Darryl Reemtsma
v.
City of Sioux Falls
HF No. 102, 2016-17
South Dakota Workers Compensation
September 9, 2019
Michael
Bornitz
Cutler
Law Firm, LLP
PO Box
1400
Sioux
Falls, SD 57101-1400
Kristi
Geisler Holm
Davenport,
Evens, Hurwitz& Smith, LLP
P.O.
Box 1030
Sioux
Falls, SD 57101-1030
RE: HF
No. 102, 2016/17 - Darryl Reemtsma v. City of Sioux Falls
Dear
Mr. Bornitz and Ms. Geisler Holm:
This
letter addresses the following submissions by the parties:
June
27, 2019 Employer/Self-Insurer's Motion to Dismiss for
Lack of Prosecution, or in the Alternative, Motion for
Summary Judgment
Employer/Self-Insurer's
Brief in Support of Motion
Affidavit
of Kristi Geisler Holm
July
25, 2019 Claimant's Brief in Opposition to Motion
Affidavit
of Michael
Bornitz
August 13, 2019 Employer/Self-Insurer's Reply Brief in
Support of Motion
In
addition, a telephonic hearing was held August 29, 2019
before Joe Thronson, Administrative Law Judge, for further
argument. Claimant was represented by Michael Bornitz and
Employer/Self-Insurer was represented by Kristi Geisler Holm.
ISSUE
PRESENTED: IS EMPLOYER/SELF-INSURER ENTITLED TO DISMISSAL FOR
FAILURE TO PROSECUTE, OR ALTERNATIVELY, SUMMARY JUDGMENT AS A
MATTER OF LAW?
FACTS
Claimant
was employed by the City of Sioux Falls, South Dakota, as a
patrol officer with the Sioux Falls Police Force. While on
duty September 14, 2014, Claimant was involved in an accident
when his motorcycle was hit by a third-party driver. Claimant
suffered a severe compression fracture in his thoracic spine
and a disc bulge in his lumbar spine. Claimant filed a tort
action against the third-party tortfeasor as well as a
workers' compensation claim. Employer/Self-Insurer
treated the accident as compensable and began paying claimant
benefits.
Claimant
eventually settled his claim against the third-party driver
and was paid underinsured benefits by his insurer. A portion
of this settlement was used to reimburse
Employer/Self-Insurer for benefits it had previously paid
Claimant. Claimant was able to return to work with the Sioux
Falls Police Department but was not able to serve as a patrol
officer.
There
has been no activity on this case since January 31, 2017,
when Employer/Self-Insurer filed its answer to Claimant's
petition for a hearing. In June 2019, the Department inquired
as to the status of the case. As a result,
Employer/Self-Insurer filed a petition to dismiss the case
for lack of prosecution.
ANALYSIS
A.
Failure to Prosecute
First,
Employer/Self-Insurer argue that Claimant's failure to
prosecute his workers compensation claim is without good
cause. In support of this argument, Employer/Self-Insurer
cites to ARSD 47:03:01:09 and SDCL 15-6-41 (b). ARSD
47:03:01:09 provides "[w]ith prior written notice to
counsel of record, the division may, upon its own motion or
the motion of a...
