Keith Dammer
v.
Myrl and Roy’s Paving Inc.
And
Twin City Fire Insurance Company Fire Insurance Company
HF No. 94, 2018-19
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
June 8, 2020
Sarah
M. Rost, Radke Law Office, PC
J. G.
Shultzm Woods, Fuller, Shultz & Smith, PC
RE: HF
No. 94, 2018/19 –Keith Dammer v. Myrl and Roy’s
Paving Inc., and Twin City Fire Insurance Company
LETTER
DECISION AND ORDER ON MOTION TO DISMISS AND MOTION FOR
SUBSTITUTION OF PARTY
Michelle M. Faw Administrative Law Judge
Dear
Counsel:
The
Department of Labor & Regulation has received Myrl and
Roy’s Paving Inc., and Twin City Fire Insurance
Company’s Motion to Dismiss and Keith Dammer’s
Motion to Substitute. This letter decision will respond to
both motions and all responsive briefs. The Department
conducted a telephonic hearing on the Motions on May 21,
2020. Claimant was represented by Sarah Rost of Radke Law
Office, P.C. Employer/Insurer was represented by J.G. Shultz
of Woods, Fuller, Shultz & Smith, P.C.
Keith
Dammer (Decedent) suffered a work-related injury on April 10,
2019 while employed by Myrl and Roy’s Paving Inc. which
was at all times pertinent insured for workers’
compensation purposes by Twin City Fire Insurance Company
(jointly as Employer/Insurer). The Decedent filed a Petition
for workers’ compensation benefits on March 8, 2019.
Employer/Insurer did not answer Petition. On March 18, 2019,
Decedent’s counsel received a copy of the Independent
Medical Exam (IME) which was read as favorable to Decedent.
After that date, Employer/Insurer and Decedent made efforts
to determine how past due benefits and medical expenses would
be paid.
The
Decedent passed away on May 20, 2019 from causes unrelated to
his work injury. On October 10, 2019, Dawn Dammer (Dammer),
the Decedent’s widow was appointed as personal
representative of Decedent’s estate. On November 18,
2019, Dammer filed an Amended Petition for temporary benefits
and medical expenses.
Additional
facts may be developed in the issue analysis below.
MOTION
TO DISMISS
Employer/Insurer
has moved the Department to dismiss the Petition in this
matter because Decedent’s death forecloses payment of
benefits to his dependents. As the Decedent’s death was
unrelated to the work injury, the applicable statute is SDCL
62-4-11 which states, in pertinent part:
If an employee receives an injury for which a specific
schedule of payments is provided by § 62-4-6; and the
employee thereafter dies from causes other than the injury
before the full payment of all installments due for the
specific injury have been paid to the employee, the employer
shall pay the balance due under the specific schedule of
payments as provided in § 62-4-6, to the employee's
dependents as provided in §§ 62-4-12 to 62-4-22,
inclusive.
Employer/Insurer argues that SDCL 62-4-11 does not provide a
basis for recovery here because there were no benefits due at
the time Decedent died. The issues in the Petition had not
been adjudicated...
