Workplace Injury

South Dakota/Wyoming/Nebraska

1. Introduction to Workers’ Compensation Law

   Workers’ Compensation is a no-fault procedure of compensating those individuals injured on the job first instituted in the United States in the early 1900s necessitated by a dramatic rise in the number of people injured in industrial settings. Prior to the enactment of workers’ compensation laws, the only means for an injured worker to recover any compensation to pay for medical expenses and loss of income, was to commence a lawsuit accusing the employer of negligence. Even if the injured worker was able to establish negligence on the part of the employer, which was most often not the case, the road to recovery was drawn out and expensive. State legislatures across the United States began to propose the adoption of workers’ compensation laws designed to provide some measure of compensation to the injured worker, regardless of the fault of the employer. Each individual state subsequently enacted its own workers’ compensation laws, without Federal control over such workers’ compensation laws enacted. In general, the workers’ comp law in each such state provides compensation consisting of payment of medical bills, lost income as well as temporary and permanent disability payments for individuals injured in the course of job connected activities.

   What is Workers’ Compensation?

   “Workers’ compensation” refers to state laws outlining benefits to which injured employees are entitled, and the procedures for obtaining such benefits. There are also federal workers’ compensation laws for employees of the federal government and associated occupations. A Workers’ Compensation Act is designed to provide benefits to employees who sustain injuries or occupational illnesses as a result of their employment. Benefits are payable regardless of fault and are administered according to state law.

   Workers’ compensation benefits may provide payment for all reasonable and necessary medical care incurred to treat the work-related injury. Those who are unable to work temporarily, or who are permanently disabled, may be entitled some compensation based on their lost weekly wages. There can also be certain groups of exempt non-covered employees depending on the laws of your state, such as domestic servants, farm or agricultural laborers, independent contractors, certain elected officials, and workfare participants.

   Requirements of Employee

   Immediately upon the occurrence of an injury, or as soon as practicable, an injured employee (or a representative) shall give written notice of injury to their employer. Written notice shall be provided no later than three business days after occurrence. No compensation will be paid unless written notice is given within three business days, unless reasonable excuse is made to the Department of Labor. The employee would not be entitled to reimbursement of any physician’s fee or any compensation which may have accrued prior to the time of giving notice, unless either of the following can be shown:

   • The employer, or the employer’s agent or representative had knowledge of the injury or death, or
   • 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.

2. Basic Features of Workers’ Compensation Law

   The typical Workers’ Compensation statute has the following features:

   1. The Compensable Injury Requirement — A worker is entitled to certain compensation whenever he or she suffers from an accidental injury (or occupational disease) “arising out of” and “in the course or scope of employment.”
      1. “Arising out of” — Generally means that injury was caused by a risk to which the worker was subjected by virtue of his or her employment.
      2. “In the course of” — Generally is a term involving consideration of the time, place and circumstances of the accident in relation to the employment.
   2. Fault Is Irrelevant — Fault on the part of the employer and/or the worker is largely immaterial, although such issues as horseplay, intoxication, and willful disobedience to the instructions of the employer can often defeat such claim.

      Benefits are not allowed when injury is due to willful misconduct, intoxication, illegal use of drugs or failure to use a furnished safety appliance.

   3. Employee vs. Independent Contractor — Coverage is limited to those having the status of an employee, as opposed to an independent contractor. Many employers seek to call their workers’ independent contractors. However, workers’ compensation laws generally permit the injured worker to challenge whether the status of the employee was that of employee, rather than independent contractor. The employer’s failure to deduct taxes from the worker’s paycheck and even a written contract calling the employee an independent contractor are not determinative.
   4. Workers’ Compensation Temporary Total Disability Compensation — Temporary total disability compensation is paid to replace lost income compensation to the worker during the period the worker is out of work and under active medical care and varies from state to state but is generally from one-half to two-thirds of the worker’s average weekly wage. Temporary total disability benefits (TTD) are paid to injured South Dakota workers’ who are unable to work due to a work injury for at least 7 consecutive days. TTD benefits are generally paid at 66 2/3 of the worker’s average weekly wages up to the State’s maximum allowable amount. TTD benefits are paid until the worker is able to return to work or light work. If a worker is able to return to light duty work and the employer is not able to accommodate their restrictions the employer is required to make some effort to find new employment for the injured employee, if possible.

      Workers’ Compensation Insurance carriers seeking to terminate a workers’ temporary total disability compensation often seek what is called an “independent medical examination by a doctor of its own choosing,” but the term “independent” is more often than not misplaced, and a more accurate term would be “defense medical evaluation,” with the doctor usually stating exactly what the insurance company wants the doctor to state so as to limit the extent of the worker’s claim.

