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62-4 COMPENSATION FOR INJURY OR DEATH
CHAPTER 62-4

COMPENSATION FOR INJURY OR DEATH

62-4-1      Medical and hospital expense.
62-4-1.1      Employer's duties upon receipt of medical bill.
62-4-1.2      Fine for noncompliance.
62-4-1.3      Release of medical records.
62-4-2      Waiting period for temporary disability benefits.
62-4-3      Amount of temporary total disability compensation.
62-4-3.1      Annual computation of average weekly wage in state--Period for which applied.
62-4-4      Repealed.
62-4-5      Compensation for partial disability.
62-4-5.1      Compensation during period of rehabilitation--Procedure.
62-4-6      Additional compensation for specific bodily injuries.
62-4-7      Compensation for permanent total disability--Annual increase.
62-4-7.1      Prospective application of benefit increase in § 62-4-7.
62-4-8      Death resulting from injury--Payments to personal representative or beneficiaries of deceased.
62-4-8.1      Scholarships provided to certain persons receiving workers' compensation benefits--Eligibility.
62-4-9      Repealed.
62-4-10      Installment payments of compensation.
62-4-10.1      Penalty for untimely payment of installments--Other remedies.
62-4-11      Specific bodily injuries--Death before full payment of installments--Payments to dependents.
62-4-12      Injury resulting in death--Compensation to spouse or children--Remarriage--Full-time students.
62-4-12.1      Injury resulting in death--Compensation to spouse or children--Children not in custody of surviving spouse.
62-4-13      Injury resulting in death--Additional compensation for child under eighteen.
62-4-14      Injury resulting in death--No surviving spouse or children--Payment to dependent parent, grandparent, or minor sibling.
62-4-15      Injury resulting in death--Payments to dependent collateral heirs.
62-4-16      Burial and transportation expenses paid when death results from injury.
62-4-17      Installment payment of death benefits.
62-4-18      Death benefits--Payment to personal representative or beneficiaries--Distribution to heirs.
62-4-19      Payment of death benefits to personal representative--Release of employer from obligation.
62-4-20      Payment of death benefits to surviving spouse for minor children--Conservatorship not required.
62-4-21      Spouse of deceased employee--Qualification for benefits.
62-4-22      Transfer of surviving spouse's right to compensation to surviving child.
62-4-23      Repealed.
62-4-24      Employment for year preceding injury--Determination of average weekly wage.
62-4-25      Employment for less than year preceding injury--Determination of average weekly wage.
62-4-26      Computation of average weekly wage when other methods not feasible.
62-4-27      Seasonal employment--Determination of average weekly wage.
62-4-28      Employee earning no wages or less than day laborers--Computation of average weekly wage.
62-4-29      Apportionment of compensation for subsequent injury.
62-4-29.1      "Claimant" defined for subsequent injury fund claims.
62-4-30      Determination of amount for each installment period.
62-4-31      Working week defined.
62-4-32      Repealed.
62-4-33      Repealed.
62-4-34 to 62-4-34.2. Repealed.
62-4-34.3      Repealed.
62-4-34.4 to 62-4-34.6. Repealed.
62-4-34.7      Administration of fund to continue until all valid claims approved, denied or settled--Claim for injury occurring after July 1, 2001, barred--Disposition of fund balance.
62-4-35      Repealed.
62-4-36      Repealed.
62-4-36.1 to 62-4-36.3. Repealed.
62-4-37      Injury or death due to willful misconduct of employee not compensable.
62-4-38      Right of action when third person is liable--Election by employee--Offset of recovered damages.
62-4-39      Compensation paid by employer--Reimbursement from damages recovered from third party.
62-4-40      Recovery by employer from third party--Excess held for employee.
62-4-41      Priority of rights to compensation.
62-4-42      Assignment of payments prohibited--Certain compensation exempt from claims of creditors.
62-4-43      Selection of medical practitioner or surgeon by employee.
62-4-44      Report to be submitted to employer and department by treating practitioner or surgeon--Time limit..
62-4-45      Information about injury to be made available--Penalty for withholding information.
62-4-46      Benefits precluded by intentional misrepresentation of employee's physical condition--Burden of proof.
62-4-47      Written request to stop payments--Fraud--Injury outside of employment.
62-4-48      Investigation of written request to stop payments.
62-4-49      Confidentiality of investigative records--Release--Misdemeanor.
62-4-50      Immunity for good faith written request of investigation--False written request as misdemeanor.
62-4-51      Fraudulent workers' compensation claims as misdemeanor.
62-4-52      Definition of terms.
62-4-53      Permanent total disability--Burden of proof--Moving expenses paid by employer in certain cases.
62-4-54      Determining usual and customary line of employment.
62-4-55      Suitable, substantial, and gainful employment defined.


62-4-1Medical and hospital expense.

The employer shall provide necessary first aid, medical, surgical, and hospital services, or other suitable and proper care including medical and surgical supplies, apparatus, artificial members, and body aids during the disability or treatment of an employee within the provisions of this title. Repair or replacement of damaged prosthetic devices is compensable and is considered a medical service under this section if the devices were damaged or destroyed in a work related accident. Repair or replacement of damaged hearing aids, dentures, prescription eyeglasses, eyeglass frames, or contact lenses is considered a medical service under this section if the hearing aids, dentures, prescription eyeglasses, eyeglass frames, or contact lenses were damaged or destroyed in an accident which also causes another injury which is compensable under this law. The employee shall have the initial selection to secure the employee's own physician, surgeon, or hospital services at the employer's expense. If the employee selects a health care provider located in a community not the home or workplace of the employee, and a health care provider is available to provide the services needed by the employee in the local community or in a closer community, no travel expenses need be paid by the employer or the employer's insurer.

Source: SDC 1939, § 64.0401; SL 1939, ch 297, § 1; SL 1943, ch 314; SL 1949, ch 442; SL 1951, ch 468; SL 1959, ch 455; SL 1963, ch 458; SL 1965, ch 305; SL 1969, ch 285; SL 1970, ch 277; SL 1971, ch 280; SL 1973, ch 310, § 1; SL 1989, ch 451, § 1; SL 1990, ch 416, § 1; SL 1993, ch 375, § 39A; SL 1993, ch 381, § 1; SL 1999, ch 261, § 4.


