Jerri Noel
v.
Rapid City Area School District and Dakota
HF No. 4, 2018/19
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
November 20, 2019
Michael Simpson Julius and Simpson, LLP
Kristi
Geisler Holm Davenport, Evans, Hurwitz & Smith, LLP
RE: HF
No. 4, 2018/19 – Jerri Noel v. Rapid City Area School
District and Dakota Truck Underwriters
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:
July
18, 2019 Employer/Insurer’s Motion to Exclude
Undisclosed and Untimely Expert Opinion or Testimony of Dr.
Peter Vonderau
Employer/insurer’s
Brief in Support of Motion
Affidavit
of Kristi Geisler Holm
August
29, 2019 Claimant’s Brief in Response to Motion
Affidavit of Michael Simpson
Claimant’s
Motion to Reset Deadlines and Amend Scheduling Order
Claimant’s
Motion re: Second Functional Capacitates Evaluation Ordered
by Dr. Vonderau
September
16, 2019 Employer/Insurer’s Reply Brief Supplemental
Affidavit of Kristin Geisler Holm
ISSUE
PRESENTED
DOES
CLAIMANT’S DISCLOSURE OF DR. VONDERAU’S EXPERT
OPINION AFTER THE DISCOVERY DEADLINE REQUIRE EXCLUSION OF
THAT REPORT?
FACTS
The
issue in this case revolves around the prospective opinion of
Dr. Paul Vonderau, a physician treating Claimant since 2017.
In December 2017, Dr. Vonderau requested a functional
capacity evaluation (FCE). The FCE evaluator opined that he
could not accurately assess Claimant’s true
musculoskeletal status or work abilities because Claimant had
provided minimal effort during the evaluation. Based on the
results of the FCE, Dr. Vonderau issued work restrictions
limiting Claimant to occasional lifting of 25 pounds,
frequent lifting of 12 pounds, and continual lifting of 5
pounds. He also limited Claimant to occasional bending and
twisting. Dr. Vonderau did not place a restriction on the
number of hours Claimant could work each day.
During
a follow-up visit in July 2018, Claimant indicated to Dr.
Vonderau that she had been terminated from her job because
she could not fulfill the requirements. She also indicated
that her back pain had worsened. Dr. Vonderau saw Claimant
again on May 17, 2019. Claimant stated her symptoms had
become significantly worse over time and that she was barely
able to tolerate working four hours per day three days per
week. On July 24, 2019, Dr. Vonderau ordered another FCE
after Claimant’s attorney inquired as to whether
Claimant’s original work restrictions needed to be
modified.
Claimant
filed a petition for a hearing on July 13, 2018, and
Employer/Insurer filed an answer on August 20, 2018.
According to the scheduling order issued by the Department,
Claimant’s designation of expert witnesses was due
December 17, 2018. At that time, Claimant designated Rick
Ostrander, a vocational specialist. Claimant also reserved
the right to designate any medical experts that had provided
her care, though she did not specifically name Dr. Vonderau
at that time. Claimant attempted to schedule a deposition of
Dr. Vonderau for July 15, 2019. Claimant’s counsel
indicated that he believed Dr. Vonderau would testify that...
