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CHAPTER 62-8

OCCUPATIONAL DISEASE DISABILITY

62-8-1      Definition of terms.
62-8-2      Repealed.
62-8-3      Contracted and incurred defined.
62-8-4      Right to compensation--Applicability of workers' compensation law.
62-8-5      Repealed.
62-8-6      Employers and workers subject to chapter--Security for compensation--Right to compensation as exclusive remedy.
62-8-7, 62-8-8. Repealed.
62-8-9      Repealed.
62-8-10      Repealed.
62-8-11      Filing time to qualify for disability or death compensation.
62-8-12      Conditions of liability--Burden of proof.
62-8-13      Notice of disability required--Claim for compensation.
62-8-14      Silicosis cases--Period of exposure.
62-8-15      Last employer liable--Amount of compensation--Notice of disability--Claim for compensation.
62-8-16      Maximum compensation for death or disability.
62-8-17      Waiver of disability benefits by working for another.
62-8-18      Death in case of silicosis--Liability of last employer.
62-8-19      Disability or death from silicosis with complication of tuberculosis.
62-8-20      Partial disability due to silicosis not compensable--Exceptions.
62-8-21      Dependency arising after disability.
62-8-22      Disability or death due to employee's willful misconduct, willful self-exposure, or disobedience not compensable.
62-8-23      Willful self-exposure--Acts constituting.
62-8-24      Waiver of full compensation for aggravation of nondisabling silicosis--Amount of claim limited.
62-8-25      Contract waiving all claims for compensation for aggravation of nondisabling silicosis.
62-8-26      Voluntary waiver--Finding by department.
62-8-27      Termination of employment because of nondisabling silicosis--Allowance of compensation.
62-8-28      Petition of employee for examination for silicosis--Payment of costs--Findings of department.
62-8-29      Notice of disease or death required for compensation.
62-8-30      Time for notice of incapacity from ionizing radiation.
62-8-31      Persons who may give notice and make claim.
62-8-32      Time for making claim for further compensation after discontinuance.
62-8-33 to 62-8-40. Superseded.
62-8-40.1      Contracts for medical reports.
62-8-41      Autopsy ordered by department upon filing of claim.
62-8-42      Autopsy ordered by department where controversy may exist.
62-8-43      Refusal to permit autopsy--Suspension of proceedings for compensation.
62-8-44      Modification of award.
62-8-45      Agreements between employer and employee.
62-8-46      Repealed.
62-8-47      Compensation under this chapter not additional to compensation under chapter 62-4.


62-8-48      Repealed.


     62-8-1.   Definition of terms. Terms used in this chapter mean:
             (1)      "Compensation," the payments and benefits provided for in the South Dakota workers' compensation law, subject to the conditions and limitations contained in this chapter;
             (2)      "Department," the Department of Labor and Regulation of the State of South Dakota;
             (3)      "Disablement," the event of an employee's becoming actually and totally incapacitated, because of an occupational disease as defined in this chapter, from performing work in the last occupation in which injuriously exposed to the hazards of such disease. The terms, disability, disabled, total disability, totally disabled, or total disablement are synonymous with disablement;
             (4)      "Injurious exposure" and "harmful quantities,' ' that concentration of toxic material which would, independently of any other cause whatsoever (including the previous physical condition of the claimant) produce or cause the disease for which claim is made;
             (5)      "Nondisabling silicosis," silicosis demonstrable by X ray examinations of the lungs, which reveal unquestionably the characteristic mottling of silicosis in the lung fields, occurring in an employee after injurious exposure to silicon dioxide for the period provided in § 62-8-14, but not sufficient to disable the employee from performing usual work;
             (6)      "Occupational disease," a disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment and includes any disease due or attributable to exposure to or contact with any radioactive material by an employee in the course of employment;
             (7)      "Silicosis," the characteristic fibrotic condition of the lungs caused by the inhalation of silicon dioxide (SiO2) dust.

Source: SDC 1939, § 64.0804 as enacted by SL 1947, ch 426; SL 1971, ch 286, § 1; SL 2008, ch 278, § 50; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-8-2.   Repealed by SL 1971, ch 286, § 2.