62-4-1.1Employer's duties upon receipt of medical bill.

Within thirty days after receiving a properly submitted bill for medical payments, the employer shall:

(1)    Pay the charge or any portion of the bill that is not denied;

(2)    Deny all or a portion of the bill on the basis that the injury is not compensable, or the service or charge is excessive or not medically necessary; or

(3)    Request additional information to determine whether the charge or service is excessive or not medically necessary or whether the injury is compensable.

Source: SL 2008, ch 279, § 1.


62-4-1.2Fine for noncompliance.

An employer that fails, refuses, or neglects to comply with the provisions of § 62-4-1.1 is subject to a administrative fine of five hundred dollars payable to the Department of Labor and Regulation for each act of noncompliance, unless the employer had good cause for noncompliance. The department may promulgate rules pursuant to chapter 1-26 to establish standards for medical bill submissions pursuant to § 62-4-1.1.

Source: SL 2008, ch 279, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-1.3Release of medical records.

Upon the request of an employer, an employee subject to this title shall supply a signed medical release to allow copying of any medical record and report relevant to the employee's claim for workers' compensation. If the employee objects to the relevance of any medical record or report, an administrative law judge within the department shall, upon a showing of good cause for the release of such record or report, approve the release of the medical record or report relevant to the employee's claim, to the employer. The employer shall, upon request, provide a copy of all medical records and reports received, to the employee, without cost to the employee.

Source: SL 2008, ch 279, § 3.


62-4-2Waiting period for temporary disability benefits.

No temporary disability benefits may be paid for an injury which does not incapacitate the employee for a period of seven consecutive days. If the seven day waiting period is met, benefits shall be computed from the date of the injury.

Source: SDC 1939, § 64.0403(1); SL 1939, ch 297, § 2; SL 1947, ch 424, § 2; SL 1949, ch 443; SL 1953, ch 486, § 1; SL 1957, ch 494, § 1; SL 1959, ch 457, § 1; SL 1963, ch 460, § 1; SL 1966, ch 264, § 1; SL 1968, ch 268; SL 1972, ch 270; SL 1974, ch 334; SL 1984, ch 340; SL 1994, ch 396, § 16.


62-4-3Amount of temporary total disability compensation.

The amount of temporary total disability compensation paid to an employee for an injury is equal to sixty-six and two-thirds percent of the employee's earnings, but not more than one hundred percent computed to the next higher multiple of one dollar of the average weekly wage in the state as defined in § 62-4-3.1 per week and not less than one-half of the foregoing percentages of the average weekly wage of the state per week. However, if an employee earned less than fifty percent of the maximum allowable amount per week, the amount of compensation may not exceed one hundred percent of the employee's earnings calculated after the earnings have been reduced by any deduction for federal or state taxes, or both, and for the Federal Insurance Contributions Act made from such employee's total wages received during the period of calculation of the employee's earnings.

Source: SDC 1939, § 64.0403(1); SL 1939, ch 297, § 2; SL 1947, ch 424, § 2; SL 1949, ch 443; SL 1953, ch 486, § 1; SL 1957, ch 494, § 1; SL 1959, ch 457, § 1; SL 1963, ch 460, § 1; SL 1966, ch 264, § 1; SL 1968, ch 268; SL 1970, ch 278; SL 1971, ch 281; SL 1972, ch 271; SL 1973, ch 309, § 1; SL 1976, ch 322, § 1; SL 1978, ch 370, § 5; SL 1984, ch 341; SL 1996, ch 307, § 3.


62-4-3.1Annual computation of average weekly wage in state--Period for which applied.

For the purpose of § 62-4-3 the average weekly wage in the state shall be determined by the Department of Labor and Regulation as follows: On or before June first of each year, the total wages reported on contribution reports to the agency administering the Employment Security Act for the preceding calendar year shall be divided by the average monthly number of insured workers (determined by dividing the total insured workers reported for the preceding year by twelve). The average annual wage thus obtained shall be divided by fifty-two and the average weekly wage thus determined rounded to the nearest cent. The average weekly wage so determined shall apply to injuries and disablements in the case of disease which occur within the fiscal year commencing July first following the June first determination and shall be applicable for the full period during which weekly benefits are payable, except as provided in § 62-7-33.

Source: SL 1973, ch 309, § 2; SL 1981, ch 373; SL 1993, ch 383, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-4Repealed by SL 1978, ch 370, § 6.


62-4-5Compensation for partial disability.

If, after an injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing the employee's usual and customary line of employment, or if the employee has been released by the employee's physician from temporary total disability and has not been given a rating to which § 62-4-6 would apply, the employee shall receive compensation, subject to the limitations as to maximum amounts fixed in § 62-4-3, equal to one-half of the difference between the average amount which the employee earned before the accident, and the average amount which the employee is earning or is able to earn in some suitable employment or business after the accident. If the employee has not received a bona fide job offer that the employee is physically capable of performing, compensation shall be at the rate provided by § 62-4-3. However, in no event may the total calculation be less than the amount the claimant was receiving for temporary total disability, unless the claimant refuses suitable employment.

Source: SDC 1939, § 64.0403 (3); SL 1963, ch 460, § 2; SL 1969, ch 286; SL 1971, ch 282; SL 1978, ch 370, § 7; SL 1993, ch 379, § 2; SL 1995, ch 296, § 8; SL 1999, ch 261, § 5.


62-4-5.1Compensation during period of rehabilitation--Procedure.

If an employee suffers disablement as defined by subdivision 62-8-1(3) or an injury and is unable to return to the employee's usual and customary line of employment, the employee shall receive compensation at the rate provided by § 62-4-3 up to sixty days from the finding of an ascertainable loss if the employee is actively preparing to engage in a program of rehabilitation as shown by a certificate of enrollment. Moreover, once such employee is engaged in a program of rehabilitation which is reasonably necessary to restore the employee to suitable, substantial, and gainful employment, the employee shall receive compensation at the rate provided by § 62-4-3 during the entire period that the employee is engaged in such program. Evidence of suitable, substantial, and gainful employment, as defined by § 62-4-55, shall only be considered to determine the necessity for a claimant to engage in a program of rehabilitation.

