*1 arguing spa; about the are not pressed, “We is not issue. appropriateness
it’s indoors.” must be
fight is about whether “the was too small testified that home
Howie spa the floor structure will
to house the spa.” There support weight Furthermore, contrary. no evidence totally claim- permanently and disabled spa put “in expressed that the could be
ant barn,” temperatures the winter were but factually undisput- so. This is
too cold to do Therefore, leap is sim- of induction
ed. therapy pool for claim-
ply spa that the home use, “in” necessity, must be her
ant’s therapeutical pool in cold barn is
home. approach Dr.
impractical. Goffs grant comparable treatment
was to claimant hospital setting and treatment. This
to a of “suitable conclusion
was medical care,” per
proper language contained testimony, claimant’s she had to have
Per her hands and with minimal use of
access to have some heat so
protect Da- her from the elements South
kota winter.
Thus, my judgment, the remand should costs simply limited to the reasonable placed spa be enclosed or which would majority opinion
indoors. differ with necessity placing spa the medical
indoors, my opinion, given. that Justice
I am authorized joins writing.
WUEST SOWARDS, Appellant,
Paul
HILLS MATERIALS COMPANY Company,
Maryland Casualty
Appellees.
Nos. 18476. Dakota. Court South
Argued April Sept.
Decided
FACTS 19, 1990, (So- January On Paul Sowards wards) working became while for Company (Employer). Hills Materials stool broke as stepping Sowards was onto causing injuries him to fall and to sustain foot, ankle, right knee, hip. Some accident, began months after the Sowards experiencing impotency as well as inflamma- Eventually, testicle. March surgery by Sowards underwent (Dr. Yamada) Dr. Andrew Yamada for a inflammatory testicular “epidi- disease called dymo-orchitis.” pathologist involved in (Dr. surgery Dr. James A. Rud Rud). petition hearing for filed a Department
the State (Department) Labor 15,1992. May 12,1992, On June Dr. Rud reported the condition of the testicle was not related work Sowards’ accident. On Au- gust 18, 1992, opined Dr. Yamada that the condition “secondary testicle was not previous injury to the work related].” [,ie., On response November to Em- William Jason Groves and L. Buff- Michael ployer’s admission, request for Sowards ad- Office, ington of Rapid City, Groves Law for mitted that the testicular disease was not appellant. compensation duty within the Employer, Benjamin Eicher J. and Heidi L. Towne of .however, he refused concede that his sexu- Eicher, Rapid City, Wallahan and appel- for dysfunction al not work-related. Conse- lees. quently, impotency condition is still dis- puted. AMUNDSON, Justice. 28, 1993, January Employer On wrote a appeals Paul Sowards the circuit court’s attorney requesting per- letter to Sowards’ affirmance of the South Dakota mission to ask Dr. Yamada and Dr. Rud to permitting discovery Labor’s order impotency address whether the claim was Company Maryland Hills Materials January 29, 1993, Ca- work-related.1 On So- sualty Company. We affirm. filed protective wards a motion for order to 1. Employer’s you letter to the prefer doctors 4. Would to examine meet and/or following questions: asked with Mr. rendering Sowards before such an opinion? upon you 1. Based the information have in you opinion 5. Can to a reasonable Sowards, your regarding you files Mr. are able probability medical that the testicular inflam- opinion, to state an to a reasonable medical disease, matory you which have said is not probability, toas whether Mr. Sowards' al- injury, related Mr. Sowards’ work would leged impotency injury? related his work alleged have caused or contributed im- you your 2. Based information have in potency? Sowards, regarding you willing files Mr. Employer's attorney letter to Sowards’ opinion, conclud- prob- state an to a reasonable ed, you give permission "If do ability, me send alleged to whether Mr. Sowards’ letters, frankly anyway.” these (This impotency injury? is related send them to his work at, you type supplied certainly 3. Do need to threat cannot look or be be construed with, any falling parameters "professional- other medical records in within the order to opinion regarding alleged render an discovery. work- ism” when an is involved in impoten- alleged interpreted relatedness of Mr. Sowards' Our decision should not be as con- cy? doning type activity.) prohibited So- and not sending pro- munication Employer privilege? physician/patient hearing on wards’ Following a So- posed letter. order, Depart- protective wards’ motion denying mo- an order
ment entered REVIEW ON NOTICE OF ISSUE *3 tion. Department improperly restrict Em- Did following: provided the Department’s order “treating physicians” ployer’s access 28, 1993, January Employer/Insurer’s 1. order? its communication permissible is a
letter
doctors,
subject to
is not
Claimant’s
REVIEW
STANDARD OF
is
privilege, and
any physician-patient
agency’s
administrative
de-
“We review the
communication, as
parte
ex
not an
the circuit court. We
cision the same
did
copy
a
attorney
provided
was
Claimant’s
judgment for that
our
do not substitute
advance;
weight
agency on the
evidence
by Employer/In-
Additional contacts
2.
