NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
An often neglected aspect of a South Dakota permanent total disability claim is there requirement for a reasonable but unsuccessful job search effort on the part of the claimant. This is required unless the claimant is deemed “obviously unemployable” by showing that a job search would be futile, as provided in SDCL 62-4-53. Further, expert testimony is required pursuant to SDCL 62-4-53, providing, “An employee shallintroduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. Seldom is a claimant obviously unemployable, therefore, as part of the claimant’s proof of permanent total disability there must be a showing of a reasonable but unsuccessful job search effort. What constitutes a reasonable job search? It is not something that can be defined by a bright line rule and will vary by the circumstances. It is not just based on the number of job applications or contacts made, but the number is certainly relevant to the determination.
Did the claimant only start looking in the months before hearing? Has significant time passed between the date of release to work and the job search efforts made? Is the claimant only applying to be able to satisfy the unemployment benefit of requiring two contacts a week? What types of jobs are they applying for? Submitting applications for jobs outside of their abilities and/or restrictions should hardly constitute a reasonable search sufficient to satisfy the requirement. Is the claimant registered with job service or South Dakota Vocational Rehabilitation? How is the claimant presenting in the job application or job interview? Sabotaging the application and interview process by their statements and/or presentation does not constitute a reasonable effort to return to work.
Do not neglect this important legal requirement when evaluating a claim for permanent total disability.