The employee shall file a claim with the employee's employer requesting such compensation and the employer shall follow the procedure specified in chapter 62-6 for the reporting of injuries when handling such claim. If the claim is denied, the employee may petition for a hearing before the department.

Source: SL 1974, ch 333, § 4; SL 1978, ch 370, § 8; SL 1989, ch 451, § 2; SL 1990, ch 30, § 20; SL 1994, ch 396, § 9; SL 1998, ch 299, § 1.


62-4-6Additional compensation for specific bodily injuries.

For injuries in the following schedule, an employee shall receive in addition to compensation provided by §§ 62-4-1, 62-4-3, and 62-4-5.1, compensation for the following further periods, subject to the limitations as to rate and amounts fixed in § 62-4-3, for the specific medical impairment herein mentioned, but may not receive any compensation under any other provisions of this title:

(1)    For the loss of a thumb, or the permanent and complete loss of its use, fifty weeks of compensation;

(2)    For the loss of a first finger, commonly called the index finger, or the permanent and complete loss of its use, thirty-five weeks of compensation;

(3)    For the loss of a second finger, or the permanent and complete loss of its use, thirty weeks of compensation;

(4)    For the loss of a third finger, or the permanent and complete loss of its use, twenty weeks of compensation;

(5)    For the loss of fourth finger, commonly called the little finger, or the permanent and complete loss of its use, fifteen weeks of compensation;

(6)    The loss of the first phalange of the thumb, or of any finger, shall be considered to be equal to the loss of one-half of such thumb or finger and compensation shall be one-half of the amounts specified; compensation for the loss of less than the first phalange of a thumb or finger shall be in such proportion as the partial loss bears to the loss of the first phalange;

(7)    The loss of more than one phalange, or fraction thereof, shall be considered as the loss of the entire finger or thumb, but in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand;

(8)    For the loss of a great toe, thirty weeks of compensation;

(9)    For the loss of one or more of the toes other than the great toe, ten weeks, and for the additional loss of one or more toes other than the great toe, an additional ten weeks of compensation;

(10)    The loss of the first phalange of any toe shall be considered to be equal to the loss of one-half of such toe, and compensation shall be one-half the amount above specified; compensation for the loss of less than the first phalange of a toe shall be in such proportion as the partial loss bears to the loss of the first phalange;

(11)    The loss of more than one phalange, or fraction thereof, shall be considered as the loss of the entire toe;

(12)    For the loss of a hand, or the permanent and complete loss of its use, one hundred fifty weeks of compensation;

(13)    For the loss of an arm, or the permanent and complete loss of its use, two hundred weeks of compensation;

(14)    Amputation of the arm below the elbow shall be considered the loss of a hand, if enough of the forearm remains to permit the use of an effective artificial member; otherwise it shall be considered as the loss of an arm;

(15)    For the loss of a foot, or the permanent and complete loss of its use, one hundred twenty-five weeks of compensation;

(16)    For the loss of a leg, or the permanent and complete loss of its use, one hundred sixty weeks of compensation;

(17)    Amputation of the leg below the knee shall be considered as the loss of a foot, if enough of the lower leg remains to permit the use of an effective artificial member; otherwise it shall be considered as the loss of a leg;

(18)    For the loss of the sight of an eye, one hundred fifty weeks of compensation;

(19)    For the permanent and complete loss of hearing in one ear, fifty weeks of compensation;

(20)    For the permanent and complete loss of hearing in both ears, one hundred fifty weeks of compensation;

(21)    For permanent partial disability resulting from injury to the back, compensation for that proportion of three hundred twelve weeks which is represented by the percentage that such permanent partial disability bears to the body as a whole;

(22)    In all cases in the above schedule under this section, if the medical impairment is partial and permanent, the compensation shall bear such relation to the maximum amount for complete and permanent loss as defined in this section as the medical impairment bears to the complete loss;

(23)    The loss of both hands or both arms, or both feet, or both legs, or both eyes or of any two thereof, or complete and permanent paralysis, or total and permanent loss of mental faculties, or any other injury which totally incapacitates the employee from working at any occupation which brings him an income, shall constitute total disability, to be compensated according to the compensation fixed by § 62-4-7. These specific cases of total and permanent disability shall not be construed as excluding other cases of total or permanent disability;

(24)    For permanent disfigurement, or permanent disability resulting from injury to any part of the body not hereinbefore listed, compensation for that portion of three hundred twelve weeks which is represented by the percentage that such permanent partial disability or permanent disfigurement bears to the body as a whole.

Source: SDC 1939, § 64.0403 (4); SL 1945, ch 354; SL 1947, ch 424, § 3; SL 1969, ch 287, §§ 1, 2; SL 1971, ch 283; SL 1975, ch 322, § 4; SL 1978, ch 370, §§ 9, 10; SL 1994, ch 396, § 6; SL 1996, ch 307, § 2.


62-4-7Compensation for permanent total disability--Annual increase.

In case of total disability as defined in subdivision 62-4-6(23), compensation shall be paid at the rate provided by § 62-4-3 for life with an annual increase in the amount of the benefit allowance for each year commencing on the July first that is at least twelve months following the date on which the benefit was first payable equal to one hundred percent of the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the United States Department of Labor for the prior calendar year, not to exceed a three percent increase compounded annually.

For injuries occurring on or after July 1, 1993, if an employee is entitled to compensation under this section and is also receiving old-age insurance benefits under section 202 of the Social Security Act (42 U.S.C., § 402), the compensation payable shall be a sum equal to one hundred fifty percent of the compensation payable under § 62-4-7 less the old-age insurance benefit under § 202 of the Social Security Act (42 U.S.C., § 402). However, benefits payable by the employer may not exceed the amount payable pursuant to § 62-4-7. This section does not apply to any person who is entitled to old-age insurance benefits at the time of the injury.

Source: SL 1917, ch 376, § 24; RC 1919, § 9459 (6); SL 1919, ch 363, § 5; SL 1921, ch 419, § 2; SDC 1939, § 64.0403 (5); SL 1947, ch 424, § 4; SL 1953, ch 486, § 2; SL 1957, ch 494, § 2; SL 1959, ch 457, § 2; SL 1963, ch 460, § 3; SL 1966, ch 264, § 2; SL 1967, ch 347; SL 1968, ch 269; SL 1970, ch 279; SL 1973, ch 311; SL 1978, ch 370, § 11; SL 1988, ch 417; SL 1993, ch 379, §§ 3, 3A.