     62-8-3.   Contracted and incurred defined. The terms, contracted, and incurred, as used in this chapter when referring to an occupational disease, are the equivalent of the phrase, arising out of and in the course of, as used in the workers' compensation law.

Source: SDC 1939, § 64.0805 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 51.


     62-8-4.   Right to compensation--Applicability of workers' compensation law. If an employee of an employer subject to this chapter suffers from an occupational disease as defined in § 62-8-1, and is thereby disabled from performing work in the last occupation in which the employee was injuriously exposed to the hazards of the disease, or dies as a result of the disease, and the disease was due to the nature of an occupation or process in which the employee was employed within the period previous to the employee's disablement limited in this chapter, the employee, or, in case of the employee's death, the employee's dependents, are entitled to compensation as provided in the workers' compensation law, as if the disablement or death were an injury by accident, except as otherwise provided in this chapter. The practice and procedure prescribed in the workers' compensation law shall apply to proceedings for compensation for such diseases, except as in this chapter otherwise provided.

Source: SDC 1939, § 64.0802 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 52.


     62-8-5.   Repealed by SL 2008, ch 278, § 53.


     62-8-6.   Employers and workers subject to chapter--Security for compensation--Right to compensation as exclusive remedy. Every employer of workers subject to the workers' compensation law is subject to the provisions of this chapter and shall secure the payment of compensation in accordance with the provisions of this chapter by any method prescribed by the workers' compensation law at the time in effect in this state. If the foregoing requirement is complied with, the liability of the employer under this chapter is exclusive and in place of any other civil liability, at common law or otherwise to such employee, or to the employee's spouse, children, parents, dependents, next of kin, personal representatives, guardian, conservator, or any others on account of any disease or injury to health, or on account of death from any disease or injury to health in any way contracted, sustained, aggravated, or incurred by the employee in the course of, or because of, or arising out of employment, except only an injury compensable as an injury by accident under the provisions of the workers' compensation law.

Source: SDC 1939, § 64.0803 as enacted by SL 1947, ch 426; SL 1971, ch 286, § 3; SL 1993, ch 213, § 264; SL 2008, ch 278, § 54.


     62-8-7, 62-8-8.   Repealed by SL 1971, ch 286, §§ 4, 5.


     62-8-9.   Repealed by SL 1977, ch 421, § 6.


     62-8-10.   Repealed by SL 1971, ch 286, § 7.


     62-8-11.   Filing time to qualify for disability or death compensation. An employer is not liable for compensation or other benefits under the provisions of this chapter for disability or death unless a claim is filed with the Department of Labor and Regulation within two years after the claimant becomes disabled from such disease, or in the case of death from such disease, within two years of the date of such death. However, any prepaid lump sum payments made to the claimant during his lifetime for permanent total disability shall be accredited to the payments made for death benefits.

Source: SDC 1939, § 64.0807 (1) as enacted by SL 1947, ch 426; SL 1965, ch 308, § 1; SL 1971, ch 286, § 8; SL 1976, ch 323; SL 1993, ch 375, § 39C; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-8-12.   Conditions of liability--Burden of proof. The burden of proof shall be upon the claimant to establish each and every fact under § 62-8-11 by competent medical evidence.

Source: SDC 1939, § 64.0807 (1) as enacted by SL 1947, ch 426; SL 1965, ch 308, § 1.


     62-8-13.   Notice of disability required--Claim for compensation. An employer is not liable for compensation or other benefits under the provisions of this chapter for disability or death unless notice of disability and claim for compensation has been given and made to the employer in writing within the time fixed in §§ 62-8-29 to 62-8-32, inclusive.

Source: SDC 1939, § 64.0807 (2) as enacted by SL 1947, ch 426; SL 1965, ch 308, § 1; SL 1971, ch 286, § 9; SL 2008, ch 278, § 55.


     62-8-14.   Silicosis cases--Period of exposure. No claim for disability or death from silicosis may be maintained or prosecuted otherwise than under the provisions of this chapter, or come within the provisions of this chapter, unless the employee has been injuriously exposed to the inhalation of silica dust over a period of not less than two years, and has been in this state, under a contract of employment existing in this state. However, if the employee has been employed by the same employer during the whole of the two-year period, the employee's right to compensation against the employer is not affected by the fact that the employee had been employed during any part of the period outside of this state.

