South Dakota's workers compensation law is Title 62 of the South Dakota Codified Laws, administered by the Department of Labor and Regulation (DLR). Coverage is bought from private insurers or arranged through approved self-insurance. There's no monopolistic state fund. This guide covers the South Dakota rules the exam tests. The policy itself (Part One statutory benefits, Part Two employers liability, payroll-based premium, experience rating) is in the national workers compensation guide.

Who must be covered

• Employee means any person, including a minor, in the service of another under a contract of employment (SDCL 62-1-3).
  • Not covered: a person whose work isn't in the usual course of the employer's trade or business.
  • Executive officers of for-profit corporations are employees (62-1-7).
• Excluded employments (62-3-15):
  • farm or agricultural laborers
  • domestic servants, unless they work more than 20 hours in a calendar week and more than 6 weeks in any 13-week period
  • certain work-activity participants
• An employer may voluntarily insure exempt employees and bring them under Title 62 (62-3-17).

Securing payment

• An employer secures benefits by either:
  • insuring with a stock, mutual or reciprocal insurer authorized to write workers compensation in South Dakota (62-5-2), or
  • self-insuring, which requires annual proof of solvency to DLR. DLR then issues a certificate of exemption (62-5-5).
• A private employer that doesn't comply is treated as having elected not to operate under Title 62 and loses its protections (62-5-7).
• Cancellation of a workers compensation policy (58-20-14):
  • For nonpayment, notice must be mailed at least 10 days before cancellation.
  • The insurer must notify DLR at the same time it notifies the employer.
  • Other cancellations follow the general rules in SDCL 58-33-59 to 58-33-65.1.

Exclusive remedy

• Workers compensation is the employee's exclusive remedy (62-3-2). That bars suits against the employer and against its employees, partners, officers and directors.
• Exception: rights arising from an intentional tort.

Covered injuries and diseases

• Injury means only injury arising out of and in the course of employment, established by medical evidence (62-1-1(7)).

• Employment must be a major contributing cause of the condition.

• A mental injury is compensable only if a compensable physical injury is and remains a major contributing cause, shown by clear and convincing evidence.

• Occupational disease is one peculiar to the occupation and due to causes beyond the ordinary hazards of employment (62-8-1). It's compensated as if it were an injury by accident (62-8-4).

• No compensation for injury due to willful misconduct (62-4-37). Willful misconduct includes:

  • intoxication
  • a self-inflicted injury
  • illegal use of a schedule I or II drug
  • willful refusal to use a safety appliance

  The employer has the burden of proving the defense.

Benefits

• The subsequent injury fund doesn't accept claims for injuries on or after July 1, 2001. The Division of Insurance administers it until the remaining claims are resolved (62-4-34.7).

Claims and disputes

• The employee gives the employer written notice of injury within 3 business days (62-7-10).
  • Exceptions: the employer had actual knowledge, or the employee shows good cause.
• If the parties can't agree on compensation, either may request a hearing before DLR (62-7-12).
• The Division of Insurance regulates insurers and rates. DLR decides benefit disputes.

Guaranty protection

If a workers compensation insurer becomes insolvent, the South Dakota Insurance Guaranty Association pays covered workers compensation claims in full, through a separate workers compensation account (SDCL 58-29A-68, 58-29A-74).

Common exam traps

• South Dakota has no state fund. Coverage comes from authorized private insurers or approved self-insurance.
• Farm laborers are exempt. Domestic workers are exempt unless they exceed 20 hours a week and 6 weeks in 13.
• Waiting period: 7 days. Once it's met, benefits run back to the date of injury.
• Notice of injury: 3 business days.
• TTD is 66⅔%, capped at 100% of the state average weekly wage.
• Exclusive remedy has an intentional tort exception.
• Nonpayment cancellation needs 10 days' notice, and DLR must be notified too.