What Do You Think: Was CCing Department on Letter to Insurer Enough to Petition for Hearing?

Frank Ferreri

Pierre, SD (WorkersCompensation.com) – If a state law allows for a petition for a hearing to take the form of a letter, does it matter if that letter is addressed to someone else but comes to the state as a copy spelling out the employee’s claims?

South Dakota’s top court recently addressed that issue.

A worker experienced a left shoulder injury while placing tire chains on a vehicle for the company he worked for. The company’s insurer treated the injury as compensable and paid for two surgeries to the shoulder. Later, while working at the company, the worker slipped, fell, and experienced an injury to his right shoulder. The insurer treated that injury as compensable and paid for another surgery.

The worker’s doctor assigned the worker a 15 percent impairment rating for the left shoulder and an 11 percent impairment rating for the right. Three years after the second injury, the insurer stopped paying disability benefits but continued to pay for the worker’s medical expenses.

The worker sent a letter to the company’s insurer requesting a review of his benefits. In response, the insurer informed him that it had discontinued disability benefits because the company offered him work within his restrictions and he declined it.

The worker sent a second letter, attributing several health issues to his at-work injuries, and sent a copy of the letter to the state’s Department of Labor and Regulation. The letter explained that the worker experienced the injury while “wrestling a set of double tire chains” and that the incident occurred “around 7:30 a.m.” Rejecting the worker’s contention that his letter constituted a valid petition for hearing, the department declined to hold a hearing.

The worker appealed the department’s decision to court. The agreed with the department that the worker’s letter was not a petition because it did not state clearly the cause of action for which the worker sought the hearing and it failed to specify the time, place, and manner of his injuries, and also failed to describe the nature and extent of his disability.

The worker appealed to the South Dakota Supreme Court, arguing that his letter “clearly and concisely describe[d] his disagreement with the denial of his ongoing disability claims.”

Under South Dakota law, either party may notify the department and request a hearing with a written petition that includes information such as the name of the claimant, the manner in which the accident occurred, and the time and place of the accident.

Did the letter contain enough information to constitute a petition for a hearing?

A. Yes. The letter did not have to follow a specified form and provided information on the injury and when it happened.

B. No. The letter did not provide enough information and was a copy of letter that was not even sent to the department.

If chose B, you sided with the court in May v. Spearfish Pellet Co. LLC, No. 29386-a-SPM (S.D. 08/18/21), which faulted the letter for failing to include “basic information,” such as the employer’s name, where the injury to his left shoulder occurred, and details about the time and location of his right shoulder injury.

While it was true that the petition did not have to follow a specific form, the court noted that the lack of details along with the fact that the department only received a copy of a letter that the worker sent to the company’s insurer showed that the letter was not enough to constitute a petition for hearing.

This feature does not provide legal advice.

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