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Owens v. F.E.M. Electric Association3/9/2005
to file a protest under SDCL 62-7-35. However, the letter dated June 25, 1999, did not reference Owens' new claim filed on May 26, 1999, for his back injury that manifested itself on May 5, 1999. Owens had in his possession a letter pertaining to the May 5, 1999, back injury dated June 1, 1999, that included the following information:
D/A: 5-5-99
Claim #: 40 WC 70620 (rs)
"This is to inform you that in view of all the information submitted to us on behalf of your alleged injury of 5-5-99, your claim has been denied."
In the final paragraph of the letter, Owens was asked to submit any additional information that would have a bearing on the denial in writing to FEM This Owens did in his petition for workers compensation benefits in February 2002, after having surgery to repair a herniated disc in August 1999.
[ .] In contrast, the June 25, 1999 letter from FEM to Owens included the following information:
Date of Accident: October 16, 1998
Claim No. 40 WC 70560
[ .] FEM argued that the two different claim numbers were an internal control mechanism to alert their staff that two companion claims existed. However, once FEM released this information to Owens, FEM created the appearance of two separate claims. By failing to include a reference to both claims either by date or by claim number, FEM arguably failed to give Owens notice that his second claim was being denied by the letter dated June 25, 1999.
[ .] It is true that SDCL 62-7-34 only specifies the manner in which a notice must be served, that is in writing and either by registered or certified mail. However, the specific content of such notices must meet some standard of sufficiency, at the very least that of adequacy. Words in our statutory scheme that do not have a specific definition within the code itself "are to be understood in their ordinary sense." SDCL 2-14-1. Actual notice is defined as " notice given directly to, or received personally by, a party." BLACK'S LAW DICTIONARY 1087(7th ed 1999). Due notice, or adequate notice, is defined as ". . . notice that is legally adequate given the particular circumstance." Id. 1088. In the context of a pleading, the requirement is fair notice, which is defined as " ufficient notice apprising a litigant of the opposing party's claim." Id.
[ .] A denial of workers compensation benefits is not a pleading in the sense of a complaint or answer filed in a civil suit. However, it does nonetheless attempt to convey to the reader the insurer's legal position on the workers compensation claim, and give notice of the appropriate statute of limitations for appealing a denial of benefits to which the reader may be legally entitled. Notice must be at the least sufficient to apprise a claimant of the insurer's or employer's intent with regard to a particular claim.
[ .] There exists a genuine issue of material fact, that is, whether FEM gave notice sufficient to bring the second claim for the May 5, 1999 back injury within the two-year statute of limitation in SDCL 62-7-35. Summary judgment was not appropriate in this case. I would remand this case to the Circuit Court for a determination of the facts with regard to the sufficiency of the notice for purposes of invoking the two-year statute of limitations in SDCL 62-7-35, or the three-year statute of limitations in SDCL 62-7-35.1.
[ .] MEIERHENRY, Justice, joins this dissent.
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