South Dakota Workers' Compensation Laws: Benefits, Deadlines, and Your Rights

South Dakota is one of the few states that does not require employers to carry workers' compensation insurance. The state Department of Labor and Regulation says so plainly: there is no law in South Dakota requiring any employer to carry coverage. Most employers carry it anyway, because insuring under the Act is what buys an employer immunity from being sued over a work injury. If your employer did secure coverage, you receive medical care and partial wage replacement without having to prove fault, and in exchange you generally give up the right to sue your employer in civil court. If your employer did not, you keep that right, plus a second option that is often worth more.

Is workers' comp required in South Dakota?

No. South Dakota is one of a small number of elective states. The South Dakota Department of Labor and Regulation (DLR), Division of Labor and Management, states on its workers' compensation page that there is no law in South Dakota requiring any employer to carry workers' compensation insurance.

The statute works by presumption and election rather than by mandate. SDCL 62-3-3 presumes that every employer and employee has accepted Title 62. But SDCL 62-3-5 provides that no private employer may be deemed to have accepted the title unless it has complied with SDCL 62-5-1 to 62-5-5, the sections that require an employer to secure payment of compensation through an insurer or approved self-insurance. An employer that has not complied is deemed under SDCL 62-5-7 to have elected not to operate under the title.

In practice most South Dakota employers buy coverage voluntarily, because operating under the Act is what gives an employer the exclusive-remedy protection described below. An employer that goes without it keeps full exposure to a civil suit. Coverage is written through private insurers or approved self-insurance plans; South Dakota has no state monopoly fund.

Where the Act does apply, coverage is broad, including part-time and seasonal employees, but Title 62 carries express exclusions. Under SDCL 62-3-15 the title does not apply to farm or agricultural laborers, to work activity participants, or to domestic servants unless they work for an employer more than twenty hours in a calendar week and more than six weeks in a thirteen-week period. Independent contractors who are genuinely self-employed also fall outside the system, though misclassified workers who are economically dependent on the employer may still qualify. If you are unsure whether you are covered, the DLR can help you determine your status.

Benefits you can receive

Workers' compensation in South Dakota covers the full cost of reasonable and necessary medical treatment for a work-related injury or illness, including doctor visits, hospitalization, surgery, physical therapy, and prescription drugs. There are no co-pays or deductibles for authorized medical care.

If your injury keeps you out of work, you are entitled to Temporary Total Disability (TTD) benefits equal to 66 2/3% of your pre-injury average weekly wage, up to a maximum the state agency sets each year. There is a 7-day waiting period before TTD payments begin. If your total disability lasts beyond 7 days, that first week is paid retroactively, so you do not permanently lose it.

South Dakota also provides Temporary Partial Disability (TPD) benefits when you return to lighter duty at reduced pay, Permanent Partial Disability (PPD) benefits for lasting impairment (often calculated from a schedule tied to specific body parts), and Permanent Total Disability (PTD) benefits if you can never return to any gainful work. Death benefits, including burial expenses and wage-replacement payments for dependents, are payable when a work injury is fatal. Vocational rehabilitation is available when a permanent impairment prevents you from returning to your prior occupation.

Deadlines: reporting your injury and filing a claim

South Dakota has several separate deadlines that are easy to confuse, and the most important one does not start on the day you are hurt.

The first clock is the report-to-employer deadline. SDCL 62-7-10 requires written notice of the injury to your employer no later than three business days after it occurs, telling the employer when, where, and how you were hurt. No particular form is required; an email, a text, or a signed form all work. This is one of the shortest reporting windows in the nation, so report even if the injury seems minor at first, because some conditions worsen over days or weeks.

The second clock is the deadline to file a written petition for hearing with the Division of Labor and Management. Under SDCL 62-7-35, the right to compensation is barred unless that petition is filed within two years after the insurer or self-insurer notifies you and the department, in writing, that it intends to deny coverage in whole or in part. Those two years run from the written denial, not from the date of injury. If the denial is only partial, the bar applies only to the denied part. A claim that is still being paid is not running against this clock at all, so a worker whose benefits were paid for three years and then denied is not automatically too late.