62-4-7.1Prospective application of benefit increase in § 62-4-7.

The annual increase in benefit allowance provided by § 62-4-7 also applies to any total disability occurring before July 1, 1989. The annual increase in benefit allowance for such a total disability applies prospectively from July 1, 2000.

Source: SL 2000, ch 253, § 1.


62-4-8Death resulting from injury--Payments to personal representative or beneficiaries of deceased.

In case death occurs as a result of the injury, then if the employee leaves any spouse, child, parent, grandparent, or lineal heir entitled to compensation under §§ 62-4-12 to 62-4-15, inclusive, the compensation shall be paid at the option of the employer, either to the personal representative or the beneficiaries of the deceased employee and distributed as provided in § 62-4-17. However, in no case may the amount payable under this section be less than five hundred dollars.

Source: SL 1917, ch 376, § 24; RC 1919, § 9459 (7); SDC 1939, § 64.0403 (6); SL 1964, ch 225, § 2; SL 1978, ch 359, § 25; SL 2008, ch 278, § 15.


62-4-8.1Scholarships provided to certain persons receiving workers' compensation benefits--Eligibility.

Scholarships shall be provided for the spouses and dependent children of employees who die as a result of compensable work-related injuries if the dependents are entitled to benefits pursuant to this chapter. Scholarships are payable to accredited postsecondary education institutions in South Dakota on behalf of the dependent students attending the institutions. Eligible dependents may qualify for a maximum of two thousand dollars per year, while attending a postsecondary education institution. No student may receive assistance pursuant to this section for more than five years. The secretary of the Department of Labor and Regulation shall promulgate rules, pursuant to chapter 1-26, to implement this section.

Source: SL 1998, ch 300, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-9Repealed by SL 1974, ch 333, § 7.


62-4-10Installment payments of compensation.

All compensation provided for in §§ 62-4-3 to 62-4-7, inclusive, shall be paid in installments at the same intervals at which the wages or earnings of the employee were paid at the time of the injury. However, if this is not feasible, then the installments shall be paid weekly.

Source: SL 1917, ch 376, § 24; RC 1919, § 9459 (9); SDC 1939, § 64.0403 (8); SL 2008, ch 278, § 16.


62-4-10.1Penalty for untimely payment of installments--Other remedies.

Failure to make any payment of workers' compensation benefits pursuant to § 62-4-10 within ten days of the date on which the payment is due shall result in an automatic penalty equal to ten percent of the unpaid amount. Nothing herein precludes any other remedy available to the claimant.

Source: SL 1991, ch 418.


62-4-11Specific bodily injuries--Death before full payment of installments--Payments to dependents.

If an employee receives an injury for which a specific schedule of payments is provided by § 62-4-6; and the employee thereafter dies from causes other than the injury before the full payment of all installments due for the specific injury have been paid to the employee, the employer shall pay the balance due under the specific schedule of payments as provided in § 62-4-6, to the employee's dependents as provided in §§ 62-4-12 to 62-4-22, inclusive.

Source: SL 1957, ch 497; SDC Supp 1960, § 64.0403-1; SL 2008, ch 278, § 17.


62-4-12Injury resulting in death--Compensation to spouse or children--Remarriage--Full-time students.

The amount of compensation which shall be paid for an injury to the employee resulting in death, if the employee leaves a spouse, child or children, shall be paid at the rate provided by § 62-4-3 for life or until remarriage in the case of a spouse. If the spouse remarries, two years' benefits shall be paid to the spouse in a lump sum. The amount of compensation which shall be paid for an injury to the employee resulting in death, if the employee leaves any children and no spouse, shall be paid at the rate provided by § 62-4-3 until the child is age eighteen or for life in the case of any child who is physically or mentally incapable of self-support or until age twenty-two for any child enrolled as a full-time student in any accredited educational institution. If any child is not in the custody of the surviving spouse, the compensation shall be divided pursuant to the provisions of § 62-4-12.1.

Source: SDC 1939, § 64.0402 (1); SL 1943, ch 315; SL 1945, ch 352; SL 1947, ch 424, § 1; SL 1953, ch 485; SL 1955, ch 438; SL 1959, ch 456, § 1; SL 1963, ch 459; SL 1964, ch 225, § 1; SL 1965, ch 306; SL 1967, ch 346; SL 1971, ch 284, § 1; SL 1973, ch 312, § 1; SL 1975, ch 322, § 5; SL 1994, ch 397; SL 2003, ch 259, § 1.


62-4-12.1Injury resulting in death--Compensation to spouse or children--Children not in custody of surviving spouse.

The amount of compensation which shall be paid for an injury to the employee resulting in death, if the employee leaves any child who is not in the custody of the surviving spouse, shall be paid at the rate provided by § 62-4-3, with half of the amount being paid to the surviving spouse. The other half shall be paid to the surviving child or in equal shares to the surviving children, until age eighteen, or for life in the case of a child who is physically or mentally incapable of self-support, or until age twenty-two for any child enrolled as a full-time student in any accredited educational institution. When a child is no longer eligible for benefits, his or her share shall be paid to the surviving spouse.

Source: SL 2003, ch 259, § 2.


62-4-13Injury resulting in death--Additional compensation for child under eighteen.

For an injury to the employee resulting in death, if the employee leaves any child or children under the age of eighteen years whom the employee was under legal obligation to support at the time of the injury, in addition to the sum provided by § 62-4-12, there shall be paid for each of said children, the sum of fifty dollars per month until such child reaches the age of eighteen years.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (1); SDC 1939, § 64.0402 (1); SL 1947, ch 424, § 1; SL 1953, ch 485; SL 1955, ch 438; SL 1959, ch 456, § 1; SL 1963, ch 459; SL 1964, ch 225, § 1; SL 1965, ch 306; SL 1967, ch 346; SL 1971, ch 284, § 2; SL 1973, ch 312, § 2.


62-4-14Injury resulting in death--No surviving spouse or children--Payment to dependent parent, grandparent, or minor sibling.