   5. Temporary partial disability — If a physician allows an employee who is still recovering from an injury or disease to return to part-time or modified work, and if the employee receives a bona fide job offer, and if the employee is receiving less than his or her usual earnings, the employee may be entitled to temporary partial disability benefits under the applicable law. These benefits are payable until the employee is returned to full employment or until maximum improvement.
   6. Permanent impairment or permanent disability compensation — Most states provide some limited form of compensation to the injured worker for certain categories of permanent injury. These are not to be confused with “general damages” for pain and suffering such as are awarded in liability injury claims.

      Permanent partial disability benefits (PPD) may be paid to workers who suffer a work injury and have a permanent partial disability. Compensation for PPD benefits is based on the nature and extent of the injury.

      Permanent partial disability ratings are calculated based on impairment ratings for injured employees based on guidelines established by the American Medical Association. The impairment (disability) rating is a method used to establish the percentage of the functional loss the worker has suffered.

      Under some conditions, PPD benefits may be paid in a lump sum payment.

   7. Permanent Total Disability (PTD)
      Permanent total disability benefits (PTD) may be paid to workers who have been so severely injured at work that they are unable to return to any type of substantial employment.

      PTD benefits are computed by a formula set by state law.

   8. Death benefits compensation — Most states provide some form of limited compensation for survivors of workers who are killed as a result of job related accidents. Most often the compensation is an effort to somewhat replace the lost stream of income to the decedent’s surviving dependents. It is important to note that unlike a civil injury damage claim in workers’ compensation claim the focus is not upon grief, mental pain and suffering, or loss of society and companionship.
   9. Hospital, medical and vocational rehabilitation expenses — Generally, all reasonable and necessary compensation for medical care required by the injured worker is covered, including prescriptions, medical appliances, etc. The medical condition requiring medical treatment must be causally related to the injury. States differ on the right of the injured worker to choose the person(s) who will provide his/her medical care, with some states leaving this choice entirely up to the claimant and other states heavily regulating it by requiring that physicians be chosen from panels or selected by the employer.

      Vocational rehabilitation benefits vary by state but are generally provided to injured employees who are unable to return to work due to their work injury. Vocational rehabilitation services can include a variety of services which are intended to help the worker either return to their previous job or if the employee is unable to perform their previous employment, than work which is suited to their current physical or mental conditions.

   10. “Statutory Immunity” of the Employer — Third Party Suits — The worker, in exchange for the certainty of receipt of Workers’ Compensation benefits regardless of fault, under most states’ laws is deemed to have forfeited his or her right to sue the employer for negligence and damages for any injury covered by the statute. This is called the “statutory immunity” of employers. However, most states retain the right of the worker to pursue a claim with an “outsider” (a person or company other than the employer) for negligence or any other tort theory of liability. These are called third party suits and allow the injured worker to seek full compensation for his/her injuries and not merely receive the limited benefits under workers’ compensation laws. Examples of these types of claims are motor vehicle collisions due to someone else’s negligence, or generally where the employee is injured due to the negligence of someone other than a co-worker. An injury claim is still allowed against the negligent individual and any applicable insurance in these types of third party claims.
   11. Administration of workers’ compensation claims is most often in the hands of administrative agencies. Rules of procedure and evidence are generally relaxed before these agencies. An Administrative Law Judge presides over workers’ compensation hearings and makes rulings.
   12. Insurance — In most states the employer must secure insurance coverage against workers’ comp claims through the purchase of private insurance or state-fund insurance. Many states have a procedure for authorizing larger, more secure employers to be their own self-insurer. In other states there is a state fund created to pay such claims.

3. Distinction Between Covered Workers’ Compensation Injuries and Occupational Diseases

   1. Covered Injury — In many states an injury must be an event taking place within a relatively short time frame, producing physical harm to the injured worker. Some states require a form of trauma. States will allow almost any claim for an injury which is causally related to work activity.
   2. Occupational Disease — The common element in most occupational disease statutes is a disease or condition which is characteristic of the trade or occupation of the worker, and is shown by medical evidence to be causally related to the trade. In other words, diseases which might be contracted in other occupations or in everyday life apart from employment are usually not compensable.

4. Lack of Insurance or Self-Insurance

   If an employer fails to provide workers’ compensation coverage under the provisions of South Dakota law, an injured employee or the dependents of a deceased employee may proceed against the employer in an action at law to recover damages for the personal injury or death, or may elect to proceed against the employer in circuit court under the provisions of the workers’ compensation law as if the employer had elected to operate thereunder with the measure of benefits for the employee being all medical expenses and often twice the amount of disability or death compensation allowed under the law.

An injured worker should first confer with the personal injury attorneys at to determine if the injured worker may have an injury claim versus merely a work comp claim. Most commonly, since work comp laws are designed to limit an employer’s responsibility for the injuries to an employee, benefits are limited. An injury claim involving a third party most often will provide the injured employee with a significantly greater recovery than the meager benefits allowed by no-fault work comp laws.

If you have questions concerning a workers’ compensation claim, contact Moore·Faust Injury Law Group for a free confidential consultation.

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