Department of Labor and Regulation

Title - Workers' Compensation

Employee's Guide to the South Dakota Workers' Compensation System

Please note the information below is the same as that provided in An Employee's Guide to the South Dakota Workers' Compensation System booklet available in printed form from the Department of Labor and Regulation and also available for downloading on this website in Adobe .pdf format.

This information briefly outlines South Dakota Workers' Compensation Law and how it applies to work-related injuries or illnesses. This is not a complete description of the workers' compensation system. If you cannot find answers to your questions in this information or among the topics listed to the left, please contact us using the information at the bottom of this page.

Helpful Hints for Injured Workers

  • Read and save the information below or the booklet in print format.
  • Save copies of all letters, forms, compensation checks
    and medical bills.
  • Save notes of phone conversations.
  • Put your Social Security number and date of injury or state file number on all papers and forms sent to the Division of Labor and Management.
  • Stay in touch with your employer about your progress and plans to return to work.

Topics Addressed Below

Purpose of Workers' Compensation

Who Pays Benefits

Who Is Covered

What Is Covered

Things the Employer Cannot Do

What To Do If You Are Injured

Who Chooses the Doctor

What the Employer Does

What the Insurance Company Does

What To Do If There Is a Problem

What the Benefits Are

What Part Safety Plays

Fraud Warning

Case Management

How To Choose a Plan

How To Learn How a Plan Works

Injured Workers Choosing Their Physician

Small Claims

Choosing More Than One Plan

Telling the Physician a Claim Is Under Case Management

Injuries Under Case Management

Small Claims Procedure

Who Can Answer Your Questions

Purpose of Workers' Compensation

Workers' compensation provides benefits if you become injured or ill from your job. Workers' compensation covers injuries or illnesses caused or made worse by work or the workplace.

Workers' compensation insurance coverage provided by your employer is intended to:

  • Pay medical and disability benefits for work-related injuries and diseases.
  • Help you return to work as soon as possible.

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Who Pays the Workers' Compensation Benefits

Many employers in South Dakota purchase workers' compensation insurance policies from commercial insurance companies. Some employers are self-insured and pay all the benefits themselves. The insurance company or self-insured employer pays the medical costs to the health care providers who treat the injured worker. It is not required by state law that employers have workers' compensation insurance, but if they do not, the employer can be sued civilly.

State law sets the benefit amounts. The Division of Labor and Management checks the benefits paid by the insurance company or self-insured employer to make sure the injured worker is receiving all benefits to which that worker
is entitled.

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Who Is Covered

If your employer carries workers' compensation insurance, you would be covered for qualifying injuries.

The South Dakota Workers' Compensation Law does not apply to:

  • farm or agricultural laborers or domestic servants unless they are working more than 20 hours in a calendar week and for more than six weeks in any 13 week period;
  • independent contractors who are certified as exempt by the department and workfare participants.

Benefits are not allowed when injury is due to willful misconduct, intoxication, illegal drug use or failure to use a furnished safety appliance. Also, a false representation as to health at the time of obtaining employment may result in a denial of benefits.

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What Is Covered

Any injury arising out of and in the course of employment, everything from first aid-type injuries to serious accidents and death, is covered. Also, the Workers' Compensation Law provides coverage for occupational diseases. The key is whether or not the injury or illness is caused by your job. Medical evidence of causation is usually necessary.

You are protected from the first minute you are on the job, and that protection continues anytime you are working. State law requires that a worker receives workers' compensation benefits for a work-related injury or illness.

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Things the Employer Cannot Do

  • Take the cost of workers' compensation insurance from your wages.
  • Prevent you from filing for workers' compensation benefits.
  • Threaten you or take action against you for filing for benefits.

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What To Do If You Are Injured

  • Do not wait. To protect your rights, report your injury to your supervisor as soon as possible and in writing if possible.
  • Make sure you tell your supervisor you were injured. Remember the details: what, where, when and how. Also inform your supervisor of any witnesses.
  • Get prompt medical attention from a health care provider.
  • Inform your employer about your medical condition and when you can return to work.
  • Call the Division of Labor and Management if you have any questions or concerns.
  • If the employer will not fill out a First Report of Injury form, please contact the Division of Labor and Management.