by
clearly
or characterized
unless
erroneous
with Claimant’s doctors
counsel
surer’s
Lindblom,
Rank v.
an abuse of discretion.”
following
in the
conducted
are to be
(S.D.1990) (citations
459
248
N.W.2d
letter,
copy
a
is to be
by
if
manner:
omitted).
any presump-
“Nor do we make
counsel in ad-
provided to Claimant’s
decision was
the circuit court’s
tions
vance,
opportunity given to ob-
with an
Mart,
Boyd’s Drug
Schlenker v.
correct.”
present
ject
inquiries irrelevant to
to
(S.D.1990) (citation
458
370
conversation,
action;
in-person,
if
omitted).
like,
phone,
Claimant’s coun-
notified, given
opportu-
[be]
sel
to
DISCUSSION
object
nity
participate, and to
to
to
pres-
inquiries deemed irrelevant to
ISSUE
way
guidelines
no
ent action.
authority by
Department
its
Did
exceed
permissible
[Employer’s] use of
allowing
issuing
discovery
a
order
“infor-
discovery procedures to obtain medical
objection?
discovery
mal”
over Sowards’
information,
doctors
to call Claimant’s
Department
argues that
exceeded
Sowards
hearing,
Employ-
or limit
in a
witnesses
by issuing
statutory authority
the order
its
indepen-
an
to seek
er/Insurer’s
Employer to contact the
permitting
to
pursuant
dent medical examination
'
Employer’s contact
physicians because
62-7.
phy-
treating physicians violates the
with the
to
appealed Department’s order
Sowards
is also
ex
sieian/patient privilege and
affirmed
The circuit court
circuit court.
Further, Sowards
parte communication.2
appeals.
Sowards
Department’s order.
to follow
Department
contends
provided by
discovery rules as
the formal
ISSUES
authority
Department
Did
exceed its
ruled
letter from
Department
allowing
issuing
discovery
order
treating physicians was not
Employer to the
discovery over
ob-
“informal”
privilege and
subject
any physician/patient
jection?
because
parte
an ex
was not
copy
with a
Employer’s letter
to Sowards’ Sowards’
2. Was
given
in advance and
permissible com- of the letter
“treating physicians” a
plaintiff's
Partnership
health
tain
information
cites Roosevelt Hotel Ltd.
(Iowa
totally inap
1986),
providers. We
care
find Roosevelt
Sweeney,
772 parte” sible “ex contacts with the physicians. fact, time, In at Employer that provides 15-6-13 the had not physicians contacted the but was govern procedure procedure rules of civil simply informing plan Sowards of its to ask the circuit courts. There is no statute or physicians opinion the for their of the work proclamation providing compen for worker’s relatedness of impoteney. Depart by proceedings governed sation to be the ment ruled the not parte letter was an ex procedure. rules civil of “Unless otherwise communication because Sowards’ provided by by proclamation statute or of copy with a in advance and no court, apply pro this no such rules other prior communication was made without no Labor, Dept. ceedings.” Perrine v. S.D. tice. The circuit court affirmed this decision. (S.D.1988). logical 431 N.W.2d 159 The agree. We compensation pro conclusion is that worker’s ceedings governed by not the rules of primary One of the of the procedure civil by unless otherwise ordered Compensation South Dakota Worker’s isAct Perrine, hearing officer. 431 at N.W.2d provide employee with a reme 159; 1-26-19.2;4 see also v. Lawler dy which is expeditious independent both (S.D. Restaurant, 435 Windmill N.W.2d 708 of proof of fault. v. City Rapid Scissons 1989). (S.D.1977). City, 251 N.W.2d 686 In reviewing After all the evidence in this order accommodate purpose, worker’s case, conclude did compensation procedure we not abuse “generally by establishing ground summary its discretion compatible and informal as is discovery rules orderly for informal in a investigation of the merits.” Lar agree son, case. with the Compensation § We Iowa Worker’s Law 77A.00 Supreme Court’s get statement Morrison v. away “The whole idea is to Century Engineering, 434 877 procedures the cumbersome ... and to reach (Iowa 1989): system designed “The by to be quickest decision the shortest and essentially possible § nonadversarial. Whatever route.” Id. 77A.10. This infor- provides: agency power 3. SDCL 15-6-1 deposi- shall have to cause the chapter residing governs procedure tion of This witnesses within or without cir- cuit courts of the state South Dakota in all or absent to be or therefrom taken other nature, exceptions suits of a civil with the stated discovery procedure to be conducted notice §in It shall be construed secure the person, any, to the interested if in like manner just, speedy inexpensive determination of depositions of witnesses are or taken other every action. discovery procedure is to be conducted civil pending any actions in circuit court