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CHAPTER 62-7

CLAIMS PROCEDURE

62-7-1      Compulsory medical examination of employee at request of employer.
62-7-2      Employee's physician present at examination--Copy of report to employee not employing physician.
62-7-3      Refusing or obstructing examination--Suspension of compensation payments.
62-7-4      Repealed.
62-7-5      Agreement as to compensation--Approval by department.
62-7-6      Petition for lump-sum settlement--Hearing by and order of department--Beneficiaries excluded--Partial lump sum payment.
62-7-7      Appointment of conservator or administrator in connection with lump-sum settlement.
62-7-8      Fees for health services subject to approval--Excessive fees or services.
62-7-8.1      Ability to pay for health care--Impermissible basis for higher fees--Misdemeanor.
62-7-9      Repealed.
62-7-10      Notice to employer of injury--Condition precedent to compensation.
62-7-11      Repealed.
62-7-12      Failure to reach agreement as to compensation--Hearing by department.
62-7-12.1      Hearing officer to be licensed attorney.
62-7-12.2      Informal request for disqualification of hearing examiner.
62-7-13      Hearing by department--Place of holding--Decision, filing and service.
62-7-14      Appointment of impartial medical examiner--Fee.
62-7-15      Hearing by department--Fees and mileage of witnesses--Taxation of costs.
62-7-16      Petition for review of decision of department--Revision or affirmance.
62-7-17      Appeal from decision of department without petition for review.
62-7-18      Decision of department not final until determination of petition for review.
62-7-19      Appeals to circuit court.
62-7-20 to 62-7-29. Repealed.
62-7-30      Notice or orders--Method of service.
62-7-31      Judgment taken on memorandum of agreement or portion of order or decision.
62-7-32      Modification or revocation of judgment taken on award or memorandum of agreement.
62-7-33      Review of payment by department.
62-7-34      Notice given by department--Statutory notice--Writing required--Manner of service.
62-7-35      Limitation of action on claim for compensation.
62-7-35.1      Time limitation for claiming additional compensation--Application of limit.
62-7-35.2      Application of time limits to minor or person with mental illness or developmental disability.
62-7-35.3      Right to compensation barred under certain circumstances.
62-7-36      Approval of legal fees--Amount--Lump sum payment.
62-7-37      Mediation--Promulgation of rules.
62-7-38      Multiple employers or insurers where preexisting injury or cumulative trauma claimed--Responsibility for payment.
62-7-39      Determining permanent partial or permanent total disability compensation.
62-7-40      False testimony.
62-7-41      Supplemental wage benefit for employee unable to return to usual and customary employment.


     62-7-1.   Compulsory medical examination of employee at request of employer. An employee entitled to receive disability payments shall, if requested by the employer, submit himself or herself at the expense of the employer for examination to a duly qualified medical practitioner or surgeon selected by the employer, at a time and place reasonably convenient for the employee, as soon as practicable after the injury, and also one week after the first examination, and thereafter at intervals not oftener than once every four weeks. The examination shall be for the purpose of determining the nature, extent, and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability according to the provisions of this title.

Source: SL 1917, ch 376, § 28; RC 1919, § 9463; SDC 1939, § 64.0508; SL 2008, ch 278, § 42.


     62-7-2.   Employee's physician present at examination--Copy of report to employee not employing physician. The examination provided by § 62-7-1 shall be made in the presence of a duly qualified medical practitioner or surgeon employed and paid for by the employee, if the employee so desires. If the examination is made by a surgeon engaged by the employer and the injured employee has no surgeon present at the examination, the surgeon making the examination at the instance of the employer shall deliver to the injured employee, upon the employee's request or that of the employee's representative, a statement in writing of the condition and extent of the injury to the same extent that the surgeon reports to the employer.

Source: SL 1917, ch 376, § 28; RC 1919, § 9463; SDC 1939, § 64.0508; SL 2008, ch 278, § 43.


     62-7-3.   Refusing or obstructing examination--Suspension of compensation payments. If the employee refuses to submit himself or herself to examination pursuant to § 62-7-1 or unnecessarily obstructs the examination, the employee's right to compensation payments shall be temporarily suspended until the examination takes place. No compensation is payable under this title for such period.

Source: SL 1917, ch 376, § 28; RC 1919, § 9463; SDC 1939, § 64.0508; SL 2008, ch 278, § 44.


     62-7-4.   Repealed by SL 1990, ch 416, § 2.


