Skjonsberg v. Menard, Inc., 28438, 28445

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice
• Citation: 922 N.W.2d 784
• Parties: Cassandra SKJONSBERG, Claimant and Appellee, v. MENARD, INC. and Praetorian Insurance Company, Employer, Insurer and Appellants.
• Docket Number: 28438, 28445
• Decision Date: 16 January 2019

922 N.W.2d 784

Cassandra SKJONSBERG, Claimant and Appellee,
v.
MENARD, INC. and Praetorian Insurance Company, Employer, Insurer and Appellants.

28438, 28445

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON AUGUST 27, 2018
OPINION FILED January 16, 2019

JEFFREY A. COLE, WILLIAM SIMS of Northern Plains Justice, LLP, Sioux Falls, South Dakota, Attorneys for claimant and appellee.

J.G. SHULTZ of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for employer, insurer and appellants.

GILBERTSON, Chief Justice

¶1.] Cassandra Skjonsberg suffered a workplace injury to her right foot that required surgery while employed by Menard, Inc. (Employer). The South Dakota Department of Labor and Regulation awarded partial summary judgment in favor of Skjonsberg for her incurred medical expenses. After a two-year delay, Skjonsberg filed a second motion for partial summary judgment to recover the existing medical expenses. Employer and its insurer, Praetorian Insurance Co. (Insurer), paid the outstanding medical expenses and claimed a decision on the second motion was unnecessary because the issue was now moot. The Department nonetheless granted partial summary judgment in favor

[922 N.W.2d 786

of Skjonsberg and denied Employer and Insurer’s subsequent motion for reconsideration. On appeal, the circuit court affirmed the Department’s decision. The parties each appeal various aspects of the court’s decision. We reverse and remand.

Facts and Procedural History

¶2.] On November 25, 2011, Skjonsberg fractured her right foot while at work for Employer. Skjonsberg was prescribed a device for her foot called a "Roll-A-Bout" to assist her in moving around. Employer and Insurer refused to pay for the device and Skjonsberg instead used crutches and a "CAM boot." Skjonsberg underwent surgery at Core Orthopedics in Sioux Falls on December 23, 2011. During recovery, on January 16, 2012, Skjonsberg sustained a right fibular ankle fracture after allegedly walking with the crutches and CAM boot. The injury required surgical intervention to repair.

[¶3.] Skjonsberg incurred medical expenses related to the two injuries. However, after a dispute arose regarding coverage, Employer and Insurer stopped paying temporary total disability benefits and medical bills. As a result, Skjonsberg filed a petition for hearing with the Department on November 7, 2012.

[¶4.] On April 2, 2013, Skjonsberg requested discovery consisting of 102 interrogatories and 35 requests for admissions. After multiple attempts to get Employer and Insurer to answer the discovery requests, Skjonsberg moved for partial summary judgment, seeking recognition from the Department that both her injuries were work related and that Employer and Insurer were responsible for her medical expenses. Employer and Insurer resisted Skjonsberg’s motion and contended that her discovery requests were burdensome and excessive.

[¶5.] On May 21, 2014, the Department entered its decision and order on Skjonsberg’s motion for partial summary judgment in favor of Skjonsberg. The Department rejected Employer and Insurer’s contentions, and required Employer and Insurer to cover the medical expenses for both of Skjonsberg’s injuries. Skjonsberg’s medical expenses went unpaid for two years.¹

[¶6.] On September 9, 2016, Skjonsberg filed a second motion for partial summary judgment with the Department seeking payment of her unpaid medical expenses. Employer and Insurer responded to Skjonsberg’s motion on October 12, 2016, by sending a letter to the Department that claimed Skjonsberg’s outstanding medical expenses were being resolved. On October 31, 2016, Employer and Insurer submitted an affidavit in response to Skjonsberg’s second motion for partial summary judgment stating Skjonsberg’s outstanding medical bills totaling $8,236.76 had been resolved by agreement with the health care providers. Employer and Insurer also filed a two-sentence resistance to Skjonsberg’s motion for partial summary judgment claiming the issue was moot. Skjonsberg presented no statement disputing these facts submitted by Employer and Insurer.

[¶7.] The Department granted Skjonsberg’s motion on November 29, 2016. The order repeated the Department’s conclusions from its first order by stating that Employer and Insurer were responsible for the medical expenses for both of

[922 N.W.2d 787

Skjonsberg’s injuries. The same day, Employer and Insurer moved to reconsider on the grounds that the issue of payment for Skjonsberg’s medical expenses was moot. The Department denied Employer and Insurer’s motion on April 3, 2017.

¶8.] Employer and Insurer then appealed to the circuit court on May 1, 2017. However, Employer and Insurer failed to file a statement of issues within ten days pursuant to SDCL 1-26-31.4.² The parties filed their respective briefs and Skjonsberg pointed out Employer and Insurer’s failure to abide by SDCL 1-26-31.4. Employer and Insurer then requested leave to file a statement of issues, which the circuit court granted. On September 25, 2017, the circuit court affirmed the Department’s order.

[¶9.] Employer and Insurer appeal, raising one issue: whether the Department erred in granting Skjonsberg’s second motion for partial summary judgment when they claimed the issue was moot. Also, by notice of review, Skjonsberg appeals the circuit court’s decision granting Employer and Insurer leave to file a statement of issues.³ Skjonsberg argues that if this Court is inclined to reverse the circuit court’s ultimate decision, we should apply a "plain error" standard of review for failure to abide by SDCL 1-26-31 and affirm the Department’s order.

Standard of Review

[¶10.] On appeal from a circuit court’s decision under SDCL 1-26-37, we undertake "the same review of the administrative tribunal’s action as did the circuit court." Dakota Trailer Mfg., Inc. v. United Fire & Cas. Co. , 2015 S.D. 55, ¶ 11, 866 N.W.2d 545, 548 (quoting Peterson v. Evangelical Lutheran Good Samaritan Soc. , 2012 S.D. 52, ¶ 13, 816 N.W.2d 843, 847 ). We perform this review "unaided by any presumption...