PIERRE, S.D. (KELO) — A wrist injury to a nursing home employee eight years ago has the South Dakota Department of Labor and Regulation now looking at changing a rule about when a workers’ compensation claim can be dismissed.
The proposal comes in the wake of a South Dakota Supreme Court decision in March. The justices found in favor of Christina LaPlante, who was injured while working as a certified nurse assistant at Golden Living Center in Madison.
The state Division of Labor and Management scheduled a telephonic public hearing on the rule change for August 19, starting at 10 a.m. CT.
Division Director Amber Mulder noted the Supreme Court decision and the rule proposal during a meeting of the state Workers’ Compensation Advisory Council on Wednesday.
Supreme Court Justice Steven Jensen wrote the decision that overturned a finding by the department, and later by a circuit judge, that LaPlante hadn’t actively pursued her claim for a year. The current rule allows a claim to be dismissed after a year has passed without activity.
Justice Jensen took fault with the rule, as well as with the dismissals of the claim.
“The Rule does not define the term ‘activity,’ which is the threshold basis for considering whether to dismiss a case for lack of prosecution. The Rule also does not define the term ‘good cause’,” he wrote.
The proposed change to the rule now lists specific types of activity. It also says the dismissal shall be “without prejudice,” meaning the claim could be attempted again. The rule currently says a dismissal is “with prejudice,” meaning the claim can’t be attempted again.
LaPlante had submitted to the employer and the department an affidavit that she was participating in a vocational rehabilitation program through the state Department of Human Services.
The justices took her side.
“The Department found that LaPlante had finished the vocational rehabilitation program less than one year before the motion to dismiss was filed. However, the Department concluded there had been no activity within the last year because ‘there has not been record activity and no effort was made to communicate with the Employer and Insurer.’ In discussing whether there was good cause for the delay, the Department agreed that ‘waiting on the results of the voc rehab program would be good cause for delay[,]’ but found LaPlante’s participation was not good cause because it was not communicated to Employer/Insurer,” Justice Jensen wrote.
Attorneys Russ Janklow and Jami Bishop of Sioux Falls represented LaPlante. Attorneys Justin Clarke and Reece Almond of Sioux Falls represented Golden Living and the insurer.