     62-7-5.   Agreement as to compensation--Approval by department. If the employer and employee reach an agreement in regard to the compensation under this title, a memorandum of the agreement shall be filed with the department by the employer or employee. Unless the department within twenty days notifies the employer and employee of its disapproval of the agreement by letter sent to their addresses as given in the memorandum filed, the agreement shall stand as approved and is enforceable for all purposes under the provisions of this title.

Source: SL 1917, ch 376, § 32; RC 1919, § 9467; SDC 1939, § 64.0509; SL 1991, ch 423, § 2.


     62-7-6.   Petition for lump-sum settlement--Hearing by and order of department--Beneficiaries excluded--Partial lump sum payment. An employer or employee who desires to have any unpaid compensation paid in a lump sum may petition the Department of Labor and Regulation asking that the compensation be paid in that manner. If, upon proper notice to interested parties and proper showing before the department, it appears in the best interests of the employee that the compensation be paid in lump sum, the secretary of labor and regulation may order the commutation of the compensation to an equivalent lump-sum amount. That amount shall equal the total sum of the probable future payments capitalized at their present value on the basis of interest calculated at a rate per year set by the department with annual rests in accordance with rules promulgated pursuant to chapter 1-26. If there is an admission or adjudication of permanent total disability, the secretary may order payment of all or part of the unpaid compensation in a lump sum under the following circumstances:
             (1)      If the employee has exceptional financial need that arose as a result of reduced income due to the injury; or
             (2)      If necessary to pay the attorney's fees, costs and expenses approved by the department under § 62-7-36.
     If a partial lump sum payment is made, the amount of the weekly benefit shall be reduced by the same percentage that the partial lump sum bears to the total lump sum computation. The remaining weekly benefit is subject to the cost of living allowance provided by § 62-4-7. Any compensation due to beneficiaries under §§ 62-4-12 to 62-4-22, inclusive, may not be paid in a lump sum, except for the remarriage lump sum provided in § 62-4-12.

Source: SDC 1939, § 64.0510; SL 1945, ch 355; SL 1951, ch 469; SL 1977, ch 421, § 3; SL 1978, ch 370, § 18; SL 1983, ch 28, § 68; SL 1993, ch 375, §§ 39B, 42; SL 1993, ch 379, § 4; SL 1994, ch 401; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-7.   Appointment of conservator or administrator in connection with lump-sum settlement. If necessary, upon proper application being made, a conservator or administrator, as the case may be, may be appointed for any person under disability who may be entitled to any compensation under this title, and an employer bound by the terms of this title and liable to pay such compensation may petition for the appointment of an administrator or conservator, if no legal representative has been appointed or is acting for such party or parties so under disability.

Source: SL 1917, ch 376, § 25; RC 1919, § 9460; SDC 1939, § 64.0510; SL 1945, ch 355; SL 1951, ch 469; SL 1993, ch 213, § 263.


     62-7-8.   Fees for health services subject to approval--Excessive fees or services. Except as otherwise provided, fees for health services, including hospital services, depositions, and reproduction of medical and hospital information, under this title are subject to approval of the department. The department shall, by rule promulgated pursuant to chapter 1-26, establish standards and procedures for determining if charges for health services, including hospital services are excessive and for determining if a provider of health services is performing procedures or providing services at a level or with a frequency that is excessive. The department shall consult with the examining boards of all providers in establishing such standards and procedures. For services rendered by an out-of-state provider, any fee that exceeds the maximum allowed by the fee schedule of the state where service was provided is deemed excessive. No provider of health services, including hospital services, may enforce any judgment against, or collect or attempt to collect from, the employee, the employer, or the employer's insurer any amount in excess of the amount established by the applicable fee schedule or approved under the provisions of this section.

Source: SDC 1939, § 64.0511; SL 1968, ch 270; SL 1992, ch 364, § 6; SL 1993, ch 381, § 4; SL 1995, ch 296, § 16; SL 1996, ch 307, § 1; SL 2010, ch 249, § 1.


     62-7-8.1.   Ability to pay for health care--Impermissible basis for higher fees--Misdemeanor. No health care provider may charge a higher price for goods, care or services rendered to an injured worker who is eligible for workers' compensation benefits based on the ability of the employer or the insurer to pay for such goods, care or services. A violation of this section is a Class 1 misdemeanor.

Source: SL 1991, ch 422.


     62-7-9.   Repealed by omission from SL 1968, ch 270.