Source: SDC 1939, § 64.0808 as enacted by SL 1947, ch 426; SL 1976, ch 322, § 4; SL 2008, ch 278, § 56.


     62-8-15.   Last employer liable--Amount of compensation--Notice of disability--Claim for compensation. If compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of the disease is liable therefor. The amount of the compensation shall be based upon the average weekly wages (as defined in the workers' compensation law) of the employee when last so injuriously exposed under the employer. The notice of disability and claim for compensation shall be given and made to the employer.

Source: SDC 1939, § 64.0809 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 57.


     62-8-16.   Maximum compensation for death or disability. The maximum compensation to be allowed for disability, or death, or both, on account of any occupational disease is the limit fixed in the workers' compensation law.

Source: SDC 1939, § 64.0809 as enacted by SL 1947, ch 426.


     62-8-17.   Waiver of disability benefits by working for another. If a totally disabled employee engages in any remunerative work for any other employer, the employee thereby waives disability benefits or compensation under this chapter for the period as the employee is so engaged.

Source: SDC 1939, § 64.0809 as enacted by SL 1947, ch 426; SL 1971, ch 286, § 10; SL 2008, ch 278, § 58.


     62-8-18.   Death in case of silicosis--Liability of last employer. In case of silicosis, the only employer liable is the last employer in whose employment the employee was last injuriously exposed to the hazards of the disease during a period of sixty days or more.

Source: SDC 1939, § 64.0809 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 59.


     62-8-19.   Disability or death from silicosis with complication of tuberculosis. In case of disability or death from silicosis, complicated with tuberculosis of the lungs, compensation is payable as for uncomplicated silicosis, if the silicosis was an essential factor in causing the disability or death.

Source: SDC 1939, § 64.0810 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 60.


     62-8-20.   Partial disability due to silicosis not compensable--Exceptions. Compensation is not payable for partial disability due to silicosis, except as provided in §§ 62-8-24, 62-8-27, and 62-8-28.

Source: SDC 1939, § 64.0811 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 61.


     62-8-21.   Dependency arising after disability. No compensation for death from an occupational disease is payable to any person whose relationship to the deceased, which, under the provisions of this chapter would give right to compensation, arose subsequent to the beginning of the first compensable disability, save only to after-born children of a marriage existing at the beginning of the disability.

Source: SDC 1939, § 64.0812 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 62.


     62-8-22.   Disability or death due to employee's willful misconduct, willful self-exposure, or disobedience not compensable. Notwithstanding anything contained in this chapter, no employee or dependent of any employee, or personal representative of a deceased employee, or other person is entitled to receive compensation for disability or death from an occupational disease if the disability or death, wholly or in part, was caused by the willful misconduct or willful self-exposure of the employee or by the employee's disobedience to reasonable regulations adopted by the employer, that have been and are kept posted in conspicuous places in and about the premises of the employer, or otherwise brought to the attention of the employee.

Source: SDC 1939, § 64.0813 as enacted by SL 1947, ch 426; SL 1993, ch 375, § 40; SL 2008, ch 278, § 63.


     62-8-23.   Willful self-exposure--Acts constituting. As used in § 62-8-22, willful self-exposure shall be conclusively presumed if any of the following occur:
             (1)      An employee or applicant for employment fails or omits truthfully to state in writing to the best of the employee's knowledge in answer to any inquiry made by the employer, the place, duration, and nature of the employee's previous employment;
             (2)      An applicant for employment fails or omits truthfully to state in writing to the best of the applicant's knowledge in answer to any inquiry made by the employer, whether or not the applicant had been previously disabled, laid off, or compensated in damages or otherwise, because of any physical disability;
             (3)      An employee or applicant for employment fails or omits truthfully to give in writing to the best of the employee's or applicant's knowledge in answer to any inquiry made by the employer, full information about the previous status of the employee's or applicant's health, previous medical and hospital attention and exposure to tuberculosis;
             (4)      An employee or applicant for employment fails or refuses to submit to medical or X ray examination when requested so to do by the employer at the employer's expense;
             (5)      An employee willfully fails to use protective and safety devices provided by the employer.

