STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 4, 1969

Thomas R. Vickerman
Deputy Industrial Commissioner
State Capitol
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-7

Clarification of SDC 64.0403(1) as last amended by Chapter 268 of the Session Laws of 1968 relating to the waiting period for entitlement to benefits of Workmen's Compensation injury benefits

Dear Mr. Vickerman:

You have requested an official opinion to clarify the discrepancy in interpretation of SDC 64.0403(1), as last amended by Chapter 268 of the Session Laws of 1968.

This statute, as it applies to the problem presented, reads as follows:

"(1) Except as otherwise provided in this subsection, no compensation shall be paid for an injury which does not incapacitate the employee for a period of at least seven days from earning full wages. If such incapacity extends beyond the seven days, compensation shall begin on the eighth day after the injury, except that if such disability continues for four weeks or longer such compensation shall be computed from the date of injury."

You have advised that there are two interpretations of this statute prevalent within the state. One interpretation is that the seven days as used in the statute refers to "working days," while the other interpretation is that such refers to "calendar days." You have indicated that you have always interpreted the statute to refer to calendar days.

Because of the divergence in interpretation you have asked me to issue an official opinion to clarify the interpretation of the statute.

As pointed out in Schneider, "Workmen's Compensation" 2nd edition, page 133 Section 399, and carried forward into 11 Schneider, "Workmen's Compensation" (Permanent Edition) p 551 et seq Section 2320, all states have a certain waiting period in their statutes before benefits under the statutes become payable. The time limitation varies from state to state. The general purpose of such waiting period is to prevent any workman so inclined from taking advantage of a slight, or imaginary strain or injury as an excuse from obtaining a few days vacation on half or two-thirds pay. This statement has received judicial approval.

See:

Cammie v. I.T.E. Circuit Breaker Co. (1943) 151 Pa Super 246, 30 A 2d 225;

Hanson v. Benson (Alaska Dist Ct 1959) Supp 130;

Rinne v. W. C. Griffis Co. (Minn 1951) 4 NW 2d 872.

In Oviatt v. Oviatt Dairy Inc. (1963) 80 SD 83, 119 NW 2d 649 (citing earlier cases) our Court pointed out that the Workmen's Compensation statute is remedial in character and entitled to a liberal construction. In other jurisdictions the Court has pointed out that such statutes must be given a practical construction. Jewel Tea Co. v. Industrial Commission, 6 III 2d 304, 128 NE 2d 699; Hanson v. Benson (Dist Ct of Alaska) 179 Fed Supp 130. See also Waters v. W.J. Taylor Co, 218 NY 248, 12 NE 727, LRA 1917 A 347, and Aetna Life Ins. Co. v. State Industrial Commission, 109 Okla 65.

In Livestock State Bank v. State Banking Commission (1964) 80 SD 491, 127 NW 2d 139, our Court pointed the rule out that administrative interpretation of a statute, if of long standing, may be considered in determining legislative intent, has no application when the statute in question is unambiguous.

Schneider has noted that because in the ordinary cases, the differences between payment is so small, that there are few court decisions in interpreting the various statutes placing "waiting periods" in Workmen's Compensation laws. An investigation of the indices to the Workmen's Compensation Law shows that this statement is all too true.

My investigation of legal precedents has been unable to disclose any court having given an exact answer to your question. In cases where the workman has not lost the requisite number of days the court has had no hesitation to hold that no benefits have been earned. (See Whitby v. Armour & Co. (1923) 114 Kan 445, 219 P 253, Aetna Life Ins. Co. v. State Industrial Commission (1925) 109 Okla 65, 234 P 765, and Nu-Way Laundery Co. v. Trice (Okla 1938) 78 P 2d 706.) However, your attention is called to the interesting case of Hanson v. Benson (Alaska) 179 Fed Supp 130 where the court held that the return to work during such statutory waiting period was not an absolute bar to recovering benefits. In that case the court held that when expert medical testimony was presented showing a serious injury occurred, and that the workman was not malingering-such satisfied the purpose of the statute (and citing another Kansas decision)-and therefore, as the statute was satisfied, the benefits were payable.

Cammie v. I.T.E. Circuit Breaker Co., 151 Pa Super 246, 30 A 2d 225 involved two apparently conflicting portions of the Pennsylvania statute. One portion stated that benefit payments were payable "after the seventh day after disability." The other stated that seven days began to run "seven days after disability." The facts showed an injury on September 6, away from work on the 7th, at work on the 8th and 9th of September, and then incapacitated from September 10 through the 21st.

Under such factual situation, counting seven days from the date of injury, payment should have commenced on September 14th. However, the Industrial Commission, following its long time interpretation, held the statute required seven days of disability to elapse prior to the payment of benefits, although such did not require seven consecutive days of disability. Computation under this interpretation placed the benefit payments commencing September 16th.

The court, in a long decision, held that the Commissioner's interpretation set forth the legislative intent. It is interesting to notice that it held such interpretation, while not controlling, was entitled to great weight in interpreting the statute.

In view of the lack of precedent, but in furtherance of the remedial character of the Workmen's Compensation Laws, which must be given a liberal, or practical construction, and finding that the purpose of the South Dakota waiting period is as in other states-to prevent malingering-it is my opinion that the Legislature intended that such seven day period refers to "calendar days," and not to "working days," so that when an employee received an injury which incapacitates him from working so that he is unable to earn his full wages during working days during such period, that after seven calendar days elapse he is entitled to benefits, commencing on the eighth day after injury. However, if such incapacity continues for four weeks or longer, then the compensation benefits are payable from the date of injury.

Respectfully submitted,

Gordon Mydland
Attorney General