     62-7-10.   Notice to employer of injury--Condition precedent to compensation. An employee who claims compensation for an injury shall immediately, or as soon thereafter as practical, notify the employer of the occurrence of the injury. Written notice of the injury shall be provided to the employer no later than three business days after its occurrence. The notice need not be in any particular form but must advise the employer of when, where, and how the injury occurred. Failure to give notice as required by this section prohibits a claim for compensation under this title unless the employee or the employee's representative can show:
             (1)      The employer or the employer's representative had actual knowledge of the injury; or
             (2)      The employer was given written notice after the date of the injury and the employee had good cause for failing to give written notice within the three business-day period, which determination shall be liberally construed in favor of the employee.

Source: SDC 1939, § 64.0601; SL 1994, ch 396, § 12.


     62-7-11.   Repealed by SL 1994, ch 396, § 13.


     62-7-12.   Failure to reach agreement as to compensation--Hearing by department. If the employer and injured employee or the employee's representative or dependents fail to reach an agreement in regard to compensation under this title, either party may notify the Department of Labor and Regulation and request a hearing according to rules promulgated pursuant to chapter 1-26 by the secretary of labor and regulation. The department shall fix a time and place for the hearing and shall notify the parties.

Source: SL 1917, ch 376, § 33; RC 1919, § 9468; SDC 1939, § 64.0603; SL 1983, ch 22, § 22; SL 1993, ch 375, § 44; SL 2008, ch 278, § 45; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-12.1.   Hearing officer to be licensed attorney. Any employee of the Department of Labor and Regulation who conducts hearings for workers' compensation claims pursuant to the department's authority to conduct such hearing shall be an attorney, licensed to practice law in South Dakota.

Source: SL 1973, ch 2, § 95; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-12.2.   Informal request for disqualification of hearing examiner. In any contested case arising under the provisions of Title 62, any party, in person or by counsel, may informally request the hearing examiner who, in the ordinary course, would hear the contested case, to disqualify himself or herself. The requesting party may, but is not obligated to, state reasons for the request. The informal request may be by letter, by oral communication, or by motion not later than twenty days after notice of the appointment of the hearing examiner to the case. The opposing parties shall be apprised of the request, but may not contest the request. The director of the division shall grant the request and forthwith provide for the appointment of another hearing examiner. Neither party may request disqualification more than once on any case.

Source: SL 1996, ch 308.


     62-7-13.   Hearing by department--Place of holding--Decision, filing and service. The department may make such inquiries and investigations it deems necessary. The hearings of the department shall be in a place which the department determines to be convenient to the parties and to the witnesses. A record of the proceedings at the hearing shall be kept, the expense of the record to be borne by the department. The department shall file its decision, its findings of fact, and conclusions of law and shall serve the same on the parties forthwith by dispatching a copy addressed to each party or the party's attorney by mail, postage paid.

Source: SDC 1939, § 64.0604; SL 1991, ch 423, § 1; SL 1999, ch 261, § 10.


     62-7-14.   Appointment of impartial medical examiner--Fee. The department may appoint a duly qualified and impartial physician to examine the injured employee and make a report. The fee for this service shall be paid by the insurer or self-insured employer, together with traveling expenses, and the amount of such fee shall be subject to approval by the secretary of the department.

Source: SL 1917, ch 376, § 37; RC 1919, § 9472; SDC 1939, § 64.0605; SL 1993, ch 381, § 2.


     62-7-15.   Hearing by department--Fees and mileage of witnesses--Taxation of costs. The fees and mileage for attending as a witness before the department shall be the same as allowed in circuit court. All costs incurred in the hearing before the department may be taxed against the losing party or an equitable apportionment made thereof by the department according to the facts.

Source: SL 1917, ch 376, §§ 31, 38; RC 1919, §§ 9466, 9473; SDC 1939, § 64.0606.


     62-7-16.   Petition for review of decision of department--Revision or affirmance. Any party to proceedings before the department may within ten days after service upon the party of a decision of the department, as provided in § 62-7-13, file with the department a petition for a review of the decision. Upon the filing of the petition the secretary may either deny the petition or direct that further hearing be had or additional evidence received. In the event of the further hearing or of the receipt of additional evidence, the secretary may revise his or her decision in whole or in part or affirm the same. Notice of denial of the petition or any other order thereon shall be given as provided in § 62-7-13.

Source: SDC 1939, § 64.0607; SL 2008, ch 278, § 46.


