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Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover
Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic
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§ 11.42 South Dakota
§ 11.42[1] Statutory Subrogation Rights
Workers' compensation subrogation in South Dakota is governed
primarily by three statutes:
§ 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.
Each of these three statutes addresses a different aspect of
reimbursement. Section 62-4-38 addresses the situation where a
worker receives workers' compensation benefits as a result of an
injury for which a third party was responsible.1 It deals with
reimbursement of benefits owed but not yet paid when the employee
brings the lawsuit against the third party. It reads as follows:
§ 62-4-38. Right 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.
Section 62-4-39 provides an explanation as to how a third-party
recovery is to be allocated and what the carrier's reimbursement
rights are,. Like § 62-4-38, this section also applies when the
employee initiates the lawsuit, but concerns reimbursement for
benefits already paid. It reads as follows:
§ 62-4-39. Compensation 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 § 62-7-36.2
