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
Have a Rule? Make Sure It Is Actually Followed
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.
Evidence-Based Medicine in South Dakota Workers’ Compensation
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…
Hire Slow, Fire Fast
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…
Facts Surrounding the Nature of the Injury Are Critical
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…
Four Common Mistakes From Those in Charge
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…
NLRB Puts Chipotle’s Social Media Policy in the Fryer
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…
Seeking a Zero Medicare Set Aside in South Dakota
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.
South Dakota Department of Labor Holds that Change of Condition Does Not Resurrect Claim from Two Year Statute of Limitations
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…
Common Myths Surrounding Compulsory Medical Examinations in South Dakota
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