     62-7-17.   Appeal from decision of department without petition for review. Any party may elect to treat as final the decision of the department made as provided in § 62-7-13 and appeal therefrom without making any petition for review, in which event the decision provided for in § 62-7-13 shall be treated as the final decision of the department and subject to appeal.

Source: SDC 1939, § 64.0607.


     62-7-18.   Decision of department not final until determination of petition for review. If a petition for a review is filed as provided in § 62-7-16, it may not be deemed that the department has made a final decision until there is a final determination on the petition. The final determination shall in that event be deemed the final decision of the department and subject to appeal.

Source: SDC 1939, § 64.0607; SL 2008, ch 278, § 47.


     62-7-19.   Appeals to circuit court. Any employer or employee may appeal to the circuit court pursuant to chapter 1-26 from any final order or decision of the Department of Labor and Regulation which arises under the provisions of this title. Upon any appeal under this section all intermediate orders or decisions affecting substantial rights may be reviewed.

Source: SL 1917, ch 376, § 54; Rules of Court 1919, Part 3, Rule 1; RC 1919, § 9489; SDC 1939, § 64.0701; SL 1973, ch 313, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-20 to 62-7-29.   Repealed by SL 1973, ch 313, § 2.


     62-7-30.   Notice or orders--Method of service. All notices or orders provided for in this chapter may be served personally or by registered or certified mail. If served by registered or certified mail, proof by affidavit thereof shall be accompanied by post office return receipt. If, however, any party is represented by an attorney, the service shall be made on the attorney, and may be made either in the manner provided in this section, or in the manner provided by § 15-6-5.

Source: Rules of Court 1919, Part 3, Rule 14; SDC 1939, § 64.0708; SL 2008, ch 278, § 48.


     62-7-31.   Judgment taken on memorandum of agreement or portion of order or decision. Any party in interest may, after expiration of the time for a petition for review or appeal, present a memorandum of agreement, approved by the department, or a certified copy of any portion of an order or decision of the department from which no petition for review or appeal has been filed, together with all papers in connection with the case, to the circuit court for the county in which the injury occurred. Thereupon the court shall render a judgment in accordance with the memorandum of agreement or portion of any order or decision of the department from which no petition for review has been filed, and the court shall notify the parties. The judgment shall have the same effect and in all proceedings in relation thereto be the same as though rendered in an action duly heard and determined by the court except that no appeal may be made on questions of fact.

Source: SL 1917, ch 376, § 40; RC 1919, § 9475; SDC 1939, § 64.0608; SL 2007, ch 299, § 1.


     62-7-32.   Modification or revocation of judgment taken on award or memorandum of agreement. Upon presentation to the circuit court of a certified copy of the decision of the department ending, diminishing, or increasing any payment to be made under the provisions of this title, the court shall revoke or modify the judgment to conform to such decision.

Source: SL 1917, ch 376, § 40; RC 1919, § 9475; SDC 1939, § 64.0608.


     62-7-33.   Review of payment by department. Any payment, including medical payments under § 62-4-1, and disability payments under § 62-4-3 if the earnings have substantially changed since the date of injury, made or to be made under this title may be reviewed by the Department of Labor and Regulation pursuant to § 62-7-12 at the written request of the employer or of the employee and on such review payments may be ended, diminished, increased, or awarded subject to the maximum or minimum amounts provided for in this title, if the department finds that a change in the condition of the employee warrants such action. Any case in which there has been a determination of permanent total disability may be reviewed by the department not less than every five years.

Source: SL 1917, ch 376, § 41; RC 1919, § 9476; SDC 1939, § 64.0609; SL 1980, ch 365, § 5; SL 1993, ch 381, § 3; SL 1993, ch 383, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-34.   Notice given by department--Statutory notice--Writing required--Manner of service. Any notice given by the department, or any other notice for which provision is made by this title, shall be in writing, and service thereof, unless otherwise specifically provided, shall be sufficient if by registered or certified mail addressed to the last known address of the person to be served.

Source: SL 1917, ch 376, § 41; RC 1919, § 9476; SDC 1939, § 64.0610.


     62-7-35.   Limitation of action on claim for compensation. The right to compensation under this title shall be forever barred unless a written petition for hearing pursuant to § 62-7-12 is filed by the claimant with the department within two years after the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part under this title. If the denial is in part, the bar shall only apply to such part.

Source: SL 1917, ch 376, § 22; RC 1919, § 9457; SDC 1939, § 64.0611; SL 1969, ch 288; SL 1978, ch 370, § 19; SL 1980, ch 365, § 3; SL 2005, ch 285, § 1.


