Updated November 29, 2018
South Dakota workers’ compensation laws apply to nearly all employers in the state. As in other states, the workers’ compensation system in South Dakota is a no-fault system that compensates injured workers for medical bills, lost wages, and permanent impairments resulting from their injuries. To take advantage of these benefits, injured workers must follow certain procedures required by South Dakota law.
Most employees are covered by workers’ compensation in South Dakota. However, there are a few exceptions for employees engaged in certain types of work. For example, workers’ comp does not cover farm workers or domestic workers, unless they work a certain number of hours in a 13-week period.
Workers’ compensation covers all injuries or illnesses that happen in the course and scope of employment, including traumatic injuries and occupational illnesses. Traumatic injuries are those that result from a one-time accident at work, such as a broken bone from a slip and fall. Occupational diseases are injuries or illnesses that occur over a period of time, including injuries caused by repetitive movements at work (such as carpal tunnel syndrome) and illnesses developed from exposure to toxic substances at the workplace (such as cancer from exposure to asbestos).
To receive workers’ comp benefits, you must report your injury to your employer. You should do so within as soon as possible, but no later than three business days after your injury. Your claim for benefits may be denied if you fail to give notice. Once your employer has notice of your injury, it should submit a First Report of Injury to the South Dakota Department of Labor & Regulation (DLR) within seven days. This is the official start of your claim.
If you need emergency medical treatment, you can go to the nearest hospital or urgent care center. For non-emergency care, you may select your own treating doctor, but you must notify your employer of your choice beforehand. However, if you want to switch doctors later on, you will need to get the insurance company’s approval.
All reasonable and necessary medical treatment related to your work injury will be covered through workers’ comp in South Dakota, including the cost of doctors’ visits, hospital bills, prescriptions, and prosthetic devices. You may also receive reimbursement for travel, meals, and lodging necessary to secure medical treatment. In addition to medical benefits, you will also be eligible to receive disability benefits.
If you need time off from work while you are recovering from your injuries, you can receive temporary total disability benefits. These benefits are two-thirds of your average weekly wages, subject to a minimum and maximum set by law each year. As of July 2018, the minimum weekly rate is $403 and the maximum weekly rate is $805. You will receive these benefits until you are able to return to work or until your doctor finds that your condition has improved as much as it is going to (this is called “maximum medical improvement”).
If you are able to work while recovering from your injury, but you’re earning less than you did before your injury, you can receive temporary partial disability benefits. These benefits are 50% of the difference between your pre-injury wages and post-injury earnings or earning capacity, subject to the same maximum mentioned above.
Once you reach maximum medical improvement (MMI), your doctor will evaluate you to determine whether you have a permanent disability. If your injury has left you permanently and totally disabled, you can receive permanent total disability benefits. These benefits are available only for the most serious injuries—such as the loss of both hands, arms, legs, feet, or eyes—and are paid at the same rate as temporary total disability benefits for the rest of the worker’s life.
If you have a permanent impairment, but you are not totally disabled, you can receive permanent partial disability benefits. In South Dakota, you will receive two-thirds of your pre-injury average weekly wage (subject to the same maximum described above) for a certain period of time. The length of time is determined by a scheduled of injuries, which takes into account the body part injured and the impairment rating assigned by your doctor. For example, for the total loss of use of a hand, you would receive 150 weeks of payment. If you have lost 50% of the use of a hand, you would receive 75 weeks of payment.
If you are entitled to permanent disability benefits from the insurance company, you can file a petition with the South Dakota Department of Labor and Regulation for a lump sum payout of your benefits. The department will review your request and approve a partial or total lump sum payment if it appears to be in your best interests. However, your payment will be discounted; you may want to speak to a workers' comp lawyer in South Dakota before you request a lump sum payment.
If your workers’ comp claim has been denied, or you disagree with the amount of your benefits, you can dispute the decision with the South Dakota Department of Labor and Regulation (DLR). The appeals process is outlined below.
If your benefits have been denied, your first step should be to contact the insurance company and find out why. It may be that the insurance company made an error or that it based its decision on incomplete information. If you believe that the insurance company’s reason for denying your benefits is wrong, you can also contact a DLR specialist. The DLR can answer questions about the workers’ comp process and your claim, but it cannot provide legal advice or act on your behalf.
In South Dakota, injured workers can submit a written request for mediation with the South Dakota Department of Labor and Regulations. A mediation is an informal conference, usually by phone, where a representative from the DLR will try to help you and the insurance company negotiate a settlement. The DLR representative does not issue a decision or make a recommendation, though. If you are unable to reach an agreement, you can proceed to a workers’ comp hearing. Mediation is not mandatory in South Dakota, so you can also skip this step if you wish.
You can file a petition for hearing with the DLR within two years of the date that your benefits were denied. Your case will be assigned to an administrative law judge (ALJ) and scheduled for a hearing. Before the hearing, you and the insurance company will have an opportunity to gather evidence in a process called “discovery.” During this time, the insurance company may ask you to answer written questions, give testimony in a deposition, or submit to a medical examination by a doctor of its choosing.
You will have a hearing before the ALJ, who will make a decision in your case. A workers’ compensation hearing is a formal proceeding where both parties will submit evidence, present testimony, and make legal arguments. While you’re not required to, it’s almost always in your best interests to hire a lawyer to represent you at the hearing. Workers’ comp lawyers work on a contingency basis, which means that they don’t charge you for fees upfront. Instead, they take a percentage of any award that they are able to secure for you.
After the hearing, you'll receive the judge’s order in the mail. If you’re not satisfied with the decision, you can submit a written request for review by the DLR within ten days. The DLR may deny your request, or in some cases, may decide to receive additional evidence.
If the DLR declines to review the judge’s decision, or if you would rather skip that step, you can file an appeal in a South Dakota Circuit Court. The judge’s order will provide the deadline for doing so. Complicated procedural rules apply to any case brought in civil court, including appeals of workers’ compensation denials. If you haven’t already, you should consult with a workers’ comp attorney before filing an appeal in court.