Claims for retraining benefits in South Dakota are one of the more difficult claims for a claimant to prove. One would think that encouraging a claimant to return to school to learn a new trade or occupation should be one of the easier claims to establish, but in practice, that has simply proven not to be true.
Claims for retraining or rehabilitation are governed by SDCL 62-4-5.1. This statute provides:
“Compensation 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.”
Judicially, it has been determined that a claimant must meet five requirements before receiving rehabilitation benefits:
(1) The claimant must be unable to return to his usual and customary line of employment;
(2) Rehabilitation must be necessary to restore the claimant to suitable, substantial and gainful employment;
(3) The program of rehabilitation must be a reasonable means of restoring the claimant to employment;
(4) The claimant must file a claim with the employer requesting these benefits; and
(5) The claimant must actually pursue a reasonable program of rehabilitation.
Kurtenbach v. Frito-Lay, 563 NW2d 869 (SD 1997).
Each of the above elements will be discussed separately in blog posts in the upcoming weeks. Please take note, however, that the obligation of the insurer/self-insurer is only to pay the weekly benefit rate during the entire time that the employee is engaged in a program of retraining or rehabilitation. The cost of schooling, tuition, fees, books, etc. are not the obligation of the insurer/self-insurer.