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Sharon Knapp, Surviving Spouse of Erwin "Don" Knapp, Deceased v. Hamm & Phillips Service

November 28, 2012

SHARON KNAPP, SURVIVING SPOUSE OF ERWIN "DON" KNAPP, DECEASED,
APPELLANT,
v.
HAMM & PHILLIPS SERVICE COMPANY, INC. AND LIBERTY MUTUAL INSURANCE CO.,
APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT HARDING COUNTY, SOUTH DAKOTA THE HONORABLE JOHN W. BASTIAN Judge

The opinion of the court was delivered by: Severson, Justice

ARGUED AUGUST 29, 2012

[¶1.] Erwin "Don" Knapp was injured on a job site while working in North Dakota for the North Dakota office of Hamm & Phillips Service Company. Knapp filed for and received benefits through North Dakota's workers' compensation agency, but after about nine months of benefits, he received a benefit denial notification from the agency. Knapp then filed a claim for workers' compensation benefits in South Dakota. While awaiting adjudication of that claim, Knapp died of causes unrelated to his injury. His wife, Sharon Knapp, sought to substitute herself as a party in the South Dakota claim. The South Dakota Department of Labor granted Sharon's motion to substitute, but dismissed the claim for lack of statutory jurisdiction. The circuit court reversed the motion to substitute Sharon and affirmed the dismissal for lack of statutory jurisdiction. Sharon appeals both issues. We affirm the circuit court's dismissal for lack of statutory jurisdiction because South Dakota is not the location of the employment relationship. We do not reach the issue of substitution.

BACKGROUND

[¶2.] From April 2005 to June 2008, Erwin "Don" Knapp worked for a construction company and lived in Baker, Montana. Though he worked in Montana, Knapp owned a home in Camp Crook, South Dakota, and lived there off and on since 1976. In May 2008, Knapp applied for a job as a truck driver at the Marmarth, North Dakota, office of Hamm & Phillips Service Company, Inc. Knapp applied for this position because he wanted to live in his Camp Crook home, rather than in Montana. Hamm & Phillips hired Knapp and assigned him to duties driving a truck and hauling waste water from oil wells in southwestern North Dakota, northwestern South Dakota, and southeastern Montana.

[¶3.] On June 26, 2008, Knapp began working for Hamm & Phillips in Marmarth, North Dakota. He spent his first five days in Marmarth, completing training and orientation for his new job. Knapp worked from Marmarth for the next nine days. Beginning on July 18, he began parking and picking up his Hamm & Phillips truck in Buffalo, South Dakota, at a facility owned by Continental Resources, Inc., a customer of Hamm & Phillips. Continental allowed several Hamm & Phillips drivers to park their trucks at Continental's facility in Buffalo. When Knapp worked from Buffalo, he dropped off his daily time logs and picked up his paychecks at Continental's facility. However, Knapp's time logs and paychecks were only picked up from and delivered to Buffalo if Knapp was working from Buffalo.

[¶4.] Prior to his injury, Knapp started his work day in Buffalo on 39 out of 63 days. He started his work day in Marmarth on 24 out of 63 days. Relying on the daily driver logs, which detailed where Knapp traveled throughout the day, Knapp spent approximately 60 percent of his time in North Dakota and about 35 percent of his time in South Dakota.

[¶5.] On September 30, 2008, Knapp was working at an oil well site in North Dakota. He tripped and fell backwards over a box of pipes. Knapp went to the emergency room and doctors diagnosed him as suffering from a scalp contusion/hematoma, concussion, contusion to his lower back, and sprain/strain to his cervical spine as a result of the fall. Hamm & Phillips reported the injury to North Dakota Workforce Safety and Insurance (WSI) on October 8, 2008, and on November 3, 2008, WSI accepted the claim and awarded $689 per week in medical and disability benefits for Knapp's injuries. Knapp received care for his injuries in Bowman, North Dakota, and in Spearfish and Rapid City, South Dakota.

[¶6.] On September 1, 2009, WSI issued a Notice of Decision Denying

Further Liability for Knapp's claimed head injuries and post-concussive syndrome after August 10, 2009. WSI based their decision on a neuropsychological examination conducted by Dr. Scott Cherry. In his report of the examination, Dr. Cherry stated that Knapp did not suffer from a traumatic brain injury nor demonstrate residual symptoms of a traumatic brain injury. Dr. Cherry's examination report was reviewed by a WSI medical consultant, who confirmed Dr. Cherry's findings. WSI then forwarded the examination report and WSI review to Dr. Jason Knudson, Knapp's treating physician. Dr. Knudson said that he did not have any objective medical data to contradict Dr. Cherry's examination report or the WSI review. Further, Dr. Knudson said that Knapp's "current disabling factor seems to be his inability to concentrate or focus and his emotional ability and certainly his depression, which is pre-existing, plays a role."

[¶7.] On September 16, 2009, Knapp requested a reconsideration of WSI's benefit denial. WSI staff reviewed and upheld their benefit denial on November 10, 2009. At the time that the benefit denial was reviewed and upheld, WSI told Knapp that he had 30 days to request assistance from WSI's Decision Review Office. On October 27, 2009, Knapp's attorney contacted WSI and informed them that Knapp would file a workers' compensation claim in South Dakota.

[¶8.] On December 7, 2009, Knapp filed a Petition for Hearing with the South Dakota Department of Labor. One week later, Knapp requested assistance from the North Dakota WSI Decision Review Office. On January 13, 2010, WSI sent Knapp a Notice of Decision Suspending Benefits effective February 3, 2010, pending the resolution of Knapp's South Dakota workers' compensation claim. WSI's January 13 Notice also advised Knapp that if South Dakota accepted his claim, he would be required to repay all of the benefits paid out by North Dakota. The WSI Decision Review Office sent Knapp a Certificate of Completion on February 2, 2010, which instructed Knapp to request a hearing within 30 days of the mailing of the certificate if he wished to dispute the decision. The WSI certificate also stated that without a request for hearing, the certificate became final and "entitled to the same faith and credit as a judgment of a court of record," under N.D. Cent. Code §§ 65-01-16(7) and 65-05-03 (2011).

[¶9.] In May 2010, Hamm & Phillips filed a motion for summary judgment.

It argued that the South Dakota Department of Labor lacked jurisdiction, and if jurisdiction was found, Knapp's claim was barred by res judicata.

[ΒΆ10.] Knapp died in March 2011 due to causes unrelated to his work injury. Knapp's wife, Sharon, filed a motion to substitute herself as a party based on SDCL 15-4-1. On May 4, 2011, the Department granted Sharon's motion for substitution and granted Hamm & Phillips' motion for summary judgment on jurisdiction, dismissing the case. Sharon appealed to the circuit court, which reversed the Department's decision ...


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