Back to: Investigates
February 12, 2018 06:00 PM

Injured Worker Wins Workers' Comp "Bad Faith" Case

Rapid City, SD

If you're hurt on the job and an insurance company doesn't treat you fairly in South Dakota, you currently have the right to sue them.

But the insurance industry says that's costing too much money and taking too long.  
It wants South Dakota to join 37 other states in keeping these so-called workers' comp bad faith claims out of court.

A bill up for discussion in Pierre would make it the Department of Labor's job to resolve workers' compensation bad faith clams, rather than a jury.   

The insurance companies say this would keep costs down for employers.  As you may imagine, trial attorneys are against it.  But so are some injured workers, whose stories seem to have a common thread. 

"I woke up one morning and it was horrible," Pam Douglas said. 

Douglas worked for 12 years at a Rapid City Holiday Inn.  She was performing maintenance when she was hurt removing caulk in one of the rooms.

"I was kneeled down in the bathtub and the stuff gets pretty hard so you have to put some effort into cutting it out and I twisted and pulled wrong and that's how it happened," Douglas said.

Douglas saw a local neurosurgeon who told her she had a herniated disc and needed surgery.  But the insurance company with her employer's workers' comp policy wanted her to see Dr. Nolan Segal, a Minneapolis Orthopedic Surgeon.

"So they made me wait six weeks for him to come here. And then we get his report and he says it was caused by me rolling over in bed. That was what his report said.  That when I rolled over in bed, I herniated a disc," Douglas said.

Based on Segal's opinion, Douglas' workers' comp claim was denied. She and her husband hired an attorney to fight that.  Douglas had surgery, couldn't work for a while and didn't get paid. 

"My husband and I ended up draining our retirement accounts to survive to keep our house," Douglas said.

A year later, a Department of Labor Administrative Judge ruled in her favor and the insurance company had to pay her medical bills and lost income.

"They should be responsible. You pay that insurance thinking you're going to be covered. And then they bring in this doctor," Douglas said.

"She hurt herself. She's not a gold digger. She just wants to get fixed up so she can go back to work," husband Tom Douglas said.

Since the Department of Labor ruled in their favor, the Douglases didn't take their case any further, though they could have taken the insurance company to civil court.  However, under Senate Bill 145 that would no longer be an option for cases like this one. 

It's just designed for the insurance companies so they can pad their bottom line; so they get bigger bonuses and they don't have to pay out all these claims," Tom Douglas said.

The Douglases plan to travel to Pierre on Tuesday to tell lawmakers their story.

And they aren't the only ones.  In Eye on KELOLAND Monday at 10 p.m., we meet a man who took his bad faith claim against the workers' comp insurer all the way to the Supreme Court and won. The doctor who found in the insurance company's favor in his case?  Dr. Nolan Segal, the same as with Douglas. 

We also track down Segal to ask him about it.

The two main lawmaker sponsors of Senate Bill 145 have ties to the insurance companies. Our investigation reveals those ties and potential conflicts of interest at 10. 

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