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February 12, 2018 10:12 PM

Challenging Comp Claims

You get hurt on the job and expect workers' comp to kick in and pay for your medical bills.

But as some South Dakotans have discovered-- it doesn't always work that way.

They've had to take their cases to court; sometimes all the way to the Supreme Court.  


There's one common thread in many of these cases-- doctors hired by insurance companies whose reports favor the insurance company and the injured worker is denied benefits. 

Now the legislature is consider a new bill in Pierre, backed by the insurance companies; and whose main sponsors are a legislator who is an insurance agent and another who is a physician.

Senate Bill 145 seeks to take away the right for workers to sue their insurance companies for unfairly denying workers' comp benefits.   
  

KELOLAND News Investigates looks into these so called "bad faith" claims --and one of the out-of-state doctors whose name keeps showing up in court cases--and finds out whose interests are really protected in Senate Bill 145. 

In 2011, then 20-year-old Jake Mordhorst was delivering a 275 pound couch for Fischer Furniture in Rapid City. 

"I was clearing the area to take the sofa out of one of the trucks. The next thing I remember was I was on the ground unconscious and then I had a terrible pain in my neck and back," Mordhorst said.

An MRI showed a herniated disc. 

"All I wanted was medical treatment. I wanted to be taken care of for my injury," Mordhorst said.

But his employer's worker's comp insurance company hired its own doctor; Dr. Nolan Segal who works out of this Exam Works office in Minneapolis.  Insurance companies hire Exam Works to find doctors to give independent medical examinations.

"I was told I was lucky to be able to see him and he was a specialist in this," Mordhorst said.

Dr. Segal's report said Jake had a temporary strain that would be healed within 18 days.

"We had medical records showing this was a permanent injury and for someone to say my husband should have felt better 18 days after the injury, I was infuriated," his wife Angela Mordhorst said.

"They pulled out any help that I had and took the medical equipment I'd been given and essentially left me high and dry, with no help," Jake said.

With his worker's comp claim denied, Jake was back on the job and went two years without medical attention for his injury. 

"It's just a little difficult--excuse me--to deal with the hardships that come with such a significant injury to watch my husband be in such immense pain on a daily basis; to not be as involved as you pictured you would be when you were first married when you first had kids," Angela said.

The Mordhorsts looked for an attorney to dispute the findings.

"Had a lot of trouble trying to find somebody; nobody wanted to take the case. Companies can do this to people and there's no punishment for it. They can hire someone to say you're not hurt when you clearly are and nothing comes of it. That person's lost," Jake said.

The Mordhorsts did finally find someone to take their case all the way to the Supreme Court claiming it was a "bad-faith denial of workers' compensation benefits.  The Supreme Court ruled in Jake's favor that the insurer's reliance on Dr. Segal's report to deny benefits was not reasonable.  The case will now go back before the circuit court.  

It's not fair that insurance companies can push people around and push them down as often as they do and as much as a hardship as it's been for us, we don't want anyone else to go through this; that's not fair," Jake said.

But now a new proposed law, Senate Bill 145, wants to stop cases like the Mordhorsts' from going through the court system. It's backed by Risk Administration Services, which administers workers' comp claims and manages two insurance companies. 

Under SB145, 'bad faith' claims would be heard by a Department of Labor Administrative Judge.  And it would cap penalties to insurance companies at $30,000.

"What Senate Bill 145 is intended to do is say that no matter how bad an insurance company cheats you, no matter how wrong their conduct is, no matter how big your claim is--the most an insurance company can ever be held accountable for for a penalty is $30,000," Attorney Scott Abdallah said.

Trial Attorneys in South Dakota oppose the legislation. Abdallah recently settled a case out of court with an insurance company who also hired Dr. Nolan Segal who determined his client's injuries didn't happen on the job. 

"You see the same doctors names come up over and over and over again in these types of cases. They are doctors for hire--frankly most of them don't practice medicine anymore--and the only thing they do is collect money to provide a slanted report," Abdallah said.

According to court papers in the Mordhorst case, Dr. Nolan Segal conducts about 200 evaluations a year for insurance companies or their attorneys and in 2015 Dr. Segal testified he renders opinions that are favorable to insurance companies 85 to 90 percent of the time. KELOLAND News reached Dr. Segal by phone and he told us that isn't really the case.

"My approach is always to try to make objective recommendations about what I think is going on and the term agree or disagree with the insurance company doesn't really accurately represent, what I view as my role. I am not and never rubber stamp what an insurer or attorney is looking for to help their case," Dr. Nolan said.


KELOLAND investigates also obtained this document put out by the company that hires Dr. Segal.  Dr. Richard Curd, who goes by Blake, is also listed as a physician on Exam Works Medical Panel. Curd is also a state senator and one of the main sponsors of Senate Bill 145.

Curd tells me he doesn't work with Dr. Segal and he hasn't been hired by Exam Works, although he has performed Independent Medical Exams for insurers. Even so, Curd says that it is not a conflict of interest for him to support the bill.

"Anybody who serves in the South Dakota state legislature as a state senator is certainly going to come into contact with potential conflicts that's the very nature of being a citizen legislature rather than full-time employed legislators," Dr. Curd said.

The other main sponsor is Sen. Ryan Maher. Maher is an insurance agent who writes workers' comp policies.

"I just happen to understand worker's comp because I work in that arena. People come into my office and ask for a policy and I write the policy and that's all the further I go. And then I switch hats and come down here and look at what the policy should and shouldn't say," Maher said. 

Jake Mordhorst plans to testify in Pierre so lawmakers can hear his story before they decide injured workers can't pursue their cases in circuit court.

“It’s in favor of the bully. It's giving the insurance company power," Jake said.

“It’s not okay to get bullied on the playground or get bullied at work--so why would it be okay to get bullied by an insurance company" Angela said.

Risk Administration Services refused an interview, but provided KELOLAND Investigates with a statement saying South Dakota is only one of 13 states remaining which still allows workers' compensation bad faith claims to be presented to a jury.


According to a letter sent to employers in South Dakota who hold workers' comp policies; RAS says the bill would, "reduce employers' workers' compensation costs by eliminating large bad faith jury awards." 

SB 145 goes before the Senate Commerce and Energy Committee Tuesday morning. KELOLAND News will be there and let you know what happens.

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