An award of permanent total disability benefits to an injured worker was appropriate in spite of allegations by the former employer that the worker abandoned the labor market by moving to Winner, South Dakota, more than 60 miles from Sioux Falls—her former residence and the location of her earlier employment—held the Supreme Court of South Dakota. The Court observed that the worker moved to take up residence with her daughter only after the employer terminated the worker, after the workers’ compensation carrier had stopped paying benefits to the worker, and after the mortgage on the worker’s home had been foreclosed (the worker had no income between September 2008 and April 2009). Moving to the small town was an incidental effect of the worker’s decision to avoid homelessness by accepting her daughter's offer of a replacement home. The worker thought her options were limited to living in her car or moving into the home owned by her daughter. Moreover, the Court indicated the important issue was the availability of work within the "employee's community" [S.D. Codified Laws § 62-4-53], defined as "the area within sixty road miles of the employee's residence" [S.D. Codified Laws § 62-4-52(1)]. The worker’s residence was in Winner, more than 60 miles from Sioux Falls. The availability of regular, suitable work in Sioux Falls was not relevant to the question whether the worker was permanently, totally disabled.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Lagler v. Menard, Inc., 2018 SD 53, 2018 S.D. LEXIS 86 (July 3, 2018)
See generally Larson’s Workers’ Compensation Law, § 84.04.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law