Benson-Gross v. New Angus LLC, 050820 SDWC, 62, 2019/20

• Case Date: May 08, 2020
• Court: South Dakota

Kari Benson-Gross v. New Angus LLC dba Demkota Ranch Beef and Sedgwick Claims Management Services, Inc. HF No. 62, 2019/20 South Dakota Workers Compensation May 8, 2020           Joshua G. Wurgler, Bantz, Gosh & Cremer, LLC.           Kristi Geisler Holm, Davenport, Evans, Hurwitz & Smith, LLP          RE: HF No. 62, 2019/20 – Kari Benson-Gross v. New Angus LLC dba Demkota Ranch Beef and Sedgwick Claims Management Services, Inc.          LETTER DECISION ON MOTION TO STRIKE           Michelle M. Faw Administrative Law Judge          Dear Mr. Wurgler and Ms. Holm:          This letter addresses Employer and Insurer’s Motion to Strike and Brief in Support of Motion to Strike submitted on March 13, 2020; Claimant’s Response in Opposition to Motion to Strike Submitted on March 19, 2020; and Employer and Insurer’s Reply Brief in Support of Motion to Strike submitted on April 14, 2020.          Employer and Insurer have moved the Department of Labor & Regulation (Department) to strike Exhibit A and the following paragraphs from Claimant’s Petition for Hearing on the grounds that they are immaterial and impertinent to her claim. For the sake of clarity through the rest of the document, the sections of the Petition at issue will be referred to as the “Paragraphs.”

7. Despite notice of Kari’s injury, and though required to by South Dakota law, Employer chose not to submit a First Report of Injury at that time.

16. On October 2, 2019, Kari presented her treating physician’s work restrictions to Kelley Lopez who, upon information and belief, works in Human Resources (aka the “People Department”) at Employer.

17. Employer/Insurer told Kari it refused to accept the work restrictions from her treating physician.

18. Employer/Insurer claimed that Kari was required by the employee handbook to seek treatment only from a doctor that Employer selected.

19. Employer/Insurer claimed that Kari had violated the employee handbook when Kari selected her own treating physician.

20. Employer/Insurer knew or should have known that the workers’ compensation laws of South Dakota give Kari the right to select her initial treating physician.

21. Despite that knowledge, Employer/Insurer rejected Kari’s choice of treating physician, his treatment, and the work restrictions.

24. Employer/Insurer knew or should have known that the workers’ compensation laws of South Dakota requires them to pay for necessary, suitable, and proper medical care for work-related injuries.

28. Between October 2 and October 15, Employer/Insurer did not permit Kari to work, nor did it pay her any indemnity benefits.

35. Employer/Insurer did not follow South Dakota’s workers’ compensation laws with regard to reporting of Kari’s injury.

36. By October 3, 2019, Employer/Insurer still had not filed a First Report of Injury with the South Dakota Department of Labor.

39. On October 4, the Department wrote to Employer, directing it to complete the Employer’s portion of the First Report of Injury.

41. Kari received the letter on October 23.

42. In that letter, Insurer advised Kari in that it was responsible for making certain Kari received all benefits to which she was entitled under the workers’ compensation laws.

43. In that letter, Insurer advised Kari that her claim was under review.

44. In that letter, Insurer asked Kari to let it know if she lost time at work so that Insurer could deliver benefits as appropriate in a timely manner.

45. In that letter, Insurer provided Kari with a medical authorization so it could request her medical information, and asked Kari to return it as soon as possible.

46. In that letter, Insurer asked Kari to call if she was losing time from work.

47. As requested, Kari tried calling Insurer on October 24 to report that she had lost time from work and to give a status update on her treatment.

48. As requested by Insurer, Kari filled out the medical authorization and submitted it to Insurer on October 29, both by mail and through Insurer’s website.

49. From October 24 through November 4, Kari tried calling Insurer numerous times and left messages each time.

50. During that time, Kari could not reach Insurer’s claims examiner.

51. On November 4, Kari found another phone number believed to be for Insurer’s corporate headquarters.

52. Kari called it and eventually was able to get transferred to the appropriate Sedgwick claims examiner.

53. In that call, Kari provided Insurer with a recorded statement and explained her injury.

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