Justices say man didn’t follow South Dakota worker’s comp rule for seeking an appeal

Capitol News Bureau
KELO Court Gavel

PIERRE, S.D. (KELO) — The South Dakota Supreme Court has laid down the law about a worker’s compensation rule.

The justices, in an opinion publicly released Thursday, said the state Department of Labor and Regulation and Circuit Judge Christina Klinger didn’t err in finding that an injured worker’s letter to the department wasn’t a petition for hearing, because the letter didn’t contain the information required by a state rule.

(The department has the petition and instructions available in printable formats for online and offline completion.)

William May was an employee of Spearfish Forest Products when he injured his left shoulder on February 10, 2009, while placing tire chains on a vehicle. The company’s worker’s compensation insurer paid for two surgeries.

He hurt his right shoulder on May 3, 2010, when he slipped and fell while working for Spearfish Pellet Company. The company’s worker’s compensation insurer paid for surgery.

The insurer stopped paying May disability benefits in 2013 but continued paying his medical expenses. In late 2013, May wrote to the insurer’s claims adjuster seeking a review and sent a copy to the department.

The claims adjuster wrote back telling May his disability payments had been discontinued because
Spearfish Pellet had offered him work within his restrictions, and he had declined the position due to reasons unrelated to his shoulder injuries.

She also said documentation didn’t support a conclusion that his shoulder injuries caused his claimed ailments. Her reply said that May had “2 years to file a petition” with the department if he disagreed with the insurer’s determination. She sent a copy to the department.

May then sent a second letter to the insurer in February 2014 and again provided a copy to the department. Neither the insurer nor the department treated it as a petition.

In April 2015, May retained legal counsel. In 2017, his lawyer wrote the insurer contending the 2014 letter constituted a petition for a hearing. The insurer’s representative said she had told May he had two years to file a petition and said the 2014 letter wasn’t a petition.

In November 2018 May asked the department to find the 2014 letter was a petition. The department concluded the letter didn’t include all the information that is required by state rule and therefore wasn’t a petition. Judge Klinger reached a similar conclusion, leading May to appeal to the Supreme Court.

The rule reads in part, “It shall state clearly and concisely the cause of action for which hearing is sought, including the name of the claimant, the name of the employer, the name of the insurer, the time and place of accident, the manner in which the accident occurred, the fact that the employer had actual knowledge of the injury within 3 business days or that written notice of injury was served upon the employer, and the nature and extent of the disability of the employee. A general equitable request for an award shall constitute a sufficient prayer for awarding compensation, interest on overdue compensation, and costs to the claimant.”

The Supreme Court unanimously agreed with the department and the judge that May didn’t follow the rule.

Wrote Justice Scott Myren, “We start by noting that May did not address his letter to the Department, but rather merely copied the Department on a letter addressed to Insurer. The letter failed to include even such basic information as the name of either of May’s employers—Spearfish Pellet Company or Spearfish Forest Products. It also did not state where the injury to his left shoulder occurred, nor did it state the time, location, or details describing his right shoulder injury. Finally, because May intertwined in the explanation of his disability a description of his other physical ailments, the letter cannot be read to identify ‘the nature and extent of [his] disability[.]’”

The court also declined to grant May leeway because he initially represented himself, rather than having a lawyer.

The court stated in a footnote, “May also argues that we should construe the letter liberally because he submitted the letter as a pro se litigant. Even when a rule allows latitude to pro se litigants as to form, they must nevertheless submit a letter containing the information mandated by the rule. Furthermore, May had retained counsel in April 2015, before the two-year statute of limitations for filing a claim had expired.”

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