Workers' Comp Laws in South Dakota

Getting hurt on the job in South Dakota is stressful enough without also trying to figure out the rules. Here is what matters most in the first days, and what to expect from South Dakota's workers' compensation system as your claim moves forward.

The deadlines that matter most

• Written notice to your employer: within three business days of the injury. South Dakota law says that failing to give written notice within that window bars a claim for compensation — unless your employer already had actual knowledge of the injury, or you gave written notice later and had good cause for the delay (the law says good cause is to be read liberally in your favor). Do not rely on the exceptions. Give written notice immediately.
• Occupational disease is on a different clock — do not assume you missed the three-day deadline. Occupational diseases (for example, work-related hearing loss or a lung disease) are governed by a separate chapter of the law with its own notice rule. Under SDCL 62-8-29, written notice of an occupational disease must be given to the employer within six months after the employment has ceased, and in case of death within ninety days after the occurrence, or rights to compensation are barred (SDCL 62-8-13). A special rule applies to ionizing-radiation cases, where the clock does not begin to run until the worker knew, or reasonably should have known, that the disease was work-related (SDCL 62-8-30). If your condition developed over time rather than in a single accident, call the Division before you conclude you are too late.
• If your claim is denied: two years from the date of the denial notice to file a written petition for hearing with the Division of Labor and Management.
• If benefits were paid and you need more: three years from the date of the last payment of benefits to file a petition for additional compensation on an injury claim (SDCL 62-7-35.1). Two things that statute does not say out loud: for an occupational disease, when compensation payments have been made and discontinued, a claim for further compensation must be made within one year after the last payment (SDCL 62-8-32); and the three-year bar does not apply to a review and revision of payments for a change in your condition under SDCL 62-7-33, which the Department may take up on its own terms.

What to do first

1. Get medical care. Seek treatment right away, especially for anything serious.
2. Tell your employer in writing, within three business days. The notice does not have to be on a special form, but it must tell your employer when, where, and how the injury happened. Name any witnesses.
3. Choose your medical practitioner and tell your employer who it is — before treatment, or as soon as reasonably possible afterward (see below).
4. Keep records. Save every letter, form, benefit check, and medical bill, and write down the date and content of every call with the insurance adjuster. Put your date of injury or state file number on anything you send to the Division.

Your employer is expected to report the injury to its insurance company (or to its administrator, if self-insured) within seven days of the injury or of learning about it. The insurer or self-insured employer then reports the injury electronically to the Division. If your employer will not fill out a First Report of Injury, the Division asks that you contact it directly.

South Dakota's workers' compensation agency

Workers' compensation in South Dakota is administered by the Division of Labor and Management, part of the South Dakota Department of Labor and Regulation (DLR), at 123 W. Missouri Ave., Pierre, SD 57501. The Division receives injury reports, answers general questions, offers mediation, and decides disputed claims after a hearing.

Official site: dlr.sd.gov/workers_compensation
Phone: 605-773-3681

Who is covered — and an important wrinkle

Most states require nearly every employer to carry workers' compensation coverage. South Dakota is different: state law does not require an employer to carry workers' compensation insurance. The Division's own guide for injured workers says so plainly, and adds that an employer without coverage can be sued civilly.

South Dakota law gives an employee of an uncovered employer a choice: sue the employer in court for damages, or proceed against the employer in circuit court under the workers' compensation law as if the employer had elected coverage — in which case the measure of benefits is the medical compensation the law provides plus twice the other compensation otherwise allowable. You cannot recover under both routes.

In practice, most South Dakota employers do buy a commercial policy or are self-insured. If you are not sure whether your employer has coverage, ask your employer or call the Division — it changes which path is open to you.

The Division's guide states that South Dakota's Workers' Compensation Law does not apply to:

• Farm or agricultural laborers
• Domestic servants, unless they work more than 20 hours in a calendar week and more than six weeks in any 13-week period
• Independent contractors who are certified as exempt by the Department
• Workfare participants

Benefits can also be denied where the injury was caused by willful misconduct, intoxication, illegal drug use, or failure to use a safety device the employer furnished. If you are unsure whether your job is covered, call the Division rather than assuming.

Coverage is not limited to one-time accidents. The Division's guide for injured workers states that the law also provides coverage for occupational diseases — conditions caused by the work itself over time — and the Division's own petition forms let you check whether your claim is for an injury, a disease, or hearing loss. The notice deadline for those claims is the six-month rule described above, not the three-business-day rule.

Medical care: who picks your doctor

In South Dakota, you make the initial selection of your medical practitioner from all licensed health care providers in the state. Going to the emergency room for immediate care does not count as making that choice.

