Title 62, WORKERS' COMPENSATION

An owner-operator who, as an individual or partner, or shareholder of a corporate owner-operator, owns a vehicle licensed and registered as a truck, road tractor, or truck tractor by a governmental agency, is an independent contractor while performing services in the operation of…

To receive certification as indicated in § 62-1-10 , the owner - operator and the carrier shall provide written documentation that the following are substantially present: (1) The owner - operator is responsible for the maintenance of the vehicle; (2) The owner - operator is resp…

Upon submission of the documentation required by § 62-1-11 , if the conditions are substantially met, the department shall issue a certificate of independent contractor status to the owner - operator and the carrier within thirty days. The certificate shall be kept with the vehic…

An owner - operator, as an independent contractor, may elect to participate in this state's workers' compensation system as a sole proprietor. Alternatively, an owner - operator and the motor carrier to whom the owner - operator's vehicle is leased may mutually agree that the own…

The department shall promulgate rules pursuant to chapter 1-26 governing the submission of the documentation required by § 62-1-11 and prescribe the form of the certificate issued pursuant to § 62-1-12 . Source: SL 1995, ch 296 , § 5.

In any proceeding or hearing pursuant to this title, evidence concerning any injury shall be given greater weight if supported by objective medical findings. Source: SL 1995, ch 296 , § 5A.

An employer is civilly liable for wrongful discharge if it terminates an employee in retaliation for filing a lawful workers' compensation claim. The burden of proof is on the employee to prove the dismissal was in retaliation for filing a workers' compensation claim. Source: SL …

No employer may discriminate in hiring any prospective employee due to a preexisting injury if the preexisting injury does not affect the prospective employees' ability to perform the work for which the prospective employee is being hired. Source: SL 1995, ch 262 , § 13.

If an employee who has previously sustained an injury, or suffers from a preexisting condition, receives a subsequent compensable injury, the current employer shall pay all medical and hospital expenses and compensation provided by this title. Source: SL 1999, ch 262 , § 14.

Any independent contractor who is not an employer or a general contractor and is not covered under a workers' compensation insurance policy may sign an affidavit of exempt status under the South Dakota Workers' Compensation Law. Notwithstanding the provisions of § 62-3-10 , the a…

As used in this title the term "employer" includes the state and any municipal corporation within the state or any political subdivision of this state, and any individual, firm, association, limited liability company, or corporation, or the receiver or trustee of the same, or the…

The affidavit must be on a form prescribed by the director of the Division of Insurance and must be notarized. The director of the Division of Insurance may promulgate rules pursuant to chapter 1-26 to provide definitions, the form and process for filing the affidavit, and docume…

Any person who solicits or provides false information on an affidavit of exempt status under the South Dakota Workers' Compensation Law with actual knowledge is guilty of a Class 2 misdemeanor. Source: SL 2015, ch 262 , § 3.

No employer or general contractor is required to accept an affidavit of exempt status as a substitute for a certificate of workers' compensation coverage. Source: SL 2015, ch 262 , § 4.

The Legislature finds that the aggregation of wages from concurrent employment was not within the Legislature's intent when it enacted the definition of earnings in subdivision 62-1-1(6). Therefore, the holding in Wheeler v. Cinna Bakers LLC, 864 N.W. 2d 17, 2015 S.D. 25, regardi…

For a workers' compensation claim arising before May 6, 2015, an employee's earnings up to the claimed date of injury are calculated exclusively on the wages earned at the place of employment where the injury occurred. Source: SL 2016, ch 236 , § 2.

For a workers' compensation claim arising after May 5, 2015, if an employee was working for more than one employer, the employee's earnings used to calculate the employee's average weekly wage in §§ 62-4-24 , 62-4-25 , or 62-4-26 shall include the amount of compensation for the n…

As used in this title, the term,employee, means any person, including a minor, in the services of another under any contract of employment, express or implied, (and including as to a deceased employee, the employee's personal representative, dependents, and other persons to whom …

Notwithstanding subdivision 62-1-3(2), county highway superintendents, deputy sheriffs, constables, marshals, policemen, and firemen shall be deemed employees within the meaning of § 62-1-3 . Source: SL 1929, ch 253 ; SDC 1939, § 64.0102 (2) (b); SL 1943, ch 313 ; SL 1949, ch 441…

Notwithstanding the provisions of § 62-1-5.1 , students of elementary, secondary, and technical colleges are not employees within the meaning of this title. However, a school district or technical college, which provides a work experience educational class conducted off the schoo…

All persons providing voluntary service to a fire department, ambulance service, or rescue squad for any county, municipality, special purpose district, or township if regularly organized under the law shall be deemed employees of such county, municipality, special purpose distri…

Any volunteer worker rendering services in or for any agency, department, institution, or instrumentality of the state or of any of its political subdivisions, including counties, townships, school districts, or municipalities, whose services have been duly recommended to the off…