The amount of compensation which shall be paid for an injury to the employee resulting in death, if no amount is payable under § 62-4-12, and the employee leaves any parent, grandparent, or minor sibling, who were dependent upon the employee for support at the time of the employee's injury, shall be such a percentage of the sum provided in § 62-4-12 as the average annual contributions which the deceased made to the support of the parent, grandparent, or minor sibling during two years preceding the injury bear to the employee's earnings during the two years.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (2); SDC 1939, § 64.0402 (1); SDC 1939, § 64.0402 (2) as enacted by SL 1945, ch 352; SL 1947, ch 424, § 1; SL 1959, ch 456, § 2; SL 2008, ch 278, § 18.


62-4-15Injury resulting in death--Payments to dependent collateral heirs.

The amount of compensation which shall be paid for an injury to the employee resulting in death, if no amount is payable under § 62-4-12 or 62-4-14, and the employee leaves collateral heirs dependent at the time of the injury to the employee upon the employee's earnings, shall be such a percentage of the sum provided in § 62-4-12 as the average annual contributions which the deceased made to the support of the collateral dependent heirs during two years preceding the injury bear to the employee's earnings during the two years.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (3); SDC 1939, § 64.0402 (2); SDC 1939, § 64.0402 (3) as enacted by SL 1945, ch 352; SL 2008, ch 278, § 19.


62-4-16Burial and transportation expenses paid when death results from injury.

The employer shall pay the burial expense and the expense of a headstone grave marker for an employee whose death resulted from an injury, in an amount not to exceed the sum of ten thousand dollars. If the death occurred in a foreign state or outside the community where the employee is to be buried, the employer shall also pay the cost of transporting the body of the employee to the community where the employee is to be buried.

Source: SDC 1939, § 64.0402 (4) as enacted by SL 1945, ch 352; SL 1945, ch 353; SL 1959, ch 456, § 2; SL 1966, ch 263; SL 1971, ch 285; SL 1976, ch 322, § 2; SL 1982, ch 375; SL 1985, ch 398; SL 1996, ch 305; SL 2009, ch 274, § 1; SL 2010, ch 249, § 2.


62-4-17Installment payment of death benefits.

The compensation, except for additional benefits for children under eighteen years of age, provided for in §§ 62-4-12 to 62-4-15, inclusive, to be paid in case injury results in death, shall be paid in installments equal to two-thirds of the average earnings, at the same intervals at which the wages or earnings of the employee were paid, at which time the additional benefits for children under eighteen years of age shall also be paid. However, if this is not feasible, then the installments shall be paid weekly.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (5); SDC 1939, § 64.0402 (4); SDC 1939, § 64.0402 (5) as enacted by SL 1945, ch 352; SL 1947, ch 424, § 1; SL 1959, ch 456, § 2; SL 1980, ch 365, § 4; SL 2008, ch 278, § 20.


62-4-18Death benefits--Payment to personal representative or beneficiaries--Distribution to heirs.

The compensation to be paid for injury which results in death, as provided in §§ 62-4-12 to 62-4-22, inclusive, shall be paid at the option of the employer either to the personal representative of the deceased employee or to the employee's beneficiaries, and shall be distributed to the heirs who formed the basis for determining the amount of compensation to be paid by the employer, the distributees' share to be in proportion of their respective dependency at the time of the injury on the earnings of the decedent. In the judgment of the court appointing the personal representative, a child's distributive share may be directed paid to the parent for the support of the child.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (6); SL 1921, ch 420; SDC 1939, § 64.0402 (5); SDC 1939, § 64.0402 (6) as enacted by SL 1945, ch 352; SL 2008, ch 278, § 21.


62-4-19Payment of death benefits to personal representative--Release of employer from obligation.

The payment of compensation by the employer to the personal representative of the deceased employee pursuant to § 62-4-18 shall relieve the employer of all obligation as to the distribution of the compensation. The personal representative shall make payment to the distributees pursuant to the order of the court making the appointment.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (6); SL 1921, ch 420; SDC 1939, § 64.0402 (5); SDC 1939, § 64.0402 (6) as enacted by SL 1945, ch 352; SL 2008, ch 278, § 22.


62-4-20Payment of death benefits to surviving spouse for minor children--Conservatorship not required.

With the consent and approval of the secretary of labor and regulation, an employer may pay to the surviving spouse of a deceased, the compensation payable to the spouse and the minor children of the deceased under §§ 62-4-12 and 62-4-13 without the necessity of the appointment of a conservator for the minor children. The payment of the compensation by the employer shall relieve the employer of all obligation as to the distribution of the compensation so paid. Except in those cases where a lump-sum settlement has been made, approval by the secretary may at any time be revoked or modified for cause.

Source: SL 1921, ch 420; SDC 1939, § 64.0402 (5); SDC 1939, § 64.0402 (6) as enacted by SL 1945, ch 352; SL 1978, ch 359, § 26; SL 1993, ch 213, § 262; SL 2008, ch 278, § 23; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-21Spouse of deceased employee--Qualification for benefits.

No compensation is payable under §§ 62-4-12 to 62-4-22, inclusive, to the surviving spouse of a deceased employee unless that spouse was, at the time of the death, living with the deceased employee, or was then dependent upon the deceased employee for support, or was then living apart from the deceased employee for justifiable cause or because of desertion by the deceased employee.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (7); SL 1919, ch 363, § 1; SDC 1939, § 64.0402 (6); SDC 1939, § 64.0402 (7) as enacted by SL 1945, ch 352; SL 1968, ch 267; SL 1977, ch 421, § 1; SL 2008, ch 278, § 24.


62-4-22Transfer of surviving spouse's right to compensation to surviving child.

If any dependent of a deceased employee dies, the right of the dependent to compensation under §§ 62-4-12 to 62-4-21, inclusive, ceases. However, if the surviving spouse dies or remarries while receiving or entitled to receive such compensation, that compensation shall be payable to any eligible surviving child or children of the deceased employee in accordance with § 62-4-12. Upon remarriage of the surviving spouse, payments to the eligible surviving child or children as provided for in this section may not commence until the expiration of two years from the date of remarriage.

Source: SL 1917, ch 376, § 23; RC 1919, § 9458 (7); SL 1919, ch 363, § 1; SDC 1939, § 64.0402 (6); SDC 1939, § 64.0402 (7) as enacted by SL 1945, ch 352; SL 1968, ch 267; SL 1976, ch 322, § 3; SL 1977, ch 421, § 2; SL 1991, ch 419.