• Notify your employer of your choice before treatment, or as soon as reasonably possible after treatment has been provided.
• If you later want to change practitioners, you should get your employer's approval in writing.
• You may get a second opinion at your own expense without your employer's approval.
• Workers' comp insurers and self-insured employers in South Dakota must provide certified case-management (managed care) services. You are expected to tell your treating practitioner which plan covers you before treatment, and the plan has a say over later consultations and referrals.

Wage-replacement benefits

If your injury keeps you off work, temporary total disability is paid at two-thirds (66⅔%) of your earnings. There is a waiting period: no temporary disability benefit is paid for an injury that does not keep you out for seven consecutive days. Once you cross that seven-day threshold, however, the benefit is computed from the date of the injury — so that first week is not simply lost.

If you can return to work but not to your pre-injury hours, temporary partial disability may pay a percentage of the difference between your pre-injury and post-injury wages.

South Dakota sets maximum and minimum weekly benefit amounts by statute and administrative rule, and they are adjusted periodically. Because those dollar figures change, confirm the current maximum and minimum directly with the Division of Labor and Management rather than relying on any number you see elsewhere.

Benefits are generally paid on the same schedule as your paychecks, or weekly. There is a 10 percent penalty if benefits are not paid within 10 days of when they were due and the delay was unreasonable.

Permanent disability

For lasting impairment, South Dakota uses an impairment-rating approach: a medical practitioner assigns a percentage of impairment, and the law sets a number of compensable weeks for specific body parts. For back injuries and for injuries not listed on the schedule, compensation is the proportion of 312 weeks represented by your percentage of impairment to the body as a whole. In a case of permanent total disability, the Division's guide says the injured worker is entitled to weekly benefits for life. Rehabilitation or retraining benefits are also available if five statutory criteria are met, including that you cannot return to your usual line of work and that you actually pursue the program.

If your claim is denied

1. Call the adjuster. Many problems are fixed with one phone call. Write down the date, time, and the adjuster's name.
2. Call the Division at 605-773-3681 to discuss the problem with a specialist.
3. Mediation. If it is still unresolved, you may use the Division's mediation process, held by telephone with a Division representative, you (or your representative), and a representative of the employer or insurer.
4. Petition for hearing. If mediation does not resolve it, or you skip mediation, you may file a written petition for hearing — within two years of the date of the denial of benefits. If your dispute is a medical claim of $8,000 or less and the Division has already signed an order or approved an agreement establishing your right to benefits, you can instead file for a small claims hearing: no filing fee, held by telephone, relatively informal and fast.
5. Review by the Secretary. After the hearing, the Division's judge sends out a Decision — but per the Division's hearing handbook that Decision is not final at that point. The judge directs the parties to prepare Findings of Fact, Conclusions of Law, and an Order, and the ruling becomes final when the judge signs those. A party who disagrees may then petition the Secretary of Labor for review, and the handbook says the review must be requested no later than 10 days after the judge's ruling becomes final — so watch for the signed Findings, Conclusions and Order, not just the initial Decision. The Secretary may deny the petition, direct an additional hearing, or order that additional evidence be received.
6. The courts. A final decision of the Department may be appealed to circuit court, and from there to the South Dakota Supreme Court, under the administrative appeals law in SDCL chapter 1-26 (SDCL 62-7-19). This is the hardest deadline in the process: you have thirty days after the agency serves notice of the final decision to serve a notice of appeal on the other party, the agency, and the hearing examiner, and to file it with the clerk of courts (SDCL 1-26-31). Calendar that date the day the decision arrives.

You are not required to have a lawyer. The Division can answer general questions and tell you what a form means, but because it decides disputed cases it must remain impartial and cannot represent you or take your side. If you do hire an attorney, South Dakota law caps the fee as a percentage of the disputed amount: 25% of an amount arrived at by settlement, 30% of an amount awarded by the Department, and 35% if an appeal to the Supreme Court succeeds, with fees subject to Department approval.

Where to get help

• Division of Labor and Management — 605-773-3681, dlr.sd.gov/workers_compensation. General information, mediation, and the petition process.
• State Bar of South Dakota — 605-224-7554, statebarofsouthdakota.com, if you want help finding an attorney who handles workers' compensation.
• Insurance Fraud Unit (Division of Insurance) — 605-773-3331, if you need to report fraud.

A workers' compensation claim is not a favor from anyone. It is the benefit the system was built to provide, and you are entitled to use it. Be accurate and complete in what you report — knowingly giving false information to obtain benefits is a crime in South Dakota.

This article is general legal information about South Dakota law, not legal advice for your specific situation. Rules change; confirm anything important with the Division of Labor and Management.