A third clock applies once benefits have been paid. Under SDCL 62-7-35.1, where any benefits have been tendered for an injury, a claim for additional compensation is barred unless you file a written petition for hearing within three years from the date of the last payment of benefits. This is the deadline that ends most South Dakota claims, which is why the date of your final check matters.

Occupational disease claims run on a notice deadline of their own. SDCL 62-8-29 forever bars all rights to compensation for disability from an occupational disease unless the worker gives the employer written notice within six months after the employment in which the disease is claimed to have been contracted has ceased. In the case of death from an occupational disease, written notice must be given within ninety days after the death. Both are notice-to-employer deadlines, not deadlines to file with the department.

Choosing your doctor

South Dakota gives injured workers the initial choice of treating physician, and it gives it from the start. SDCL 62-4-1 provides that the employee has the initial selection to secure the employee's own physician, surgeon, or hospital services at the employer's expense, and SDCL 62-4-43 provides that the employee may make that initial selection from among all licensed medical practitioners or surgeons in the state. There is no window during which your employer directs your care. If your employer sends you to a company clinic, you may choose to go, but you are not obliged to treat there.

Two conditions come with that choice. You must tell your employer which practitioner you selected, before treatment or as soon as reasonably possible afterward. And if you later want to change practitioners, SDCL 62-4-43 requires you to obtain approval in writing from your employer first; the employer is not liable for services from a practitioner selected in violation of that section. You may seek a second opinion without your employer's approval, but at your own expense.

If your employer refuses approval for a change you believe is medically necessary, document the request and the refusal in writing and consider consulting a workers' compensation attorney.

Can you sue your employer? The exclusive-remedy rule

Workers' compensation is built on a trade-off. Where an employer operates under Title 62, you receive guaranteed, no-fault benefits, and in exchange that employer is shielded from civil lawsuits arising from the same injury. South Dakota's version of the rule is unusually broad. SDCL 62-3-2 excludes all other rights and remedies not only against the employer but against any employee, partner, officer, or director of the employer, except rights and remedies arising from intentional tort. A negligent co-worker, foreman, or company officer is therefore not a suable third party in South Dakota.

That leaves three routes around the rule. First, an intentional tort is carved out of SDCL 62-3-2 by its own terms, so an employer or co-worker who acted with actual intent to injure you can be sued.

Second, a genuine third party outside the employer's organization can be sued in a personal injury case alongside your workers' comp claim. Think of a negligent equipment manufacturer, a driver who hit you while you were making deliveries, or an unrelated contractor on a jobsite. The immunity above means the third party has to be outside the employer, not a fellow employee or officer of it.

Third, if your employer is deemed not to operate under Title 62 because it never secured coverage, SDCL 62-3-11 gives you an election. You may proceed against the employer in an action at law to recover damages for personal injury or death, or you may proceed against the employer in circuit court under Title 62 as if it had complied, in which case the measure of benefits is that provided by SDCL 62-4-1 plus twice the amount of other compensation allowable under the title. You cannot recover under both. The doubled statutory route does not require you to prove the employer was at fault, which a damages suit at law would, so it is worth pricing both before choosing.

In any situation where you think the exclusive-remedy rule does not apply, speak with a workers' compensation attorney before acting, because the legal standards are fact-specific.

If you were hurt at work in South Dakota

If you suffer a work injury in South Dakota, take these steps immediately.

Report in writing to your supervisor or HR department within 3 business days. Do not rely on a verbal report alone. A written notice (an email, a text, or a signed form) creates a record and protects your claim from a timeliness challenge.

Seek medical care promptly, and remember that the initial choice of practitioner is yours. Tell your employer who you selected as soon as you reasonably can. If you need emergency care, go directly to the nearest emergency room. Do not change practitioners later without getting your employer's written approval first.

