Fern Y. Johnson (nee Stanton)
v
United Parcel Service and Liberty Mutual Ins. Group.
No. 186, 2015/16
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
February 2, 2021
David
S. Barari Goodsell + Oviatt, LLP
Shane
E. Eden Davenport, Evans, Hurwitz & Smith
RE: HF
No. 186, 2015/16 – Fern Y. Johnson (nee Stanton) v
United Parcel Service and Liberty Mutual Ins. Group.
Dear
Mr. Barari and Mr. Eden,
This
letter decision will address Claimant’s Motion for
Summary Judgment submitted on August 1, 2016, Motion to
Reconsider Claimant’s Motion for Summary Judgment
submitted on December 22, 2016, and Second Motion to
Reconsider Claimant’s Motion for Summary Judgment
submitted October 29, 2020. All responsive briefs have been
considered.
The
Department of Labor & Regulation (Department) will first
address the background of this matter. While working for
United Parcel Service (Employer), Fern Y. Johnson (Johnson or
Claimant) suffered a sharp pain in her groin in January 1996.
Employer was insured for workers’ compensation purposes
by Liberty Mutual Insurance Group (Insurer).The causation of
her pain was litigated from 1997 through February 2009. In
2002, the Department ruled against compensability. Johnson
appealed to the Circuit Court. The Seventh Circuit affirmed
in part and reversed in part, remanding it to the Department.
Upon remand, the Department adopted the Findings and
Conclusions of the Circuit Court, which found by a
preponderance of the evidence that Johnson’s groin pain
was caused by a work-related injury. The findings were
appealed and then affirmed by the South Dakota Supreme Court
on February 23, 2009.
On
August 9, 2010, Employer and Insurer sent a letter of denial
to Johnson, denying additional benefits, including payment of
present and ongoing medical expenses for the groin injury.
The denial was based on an independent medical examination
(IME) in which the IME physician could not find definitive
diagnosis for Johnson’s groin pain. Johnson filed a
petition with the Department to contest Employer and
Insurer’s denial of benefits. The Department found that
there had been no change in Johnson’s condition, and
therefore, the issue of whether her work injury was a major
contributing cause of her groin pain could not be tried at
the time. On appeal, the Seventh Circuit affirmed. Employer
and Insurer have continued to pay for medical treatment of
Johnson’s groin pain since that time.
On
April 2013, Johnson alleges that she fainted. Johnson claims
this was due to her groin pain. She further claims that as
she fell, she struck her face and cheek, and thus injured
several teeth. On July 8, 2013, Johnson contacted dentist,
Dr. Nelson complaining of a toothache. Dr. Nelson examined
Johnson the next day. He noted one broken tooth and two
likely tooth fractures. Dr. Nelson referred Johnson to Dr.
Van Dam for dental surgery. Dr. Van Dam removed the fractured
teeth. Dr. Nelson then referred Johnson to Dr. Scanlon for
dental implants. Dr. Nelson also prescribed a bridge.
Johnson
submitted her medical treatment for her tooth condition to
her dental insurer. The dental insurer paid some of the
costs, but the bills exceeded Johnson’s annual limit.
On January 3, 2014, Johnson’s attorney sent a letter to
Employer and Insurer’s attorney with several medical
records and bills regarding Johnson’s fainting and
dental care. Johnson did not provide specifics about her
fall. On January 13, 2014, Employer and Insurer contacted
Johnson’s attorney regarding the lack of a medical
opinion that Johnson’s groin pain was a major
contributing cause of the fall to the ground and subsequent
injury to her teeth. Johnson did not respond. Employer and
Insurer contacted Johnson again on February 21, 2014. On
March 20, 2014, Johnson’s counsel responded,
identifying April 2013 as the month in which the alleged fall
causing Johnson’s tooth condition occurred. Employer
and Insurer requested medical records from the medical
provider identified as treating Johnson’s tooth
condition.
On July
15, 2014, Employer and Insurer sent a letter to Dr. Diamond
requesting his opinion regarding the causation of
Johnson’s fall. They provided Dr. Diamond...