     62-7-35.1.   Time limitation for claiming additional compensation--Application of limit. In any case in which any benefits have been tendered pursuant to this title on account of an injury, any claim for additional compensation shall be barred, unless the claimant files a written petition for hearing pursuant to § 62-7-12 with the department within three years from the date of the last payment of benefits. The provisions of this section do not apply to review and revision of payments or other benefits under § 62-7-33.

Source: SL 1995, ch 299, §§ 1, 3; SL 1999, ch 261, § 11; SL 2005, ch 285, § 2.


     62-7-35.2.   Application of time limits to minor or person with mental illness or developmental disability. The provisions of §§ 62-7-35 and 62-7-35.1 do not apply to a person with a mental illness, a person with a developmental disability, or a minor if the person has no guardian or legal representative. The limitations of §§ 62-7-35 and 62-7-35.1 do apply to the person with a mental illness, person with a developmental disability, or minor from the date of the appointment of a guardian or legal representative for that person, and if no guardian or legal representative has been appointed, to a minor upon obtainment of majority.

Source: SL 1995, ch 299, § 2; SL 2008, ch 278, § 49.


     62-7-35.3.   Right to compensation barred under certain circumstances. The right to compensation under this title is forever barred if no medical treatment has been obtained within seven years after the employee files the first report of injury.

Source: SL 1999, ch 261, § 12.


     62-7-36.   Approval of legal fees--Amount--Lump sum payment. Except as otherwise provided, fees for legal services under this title shall be subject to approval of the department.
     Attorneys' fees may not exceed the percentage of the amount of compensation benefits secured as a result of the attorney's involvement as follows:
             (1)      Twenty-five percent of the disputed amount arrived at by settlement of the parties;
             (2)      Thirty percent of the disputed amount awarded by the Department of Labor and Regulation after hearing or through appeal to circuit court;
             (3)      Thirty-five percent of the disputed amount awarded if an appeal is successful to the Supreme Court.
     Attorneys' fees and costs may be paid in a lump sum on the present value of the settlement or adjudicated amount.

Source: SL 1992, ch 364, § 7; SL 1993, ch 379, § 5; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-37.   Mediation--Promulgation of rules. If the employer and injured employee do not agree as to compensability in whole or in part, either party may request the department to conduct a mediation. The mediation shall be in a location convenient to the parties or by telephonic conference and shall be conducted in accordance with rules promulgated by the department pursuant to chapter 1-26.

Source: SL 1993, ch 380, § 5.


     62-7-38.   Multiple employers or insurers where preexisting injury or cumulative trauma claimed--Responsibility for payment. In cases where there are multiple employers or insurers, if an employee claims an aggravation of a preexisting injury or if an injury is from cumulative trauma making the exact date of injury undeterminable, the insurer providing coverage to the employer at the time the aggravation or injury is reported shall make immediate payment of the claim until all employers and insurers agree on responsibility or the matter is appropriately adjudicated by the Department of Labor and Regulation pursuant to this chapter.

Source: SL 1994, ch 396, § 3A; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-7-39.   Determining permanent partial or permanent total disability compensation. An employee, employer, employer's insurer, or self-insured employer shall be permitted to use the results of post-offer base line testing or a functional capacity assessment, as utilized by Guidelines to the Evaluation of Permanent Impairment established by the American Medical Association, sixth edition, July 2009 reprint, performed during the course of employment, or other medical evidence of impairment for the purpose of determining permanent partial or permanent total disability compensation due to an employee.

Source: SL 1995, ch 296, § 14; SL 2013, ch 260, § 1.


     62-7-40.   False testimony. In proceedings for workers' compensation benefits brought under this title, if the finder of fact determines that any person testifying in the proceeding has knowingly sworn falsely to any material fact in the proceeding, then the finder of fact may reject all of the testimony of that witness.

Source: SL 1995, ch 296, § 15.


     62-7-41.   Supplemental wage benefit for employee unable to return to usual and customary employment. If an employee is not totally disabled but is unable to return to the employee's usual and customary employment, the employer may, in lieu of rehabilitation, require the employee to accept, in addition to an earned income, a supplemental wage benefit to be paid by the employer which, in total with the earned income, equals the workers' compensation benefit rate applicable to the employee at the time of the employee's injury, plus a return to work incentive of twenty percent of the rate otherwise payable to the employee under § 62-4-3, provided the employee is actually offered employment or is employed.

Source: SL 1995, ch 296, § 17.


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