Prompt reporting is the key. Nothing can happen until your employer is informed about the injury. Ensure your right to benefits by written notice of every injury, no matter how slight.

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Who Chooses the Doctor

You may make the initial selection of your doctor or surgeon from all licensed doctors or surgeons in the state.

  • Prior to treatment or as soon as reasonably possible after treatment has been provided, notify the employer of your choice of doctor or surgeon. The doctor or surgeon selected may arrange for a consultation, referral or other specialized medical services as the nature of the injury requires.
  • If you decide to change your choice of doctor or surgeon, you should obtain approval in writing from your employer.
  • You may seek a second opinion at your own expense without the employer's approval .

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What the Employer Does

  • Your employer should make sure you receive immediate medical attention to treat your injury.
  • Your employer reports the injury to the insurance company, or the administrator if self-insured, within seven days of the date of the injury or knowledge of injury.

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What the Insurance Company Does

Insurance companies or self-insured employers report the injuries electronically to the Division of Labor and Management via the Division's web application. The insurance company or self-insured employer also pays for medical costs incurred from the injury and makes temporary total payments if seven consecutive days of work are missed due to an injury.

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What To Do If There Is a Problem

Most injuries are handled routinely. If you think you have not received all the benefits due you, or you have not received any benefits, follow these steps:

  1. Call the claim's adjuster at the insurance company or the administrator of self-insured employer. Write down the date, time and adjuster's name for your records. Explain the problem and try to work it out. Many problems are resolved with a telephone call.
  2. Call 605.773.3681 to discuss your problem with the Division of Labor and Management specialist.
  3. If a problem cannot be resolved, you may wish to take advantage of the mediation process provided by the Division of Labor and Management. The mediation is held by telephone with the Division representative, the employee or their representative, and a representative of the employer or insurance company.
  4. If a dispute remains unresolved after the mediation process or the employee chooses to forgo the mediation process, the employee may file a petition for hearing. The petition must be filed within two years of the date of denial of benefits. The Division of Labor and Management may provide information, answer questions and assist persons on a limited basis. However, because the Division is the administrative agency that decides disputed cases, the office must remain impartial and cannot represent any party.

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What the Benefits Are

South Dakota law provides several kinds of workers' compensation benefits:

Medical Care To Treat the Injury

All reasonable and necessary treatment is covered. The employer/insurer has the right to contest the reasonableness and necessity of any medical treatment. Failure or refusal to follow a doctor's advice, without a valid second opinion, may result in denial of your claim for benefits.

Temporary Total Disability

After an injured employee has missed seven consecutive days, the insurer is required to pay a weekly benefit equal to 66 2/3 of the employee's earnings. Payments are subject to maximum and minimum amounts set by statute and administrative rules. Injured employees are compensated only for time lost at the place of employment where injury occurred.

Temporary Partial Disability

An injured worker who is able to return to work but cannot work the same number of pre-injury hours may be entitled to additional benefits. The payment is based on a percentage of the difference between pre-injury wages and post-injury wages.

Example: If an employee worked 35 hours a week and is only able to work 15 hours a week after an injury, an insurer may be required to compensate that employee for the difference.

Permanent Partial Disability

South Dakota law provides for a set amount to be paid for impairment of certain body parts. A medical doctor must determine a percentage of impairment.

Permanent Total Disability

In the case of total disability, the injured worker is entitled to receive his/her weekly benefits for life.

Death Benefits

South Dakota law provides compensation for any spouse, child or children, parents, grandparents or other lineal heirs of any employee whose death occurs as a result of an injury.