Source: SDC 1939, § 64.0813 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 64.


     62-8-24.   Waiver of full compensation for aggravation of nondisabling silicosis--Amount of claim limited. If an employee, though not actually disabled, has nondisabling silicosis, the employee may, subject to the approval of the Department of Labor and Regulation, waive in writing full compensation for any aggravation of the employee's condition that may result from the employee continuing in the hazardous occupation. If the employee later suffers total disablement or death as a result of the disease with which the employee was affected after such a waiver, compensation shall be payable as provided in this chapter. However, the amount of compensation, whether for disability or death or both, may not exceed fifty-two times the maximum weekly benefit rate in effect at the time of total disability or death occurs. A waiver so permitted remains effective, for the trade, occupation, process, or employment for which executed, notwithstanding change of employer. The secretary of labor and regulation may promulgate rules pursuant to chapter 1-26 relative to the form, execution, filing, or registration, and public inspection of waivers or records thereof.

Source: SDC 1939, § 64.0814 as enacted by SL 1947, ch 426; SL 1983, ch 22, § 23; SL 1993, ch 375, § 41; SL 2008, ch 278, § 65; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-8-25.   Contract waiving all claims for compensation for aggravation of nondisabling silicosis. A worker, seeking employment and having knowledge or being informed that the worker is affected with a nondisabling silicosis, who nevertheless voluntarily prefers to work in an occupation where the worker's disease may become aggravated, may, with the approval of the department, enter into a contract with the worker's prospective employer, waiving all claims for compensation or damages under this chapter or otherwise.

Source: SDC 1939, § 64.0815 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 66.


     62-8-26.   Voluntary waiver--Finding by department. Before approving a waiver under § 62-8-24 or 62-8-25, the department shall be satisfied that the worker has voluntarily entered into the agreement to waive compensation, that it is of greater advantage to the worker and the worker's dependents, if any, for the worker to work in an occupation where the worker's disease may become aggravated than to seek other employment, and that the working conditions maintained by the employer are such as to minimize the hazards of silicosis.

Source: SDC 1939, § 64.0816 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 67.


     62-8-27.   Termination of employment because of nondisabling silicosis--Allowance of compensation. If an employee working subject to this chapter, who has not previously executed any of the waivers referred to in §§ 62-8-24 to 62-8-26, inclusive, and who would be entitled to compensation under this chapter if disabled, is, because the employee had a nondisabling silicosis, discharged from employment in which the employee is engaged, or if an employee, after an examination as provided in § 62-8-28 and a finding by the medical panel that it is inadvisable for the employee to continue in employment, terminates employment, the department may allow the compensation on account of the discharge or termination of employment as the department deems just, but in no case to exceed one thousand dollars, which payment shall operate as a complete release and discharge of all liability of the employer.

Source: SDC 1939, § 64.0817 (1) as enacted by SL 1947, ch 426; SL 2008, ch 278, § 68.


     62-8-28.   Petition of employee for examination for silicosis--Payment of costs--Findings of department. Any employee who in the course of employment has been exposed to the inhalation of silica dust and who wishes to submit to examination by the department to determine whether the employee has silicosis, and the degree thereof, may petition the department for an order directing the examination. The cost of the medical examination shall be borne by the employee making application. The department shall submit copies of the report of the examination to the employer and employee, who shall have opportunity to rebut the same, if the request therefor is made to the department within thirty days from the mailing of the report to the parties. The department shall make its findings as to whether or not it is inadvisable for the employee to continue in employment.

Source: SDC 1939, § 64.0817 (2) as enacted by SL 1947, ch 426; SL 2008, ch 278, § 69.


     62-8-29.   Notice of disease or death required for compensation. Unless written notice of an occupational disease is given by the worker to the employer within six months after the employment has ceased in which it is claimed that the disease was contracted, and, in case of death, unless written notice of such death is given within ninety days after the occurrence, all rights to compensation for disability, or death, from an occupational disease are forever barred.

Source: SDC 1939, § 64.0818 as enacted by SL 1947, ch 426; SL 1965, ch 308, § 2; SL 1977, ch 421, § 4; SL 2008, ch 278, § 70.


