Bill Would Clarify South Dakota’s Workers’ Comp Law

A bill introduced in the South Dakota House would clarify state law on when part-time employees injured on the job should also receive workers’ compensation benefits for their other part-time positions.

The proposed legislation stems from a 2015 state Supreme Court ruling that found state law was ambiguous on the issue. In that case, Patricia Wheeler, a Sioux Falls resident injured at her fast-food job, wanted her workers’ comp insurer to cover lost wages from all three of her part-time jobs.

“Most people can see that it is the right outcome under the intent of workers’ compensation, which is to replace lost wages and provide a remedy for injured workers,” said attorney Jolene Nasser, who represented Wheeler. “If you’re injured at work, and it’s work-related, you don’t have any right to sue your employer for negligence. Your only remedy if you’re injured at work is workers’ comp.”

The bill introduced by Rep. David Anderson, R-Hudson, would allow for the aggregation of wages from multiple jobs, but also define when it applies and limits the new law to claims filed after the 2015 ruling. Many of the details and compromises were hashed out ahead of the session by the Workers’ Compensation Advisory Council, chaired by Republican Lt. Gov. Matt Michels.

Anderson said he disagrees with the high court’s ruling, as state workers’ compensation law has been consistently interpreted for decades, and he doubts legislators had any concept of the aggregation of wages when they wrote the law.

Anderson’s bill stops short of requiring seasonal employers from covering wages for non-seasonal jobs, and includes additional wages from other jobs only when an injury prevents the employee from doing those jobs.

Anderson said he feels more comfortable with legislators setting policy than judges.

“That’s part of what happens when the Supreme Court makes a ruling on an individual case, but then it gets interpreted all across the spectrum of possible cases,” Anderson said. “There gets to be questions and things that don’t fit.”

Nasser said she lobbied for the law to cover earlier cases, but businesses and insurers didn’t want the new law to apply to old cases.

Shortly after the Wheeler decision, the National Council on Compensation Insurance warned that the ruling could result in an increase in workers’ comp costs. South Dakota has the highest percentage of multiple job holders — 8.9 percent according to the Bureau of Labor Statistics — compared to other states.