File a written petition for hearing with the South Dakota DLR, Division of Labor and Management if your employer or its insurer denies your claim or stops paying. Note the date of the written denial and the date of your last benefit payment, because those two dates start the deadlines that matter. Keep copies of all medical records, treatment bills, communications with the insurer, and any time-loss records from your employer.

If your claim is denied or you are offered a lump-sum settlement, have a South Dakota workers' comp lawyer check your petition deadline and the offer in a free case evaluation (attorney advertising). For a rough number before that call, try our South Dakota workers' comp settlement calculator. Most workers' comp attorneys in South Dakota work on a contingency basis, so there is no upfront cost to get legal advice.

This article is general legal information, not legal advice. Workers' compensation rules vary by state and change, and benefit amounts and deadlines depend on the specific facts. For advice about a specific claim, consult a licensed workers' compensation attorney in South Dakota.

Related

• Workers' Compensation Laws by State: full 50-state hub

More South Dakota Laws

• South Dakota At-Will Employment Laws
• South Dakota Car Accident Laws
• South Dakota Final Paycheck Laws
• South Dakota Slip and Fall Laws
• South Dakota Statute of Limitations

Frequently Asked Questions

Is workers' comp required in South Dakota?

No. The South Dakota Department of Labor and Regulation states that there is no law in South Dakota requiring any employer to carry workers' compensation insurance. The system is elective: SDCL 62-3-5 says an employer is not deemed to have accepted Title 62 unless it secures coverage under SDCL 62-5-1 to 62-5-5, and SDCL 62-5-7 deems an employer that has not complied to have elected not to operate under the title. Most employers insure anyway, because that is what earns the exclusive-remedy protection. An employer that goes uninsured can be sued at law, or pursued under SDCL 62-3-11 for benefits plus twice the other compensation the title allows.

How long does workers' comp last in South Dakota?

Temporary Total Disability benefits continue as long as you are medically unable to work, subject to ongoing verification of your condition. If you reach maximum medical improvement with a lasting impairment, benefits convert to Permanent Partial or Permanent Total Disability payments. There is no single fixed end date; the duration depends on your medical condition.

How much does workers' comp pay in South Dakota?

TTD benefits pay 66 2/3% of your pre-injury average weekly wage, up to a maximum the state sets each year. The maximum changes annually, so check with the South Dakota DLR or your attorney for the current figure.

Can I be fired while on workers' comp in South Dakota?

South Dakota law prohibits employers from retaliating against employees for filing a workers' compensation claim. If you are fired or demoted shortly after filing a claim, that timing can be evidence of unlawful retaliation. You may have a separate legal claim against your employer in addition to your workers' comp benefits.

Can I choose my own doctor for a workers' comp injury in South Dakota?

Yes, from the beginning. SDCL 62-4-1 gives the employee the initial selection of physician, surgeon, or hospital services at the employer's expense, and SDCL 62-4-43 lets you make that selection from among all licensed practitioners in the state. There is no period during which your employer directs your treatment. You do have to tell your employer who you chose, and SDCL 62-4-43 requires written approval from your employer before you change practitioners.

How long do I have to file a workers' comp claim in South Dakota?

Under SDCL 62-7-35 you have two years to file a written petition for hearing, measured from the day the insurer or self-insurer notifies you and the department in writing that it intends to deny coverage, not from the date of injury. If benefits were paid and then stopped, SDCL 62-7-35.1 bars a claim for additional compensation more than three years after the last payment. Separately, you must report the injury to your employer in writing within 3 business days, and for an occupational disease you must give the employer written notice within six months after that employment ended (ninety days after a death from the disease).

Can I sue my employer for a work injury in South Dakota?

Usually no, if the employer secured coverage. SDCL 62-3-2 makes workers' compensation the exclusive remedy against the employer and also against any employee, partner, officer, or director of the employer, so a negligent co-worker or supervisor cannot be sued either. Intentional torts are excepted. You can still sue a genuine outside third party, such as an equipment manufacturer or another driver, and if your employer never secured coverage, SDCL 62-3-11 lets you elect between an action at law for damages and a Title 62 proceeding for double compensation.