#26078-a-SLZ

2012 S.D. 13

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

PATRICK KENDALL, SR., Appellant,

v.

JOHN MORRELL & COMPANY, Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICIA C. RIEPEL

Judge

* * * *

LEE C. “KIT” MCCAHREN of

Olinger, Lovald, McCahren

 & Reimers, PC

Pierre, South Dakota Attorneys for appellant. 

MICHAEL S. MCKNIGHT

WILLIAM J. GASSEN III of

Boyce, Greenfield, Pashby

 & Welk, LLP

Sioux Falls, South Dakota Attorneys for appellee.

* * * *

CONSIDERED ON BRIEFS 

ON JANUARY 9, 2012

OPINION FILED 02/08/12
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ZINTER, Justice

[¶1.] Patrick Kendall, Sr. suffered a work-related injury while working at

John Morrell & Co., a self-insured employer. Morrell initially accepted Kendall’s 

workers’ compensation claim. Because Kendall later missed a number of physical

therapy and doctor’s appointments, Morrell sent him a certified letter denying all 

further workers’ compensation benefits relating to the injury. Almost three years 

later, Kendall filed a petition with the South Dakota Department of Labor 

(Department) requesting additional benefits for the injury. The Department 

granted summary judgment in favor of Morrell, concluding that the petition was 

barred by the statute of limitations. The circuit court affirmed. Kendall appeals. 

We affirm.

Facts and Procedural History

[¶2.] On October 16, 2007, Kendall suffered a work-related injury at Morrell

when a cart rolled off a ledge and hit his right foot and ankle. Dr. Jerry J. Blow

diagnosed a type of complex regional pain syndrome (CRPS) called reflex 

sympathetic dystrophy (RSD) involving the right leg. Morrell initially accepted 

Kendall’s work-related injury as compensable and began paying benefits.

[¶3.] However, on January 11, 2008, Morrell sent Kendall a certified letter 

denying all further workers’ compensation benefits relating to the injury. Morrell 

alleged misconduct and asserted that Kendall failed to follow his doctor’s 

recommended course of treatment, which included physical therapy and continued 

doctor’s appointments. The letter advised that if Kendall disagreed with Morrell’s 

decision, he had a right to contest the decision before the Department – provided 
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that he file a petition for hearing with the Department within two years.1 Morrell 

also sent a copy of the letter to the Department.

[¶4.] On September 22, 2009, almost two years after the injury, Dr. Blow 

examined Kendall again. Dr. Blow indicated that Kendall’s RSD appeared to have 

run its course and Kendall was at maximum medical improvement. Dr. Blow also 

indicated that Kendall was then experiencing a new condition resulting from a 

shortened plantar fascia. Dr. Blow opined that Kendall’s then-existing condition

was caused by noncompliance with the previously ordered medical treatment.

 

1. The letter stated:

South Dakota’s Workers[’] Compensation Law provides that an 

injury caused by an employee’s willful misconduct is not 

compensable (SDCL 62-4-37). Willful misconduct can include 

failure to follow the doctor’s recommended course of treatment. 

If an injury is aggravated or extended in time by the employee’s 

neglect or disobedience of his doctor’s instructions, it is not 

compensable as to that aggravation or additional time period. . . .

We believe that your neglect here, with regard to attending 

doctor and therapy appointments, and following treatment 

recommendations, amounts to willful misconduct. You have 

missed several physical therapy appointments, and at least two 

doctor’s appointments, including your last appointment 

scheduled for 1/9/08. Under these circumstances we are denying 

all further claims for worker[s’] compensation benefits related to 

this injury.

If you disagree with this decision you have a right to a hearing 

before the South Dakota Department of Labor, provided a 

written request is submitted to the Department within two 

years of this date, in accordance with SDCL 62-7-12. . . .
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[¶5.] On October 28, 2009, Morrell notified Kendall of Dr. Blow’s medical 

opinion. Morrell also notified Kendall that Morrell was standing by its January 11,

2008 letter denying additional benefits for the October 2007 injury.

[¶6.] On November 3, 2010, Kendall filed a petition with the Department for 

permanent or total disability benefits relating to the October 2007 injury. He 

contended that he continued to suffer RSD as a result of the injury. Morrell moved

for summary judgment because Kendall’s petition was filed more than two years 

after Morrell’s January 11, 2008 written denial. The Department granted summary 

judgment, concluding that SDCL 62-7-35, a two-year statute of limitations, barred 

Kendall’s claim.2 The circuit court affirmed.

Decision

[¶7.] The facts in this case are not in dispute. We review the Department’s 

conclusions of law de novo. Jewett v. Real Tuff, Inc., 2011 S.D. 33, ¶ 22, 800 N.W.2d 

345, 350. We also review statutory construction de novo. Nine, Inc. v. City of 

Brookings, 2011 S.D. 16, ¶ 8, 797 N.W.2d 73, 75.

[¶8.] A claimant’s right to workers’ compensation is barred if the claimant 

does not file a written petition for hearing within two years of the date the “selfinsurer or insurer notifies the claimant and the [D]epartment, in writing, that it

 

2. The Department also ruled that a longer three-year statute of limitations in 

SDCL 62-7-35.1 was not applicable because “the triggering event under 

SDCL 62-7-35.1 is simply a cessation of benefits without notice of a dispute.” 

(quoting Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶ 8, 620 N.W.2d 198, 

201). The Department correctly concluded that, because Morrell issued a 

formal written notice stating its intention to deny further benefits rather 

than ceasing benefits without notice, the three-year statute of limitations did 

not apply. See id.
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intends to deny coverage in whole or in part.” SDCL 62-7-35.3 Kendall, however,

argues that his claim was not barred under this statute because the January 11,

2008 letter was too ambiguous to notify him that Morrell was denying his claim 

that he suffered RSD as a result of the work-related injury. Kendall further 

contends that Morrell’s letter was insufficient to start the running of the statute of 

limitations because the letter was not based upon a doctor’s medical opinion that 

missing appointments and physical therapy caused or aggravated his RSD. Cf. 

Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶¶ 2, 8, 620 N.W.2d 198, 200-01 

(holding employer’s denial notice, which was based upon a doctor’s medical opinion

disputing causation of the employee’s medical condition, triggered the statute of 

limitations in SDCL 62-7-35).

[¶9.] We conclude that the letter of January 2008 was not ambiguous. The 

letter unequivocally stated that Morrell was “denying all further claims for 

worker[s’] compensation benefits related to th[e] injury.” The letter left no doubt 

that Morrell was denying coverage for any additional benefits related to the October 

2007 injury unless Kendall filed a petition with the Department. We also conclude 

that a doctor’s medical opinion is not necessary to start the running of the statute of 

limitations. Although there was a medical opinion supporting the termination of 

 

3. SDCL 62-7-35 provides:

The right to compensation under this title shall be forever 

barred unless a written petition for hearing pursuant to § 62-7-

12 is filed by the claimant with the department within two years 

after the self-insurer or insurer notifies the claimant and the 

department, in writing, that it intends to deny coverage in whole 

or in part under this title. If the denial is in part, the bar shall 

only apply to such part.
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benefits in Faircloth, that case does not require that a letter giving notice of intent 

to terminate benefits must be supported by a doctor’s medical opinion before the 

statute of limitations begins to run. There is no language in SDCL 62-7-35 or 

Faircloth supporting Kendall’s argument.

[¶10.] Kendall also raises a number of arguments on the merits, asserting 

that the underlying statutory basis for the January 11, 2008 termination of benefits 

was not satisfied. More specifically, Kendall points out that the employer has the 

burden of proof regarding misconduct. See SDCL 62-4-37.4 Kendall argues that

absent Morrell’s proof of misconduct under SDCL 62-4-37, the statute of limitations

in SDCL 62-7-35 does not apply. We disagree. Proof of misconduct is a 

requirement of SDCL 62-4-37 that need be established only if a worker asserts a 

timely claim. Because all of Kendall’s claims for benefits were procedurally barred 

by the statute of limitations in SDCL 62-7-35, Morrell was not required to prove 

misconduct under SDCL 62-4-37.

 

4. SDCL 62-4-37 (2007) provided in part:

No compensation shall be allowed for any injury or death due to the 

employee’s willful misconduct . . . . The burden of proof under this 

section shall be on the defendant employer.

Under SDCL 62-4-37, no compensation is allowed for an injury caused by a 

claimant’s willful misconduct, including a claimant’s willful disregard of his 

physician’s advice. Fenner v. Trimac Transp., Inc., 1996 S.D. 121, 554 

N.W.2d 485, overruled on other grounds by Holscher v. Valley Queen Cheese 

Factory, 2006 S.D. 35, ¶ 48 n.2, 713 N.W.2d 555, 568 n.2.
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[¶11.] Kendall also raises merits arguments under SDCL 62-4-43.

5 Kendall 

points out that SDCL 62-4-43 only authorizes benefit modifications for aggravations 

of work injuries if the aggravation was caused by the employee’s failure to follow 

reasonable medical treatment. Therefore, Kendall argues that even though Morrell 

alleged that he failed to follow reasonable medical treatment, his benefits could be 

modified but not terminated. Kendall further argues any alleged failure to follow 

medical treatment did not cause an aggravation of his work injury. Kendall 

contends that his RSD was caused by the original injury. Kendall finally argues 

that SDCL 62-4-43 only gives “the Department” the authority to suspend, reduce, or 

limit compensation. Kendall contends that SDCL 62-4-43 does not give an 

employer or insurer the right to unilaterally modify benefits.

[¶12.] We find no merit in Kendall’s arguments. We first observe SDCL 62-7-

35 does not require “the Department” to make a modification decision under SDCL 

62-4-43 before SDCL 62-7-35 (the statute of limitations) applies. On the contrary, 

SDCL 62-7-35 provides that all claims are barred unless a petition for hearing is 

filed within two years of the time the “self-insurer or insurer notifies the claimant 

and the [D]epartment, in writing, that it intends to deny coverage in whole or in 

part under this title.” Therefore, the statute of limitations runs from the self-

 

5. SDCL 62-4-43 (2007) provided in part:

If the injured employee unreasonably refuses or neglects to avail 

himself of medical or surgical treatment, the employer is not 

liable for an aggravation of such injury due to such refusal and 

neglect and the Department of Labor may suspend, reduce or 

limit the compensation otherwise payable.

(Emphasis added.)
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insurer’s or insurer’s written notice of intent to deny benefits, rather than from the 

Department’s determination after hearing.

[¶13.] We finally conclude that because Kendall did not file a timely petition

for hearing with the Department, he is barred from arguing that his current 

condition is not an aggravation of his work injury caused by the failure to follow 

medical treatment and that SDCL 62-4-43 allows modifications but not 

terminations of benefits. Again, these are merits arguments relating to compliance 

with SDCL 62-4-43. Such arguments may only be asserted by a claimant who files 

a timely claim. Because Kendall did not file a timely claim for additional 

compensation, he was procedurally barred from raising any merits arguments

under SDCL 62-4-43.

[¶14.] We affirm the Department and circuit court’s conclusion that Kendall’s 

petition for benefits was barred by the statute of limitations.

[¶15.] GILBERTSON, Chief Justice, KONENKAMP, SEVERSON, and 

WILBUR, Justices, concur.