62-4-23Repealed by SL 1978, ch 359, § 27.


62-4-24Employment for year preceding injury--Determination of average weekly wage.

As to an employee in an employment in which it is the custom to operate throughout the working days of the year, and who was in the employment of the same employer in the same grade of employment as at the time of the injury continuously for fifty-two weeks next preceding the injury, except for any temporary loss of time, the average weekly wage shall, where feasible, be computed by dividing by fifty-two the total earnings of the employee as defined in subdivision 62-1-1(6), during the period of fifty-two weeks. However, if the employee lost more than seven consecutive days during the period of fifty-two weeks, then the division shall be by the number of weeks and fractions thereof that the employee actually worked.

Source: SL 1917, ch 376, §§ 26, 55; RC 1919, §§ 9461, 9490; SDC 1939, § 64.0404 (1) (a); SL 1978, ch 370, § 12; SL 2008, ch 278, § 25.


62-4-25Employment for less than year preceding injury--Determination of average weekly wage.

As to an employee in an employment in which it is the custom to operate throughout the working days of the year, but who is not covered by § 62-4-24, the average weekly wages shall, where feasible, be ascertained by computing the total of the employee's earnings during the period the employee worked immediately preceding the employee's injury at the same grade of employment for the employer by whom the employee was employed at the time of the employee's injury, and dividing such total by the number of weeks and fractions thereof that the employee actually worked. However, if such method of computation produces a result that is manifestly unfair and inequitable or if by reason of the shortness of time during which the employee has been in such employment, or the casual nature or terms of the employment, it is impracticable to use such method, then regard shall be had to the average weekly amount which during fifty-two weeks previous to the injury was being earned by a person in the same grade, employed at the same work, by the same employer, or if there is no person so employed, by a person in the same grade, employed in the same class of employment in the same general locality.

Source: SL 1917, ch 376, § 55; RC 1919, § 9490; SDC 1939, § 64.0404 (1) (b); SL 2008, ch 278, § 26.


62-4-26Computation of average weekly wage when other methods not feasible.

As to an employee in an employment in which it is the custom to operate throughout the working days of the year and where the situation is such that it is not reasonably feasible to determine the average weekly wages in the manner provided in § 62-4-24 or 62-4-25, the average weekly wages shall be determined by multiplying the employee's average day's earnings by three hundred, and dividing by fifty-two.

Source: SL 1917, ch 376, § 26; RC 1919, § 9461 (4); SDC 1939, § 64.0404 (2).


62-4-27Seasonal employment--Determination of average weekly wage.

As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, the average weekly wages shall be ascertained by multiplying the employee's average day's earnings by number of days which it is customary in such employment to operate during a year, but not less than two hundred, and dividing by fifty-two.

Source: SL 1917, ch 376, § 26; RC 1919, § 9461 (5); SDC 1939, § 64.0404 (3).


62-4-28Employee earning no wages or less than day laborers--Computation of average weekly wage.

As to an employee who earns either no wage or less than the earnings of adult day laborers in the same line of employment in that locality, the average weekly wages shall be reckoned according to the average weekly wages of adults of the same class in the same or, if that is impracticable, then of neighboring employments.

Source: SL 1917, ch 376, § 26; RC 1919, § 9461 (6); SDC 1939, § 64.0404 (4).


62-4-29Apportionment of compensation for subsequent injury.

As to an employee who before the accident for which the employee claims compensation was disabled and drawing compensation under the terms of this title, the compensation for each subsequent injury shall be apportioned according to the proportion of incapacity and disability caused by the respective injuries which the employee may have suffered.

Source: SL 1917, ch 376, § 26; RC 1919, § 9461 (8); SDC 1939, § 64.0404 (5); SL 2008, ch 278, § 27.


62-4-29.1"Claimant" defined for subsequent injury fund claims.

For purposes of subsequent injury fund claims for reimbursement, notwithstanding any other provision of this title, the term, claimant, refers to any person making a claim for reimbursement, including an insurance carrier of an employer, or an employer, if self-insured.

Source: SL 1995, ch 297, § 2.


62-4-30Determination of amount for each installment period.

To determine the amount of compensation for each installment period, the amount per annum shall be ascertained pursuant to §§ 62-4-24 to 62-4-29, inclusive, and such amount divided by the number of installment periods per annum.

Source: SL 1917, ch 376, § 26; RC 1919, § 9461 (9); SDC 1939, § 64.0404 (6).


62-4-31Working week defined.

The term, working week, for the purposes of §§ 62-4-24 to 62-4-30, inclusive, means the number of days contemplated by the employment to be worked by the employee during each calendar week.

Source: SDC 1939, § 64.0405; SL 2008, ch 278, § 28.


62-4-32Repealed by SL 1994, ch 39, § 4.


62-4-33
     62-4-33.   Repealed by SL 2008, ch 278, § 29.


62-4-34 to 62-4-34.2. Repealed by SL 1999, ch 262, §§ 2 to 4.


62-4-34.3Repealed by SL 1995, ch 297, § 1.


62-4-34.4 to 62-4-34.6. Repealed by SL 1999, ch 262, §§ 5 to 7.


62-4-34.7Administration of fund to continue until all valid claims approved, denied or settled--Claim for injury occurring after July 1, 2001, barred--Disposition of fund balance.

Administration of the subsequent injury fund by the Division of Insurance and reimbursement of complete and valid claims shall continue until approved, denied, or settled. No claim for reimbursement from the subsequent injury fund may be filed based on a subsequent injury that occurs on or after July 1, 2001. Any claim for reimbursement filed as set forth in this section shall be approved or denied by the division pursuant to the requirements of §§ 62-4-34 to 62-4-36.3, inclusive, in effect prior to July 1, 1999. The division shall continue to make any necessary assessments pursuant to the requirements set forth in § 62-4-35 in effect prior to July 1, 1999, until all eligible claims completed as set forth in this section that are approved by the division or determined by the court to be eligible for reimbursement are paid, and until all matters in litigation concerning the subsequent injury fund are resolved. Any claim in matters being litigated concerning the subsequent injury fund is not eligible for interest or costs. Any remaining balance in the fund after all obligations of the fund have been satisfied shall be deposited in the general fund. Priority of payment shall be determined as of the date and time they are determined by the division to be complete and valid. No claim against the subsequent injury fund is vested until it is complete as set forth in this section. Any completed claim regardless of the date of injury or the date of notice of claim is subject to the two-thirds method of reimbursement pursuant to § 62-4-34 in effect prior to July 1, 1999.

