimant’s shoulder. The Department of Labor stated the evidence was insufficient to establish that the physical therapy would have helped Claimant’s condition as the first round of physical therapy did not provide much benefit. Moreover, the Department of Labor did not find Claimant at fault for failing to attend physical therapy as Claimant had difficulties in obtaining authorization from the Insurer on getting therapy. The Department stated, “Claimant cannot be penalized for failing to attend physical therapy sessions which are not available to her.”

If you have questions regarding this decision or any other South Dakota questions, please contact the Boyce Law Firm at 605-336-2424 or contact Charles Larson at calarson@boycelaw.com

When hiring a new employee, many employers request that a potential employee sign what is often referred to as a “Release,” which is used to initial a background screening process. However, there are strict federal rules to which an employer must comply when obtaining this information.

Section 604(b)(2) of the FCRA specifically provides that “…a person may not procure a consumer report…for employment purposes with respect to any consumer, unless—

(i) a clear and conspicuous disclosure has been made in writing to the consumer at any time before the report is procured…in a document that consists solely of the disclosure, that a consumer report may be obtained for employment purposes; and

(ii) the consumer has authorized in writing…the procurement of the report by that person.”

The statute requires this disclosure in a completely standalone document, without any extraneous information. The document should be referred to as the “Disclosure and Authorization” form, with the intent being to inform the applicant that the employer may obtain a consumer report for purposes of the employment application process, and they are seeking the applicant’s written permission to do the same. The Fair Trade Commission has made clear as have the courts that Section 604(b)(2) does allow the authorization to be part of this standalone document and therefore certain identifying information may also be included to initiate a background check, like name, date of birth, and social security number.

Despite the clear language provided in the statute, many employers continue to include other information, including language asking the applicant to release the company and others from any liability and responsibility in connection with the consumer report, also known as a release of liability. While including this language may seem to make some business sense, it is in direct violation of the statutory requirements. Employers also add information about drug screening and company-specific policies to the

Some employers also add company policy language, drug screen information and other miscellaneous items. Some add this “Disclosure and Authorization” as part of their employment application, although it has always been clear that this “Disclosure and Authorization” cannot be part of some boilerplate language somewhere in the application, and the statute specifically provides that it must be separate in a standalone document.

Are you complying with the FCRA?

Feel free to give me a call at 605-731-0218 if you have any questions.

I hope this finds you doing well. I have received many inquiries over the last couple of weeks on when temporary disability benefits are owed. I think that the confusion comes from the mislabeling of the benefits. There is a difference between TTD and TPD benefits, even though the amount may be the same. TTD is paid when the employee is ordered completely off of work. If there is a compensable claim, benefits are owed regardless of other factors. For instance, if the employee is ordered completely off work, and is unable to work because he is in jail, you’d still owe TTD benefits. The reason for this is that the standard for whether any benefit is owed is whether the work injury is and remains a major contributing cause to the benefit sought. If the employee is ordered completely off work, the employee being in jail makes no difference as he couldn’t work whether he is in jail or not as the doctor has taken him off of work.

The analysis changes once employee has been released to work by the doctor, even if the employee has not actually returned to work. Let’s take our employee who is in jail. When he was ordered completely off of work, his incarceration did not matter as he wouldn’t be able to work even if he was a law- abiding citizen. Once he is released to work, you would ask whether the work injury is and remains a major contributing cause to his inability to work. If the employer could accommodate the restrictions, you would stop paying benefits because the reason the employee cannot work is not related to his work injury, but, instead, from the fact that he is incarcerated. However, let’s say the employer cannot accommodate the restrictions when the employee is released to work, then what? You would still pay TPD in that situation because whether he is in jail or not makes no difference as he would not be working anyway. You would continue paying benefits until the employee is released to work full duty, receives an impairment, or the employer is able to accommodate the restrictions.

If confused, just ask yourself whether the work injury is a major contributing cause to the inability to work. If the employee is ordered off of work by the doctor because of the work injury, the answer is yes and you would owe TTD benefits. If the employee has been released to work but is not working, ask yourself “Why isn’t he working? Is it related to his injury?”

TTD and TPD are often interchanged, however the distinction is important because TPD benefits have defenses available. Always look to the doctor’s restrictions – not whether the employee is actually working. The proper question does not begin with the work status. Instead, the proper question is whether the employee has been released to work. If you have questions on this or any other issue, please contact Boyce Law Firm at 605-336-2424.

Considered by many scholars to be the most comprehensive source on mediation, Christopher W. Moore in The Mediation Process describes the steps to active listening in the following manner.

First, the mediator must listen to what the party is saying and determine the emotion the party is feeling. Is it frustration? Anger? Fear?

Second, select the word or words that reflect what the interviewee is feeling. Care must be taken not to minimize the feeling or blow it out of proportion. Disempowering the interviewee will also be counterproductive so saying “You are feeling really weak and helpless…” is not a good strategy.

Third, tell the interviewee what you have heard in the words and language selected. If more than one emotion is being expressed give feedback as to all the emotions.

Fourth, wait for the response from the party. Be patient and do not fill the silence with more from your own mouth. The response will either confirm the accuracy of the emotion expressed or provide further clarification of those feelings.

Fifth, if the emotions are confirmed encourage the party to talk more about those feelings.

SIxth, if the mediator has not accurately understood the emotions being expressed obtain further clarification from the interviewee. In essence, start over again at the top of this list.

Finally, it may take several attempts to accurately describe the emotion felt and do not be afraid to spend the time and effort necessary to accurately understand what is going on. Do not, however, force this process on the interviewee. If you encounter resistance, move on.

