Marcia Hultman

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Workers' Compensation

Employee Rights and Responsibilities

Aside from the obvious need to seek medical treatment for the injury, state law requires you to give written notice of an injury to your employer within three business days. Employees who fail to do so risk the loss of their workers' compensation benefits.

If your employer refuses to file a workers' compensation claim on your behalf, you may contact the Division of Labor and Management at 605.773.3681. The division can provide the necessary forms and file the claim directly with your employer's workers' compensation insurance carrier.

The insurance company has 20 days from receipt of the injury report to complete its investigation and may request up to 30 days more if necessary. On average, if the employer reported the injury immediately, it usually takes four to five weeks before you receive disability benefits.

Click on any of the options below for more information about employee rights and responsibilities. If you do not find the information you are looking for, please contact us.

Medical Practitioners and Second Opinions

Medical Practitioners and Second Opinions

You have the right to choose your medical practitioner, but you must notify your employer of your choice prior to treatment (or as soon as reasonably possible after treatment). Emergency room treatment does not count as your choice. If you want to change medical practitioners, you must get written permission from your employer or the insurer.

If you want a second opinion, you must pay for that yourself. Your employer and the insurer also have the right to a second opinion with the medical practitioner of their choice at their expense.

Benefits Available

Your employer (via the insurance carrier) must furnish all necessary first aid, medical, surgical, rehabilitation and hospital services, including prosthetic devices, body aids and physical rehabilitation.

Sometimes the expenses of travel, lodging and meals associated with a trip to receive medical treatment for a work-related injury may be reimbursed.

If you lose wages because your medical practitioner will not let you work while injured for at least seven consecutive calendar days, you are entitled to temporary total disability benefits. The benefit is computed at two-thirds of your average weekly wage (limiting overtime earnings to straight-time pay) up to a maximum of up to a set maximum. Please check the Compensation & Other Rates section for information on minimum and maximum rates. The benefits continue until your medical practitioner releases you to return to work in a full or partial capacity, or until the medical practitioner determines that your condition is not going to improve any further.

Returning to Work

If your medical practitioner says you can return to work for part-time or modified work and your employer can accommodate the restrictions, state law requires you to accept the employment. Refusing to accept light-duty work means risking the loss of some or all of your workers' compensation benefits.

If you accept the modified or light-duty work and are earning less than what you were earning at the time of your injury, you may be entitled to temporary partial disability benefits. This benefit is calculated as half the difference between the average amount you earned before the injury and the average amount you earn or are able to earn after the injury.

Permanent Disability

If an injury or illness results in permanent impairment, you may be entitled to permanent partial disability benefits. These benefits are computed by a formula using the impairment rating assigned by your medical practitioner, your compensation rate and a set of regulations provided by state law.

If you cannot return to your previous job and you need training to get you back to suitable and gainful employment, you should file a claim with your employer and the insurer requesting education or retraining benefits.

Survivor Benefits

If a work-related injury causes death, compensation is payable for life to your spouse at the rate of 66.67 percent of your average weekly wage (excluding overtime earnings). If your spouse remarries, a lump sum equal to two years of compensation will be paid. If you have eligible surviving children, the compensation becomes payable to them two years after the date of remarriage.

If your only survivors are children, the child (or children) will receive compensation at the rate of 66.67 percent of your average weekly wage until age 18 (or age 22 if a full-time student). If a child is physically or mentally incapable of self-support, benefits will be paid for the life of the child.

An additional $50 per month will be paid to each of your legally dependent children until that child reaches the age of 18 years. Your dependents are each also entitled to $2,000 a year for up to five years if they are enrolled full-time at an accredited post-secondary educational institution in South Dakota.

Workers' compensation also provides up to $10,000 in burial expenses, plus the cost of transporting the body if death occurs outside the community where burial is to take place.

Claim Disagreements

If you and your employer cannot agree about the validity of your claim, either of you may ask the Division of Labor and Management to mediate. This is usually a conference call between you (and/or your representative), a representative of your employer or insurance carrier, and the division staff member who acts as mediator.

If the mediation is unsuccessful or if you do not wish to participate in the mediation, you may file a petition for hearing. You have two years from the date benefits were denied to file this petition.

In the hearing, the case will be heard by an administrative law judge in a formal, adversarial proceeding similar to a trial. Representation by an attorney is not required in a workers' compensation hearing, but is strongly recommended.

The Division of Labor and Management may provide information, answer questions and assist persons on a limited basis. However, because we are the administrative agency that decides all disputed cases, we must remain impartial. The Division of Labor and Management cannot and does not represent any party.

Disclaimer

The information provided on this page should in no way be considered legal advice. For specific information about your legal rights, you should consult your personal attorney. If you have a general question, contact us.