Source: SL 1999, ch 262, § 1; SL 2001, ch 293, § 1.


62-4-35Repealed by SL 1999, ch 262, § 8.


62-4-36Repealed by SL 1992, ch 365, § 4.


62-4-36.1 to 62-4-36.3. Repealed by SL 1999, ch 262, §§ 9 to 11.


62-4-37Injury or death due to willful misconduct of employee not compensable.

No compensation may be allowed for any injury or death due to the employee's willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure or refusal to use a safety appliance furnished by the employer, or to perform a duty required by statute. The burden of proof under this section is on the defendant employer.

Source: SL 1917, ch 376, § 7; RC 1919, § 9442; SL 1921, ch 421; SDC 1939, § 64.0202; SL 1991, ch 420, § 1; SL 2008, ch 278, § 30.


62-4-38Right of action when third person is liable--Election by employee--Offset of recovered damages.

If an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee's option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any workers' compensation which the employee would otherwise have been entitled to receive.

Source: SDC 1939, § 64.0301; SL 1964, ch 224; SL 1994, ch 398.


62-4-39Compensation paid by employer--Reimbursement from damages recovered from third party.

If compensation has been awarded and paid under this title and the employee has recovered damages from another person, the employer having paid the compensation may recover from the employee an amount equal to the amount of compensation paid by the employer to the employee, less the necessary and reasonable expense of collecting the same, which expenses may include an attorney's fee not in excess of thirty-five percent of compensation paid, subject to § 62-7-36.

Source: SDC 1939, § 64.0301 as added by SL 1964, ch 224; SL 1994, ch 396, § 17.


62-4-40Recovery by employer from third party--Excess held for employee.

If compensation is awarded under this title, the employer having paid the compensation, or having become liable therefor may collect in the employer's own name or that of the injured employee, or the employer's personal representative, if deceased, from any other person against whom legal liability for damage exists, the amount of the liability. The employer shall hold for the benefit of the injured employee or the employee's personal representative, if deceased, the amount of damages collected in excess of the amount of compensation paid the employee or the employee's representative, less the proportionate necessary and reasonable expense of collecting the same, which expenses may include an attorney's fee not in excess of thirty-five percent of damages so collected, and shall be subject finally to the approval of the department.

Source: SL 1917, ch 376, § 11; RC 1919, § 9446; SL 1921, ch 416; SDC 1939, § 64.0301; SL 1964, ch 224; SL 2008, ch 278, § 31.


62-4-41Priority of rights to compensation.

All rights of compensation granted by this title shall have the same preference or priority for the whole thereof against the assets of the employer as is allowed for any unpaid wages for labor.

Source: SL 1917, ch 376, § 14; RC 1919, § 9449; SDC 1939, § 64.0303.


62-4-42Assignment of payments prohibited--Certain compensation exempt from claims of creditors.

No claim for compensation under this title is assignable, and all compensation and claims therefor are exempt from all claims of creditors except those for child and spousal support obligations.

Source: SL 1917, ch 376, § 15; RC 1919, § 9450; SDC 1939, § 64.0304; SL 1986, ch 218, § 60.


62-4-43Selection of medical practitioner or surgeon by employee.

The employee may make the initial selection of the employee's medical practitioner or surgeon from among all licensed medical practitioners or surgeons in the state. The employee shall, prior to treatment, notify the employer of the choice of medical practitioner or surgeon or as soon as reasonably possible after treatment has been provided. The medical practitioner or surgeon selected may arrange for any consultation, referral, or extraordinary or other specialized medical services as the nature of the injury shall require. The employer is not responsible for medical services furnished or ordered by any medical practitioner or surgeon or other person selected by the employee in disregard of this section. If the employee is unable to make the selection, the selection requirements of this section do not apply as long as the inability to make a selection persists. If the injured employee unreasonably refuses or neglects to avail himself or herself of medical or surgical treatment, the employer is not liable for an aggravation of the injury due to the refusal and neglect and the Department of Labor and Regulation may suspend, reduce, or limit the compensation otherwise payable. If the employee desires to change the employee's choice of medical practitioner or surgeon, the employee shall obtain approval in writing from the employer. An employee may seek a second opinion without the employer's approval at the employee's expense.

Source: SL 1990, ch 416, § 3; SL 2008, ch 278, § 32; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-44Report to be submitted to employer and department by treating practitioner or surgeon--Time limit.

A medical practitioner or surgeon first treating an employee shall furnish a report of the injury and treatment to the employer and the Department of Labor and Regulation within fourteen days following the first treatment. The Department of Labor and Regulation may excuse the failure to furnish the report within fourteen days if it finds it to be in the interest of justice to do so. Thereafter, if the employee needs continued medical care or claims to be disabled from employment, the medical practitioner or surgeon shall provide status reports to the employer and the Department of Labor and Regulation at no less than thirty-day intervals. However, no report is required if the medical practitioner or surgeon has not seen the employee since the practitioner's or surgeon's last report.

Source: SL 1990, ch 416, § 4; SL 2008, ch 278, § 33; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-45Information about injury to be made available--Penalty for withholding information.

All medical practitioners or surgeons attending injured employees shall comply with the rules promulgated pursuant to chapter 1-26 by the Department of Labor and Regulation and shall make the reports as may be required by it. All medical and hospital information relevant to the particular injury shall, upon demand, be made available to the employer, employee, insurer and the Department of Labor and Regulation. Medical practitioners, surgeons, or hospitals may charge a reasonable fee for the reproduction of the medical and hospital information. No relevant information developed in connection with treatment or examination for which compensation is sought may be considered a privileged communication for purposes of a workers' compensation claim. If a medical practitioner or surgeon willfully fails to make any report required of the practitioner or surgeon under this section, the Department of Labor and Regulation may order the forfeiture of the practitioner's or surgeon's right to all or part of payment due for services rendered in connection with the particular case.