Rehab/Retraining

Injured employees may be eligible for rehabilitation or retraining benefits. Five criteria must be met to qualify:

  1. The employee must be unable to return to his usual and customary line of employment.
  2. Rehabilitation must be necessary to restore the employee to suitable, substantial and gainful employment.
  3. The program of rehabilitation must be a reasonable means of restoring the employee to employment.
  4. The employee must file a claim with his employer requesting the benefits.
  5. The employee must actually pursue the reasonable program of rehabilitation.

Payment of Benefits

Generally benefits are paid in the same time frame as the employee received paychecks from the employer. If this is not feasible, then benefits shall be paid on a weekly basis.

Penalty

There is a 10 percent penalty if benefits are not paid within 10 days of the date they were due.

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What Part Safety Plays

Each insurance company is required by law to provide, upon request of the employer, safety engineering services to that employer. Most employers who take advantage of this program's services see a reduction in workplace injuries, and for many of them, the reduction is significant.

Providing a safe workplace for employees requires sincere commitment from management. It also requires a strong commitment from employees. Understand the safety controls, requirements and policies of your employer. It is not only the employer's responsibility to maintain a safe workplace but also yours.

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Fraud Warning

It is a crime for any person, including employers, employees, medical providers, insurance companies, insurance agents, lawyers or any other person, to lie or give false or fraudulent information in order to receive any benefit, payment or financial advantage that the person is not entitled to under the South Dakota Workers' Compensation Law. An Insurance Fraud Unit has been established within the Division of Insurance to prosecute fraudulent insurance acts through either civil or criminal action.

To report any fraudulent activity concerning the collection of workers' compensation benefits, contact the Insurance Fraud Unit at 605.773.3563.

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Case Management

All workers' compensation insurers have been required to provide managed care services in their policies since January 1, 1995. Self-insured employers were required to have such services as of January 1, 1996. The South Dakota
Department of Labor and Regulation adopted rules in 1993 to carry out this law. This section is intended to answer the most commonly asked questions.

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How To Choose A Plan

Workers' compensation insurance companies are required to contract with one or more case management plans. The Department must certify the plans. A self-insured employer may also have its plan certified by the Department.

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How To Learn How a Plan Works

Case management companies are required to have a system of communicating with employees, employers and medical providers. They must establish a place of business in South Dakota where records are kept and the plan is administered. A plan must have a 24-hour toll-free telephone number for individuals to receive information and advice about medical services. It must also provide employers a monthly report on the employees it is involved with.

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Injured Workers Choosing Their Physician

Workers have the right to choose the first physician they see. (Seeking emergency room treatment does not count as their choice.) All physicians must follow the rules of the plan, as well as the state's Optimal Recovery Guidelines (ORGs) in providing treatment. The plan also has control over subsequent consultations or referrals.

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Choosing More Than One Plan

An insurer or self-insurer can contract with as many certified plans as it chooses.

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Telling the Physician a Claim Is Under Case Management

Employees are required to tell the treating physician which plan covers them before treatment is provided. Employers must also report the injury to the plan within 24 hours after it is reported to them. The plan then has to contact the physicians and inform them of its rules.

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Injuries Under Case Management

Every injury has to be reported to the employer's case management plan. However, the insurer may consider some claims to be so minor that management of the treatment is unnecessary, and may elect not to have the claim managed. Employees retain the right, in any case, to have access to medical services within 48 hours after they request them.

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Small Claims Procedure

If you have a disputed medical claim of $8,000 or less and DLR signed an order or approved an agreement establishing your right to benefits, you can file a petition for a small claims hearing to resolve the dispute. There is no filing fee required, the hearings are on the telephone, are fairly informal, and your case can be heard quickly.

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Who Can Answer Your Questions

Your employer or its insurance company can answer most questions about your injury. For additional information, contact the Division of Labor and Management using the information below.

Workers' Compensation
Division of Labor & Management
South Dakota Department of Labor and Regulation
Kneip Building
700 Governors Drive
Pierre, SD 57501-2291
Phone: 605.773.3681
Fax: 605.773.4211
email

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Marcia Hultman, Secretary
700 Governors Drive
Pierre, SD 57501-2291
Tel. 605.773.3101
Fax. 605.773.6184