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Help, I’ve Fallen And I Can’t…File A Claim

— June 14, 2017

Help, I’ve Fallen And I Can’t…File A Claim

Representatives in the insurance industry were originally scheduled to make a proposal to the South Dakota Workers Compensation Advisory Council this month as a first step in rolling out legislation limiting the ability of injured workers to seek help with treatment by pursuing bad faith claims against their company’s insurance companies. Attorneys representing the injured parties think it’s ludicrous to be told not to file claims against companies that are intentionally dishonest, which in essence, this is the definition of “bad faith”.  The specifics of the proposed legislation have not been made public.

Help, I've Fallen And I Can't...File A Claim
Image Courtesy of Schiller Law Office

But the proposal has now been delayed, and is scheduled for August, according to Mike McKnight, a Sioux Falls attorney for the insurance companies.  “We’re going to have some further discussions — both sides, the other claimant lawyers, trial lawyers, etc. — and see if we can come to some resolution of it,” he said.

Attorneys representing the injured workers expect the proposal to limit the help with costs associated with a bad faith case.  Some may be barred altogether in circuit court. “There’s been a concern raised in the past that worker compensation insurance companies are unduly susceptible to liability for bad faith,” said James Marsh, who oversees the South Dakota Division of Labor and Management and the state’s worker compensation system.

By denying legitimate claims and limiting help, insurance companies “are going to make more money than they lose even if they get caught now and again,” said Mike Abourezk, a Rapid City attorney  “I have more bad faith than I could do even in five lifetimes.”

In a ruling last September, the South Dakota Supreme Court reversed a lower court decision that tossed out a bad faith case brought by James Mordhorst against Dakota Truck Underwriters and Risk Administration Services.  The company terminated worker compensation benefits for a injuries Mordhorst incurred after a 275-pound couch fell on him.

Help, I've Fallen And I Can't...File A Claim
Image Courtesy of Nessler & Associates

The independent medical examiner retained by the insurers to evaluate Mordhorst’s injuries indicated they were not caused by the piece of furniture, but this was contrary to his own doctor’s findings. The lower court ruled that the insurance companies had a “reasonable basis” to deny Mordhorst’s claim.  However, the South Dakota Supreme Court ruled that the opinion of a medical practitioner is not necessarily a reasonable basis for denying the man’s benefits.  Chief Justice David Gilbertson wrote, “We see no reason to conclude that a workers’ compensation insurer — whose chosen business deals in such matters — is incapable of the same.”  This ruling took away an insurance company’s ability to rely on its own medical examiner, and served as a catalyst for the new proposal, as the insurers very much disapproved of the court’s ruling.  “They don’t like that,” Watertown lawyer Seamus Culhane said. “They want their cheap insurance policy.”

However, barring workers from seeking bad faith claims, according to the claimants’ attorneys, violates the Seventh Amendment to the U.S. Constitution which allows for jury trials.  “I think it would be absolutely and blatantly unconstitutional,” Rapid City lawyer Jim Leach  said.  Lee Schoenbeck, a Watertown lawyer, agrees, stating that further limiting employee rights would be a mistake.  “This isn’t how the system is supposed to work, and everybody ought to be embarrassed,” he said.


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