     62-8-30.   Time for notice of incapacity from ionizing radiation. Notwithstanding § 62-8-29, the time for filing notice and claims does not begin to run in cases of incapacity from exposure to ionizing radiation until one year after the date upon which the employee first suffered incapacity and either knew or in the exercise of reasonable diligence should have known that the occupational disease was caused by the employee's present or prior employment.

Source: SDC 1939, § 64.0818 as enacted by SL 1965, ch 308, § 2; SL 2008, ch 278, § 71.


     62-8-31.   Persons who may give notice and make claim. Notice and claim under § 62-8-29 may be made by any person claiming to be entitled to compensation or by someone in the person's behalf.

Source: SDC 1939, § 64.0818 as enacted by SL 1947, ch 426; SL 1965, ch 308, § 2; SL 2008, ch 278, § 72.


     62-8-32.   Time for making claim for further compensation after discontinuance. If compensation payments have been made and discontinued, and further compensation is claimed, the claim for the further compensation shall be made within one year after the last payment.

Source: SDC 1939, § 64.0818 as enacted by SL 1947, ch 426; SL 1965, ch 308, § 2; SL 2008, ch 278, § 73.


     62-8-33 to 62-8-40.   Superseded.


     62-8-40.1.   Contracts for medical reports. The Department of Labor and Regulation may contract with licensed physicians for medical reports on controverted medical questions in any case on a claim for compensation for an occupational disease.

Source: SL 1974, ch 3, § 19; SL 2008, ch 278, § 74; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-8-41.   Autopsy ordered by department upon filing of claim. Upon the filing of a claim for compensation for death from an occupational disease where an autopsy is necessary accurately and scientifically to ascertain and determine the cause of death, the autopsy shall be ordered by the department. The department may designate a duly licensed physician, who is a specialist in such examinations, to perform or attend the autopsy, and to certify the findings thereon. The findings shall be filed with the department and are a public record.

Source: SDC 1939, § 64.0823 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 75.


     62-8-42.   Autopsy ordered by department where controversy may exist. The secretary of the Department of Labor and Regulation also may exercise such authority on the secretary's own motion or on application made to the secretary at any time by any party in interest, upon the presentation of facts showing that a controversy may exist in regard to the cause of death or the existence of any occupational disease.

Source: SDC 1939, § 64.0823 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 76; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


     62-8-43.   Refusal to permit autopsy--Suspension of proceedings for compensation. All proceedings for compensation shall be suspended upon refusal of a claimant or claimants to permit the autopsy when so ordered. No compensation is payable during the continuance of the refusal.

Source: SDC 1939, § 64.0823 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 77.


     62-8-44.   Modification of award. An award or denial of award of compensation for an occupational disease may be reviewed and compensation increased, reduced or terminated where previously awarded, or awarded where previously denied, only upon proof of fraud or of change in the conditions, and then only upon application by a party in interest made not later than one year after the denial or award, or, where compensation has been awarded, after the date when the last payment was made under the award, except in case of silicosis where such time limit shall be two years.

Source: SDC 1939, § 64.0824 as enacted by SL 1947, ch 426.


     62-8-45.   Agreements between employer and employee. If the employer and employee reach an agreement in regard to the compensation under this chapter, a memorandum thereof shall be filed with the department by the employer or employee, and unless the department shall, within twenty days, notify the employer and employee of its disapproval of the agreement by registered or certified letter sent to their addresses as given in the memorandum filed, the agreement shall stand as approved and be enforceable for all purposes under the provisions of this chapter.

Source: SDC 1939, § 64.0825 as enacted by SL 1947, ch 426.


     62-8-46.   Repealed by SL 2008, ch 278, § 78.


     62-8-47.   Compensation under this chapter not additional to compensation under chapter 62-4. The compensation provided for under this chapter is not in addition to compensation which may be payable under chapter 62-4, and in all cases where injury results by reason of an accident arising out of or in the course of employment and compensation is payable therefor under said chapter 62-4, no compensation under this chapter is payable.

Source: SDC 1939, § 64.0827 as enacted by SL 1947, ch 426; SL 2008, ch 278, § 79.


     62-8-48.   Repealed by SL 2008, ch 278, § 80.


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