matter provides: 4. SDCL 1-26-19.2 concerning contested cases. agency charged Each and the officers thereof duty with the administer laws rules of injury. This teney to a work-related only prevents the defeat due mality not technicalities, physical simplifies expedites allegation directly implicates his but substantially just privi- results. achievement health and constitutes waiver Packard, lege. § 77A.46. Id. at Sheid Hewlett P.2d (Colo.App.1991). is a also claims the letter privilege. physieian/patient violation of the The circuit court ruled that this communi- appeal court on Department and the circuit physieian/patient cation did not violate concluded the privilege provides: 19-2-3 because SDCL any physieian/patient privilege. subject to any proceeding quasi- action agree. We judicial proceeding, administrative when- physieian/patient applicability physical or mental health ever proceed- privilege to worker’s issue, any privilege under person is in ings questioned more than one has been conclusively 19-13-7 shall deemed “[Ejnforcement patient-physician scholar. purpose waived at trial or for in an industrial accident tribunal is discovery chapter under 15-6 such action nonsense, complete.” Maguire, obvious and (Em- ... proceeding is civil nature jEvidence and Common Law Common Sense added.) phasis *5 (1947). written, has Professor Larson 62-4-45, also cited SDCL The circuit court validity privilege the reex- “the should be compensation provision, a which worker’s compensation against policies the amined provides: particular, physician-pa- the legislation. utility[.]” ... privilege is of doubtful tient at- practitioners surgeons All or medical Larson, Compensation Law 79.- Worker’s injured employees comply shall tending 83(c) pursuant promulgated with the rules department chapter 1-26 the of labor ad- Dakota’s Under SDCL 1-26-19 South may reports shall make such as be and provides: rules procedure ministrative “The hospital it. All medical and statutory applied provi- under of evidence inju- particular information relevant to the in in and the trial of civil cases the sions demand, shall, ry be made available state, may courts of this or as circuit employee, the employer, insurer and the relating specific the statutes department of labor. No relevant Agencies shall agency, followed.... shall be infor- developed in connection with treat- mation recog- privilege the rules of give effect to compensa- which ment or examination by law.” nized for may privi- a sought is he considered tion provides phy 19-13-75 the a leged communication for It sician/patient privilege in South Dakota. If a medi- compensation claim. worker’s implies law a clear that South Dakota is surgeon willfully fails practitioner or cal if, here, patient a privilege waiver required of him under any report make placed physical or condi litigant has her section, may of labor department the this legal claim. at issue as the basis a right to all or forfeiture of his order the provide: “There is no The rules of evidence payment for rendered part of due services privilege ... as to a communication relevant particular case. in connection with physical ... condition of to an issue of added.) (Emphasis any in which patient proceeding he clearly statutory indicate of his sections upon the condition as an element relies defense_” legislature extend the did not SDCL 19-13-11. claim or in- privilege Here, impo- eian/patient to relevant he from suffers himself, addiction, among physician or drag provides: or SDCL 19-13-7 participat- psychotherapist, persons who are patient privilege to disclose has to refuse ing diagnosis the di- disclosing or treatment under person other and to pur- psychotherapist, in- physician made for the confidential communications rection of diagnosis physical, family. pose cluding patient's treatment of his members condition, including alcohol mental emotional (1) (2) proceed- liability, compensation pertaining to failure to file formation worker’s (3) claims, ings. timely be a free of infor- of third There should flow indemnification (4) (5) parties, employee’s physical employment, indepen- con- regarding mation covered (6) not, proof, compensation claim is dent contractor or burden of dition when worker’s (7) (8) disabilities, disability, extent of mental made. (9) proceed against employer, election to Informality everyone’s interest be- (10) treatment, necessary determination cases, compensation un- cause in worker’s just to name a few. cases, ordinary liability like is almost never n question only an issue. The condi- judge practicing lawyer, As a trial tion of the worker. Because of the period Court Justice