May v. Spearfish Pellet Co., LLC., 093019 SDWC, 49, 2018/19

• Case Date: September 30, 2019
• Court: South Dakota

William May v. Spearfish Pellet Co., LLC. And Western National Mutual Insurance, Co. HF No. 49, 2018/19 South Dakota Workers Compensation South Dakota Department of Labor & Regulation Division of Labor and Management September 30, 2019           Michael Simpson Julius and Simpson, LLP           Kristi Geisler Holm Davenport, Evans, Hurwitz & Smith, LLP           LETTER DECISION AND ORDER           Joe Thronson, Administrative Law Judge.          Dear Mr. Simpson and Ms. Geisler Holm:          This letter addresses the following submissions by the parties:

November 14, 2018- Claimant’s Motion to Determine that February 24, 2014 Letter is a Petition for Hearing

Affidavit of Michael Simpson

June 17, 2019- Employer/Insurer’s Response to Motion

Affidavit of Gay Buchholz

August 19, 2019- Claimant’s Reply Brief

         In addition, a telephonic hearing was held September 6, 2019. Claimant was represented by his attorney of record, Michael Simpson, and Employer/Insurer was represented by its attorney of record, Kristi Geisler Holm.          ISSUE PRESENTED: DOES CLAIMANT’S FEBRUARY 24, 2014 LETTER CONSTITUTE A VALID PETITION FOR HEARING UNDER ARSD 47:03:01:02?          FACTS          Claimant, William May, was employed by Spearfish Pellet Co. on February 10, 2009, when he suffered in injury to his left shoulder. Employer/Insurer treated the injury as compensable and paid for two surgeries September 20, 2010, and December 14, 2011. On May 3, 2010, Claimant slipped and fell at work, this time injuring his right shoulder. Employer/Insurer also treated this injury as compensable and paid for a November 7, 2010 surgery on the right shoulder.          On April 12, 2012, Claimant’s treating physician, Dr. Lawlor, assigned Claimant a fifteen percent impairment rating for his left shoulder and an eleven percent rating for his right shoulder. Employer/Insurer paid Claimant benefits through 2014. On January 24, 2014, Employer/Insurer sent claimant a letter explaining its reason for denying further benefits. It alleged that Employer was able to provide Claimant work within his restrictions, but that Claimant did not return to work. Claimant disputed this claim, and wrote a letter to Insurer’s claims adjuster, Gay Buchholz requesting the decision be reviewed. A copy of the letter...