Whitcomb v. The Evangelical Lutheran Good, 041420 SDWC, 37, 2016/17

• Case Date: April 14, 2020
• Court: South Dakota

Cindy Whitcomb v. The Evangelical Lutheran Good HF No. 37, 2016/17 South Dakota Workers Compensation April 14, 2020           Laura T. Brahms Kading, Kunstle & Goodhope, LLP           Thomas J. Von Wald Boyce Law firm, LLP          RE: HF No. 37, 2016/17 – Cindy Whitcomb v. The Evangelical Lutheran Good Samaritan Society d/b/a Good Samaritan Society-Sioux Falls Village and Sentry Insurance, A Mutual Company          DECISION AND ORDER          Dear Ms. Brahms and Mr. Von Wald:          This letter addresses the following submissions by the parties:

January 17, 2020 Employer/Insurer’s Motion in Limine

Affidavit of Thomas Von Wald February 26, 2020 Claimant’s Objection to Motion in Limine

Affidavit of Laura Brahms March 20, 2019 Employer/Insurer’s Reply to Claimant’s Objection

         QUESTIONS PRESENTED:          SHOULD THE DEPARTMENT GRANT EMPLOYER’S MOTION IN LIMINE REGARDING EXPERT TESTIMONY PRESENTED AT CLAIMANT’S SOCIAL SECURITY DISABILTY HEARING?          FACTS AND PROCEDURAL HISTORY          The facts of the case have been previously detailed. On January 8, 2020, the Department denied Employer/Insurer’s motion to extend the scheduling order deadlines so that it could order a new IME. Shortly thereafter, Claimant informed Employer/Insurer of her intention to introduce the expert opinions of Dr. Nick VenOsdel and Rick Ostrander. Neither VenOsdel nor Ostrander had been designated as an expert by Claimant. Claimant also sought to introduce a causation opinion by Dr. Jason Henry, DC and the affidavit of Clara Miller^[1]. Henry was designated as an expert by Claimant, though the causation opinion was completed after the deadline and was not previously released to Employer/Insurer.          ANALYSIS          SDCL 19-19-801(c) defines hearsay as “a statement that: (1) The declarant does not make while testifying at the current trial or hearing; and (2) A party offers in evidence to prove the truth of the matter asserted in the statement.” Employer/Insurer argues Claimant did not previously disclose VenOsdel or Ostrander as experts and their reports are therefore inadmissible hearsay. Though Dr. Henry was previously designated as an expert, Employer/Insurer argue his causation opinion is not admissible since it was not previously disclosed...