of over scope of inquiry possibility narrow years, forty participat- have witnessed and revealing extraneous evidence is lower great ed in a number of the aforementioned than in worker’s cases ordi- type of involving compensa- cases nary cases. (worker’s system” compensa- tion. Will “the tion) Morrison, pro- be more beneficial “if claims are routinely paid quickly?” cessed Benefi- applicable Our review of the South Dakota cial for whom? law and facts this case demonstrates correctly that and circuit court me, appear notwithstanding It does not Employer’s request decided would not violate decision, practice of worker’s physician/patient in this work- law, become, se, per non- compensation proceeding. espe- er’s This is Truly, legitimate adversarial. claims should questions cially propounded true when the “quickly” theory —in —but easily could have been answered with sim- always happen. does not And then the birth *6 “yes” ple or “no.” controversy legal upon of us. This deci- sion should not abe death knell for those have reviewed the issue We raised Em- practice who law in the of field ployer’s notice of review and find lacks compensation. Nor should it be construed merit. circuit court order is affirmed hamper legitimate claims of those who respects. all injured are in a dark mine in the Black Hills or young gets badly unloading lad who hurt MILLER, C.J., WUEST, J., concur. and heavy hauling boxes a truck driver cattle SABERS, JJ., HENDERSON and concur on icy road aor nurse whose back is specially. injured lifting commerce, patient. while many ways are there to be and there HENDERSON, (specially Justice concur- many are types inju- scenarios of different of ring). Questions ries. from industrial accidents Theoretically, per majority opinion, concerning permanent per- arise disability or acting Supreme and an Iowa Court case partial disability manent or death. There 1989, compensation sup- a worker’s case is many are questions to be resolved work- However, posed “nonadversarial.” er’s cases and the are answers practically speaking, my years of service always black or white. There are areas public legal profession to the and the gray lawyers that is when the must Dakota, South I have not found that to be Injured come to the fore. claimants will many highly true. There are skilled advo- always lawyers. Fixing compensation need practice empha- cates South Dakota whose solely by cannot be administered rule slide They sizes worker’s laws. within the of Labor at the State highly knowledgeable hold themselves out as “nonadversarial, Capitol in a informal” set- in this area. ting. Injuries varying degree. People are Our South Dakota company Code reflects dozens different. If the insurance has cases, below, advocate, way tried which wended their so should the claimants. Insur- Supreme companies Court this state for a ance corporate have claims offices variety decision. attorneys. There a wide cases and a staff of so with the Not Therefore, fully I cannot injured worker. OSMAN, Appellant, labels work-
join majority opinion which D. Plaintiff and John as “nonadver- compensation proceedings er’s sarial.” KEATING-OSMAN, Connie R. Legislature perceive the State As Appellee. Defendant and privileges certain has defined South Dakota No. 18530. they are lost or by which the terms have under- privileges surrendered. Dakota. South Court by the addition gone metamorphosis 62-4-44, Report submitted to to be 25, May on Briefs Considered department labor employer 7, Sept. Decided surgeon practitioner —Time 4, 416, limitation, 1990, ch via SL 62-4-45, injury Information about Penalty for with- to be made available — 416,
holding information, ch via SL By legisla-
5;§ § 43. the 1990 ch act, ma- were added which new sections
tive practi- a medical
terially affected selection of treatment, surgeon, reports, and
tioner in- practitioners attending
requiring medical hospi-
jured employees make “medical and available “de-
tal information relevant” longer to no are now deemed
mand.” Same privileged
be “a compensation claim.” SDCL
of a worker’s “routinely
Finally, if claims are
quickly,” remembered it is Act Compensation is remedial
Workmen’s *7 liberally construed to effectu-
and should be Premack, 70 S.D. purpose. Schwan
ate
371, 17 just you If boil or like coffee.
Justice is usually pretty good. it But
perk tastes coffee, the aroma not there
it’s instant Myself, I good. have taste so doesn’t enjoyed coffee.
never instant
SABERS, (concurring specially). Justice opinion, I do not
Although concur
join of footnote 1 because paragraph the last the letter is statement
the statement intention, legal right, rather than
fact
threat.