Frequent Questions

^**The following information is meant to give you some personal guidelines. These are not and cannot be legal conclusions that you should rely on, because there are specific facts that change the nature of any case. Only a fully informed lawyer can give you legal advise that you can rely on.

1. Contributory Negligence: What is that?
2. Do I need a lawyer?
3. What if the adjuster says they do not like my doctor?
4. How long do I have to bring my claim?

Workers' Compensation:
5. What if my doctor says I have a work injury but the insurance company won't pay?
6. What if I lose my job over this?
7. Does the managed care person have to be in my exam?
8. How long do I have to file a claim?

1. Q. Contributory Negligence: What is that?

   A. Under South Dakota law, if someone who was injured in an accident was themselves contributorile negligent, more than slight in comparison to the negligence of the other driver, then the injured party cannot recover. Our Supreme Court has declined to define the meaning of “slight” from a percentage standpoint, but they have held that 30% negligence to the victim and 70% negligence to the defendant is more than slight. It is important to remember that if you were a passenger in a vehicle driven by someone else, contributory negligence may not apply; however some adjusters will make this argument, attempting to reduce the value of the claim. If the adjuster is arguing this, it should be an indication you need legal counsel.
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2. Q. Do I need a lawyer?

   A. When you are dealing with an adjuster, keep in mind that the adjuster has a job to do—to pay out as little as possible on the claim. If the adjuster advises that you do not need a lawyer, it is probably a pretty good indication that you do need one. In fact, in another jurisdiction in the United States an adjuster had informed the claimant they did not need a lawyer - the adjuster’s advice was recognized by the Court as an unauthorized practice of law. We appreciate it is a matter of personal choice to everyone as to whether to hire a lawyer or not, but when you are relying on the adjuster to give you information on your legal rights, their interests are most definitely opposite of yours. We recognize that in making the decision to hire a lawyer, it is going to cost the claimant money for attorney’s fees when all is done. It is our experience that our involvement will almost always result in a better recovery for the claimant. We also recognize that in order for our services to be effective, we need to be a part of the solution and not part of the problem. Thus, if we believe that there is nothing further we can do to help you, we will be upfront and inform you of this during the evaluation. The evaluation will be at no charge to you.
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3. Q. What if the adjuster says they do not like my doctor?

   A. Oftentimes we see this question regarding chiropractic treatment. Seventy percent of all injuries related to car accidents are cervical soft tissue and muscular injuries. The doctors of rehabilitation who specialize in treatment in these types of injuries, together with chiropractors, often find themselves under attack. We have worked with most all the chiropractors and rehabilitation doctors in Sioux Falls, and have a strong working relationship with them. If your condition involves injuries to muscles, ligaments and/or cervical injuries that may require a great deal of treatment, we recommend your family doctor review your treatment. If your doctor does not feel qualified to review your treatment, ask them to refer you to someone who can. It is our opinion you always have the right to choose your own doctors and the treatment involved in your own care. If an adjuster is arguing to the contrary, it is yet another indication you should contact a lawyer.
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4. Q. How long do I have to bring my claim?

   A. South Dakota has a three (3) year statute of limitations and the lawsuit must be served on the defendant by the end of the three years, or, in most cases, you lose your right to pursue the claim. If at any time an insurance company offers to extend the statute of limitations during negotiations, proceed with extreme caution! You will be at the mercy of their recordkeeping.
   
   We prefer to file a claim as soon as possible for a number of reasons. Most importantly, we want to stay involved with your doctor to ask any questions during treatment that may otherwise go unanswered, making it more difficult to answer at a later date. Also, the sooner we are involved, the easier it may be to interview witnesses that may later be difficult, if impossible, to locate. Since we are aware of the evidence we will need to present your claim, we will also assist to appropriately document the evidence, and keep you informed of all pertinent facts.
   
   If you choose to wait until the 11th hour to hire a lawyer, you may want to consider the peril you place yourself and your lawyer in by choosing this option. If a lawyer has only two or three weeks to gather evidence, prepare a complaint and service of process (meaning your lawyer must locate the defendant and have papers served upon them), time may run out for your claim. A potential client who contacts us with little time left to bring a claim may find we will be unable to represent them due to busy schedules in our office. Also, when the defendant has moved, or is unable to be physically located, there are ways to achieve service of process, but commonly, it will take 60 - 90 days to accomplish the task. Considering the potential result of losing your entire claim, waiting until the last minute is a risky gamble.
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Workers’ Compensation


5. Q. What if my doctor says I have a work injury but the insurance company won’t pay?

   A. If the insurance company has medical conclusions from a doctor that your injuries were not work related, they can deny the claim. If there is no report, and the insurance company has decided on their own to deny the claim, then they may be acting in bad faith, and we advise you to contact us immediately. The insurance company has the right, at any time, to have you seen by an independent doctor to determine if you have a work-related injury. Although we have seen situations where independent medical exams (IME) are handled unfairly, we recommend you attend the exam, if one has been scheduled. If you fail to attend or refuse the exam, your work comp benefits may be cut off. If you are a victim of an unfair IME and you disagree with their findings, please discuss the situation with your treating doctor so he/she is advised, and can make a notation in your medical records. When the records are submitted to the Department of Labor, the Department can then make a decision.
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6. Q. What if I lose my job over this?

   A. If a workers' compensation injury results in termination due to claiming benefits, or if you are informed by your doctor that you unable to return to your job, please contact us and we will be happy to evaluate your claim at no cost.
   
   This may be another circumstance in which an adjuster or a managed care provider may tell the injured that a lawyer is not necessary. Once again, this may be an indication that a lawyer is needed.
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7. Q. Does the managed care person have to be in my exam?

   A. No. You have the right to request that the managed care person be excluded from your exam; however, your doctor must talk to the managed care provider. Your relationship with your doctor is your own and if you do not wish to have a case manager present during your exam, you may ask your doctor to exclude them. Your doctor may talk to the case manager at a later time.
   
   Unfortunately, the only real value of some case managers to an insurance company may be to persistently attempt to convince your doctor out of the recommended treatment he/she has planned for you. Although it is appropriate to find the most cost effective way to treat someone, it is not appropriate to press a doctor to give inappropriate or ineffective treatment to save a few dollars. If you believe your doctor is being pressured, one of the most important things we recommend you do is to talk to the doctor about your expectations. It may also be helpful to ask your doctor to not change any of your treatment plans or any of your physical restrictions without having you present while these changes are being discussed.
   
   Our office has been involved in litigation against this type of case manager and, to the best of our knowledge, we have been the first to pursue these claims. If you feel you have had your treatment plan severely impaired by a case manager, we will be happy to evaluate the situation for you, free of charge.
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8. Q. How long do I have to file a claim?

   A. If you have received a denial letter from your employer or your employer’s insurance company (that has also been sent to the Department of Labor), specifically stating that your claim has been denied and that you have two (2) years to commence an action from the date of denial - your time is running. You must initiate a petition for hearing within two (2) years from the date of that letter; otherwise, in most instances, your rights to future benefits are jeopardized. If there is not a letter of denial, South Dakota statute states that work comp is presumed to no longer be involved if there has been no treatment or no additional claims for three (3) years.
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