Rodney Waldner
v.
School Bus, Inc. and National Interstate Insurance Co.
HF No. 32, 2019/20
South Dakota Workers Compensation
South Dakota Department of Labor & Regulation Division of Labor and Management
June 29, 2020
J. G.
Shultz, Woods, Fuller, Shultz & Smith, PC
Melissa R. Jelen, Cadwell, Sanford, Deibert & Garry, LLP
RE: HF
No. 32, 2019/20 – Rodney Waldner v. School Bus, Inc.
and National Interstate Insurance Co.
LETTER
DECISION ON MOTIONS FOR SUMMARY JUDGMENT
Dear
Mr. Shultz and Ms. Jelen:
This
letter addresses the Motion for Summary Judgment submitted by
School Bus, Inc. (Employer) and National Interstate Insurance
Co. (Insurer) on April 3, 2020 and the Motion for Summary
Judgment submitted by Rodney Waldner on May 13, 2020, as well
as all responsive briefs.
BACKGROUND
Rodney
Waldner (Waldner) alleges that on February 1, 2019, he fell
on the school bus and sustained an injury to his toe while
working for School Bus, Inc. (Employer) which was at all
times pertinent insured for workers’ compensation
purposes by National Interstate Insurance Co. (Insurer).
Waldner felt pain in his knees and later his toes after the
fall. Waldner developed an open sore on his toe two weeks
after the fall. On February 15, 2019, Waldner’s doctor,
Dr. Michael Olson, examined the injured toe and observed a
small sore developing on the medial aspect of the second toe.
Waldner told Dr. Olson that he had injured his toe at work
and was concerned he might lose the toe. On February 15,
2019, Waldner visited Dr. Angelo Santos who noted that
Waldner had a small sore on his right second toe that would
need to be followed. On February 19, 2019, Dr. Santos
prescribed a silver cream for the sore on Waldner’s
toe. Waldner did not miss any days of work between February
1, 2019 and March 4, 2019. Waldner reported the incident and
injury on March 4, 2019. Waldner submitted the First Report
of Injury form on March 5, 2019. On March 13, 2019, Employer
and Insurer denied Waldner’s workers’
compensation claim. In May of 2019, Waldner underwent a
transmetatarsal amputation on his right foot which resulted
in the full amputation of four toes and a partial amputation
of a fifth toe. Additional facts may be developed in the
analysis below.
The
issue before the Department of Labor & Regulation
(Department) is whether Waldner has met the notice
requirement under SDCL 62-7-10 which states:
An employee who claims compensation for an injury shall
immediately, or as soon thereafter as practical, notify the
employer of the occurrence of the injury.
...