Source: SL 1990, ch 416, § 5; SL 1993, ch 375, § 43; SL 1995, ch 296, § 10; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-46Benefits precluded by intentional misrepresentation of employee's physical condition--Burden of proof.

A false representation as to physical condition or health made by an employee in procuring employment shall preclude the awarding of workers' compensation benefits for an otherwise compensable injury if it is shown that the employee intentionally and willfully made a false representation as to the employee's physical condition, the employer substantially and justifiably relied on the false representation in the hiring of the employee, and a causal connection existed between the false representation and the injury. The burden is on the employer to prove each of these elements.

Source: SL 1991, ch 420, § 2; SL 2008, ch 278, § 34.


62-4-47Written request to stop payments--Fraud--Injury outside of employment.

An employer, an employer's insurer or a fellow employee may submit a written request to the Department of Labor and Regulation to terminate, modify, or temporarily stop payments to a claimant because the requester has reason to believe that a worker's compensation claim has been paid under fraudulent conditions or that the injury did not arise out of or in the course of the employment. The department shall prescribe the form for the written request.

Source: SL 1993, ch 380, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.


62-4-48Investigation of written request to stop payments.

The department shall order an investigation by the insurer, self-insured employer or administrator of a self-insured plan of the facts contained in a written request made pursuant to § 62-4-47. The investigation shall be completed within ninety days after receipt of the order. After a contested case hearing conducted pursuant to chapter 1-26, the department may order that the claimant's payments be continued, modified, or terminated. If the department has reason to believe that criminal insurance fraud has been committed, it shall disclose its information to law enforcement officers and may assist in the criminal investigative process.

Source: SL 1993, ch 380, § 2.


62-4-49Confidentiality of investigative records--Release--Misdemeanor.

All investigative records and files relating to written requests made pursuant to § 62-4-47 are confidential. No disclosure of any such records, files, or other information may be made except as authorized in this section and § 62-4-48. The names of individuals providing evidence in support of a written request are confidential during the pendency of the request and the investigation. If the records or the testimony of the witness supplying the records are to be admitted at the hearing, the records and the testimony, or both, are discoverable and shall be provided to the claimant and the claimant's attorney. The department may release records, files, or other information to the attorney general, the state's attorney, law enforcement officials, and public officials who require the information in connection with their official duties. A violation of this section is a Class 1 misdemeanor.

Source: SL 1993, ch 380, § 3.


62-4-50Immunity for good faith written request of investigation--False written request as misdemeanor.

Any person or party participating in good faith in the making of a written request pursuant to § 62-4-47 is immune from any liability, civil or criminal, that might otherwise be incurred or imposed and has the same immunity for participation in any judicial proceeding resulting from the request. Immunity extends in the same manner to public officials or employees involved in the investigation of the facts contained in written requests or to any person who in good faith cooperates with the investigation. A written request made in good faith does not constitute the wrongful failure to pay a claim or to pay it on time. Any person or party who knowingly makes a false or malicious written request for an investigation, is guilty of a Class 2 misdemeanor.

Source: SL 1993, ch 380, § 4.


62-4-51Fraudulent workers' compensation claims as misdemeanor.

Any person who knowingly files a fraudulent claim for workers' compensation benefits is guilty of a Class 1 misdemeanor.

Source: SL 1994, ch 399.


62-4-52Definition of terms.

Terms used in § 62-4-53 mean:

(1)    "Community," the area within sixty road miles of the employee's residence unless:

(a)    The employee is physically limited to travel within a lesser distance;

(b)    Consideration of the wages available within sixty road miles and the cost of commuting to the job site makes it financially infeasible to work within such a distance;

(c)    An employee has expanded the employee's community by regularly being employed at a distance greater than sixty road miles of the employee's residence, in which case community shall be defined as that distance previously traveled.

(2)    "Sporadic employment resulting in an insubstantial income," employment that does not offer an employee the opportunity to work either full-time or part-time and pay wages equivalent to, or greater than, the workers' compensation benefit rate applicable to the employee at the time of the employee's injury. Commission or piece-work pay may or may not be considered sporadic employment depending upon the facts of the individual situation. If a bona fide position is available that has essential functions that the injured employee can perform, with or without reasonable accommodations, and offers the employee the opportunity to work either full-time or part-time and pays wages equivalent to, or greater than, the workers' compensation benefit rate applicable to the employee at the time of the employee's injury the employment is not sporadic. The department shall retain jurisdiction over disputes arising under this provision to ensure that any such position is suitable when compared to the employee's former job and that such employment is regularly and continuously available to the employee.

Source: SL 1994, ch 396, § 7; SL 1999, ch 261, § 6.


62-4-53Permanent total disability--Burden of proof--Moving expenses paid by employer in certain cases.

An employee is permanently totally disabled if the employee's physical condition, in combination with the employee's age, training, and experience and the type of work available in the employee's community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. An employee has the burden of proof to make a prima facie showing of permanent total disability. The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the employee in the community. The employer may meet this burden by showing that a position is available which is not sporadic employment resulting in an insubstantial income as defined in subdivision 62-4-52(2). An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. An employee shall introduce expert opinion evidence that the employee is unable to benefit from vocational rehabilitation or that the same is not feasible.

If an employee chooses to move to an area to obtain suitable employment that is not available within the employee's community, the employer shall pay moving expenses of household goods not to exceed four weeks of compensation at the rate provided by § 62-4-3.

Source: SL 1994, ch 396, § 8; SL 1999, ch 261, § 7.


62-4-54Determining usual and customary line of employment.

Usual and customary line of employment is to be determined by evaluation of the following factors:

(1)    The skills or abilities of the person;

(2)    The length of time the person spent in the type of work engaged in at the time of the injury;

(3)    The proportion of time the person has spent in the type of work engaged in at the time of injury when compared to the employee's entire working career; and

(4)    The duties and responsibilities of the person at the workplace. It is not limited by the position held at the time of the injury.

Source: SL 1994, ch 396, § 10.


62-4-55Suitable, substantial, and gainful employment defined.

Employment is considered suitable, substantial, and gainful if:

(1)    It returns the employee to no less than eighty-five percent of the employee's prior wage earning capacity; or

(2)    It returns the employee to employment which equals or exceeds the average prevailing wage for the given job classification for the job held by the employee at the time of injury as determined by the Department of Labor and Regulation.

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


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