Any firefighter who is a member of any county, municipal, special purpose district, township, or private nonprofit corporation operating as a fire department that has on file a cooperative fire suppression agreement with the South Dakota Department of Public Safety, and has been …

For the purpose of workers' compensation coverage, any conservation officer while performing any act ordinarily considered a law enforcement officer's duty shall be deemed to be acting in the course of the officer's employment. Source: SDC 1939, § 64.0102 (2) (b) as added by SL 1…

Every duly elected or appointed executive officer of a corporation, other than a charitable, religious, educational, or other nonprofit corporation, shall be an employee of such corporation under this title. Source: SDC 1939, § 64.0102 (2) (b) as added by SL 1957, ch 495 ; SL 195…

Notwithstanding any other provision of this title, any charitable, religious, educational, or other nonprofit corporation which has accepted the provisions of this title may cause any duly elected or appointed executive officer to be an employee of such corporation under this tit…

This title shall be known and cited as the "South Dakota Workers' Compensation Law." Source: SL 1917, ch 376 , § 1; RC 1919, § 9436; SDC 1939, § 64.0101; SL 1975, ch 322 , § 3.

The Governor shall appoint a State Workers' Compensation Advisory Council, composed of nine members, four representing employees, two of whom shall be from recommendations submitted by the South Dakota Federation of Labor. No employee representative may be a member of a personnel…

The Workers' Compensation Advisory Council shall include in its annual report data about the average amount of disability or fatality benefits paid for a claim over the most recent calendar years, the ratio of disability and fatality benefits to overall benefits paid, and any cha…

Employers shall display informational postings promoting safety in the workplace in visible locations throughout the business premises in accordance with rules promulgated by the Department of Labor and Regulation pursuant to chapter 1-26 . Source: SL 1992, ch 364 , § 3; SL 2011,…

The department shall establish a small claims procedure for medical expense claims not exceeding eight thousand dollars. The procedure may only be used for a medical expense claim incurred after the department has held a hearing and has adjudicated the underlying injury as compen…

The department shall, by rules promulgated pursuant to chapter 1-26 , provide for the manner in which the disputed claims shall be presented and the forms required from the claimant and from employers. Source: SL 2006, ch 271 , § 2.

Any claimant pursuant to §§ 62-2-12 to 62-2-22 , inclusive, shall initiate a claim by completing a form provided by the department. Source: SL 2006, ch 271 , § 3.

The department shall send notice to the party claimed against by registered or certified mail, return receipt. Source: SL 2006, ch 271 , § 4.

Any party claimed against may assert any setoff or counterclaim that is within the jurisdiction of the department. Source: SL 2006, ch 271 , § 5.

The department shall conduct the hearings in accordance with chapter 1-26 . The department shall expedite any hearing to the extent possible. Source: SL 2006, ch 271 , § 6.

Any medical record, correspondence, medical bill, and expert report and correspondence is admissible as evidence. Nothing in §§ 62-2-12 to 62-2-22 , inclusive, precludes an employer or insurer from obtaining an examination pursuant to § 62-7-1 . Source: SL 2006, ch 271 , § 7.

Upon the request of any party claimed against, the claimant shall provide an executed medical release in a form prescribed by the department, sufficiently in advance of the hearing to allow the party claimed against to obtain such medical records as it deems appropriate. Any part…

Within fifteen days after receiving the decision by the department, any party may appeal the decision to the secretary of labor and regulation. The secretary of labor and regulation may on the secretary's own motion affirm, modify, or set aside any decision on the basis of the ev…

Any claimant in any proceeding before the department may be represented by counsel or other duly authorized agent, but no such counsel or agent may either charge or receive for such services more than an amount approved by the department. An employer or insurer, including a corpo…

Any finding of fact, conclusion of law, decision, or final order made in a small claims proceeding may not be used as evidence in any separate or subsequent action or proceeding between anyone in any tribunal, agency, or court of this state or the United States, regardless of whe…

The Department of Labor and Regulation shall carry out and enforce the provisions of this title. The department may promulgate rules pursuant to chapter 1-26 governing procedures in worker's compensation hearings, petitions, interested parties, summary judgments, dismissals, appl…

The department may subpoena witnesses, administer oaths, and examine such books and records of the parties to a proceeding or investigation as relate to questions in dispute or under investigation. The circuit court may enforce the provisions of this title relating to the attenda…

The compensation provided by this title is the measure of responsibility which the employer has assumed for injuries to or death of any employee. Source: SL 1917, ch 376 , § 27; RC 1919, § 9462; SDC 1939, § 64.0103; SL 2008, ch 278 , § 4.

A principal, intermediate, or subcontractor is liable for compensation to any employee injured while in the employ of any subcontractor and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate, or subcontractor…

Any employee, who is employed by an employer who is deemed not to operate under this title in accordance with § 62-5-7 , or the dependents of such deceased employee, may elect to proceed against the employer in any action at law to recover damages for personal injury or death; or…