Like most skills, active listening takes practice. It may very well be the most important skill a mediator can possess for resolving disputes. Let me know if you have any questions.

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.

Likely the most important skill for a neutral to possess when trying to resolve a workplace dispute, or any dispute for that matter, is the ability to actively listen. While it might be logical to conclude that speaking and listening equally share the communication spotlight, this is not the case. Recent U.S. Department of Labor studies have shown that over half of all communication is accomplished through listening. Listening is more than just waiting for your turn to talk. Active listening has been described as hearing both the words and the music. Stated another way, active listening involves the mediator/neutral “…listening to and feeding back an interviewee’s emotions.” The Mediation Process, Fourth Edition, Christopher W. Moore.

Why is active listening a crucial skill to develop? In my experience there are two main reasons. First, most workplace disputes involve, at least on some level, a belief by one party that they have not had an opportunity to be heard or to tell their version of events. Everyone wants their “day in court” so to speak – it is human nature. Active listening helps achieve that. Secondly, workplace disputes are typically filled with emotions, often times negative emotions. Any time an individual’s livelihood may be at stake, negative emotions are understandable and expected. The sooner the parties to the dispute can feel that their version has been heard and understood, the closer the matter is to being resolved. Similarly, the sooner the negative emotions are released, the sooner focus can be placed on a rational solution to the dispute. Active listening is a skill essential to successful resolution of the workplace dispute. Outside of workplace disputes, active listening can help with interactions with colleagues, friends, and clients. Try focusing on listening to understand, rather than listening to respond – it will make a significant difference in nearly every interaction.

I will explore the seven steps to active listening in my next post. As always, please let me know if there are questions.

There can be little doubt as to the popularity and effectiveness of alternative dispute resolution (ADR) when dealing with workers’ compensation claims. The uncertainty, expense, and time involved necessitates that most claims get resolved through mediation outside of an administrative hearing and likely appeal through the court system.

Through my years of practice, I have discovered that one seldom used form of ADR is mediation followed by arbitration of issues on which the parties are deadlocked. Med-Arb, as it is referred to in the ADR world, can be a very effective tool for many claims.

Because the Department of Labor (DOL) must approve all workers’ compensation resolutions, the parties must first agree that the decision of the arbitrator will be binding, and the decision will be submitted to the DOL for adoption and approval. Such an agreement is then presented to the DOL, followed by an order entered by the DOL agreeing to adopt, as its own, the arbitrator’s decision, findings and conclusion. The parties then proceed to attempt mediation of the case. If a settlement is reached on all issues, a settlement agreement is prepared, signed and submitted for DOL approval. If the parties are deadlocked on some, or all issues, the mediation is then converted to an arbitration and submitted to the arbitrator for decision and later adoption by the DOL.

While theoretically any claim could utilize Med-Arb as an ADR tool, the claims that stand to benefit the most are those where medical causation is in dispute on some portion of the claim, and entitlement to future medical expenses is an issue. In those situations, my experience has proven that often the underlying claim is more easily resolved if the medical dispute can be resolved as well.

Med-Arb deserves your consideration on many claims. If there are questions, please do not hesitate to let me know.

By now, those of you reading this blog know that in order for an injury to be compensable in South Dakota, the injury must arise out of and be in the course of the employment. Pretty straight forward, right?

Not so much.

While South Dakota adopts the “coming and going rule, establishing that an employee is not covered for purposes of workers’ compensation while coming from and going to work, the law has also established a ‘gray area’ regarding what is, and what is not. covered. Three seminole cases in South Dakota address this topic: Norton v. Deuel Sch. Dist. 2004 S.D 6; Fair v. Nash Finch Co., 2007 S.D. 16; and Terveen v. South Dakota Dept. of Transp. 2015 S.D. 10. These cases make it clear that a fact investigation into a workers’ compensation claim must include an analysis of minute details of the claim.

In Norton, the SD Supreme Court found that personal activities involving self-care, such as eating, resting, smoking, or using bathroom facilities should be considered in the course of employment. In Fair, the Court found that an employee’s deviation from work duties does not ‘automatically constitute departures from employment, but may … be found insubstantial.’” Fair was injured while she was exiting Family Thrift after a brief deviation from her usual direct route to her vehicle. The Court found that while it was reasonable to expect employees to exit the premises after work, it was also reasonable to expect Fair to engage in personal shopping after her shift had ended. Thus, the Court found that mere fact that an employee deviates from their work does not preclude a finding that the injuries are compensable.

Insubstantial deviations have been defined as those “largely the kind of momentary diversions which, if undertaken by an inside employee working under fixed time and place limitations, would be compensable under the personal comfort doctrine.” Arthur Larson, Larson Workers’ Compensation § 17.06[3] (2014). If someone engaged in an act for personal comfort, they do not leave the course of employment unless the extent of the departure is so great that an intent to abandon the job temporarily can be inferred. Id. at §21. In Terveen, the Court adopted the majority rule around the nation, finding that an employee who has made a personal side-trip has to ‘get back on the beam’ before being deemed to have resumed the business trip. Id. § 17.03[5]. Additionally, the Court noted that the deviation cannot be substantial.

Now you are probably wondering, what information you need to find out during an investigation. Some information you need to know will include finding out what the employee was doing at the time of the injury; did the employer authorize, expressly or impliedly, that running personal errands was acceptable; was the employee on their typical route home, did they get lost, or, perhaps, were they stopping for food? These cases are very fact specific so be sure to take the time to gather all the facts you need to make a determination.

As always, we are here and happy to help. Give us a call anytime.