Midcontinent Media, Inc. and Crum & Forster Commercial Ins.
v.
David V. Wetch
No. 138, 2019/20
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
January 21, 2021
David
S. Barari Goodsell + Oviatt, LLP
Wm.
Jason Groves Groves Law Office
Thomas
J. Von Wald Boyce Law Firm LLP
RE:HF
No. 138, 2019/20 – Midcontinent Media, Inc. and Crum
& Forster Commercial Ins. v. David V. Wetch
Dear
Mr. Barari, Mr. Groves, and Mr. Von Wald:
This
letter decision will address Insurer’s Motion to Take
Depositions of Claimant and Treating Physician or, in the
Alternative, for Limited Continuance. All responsive briefs
have been considered. Claimant has requested the Department
take judicial notice of Claimant’s entire
workers’ compensation file, HF #141, 2013/14; HF # 93,
1992/93. The Department takes judicial notice of the file.
On
March 27, 2020, Midcontinent Media, Inc. and Crum &
Forster Commercial Insurance (Insurer) filed a written
request to the Department of Labor & Regulation
(Department) to do three things: to review medical/care
payments pursuant to SDCL 62-7-33, to order an investigation,
and to set a hearing pursuant to SDCL 62-4-47 and 62-4-48. On
May 12, 2020, the Department issued an Order and Notice of
Hearing, ordering that Insurer conduct an investigation of
the circumstances surrounding David J. Wetch’s
(Claimant) injury. The Department ordered the investigation
was to be completed within ninety (90) days after receipt of
the Order and that the hearing would be held after the
completion of the investigation. On June 17, 2020, the
Department issued an Amended Order to order further
confidential investigation and a hearing. The Department
ordered that the investigation be completed within ninety
(90) days after receipt of the Amended Order.
On
August 11, 2020, Insurer requested to take Claimant’s
deposition. On August 13, 2020, Claimant’s counsel
advised Insurer that Claimant was in quarantine due to
COVID-19 and would be unable to participate in a deposition.
Due to scheduling conflicts, counsel for Insurer was unable
to depose Claimant on the date he was available. On September
15, 2020, prior to the expiration of the investigation
period, Insurer’s counsel made another request to
schedule Claimant’s deposition but did not receive a
response from Claimant’s counsel.
On
August 12, 2020, Insurer contacted Dr. Goodhope and requested
his availability for a confidential interview or deposition.
Dr. Goodhope offered only one date, and the interview would
be conducted by telephone while the doctor was driving.
Insurer concluded that an interview under those conditions
would be unproductive as the doctor’s medical records
would be unavailable to him. Also, Insurer’s counsel
was not available on that date. Dr. Goodhope has not provided
Insurer with a date for confidential interview or deposition
that would be conducted in person or by a remote means that
would allow the doctor to access his medical records for
review. Claimant now argues that the time given to Insurer to
complete the investigation has ended and further
investigation is not permitted. Claimant filed a Motion for
Summary Judgment on September 16, 2020. The Department stayed
the Motion until the matter referenced in this letter is
resolved.
In the
matter at hand, Insurer moves the Department to allow it
additional time to depose Claimant and his treating physician
due to complications outside of Insurer’s control
despite taking reasonable steps. Insurer argues that it has
worked diligently to complete the investigation...
